HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: \, Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Appellant (In Jail) Respondent Criminal ADpeal No. 816 of 2005 Dilip Kumar Sahu S/o Ramprasad Sahu, aged about 28 years, R/o Village- Dhothama, P.S. - Jarahagaon Distt.- Bilasppr (C.G.) Versus State of Chhattisgarh (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Arun Kochar, counsel for the appe';ant. Mr. D.K. Gwalre, Govt. Advc ;ate for the State. ORAL JUDGMENT (Passed on 25th August, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29.08.2005 passed by the 2nd Additional Sessions Judge, (FTC) Mungeli District Bilaspur, in Sessions Trial No. 198/2004, whereby & whereunder learned 2 Additional Sessions Judge after holding appellant guilty for commission of culpable homicide amounting to murder of his wife Manjulata (since deceased), convicted the appellant under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/, in defaultof payment of fine to further undergo R.l. for 3 months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. i ^^!i 3. As per case of prosecution, unfortunate deceased Manjulata was residing with appel!ant in his house situated at village Dhothama, district Bilaspur. On 11.03.2004'vat about 7:30 am, appellant after playing tape-recorder strangulated the neck of deceased and caused her instantaneous death on account of her illicit relationship with brother-in- law of the appellant. Persons present in the house seen the incident. Village Kotwar PW/3-Kanak Das Manikpuri went to police station and lodged F.1.R. Ex.P/4 and merg was recorded vide Ex.P/5. Investigating officer left for scene of occurrencg, after summoning the witnesses vide Ex.P/3-A, inquest over the dead body of deceased was prepared vide Ex.P/3. Dead body was sent for autopsy to Community Health Center, Mungeli. Dr. Sanjay Agrawal (PW/14) conducted autopsy vide Ex.P/13A and found that mode of death was asphyxia due to chocking of respiratory system and death was homicidal in nature. 4. During the course of investigation, appellant was taken into custody. One deck (tape-recorder) was recovered vide Ex.P/9. Viscera and clothes of deceased were seized vide Ex.P/11. Viscera were sent to FSL for examination vide Ex.P/17 and no chemical poison was found in the viscera. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate 1 Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur from where the tearned Additional Sessions Judge, Bilaspur received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 15 witnesses. Statement ofthe accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. He was also examined DW/1-Sunil Kumar Sahu and took defence. 7. After affording oppori:unity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as .aforementioned. r inl ~^/ 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Shri Arun Kochar, learned counsel for the appellant vehemently argued that virtually this is a case of no evidence. As per case of prosecution, appellant was residing with his wife deceased Manjulata and along with him other 15 persons were a1so residing. Deceased died at about 7:30 am as a result of chocking of respiratory system. Prosecution has not adduced any evidence to show that at the time of commission of such offence only two persons i.e. appellant & deceased were present in the house and virtually there is no evidence about appellant to justify his conviction. t 10.0n the other hand, Shri D.K. Gwalre, learned Govt. Advocate for the State opposed the appeal and submit that Court below has rightly convicted and sentenced the appellant aforementioned. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12.1n the present case, homicidal death as a result of chocking of respiratory system of deceased Manjulata has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of Dr. Sanjay Agrawal (PW/14) and autopsy report Ex.P/13-A that death of deceased was homicidal in nature. 13.As regard complicity of the appellant in crime in question is concerned, as per case of prosecution there was only circumstance against the appellant relating to his presence at the time of incident. Prosecution has examined fifteen witnesses but they have not deposed any fact relating to commission of incident by appellant inter alia, as per evidence of prosecution witnesses, out of aforesaid witnesses some are relatives of the appellant & deceased and were residing in the same house, they have not supported the case of prosecution and prosecution has declared PW/1-Ku. Rina and PW/4-Saraswati Bai hostile. Evidence adduced on behalf of prosecution is not sufficient to establish the fact that at the time of commission of offence appellant was present in the roQm along with deceased Manjulata. Incident took place at 7:30 am not r !i •^ at night; therefore, any presumption is not possible that appellant was present in his room along with deceased at night. In these circumstances, no explanation was necessary in terms of Section 106 of the Evidence Act from the appellant. As per evidence of PW/4-Saraswati Bai, sister of deceased Manjulata, 14 to 15 persons were residing in the same house who have not supported the case of prosecution. Appellant cannot be convicted only on the ground that his wife has been killed in his room without any credible and clinching evidence. 14.While convicting and sentencing'appellant under Section 302 ofthe IPC, Court below has not considered the fact that witnesses have not deposed anything against the appellant and thereby committed illegality. 15.Consequently, the appeal is allowed, conviction of the appellant under Section 302 of the I.P.C. is set aside and he is acquitted of the charge. Appellant is in jail. He be set at liberty and be released forthwith, if not required in any other case. 'v'ijay Sd/. T-P- Shan Judgc Sd/- R.N. Chandrakar Judge H i'