;?gl)>\ a, ;;:^!!r HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.256 of 2004 APPELLANT: (InJail) RESPONDENT: Panchram S/o Samelal Harijan, aged 20 years, R/o Mani Mohalla Ward No.l l^anendragarh, Police Station Manendragarh, Distt. Korea (C.G.) Versus State of Chhattisgarh -[Criminal appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: <l Mr. Abhay Tiwari, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. Division Bench: - Hoji'ble Mr^T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORAlJUDGMENT (23-4-2010) T.P. Sharma, 3: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 16-2-2004 passed by the Additional Sessions Judge, Manendragarh in Sessions Trial No.471/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilt for commission of culpable homicide amounting to murder of Madri - cousin of the appellant, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo R.I. for five months. 2. Conviction is impugned on the ground that without any credible, clinching and legal evidence, the trial Court • has convirted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful night of 22-8- 2002 at about 7 p.m. the appellant, alleged cousin of Madri (since deceased), came to the house of Madri and took her with him. They proceeded to village Bhalore. Both the appellant &.the deceased . consumed liquor and while they were going to village Bhalcire, the appellant.committed rape on Madri and wh'en she threatened the 1-tlGH GOURT OFCHHATnSGARH, BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal ADDealNo.256 of 2004 Panchram S/o Samelal Harijan, aged 20 years, R/o Mani Mohalla Ward No.l \ Manendragarh, Police Station Manendragarh, Distt. Korea (C.G.) Versus State of Chhattisgarh {Criminal appeal under3ection 374 (2) ofthe Code ofCriminal Procedure, 1973} tUlSifi Present: u Mr. Abhay Tiwari, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and HorL'ble Mr, R.L,_3hanwar, JJ ORAlJUDGMENT (23-4-2010) T.P. Sharma. 3: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 16-2-2004 passed by the Additional Sessions Judge, Manendragarh in Sessions Trial No.471/2002, whereby & whereunder iearned Additional Sessions Judge after holding the appellant guilt for commission of culpable homicide amounting to murder of Madri - cousin of the appellant, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo R.I. for flve months. 2. Conviction is impugned on the ground that without any credible, clinching and legal evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful night of 22-8- 2002 at about 7 p.m. the appellant, alleged cousin of Madri (since deceased), came to the house of Madri and took her with him. They proceeded to village Bhalore. Both the appellant & the deceased consumed liquor and while they were going to village Bhalore, the appellant committed rape on Madri and when she threatened the rj^ ..rti""ai!-> .sv- •:^^ ?%. iii>,. St :^^^^'' ,e. ..-^~ •^;.'; :i£33^ ^ss::-';^,^®^.^^?1':?.'^ l*B;BiSii:]l learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 6. After affording opportumty of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel fo'r the appellant vehemently argued that in the present case, deceased Madri - cousin of the appellant, died in front of the appellant, the appellant was present at the tirrie of her death, he was required to offer explanation and he has offered explanation while lodging F.I.R. and merg vide Exs.P-9 & P-10, respectively, that Bablu & Chotelal have committed the offence, but instead of investigating the offence in the light of F.I.R. and merg, the police has wrongly investigated the case and launched prosecution against the appellant with a view to screen the real offender. Learned counsel further argued that conviction is based on circumstantial evidence, each and every circumstance has been explained by the accused and all the alleged circumstances are contradictory to each other. 9. On the other hand, learned State counsel opposed the appeal and submitted that conviction is based on circumstantial evidence. The deceased was last seen alive in the company of the appellant and the appellant has not offered any explanation as to when he departed the company of the deceased and who has committed the murder of the deceased. The appellant has offered false explanation that Bablu & Chotelal have committed the murder which was found false. l0.in order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. :11.1nthe present case, homicidal death of Madri as a result of ante- 3- mortem fatal injuries of throttling has not been substantially .,.^.^'-^^t7i ,p^aaii^ '-^ it,^«- ^' m,»^-sey" disputed on behalf of the appellant, otherwise also it is established by the evidence of Dr. S.N. Gupta (PW-2) and autopsy report Ex.P-2 that the death of Madri was homicidal in nature. l2.As regards complicity of the appellant in the crime in question, conviction is substantially based on the following circumstances: - (1)The deceased was last seen alive in the company of the appellant. (2)Death of the deceased was homicidal in nature. (3)The appellant has not offered any explanation, inter alia, the explanation offered by the appellant was found false. l3.As regards last seen theory, as per the evidence of Bharat Singh (PW-1), Sant Kumar (PW-3.), L'aUa (PW-6) & Hingia Bai (PW-9), the deceased & the appellant had gone to village Bhalore by bicycle. This fact has no"t been denied by the appellant, inter alia, the appellant himself has lodged F.I.R. Ex.P-9 and merg Ex.P-10 which reveal that the appellant proceeded for another village Bhalore with Madri on the festival of Rakhi. Undergarments of the deceased & the accused have been sent for chemical examination and as per the chemical examination report Ex.P-13, sperm & semen were not found on clothes of the appellant and clothes of the deceased or on vaginal slides which negates commission of rape on the deceased. l4,Gova Singh (PW-7) has deposed in his evidence that the appellant has made extra judicial confession before him that he has committed the murder of Madri, but his evidence clearly shows that the accused has made extra judicial confession before the police which is not admissible in evidence and hit by Section 25 of the Evidence Act. l5.In case of circumstantial evidence, motive for commission of offence attaches great value and the prosecution is required to prove motive for commission of offence. l6.In the present case, commission of murder as a result of commission of rape has been negated by the report of chemical examination. Seizure Ex.P-3, F.I.R. Ex.P-9 and merg Ex.P-10 clearly establish that the accused himself has produced the ornaments, especially golden locket, silver mangalsutra and silver paijan (anklet). Ear tops & bichia (toe ring) were found on the dead body of-the deceased which '.'^,^''S'^!^y^i^S':SS9Sf;S^S^ negate the factum of question of robbery or theft of ornaments from the body of the deceased. l7.As per the F.I.R, and evidence, the deceased has consumed liquor and the accused has also consumed liquor, but the prosecution has not sent the accused for examination before the doctor to prove the factum of consuming liquor. Autopsy report does not reveal presence of liquor. As per the F.I.R. and merg, two persons have committed the offence,- but for the reasons best known to the prosecution, the prosecution has not examined the alteged Chotelal & Bablu or has not adduced evidence to show that there was no person named Bablu & Chotel'al. is.The accused is not required to prove his defence like the case of the prosecution. He is required to cast doubt upon the case of the prosecution and required to give explanation of the circumstances appearing against him. By lodging F.I.R. promptly, the accused himself has offered explanation as to who has committed the offence. He has produced the ornaments which were seized on the same day. The prosecution has not adduced any evidence to connect the appellant with the crime in question. The prosecution has not collected evidence to prove motive of offence or any circumstance against the accused to connect him with the crime in question. l9.In the present case, virtually the prosecution has not produced any credible and clinching evidence against the accused. While convicting the accused, the trial Court has not considered the aforesaid facts and thereby committed illegality. We are of considered view that conviction & sentences of the appellant are not sustainable underthe law. 20.Consequently, the appeal is. allowed. Conviction & sentences of the appellant under Section 302 of the I.P.C. are hereby set aside and the appellant is acquitted of the said charge. He .be set at liberty .hwith, if not in any other case. Soma Sd/- [-K Shanna Sd/- R.L. Jhanwar Judge