HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH 1 CORAM: HON'BLE MR. T.P. SHARMA fi& HON'BLE MR. R. L. JHANWAR. JJ. •^-. Cri. A. No. 13/04 Appellant "(Injail) Respondent VERSUS KhairaRam s/o Nathu Ram Bargah aged- 36 yrs. Occupation- Wireing, R/o At present Sheetala -ward, Ambikapur. Distt-Serguja. State of C.G. Through P. Ambikapur, Serguja, C.G. Memo of appeal Under section- 374 of the Code of Criminal Procedure. Present:- Mrs. Savita Tiwari, Advocate for the appellant. Mr. D.K. Gwalre, G.A. for the State/respondent. .X ORAL-JUDGEMENT (Passedon 25/01/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 8/9/03 passed by First Additional Sessions Judge, Ambikapur in Sessions Trial No. 22/03 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of Bakmerahin convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 1000/- in D &. '^' default of payment additional rigorous imprisonment for 6 months. Judgment is impugned pn the ground that without any iota of evidence Court below has convicted and sentenced the appellant aforementioned and thereby committed an illegality. The brief case of the prosecution is that on fateful day of 16/9/02 at about 7.45 P.M. at Sheetalaward, Ambikapur deceased Bakmerahin mother of the appellant was found dead in his house as a result of injury. The appellant informed his brother and other relatives and lodged the First Information Report vide Ex. P-15. Marg was recorded vide Ex. P-14. Investigating Officer left for scene of occurrence and after summoning the witness Ex. P-1, inquest over the dead body of the deceased was prepared vide Ex. P-2. Dead body was sent for autopsy to District Hospital, Ambikapur Vide Ex. P-10. Autopsy was conducted by PW12 Dr. R. N. Gupta vide Ex. P-11 and found following injuries:- (1) One bru-ise of 10 x 10 c.m. over right side of the chest. (2)- One abrasion over'right cheek of 2 x 2 c.m. (3)- One abrasion over right side of the neck of 2 x 1 c.m. (4) One haemotoma over left part of the head of 5 x 5 c.m. (5) -Membrane of the brain was congested (6) -Right clavicle bone was found fractured. (6)- & X" 7. 8. Right lungs was ruptured. Cause of death was coma as a result ofhemorrhage. Statement of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge-sheet was filed before the Chief Judicial Magistrate, Ambikapur who in turn committed the case to the Court of Sessions, Ambikapur. Learned First Additional Sessions Judge received the case on transfer for trial. In order to prove the guilt of the accused/appellant prosecution examined as well as 15 witnesses. Accused were examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge convicted and sentenced the appellant aforementioned. Learned counsel for the parties are heard. Judgment impugned and record of court below perused. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence. In case of conviction based on circumstantial evidence prosecution is required to prove that circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any J—^ /•/. ^, %^^^ '^.s'^' ^; '^ ^^.. ^ 10. other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In case of circumstantial evidence the chain of circumstances must be complete and be sufficient for drawing an inference that only accused has committed the offence and except accused none else committed the offence. Learned counsel for the appellant further argued that in the present case deceased was mother of the appellant, appellant canie from out side and saw the dead body of his mother inside the room, He immediately informed the persons and went to his brother and brother-in-law and also informed them about the incident. Appellant himself lodged the marg intimation. He was having sufficient opportunity to flee away from the spot but he was present and he was a person who has intimated the relatives and others relating to her death shows that appellant was not author of the crime. Prosecution has not adduced any evidence to connect the appellant with crime in question. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that case is based on circumstantial evidence and evidence adduced on behalf of the appellant is sufficient for ;fe ^ drawing an inference that appellant who is a person who has committed the offence. 11. Learned counsel for the respondent/State further submits that prosecution has proved following circumstances:- (1) at the time entering into his house the appellant restraining PW5 Sukhmaniya who was trying to enter in the house of the appellant. (2) appellant informed PW1 Bhulanram relating to murder of his mother but also directed him not to inform any other person. (3) he also informed PW8 Birchand Mukharjee relating to murder of his mother but when PW8 Birchand Mukharjee asked how it was happened then the appellant told him that he will not tell immediately but he will tell when the occasion arise. 12. Aforesaid circumstances clearly shows that appellant has informed the persons relating to murder of his mother which was not possible to conceal but has acted in specific manner and tried to conceal the circumstances in which offence was committed. These circumstances are sufficient for drawing an inference that appellant is a person who has committed the murder of his mother. 13. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. dp ^; ^,-- 14. In the present case homicidal death as a resulf of fatal injury has not been substantially disputed by the appellant either also established by the evidence of PW12 Dr. R.N. Gupta and autopsy repot Ex. P-10 which reveal the fracture of clavicle bone and rupture ofright lungs which was sufficient for death ofthe deceased. 15. As regard the complicity of the appellant in crime in question is concerned PW5 Sukhmaniya has deposed in her evidence that when she reached in front the house of the deceased at about 7 to 7.30 p.m. she called the deceased as Nani-Nani but she did not receive response while she was going to the house of the deceased the appellant met her in a way and told her that why she is going towards the house of the deceased and nobody is present there, again when she was entering in the house of the appellant the appellant stopped her and he entered alone and told that somebody is sleeping in his house then they saw after lighting the matchbox dead body of mother of the appellant. PW1 Bhulanram has deposed in his evidence that appellant came to him and informed about the murder of his mother and also directed appellant do not inform to other persons ( ^wTT <j,mii ^T ^ ). PW3 Vinod Kumar and PW4 Amarnath elder brother (^ ^r, c' 16. of the appellant, PW6 Virendra Kumar Yadav, PW7 Kartikram, PW8 Birchand Mukharjee have deposed in their evidence that appellant came to them and informed the murder of his mother. PW8 Birchand Mukharjee has also deposed in his evidence that when he asked the appellant that how it happened then he told that he will not tell immediately but he will tell when occasion arise. PW15 Surendra Kumar has deposed in his evidence that appellant was quarreling with his elder brother and when he opposed then appellant threat him. that he has killed his mother and he will also fire on him, if the evidence of these witnesses are relied then it may be inferred that at the time of incident appellant went inside his house in presence of PW5 Sukhmaniya firstly he did not allow to Sukhmaniya to enter his house then appellant has seen the dead body of his mother in presence of Sukhmaniya while informed PW1 Bhulanram relating to murder of his mother he also directed not to inform the incident to other and to PW8 Birchand Mukharjee that he will not tell immediately but will tell when occasion arise. Appellant was residing with his mother a long time there was no cause for commission of murder of his mother. He has directed PW1 Bhulanram that not to tell the incident to other ( ^wTT 7]^TT ^€\ ^. ) but appellant himself has ^w. ^,.:^""..^ '^^^ss^^y' ^ -\ r informed the other persons including his relative, appellant himself has lodged the marg intimation. Appellant has not made any statement to PW8 Birchand Mukharjee that he has committed the offence but he will tell later on, if the evidence of aforesaid witnesses are considered together then it may be inferred that appellant has lodged the report appellant had intimated and informed the murder of his mother to other person including his relatives. He has not tried to flee away or tried to conceal or destroy the evidence even he has not tried to mislead other persons or investigating agency. PW15 Surendra Kumar has admitted in his cross examination that he had stated the police appellant has threatened him he has also admitted in cross examination that brother of the appellant was telling suo- moto that they have committed the murder of mother and brother of the Suresh. The evidence of this witness reveal that he is having enmity with the accused. His evidence is not consistent and at the time of quarreling the appellant has threat him. This is a case of culpable homicide amounting to murder of mother by the son. Prosecution has not proved the motive for commission of the offence if the circumstances stated by the witnesses or considered together then even same would not be sufficient for Irawing the inference that appellant was author of crime. -:-^ 9 17. In the present case virtually prosecution has not proved any circumstances against the appellant sufficient for his conviction.under Section 302 ofthe Indian Penal Code. 18. After appreciating the evidence available on record learned First Additional Sessions Judge has convicted and sentenced the appellant aforementioned but has not considered the fact that prosecution has not proved the motive, the circumstances against the appellant sufficient for drawing an inference of the commission of the offence against the accused and thereby committed an illegality. 19. For the foregoing reason, we are of the considered view that conviction of the appellant is not sustainable under the law. Consequently, appeal is allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is hereby set aside. He be set at liberty at once he is in custody. He be released if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge </-