-s ^- 1 /' (.---"' .^^ IN IHE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. ^'^ OF 2001 (CRI&1INAL APPEAL U/S 374 (2) OF IHE CR.P.C.) << APPELLAOTS (Xn Jail) •f^y\ :.."9"...^ ^ ^9' y/ .^y/ \<9/ <^ /* ^o ^ RESPONDENT (1) Sonaram Patel, Son Q£ Bhatigi Patel, Aged about 60 years, Resident of Village Dhardei, Police Station Sheorinarayan, District: Janjgir^ Chhattisgarh^ (2) Meenabai alias Naradheen, Wi£e of Sonaram, Aged about 57 years, Resident o£ Village Dhardei, Police Station Sheorinarayan, District Janjgir, Chhattisgarh. V_E_R S_ U S The State of Chhattisgarh. M.EMORANI3UM OF CRIMINAL APPEAL UNDER SECTION 574 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973. XI-HC-22 3TI^T^T fqTli<t>3T^T ^rf?cf $h^ll<t) ^ @ 3^ '^Nld^, t&Tfl^llC, [s)diylj,< 3TT^T^^7 .^^C^f^...^3^ ,„, ^l^dl $b*1icb 3TT^T ^cTTW ^f?cT DIVISIQNBBNCH HON'BLE MR. L.C.B1 ct5i^ifoi41Ti ^i^<riT ^f te^t <Ri^i< ^3ri^TT3TT^T >0& HON'BLE MR. D.R. DESH»tUKH.JJ. 6-10-2Q06 Mr. J.K. Shastri, coulisel for fhe appeUaats. Mr. U.N.S. Deo, Ad|ditional PubUc Prosecutor wifh Mr. AkhU Mishra, Panel Lawyei| aad order of sentence d^ Additional Sessions JudgeJ for fhe State/respondent. Oral judgnient dictat^d on Dais, PERL.C.BHADQQ,J. This appeal is direct^d agamst the judginent ofconviction ted 19th May 2001 passed by the Jaajgir in Sessions Trial No.233/99 whereby learaed Addition^l Sessions Judge after holdiag fhe accused/appeUaats guillyf for corauiission of oflfence under Sections 302 and 450 of fhe I.P.C. sentenced each of fhe accused to undergo impr^sonraent for life & to pay a fine of Rs.200/-, and to undergoj R.I. for 3 years & to pay a fiiiie of Rs.200/-, respectively. Case of the proseci] when Firatraia aad his wil |tion, ia brief, was fhat on 21-3-99 ^ were not present ia the house aad fheir daughters namely J^nki aud Manki were present ui fhe house, fhe accused/app^Uants caine to fheir house aad kidnapped Manki Bai ag<|d about 10 years. On retura of (^^r) XI-HC-22 3^ ^I^M^, ^Tn<MJI(o, R«rll<rl^< 311^1 ^sicb ^l^Kll $b^icb -•-•----;"--^ 200 3TI^T^)T ^i4)3TI^?T $h^icb;Rf?cT $h^|cb a ^ 3TT^?T ^cTTW ^f?cT Mailki c|o: Firatram at about 9.30 p.|i fhat fhe accused/appeUa^ which Firatrain iaformed ia fhe village. Next day lym.g near Shishu Maadir. that fhere were iajuries o^ cloth ia fhe inoufh of EX.-P/I& was given b}| Shivrinarayaa, Based oi^ P/ 15 was registered for 450 aad 302/34 of the i.\ place of occurrence, after prepared iaquest report Ex| one bolder, plaia soU aad| occurrence under Ex.-P/< seized under Ex.-P/4. Th^ Patwari. The body of| exaoiuiation to fhe Ex.-P/S. Dr. Ravi postraorteni, prepared po^ opuied fhat cause of aad haeinorrhage, Death v^ I|10 After coinpletion of filed agauist fhe accusec <=bl<4lcl41T1 HTR^ff ^ te^ <[^^1< ^3Tf^T3TT^?T .|ai. to his house, Jaaki iaformed tiim have kidnapped Maaki Bai, on 1|he viUagers. Manki Bai was searched i|aorauig fh.e body of Maaki was seen Fu'atrani went to fhat place and saw fhe body of MaEiki Bai. There was a cjtki Bai. Therefore, a raerg uitimation Firatrani to fhe PoUce Station fhat, First Infonnation Report Ex.- ;bmmission of offence under Sections p.C. The Investigating Officer left for ^iviag notice Ex.-P/ 1 to the Paachas, s|.-P/ 2 of the body of Maaki. He seized blood stamed soU froin fhe place of The clofhes of fhe deceased were i^ site plan (Ex.-P/7) was prepared by Maaki was sent for postaiortein Hospital, Shivrmarayaa under Prabhakar (PW-7) conducted the jtoiorteni report Ex."P/9 ia which he was grievous iajuiy to skull, brain tas horaicidal. Govenlinient Shaaklar the investigation, charge sheet was persons ia fhe Court of Judicial (^^PT) XI-HC-22 3TT^T^)T f^TT^^TI^T 5b^i<=b^rf?cT 5b^l<=b •R 3^T ^NM^, ^TH^41<o, f^dl^^< ,X5- 3 3TT^T ^51 Ch W<T^(T$b^llch ^ 200 [d^ 3TT^?T ^cTTW: ^rf?cf Magistorate, 1st Class, Jaajg|r; fhe Sessions Judge, BUa^ Sessioris Judge received fh4 <=t)i^T^41-i np^ff ^ te^t <^i^i< ^3T^T3TT^T Ir, who ia tura coHunitted fhe case to sur froin where leamed Additional case on traasfer, The prosecution in c|rder to estabUsh fhe charge agauist :ainined 14 witnesses. Learaed recorded fhe stateiaents of the the accused persons e^ Additional Sessions Judg^ accused persons under Secjdon 313 offhe Cr.P.C. ui which they denied fhe inaterial appeai|uig agamst theni ia fhe prosecution evidence aad stated fh.at 01)1 account of animosity wifh Firatrani they have been falsely Additional Sessions Judg| baipUcated ui fhe crune. Leamed ? after hearmg the arguraents of Additional PubUc Proseciltor aad counsel for fhe accused persons convicted aad sepitenced the accused/appeUaats as nientioned ia para-1 of this|judginent. We have heard leam.e|d counsel for fhe parties. Mr, Shastd has no| deceased Maaki Bai. Prabhakar (PW-7) who con<| Maaki Bai noticed followui^ (i) Lacerated wound direction in the si^ disputed fhe hoinicidal deafh of A^art frora fhat, Dr, Ravi Shaakar ^ucted the postniortein on fhe body of iajuries on her body: - ^n ftie teinporal region ia horizontal je of7 cni x 1 cin x scalp deep. (^y^) XI-HC-22 CT^T^T f^Tf^3TI^T ^HT^^rf^cf 3^T ^i^icn^, ^Tfl^1!^, fa^i^y 4 3TT^?T ^3<Ch <m^TT^RT^ W^ 200 f^s 3:n^?r ^cfrw ^rf?<T (ii) (iii) (iv) (V) Hidden contusionl of8 cinx 6 cni. Abrasion on postejdor size of 1 cra x 1 Va Abrasion on left x 1 cni. Fracture oflefttei^.poralbone. on the left teinporal region in fhe size tejdor aspect of right elbow joiat ia the ^IUL. el|bow joiat posterior in fhe size of 1 cia Cause of deafh was of deafh was honiicidal. ordiaaiy coiirse of natnrel niedical evidence, it is horaicidal. thle As far as uivolven4< coiciniission of crirae is cont fhe ocular evidence of PW-t the fateful night of 21-3-991 were at fheir residence, residence aadkidnapped ^ Meenabai slapped her, Th|< rdght at about 9.30 p.m. she disclosed fhis faet to old animosity between accu| the deceased. <=bi^Tc'i41-i ^TR^rf^ te^ <(^i<•<;«< ^^rf^T3T^?T ^.aeniorrhage aiid coiaa. The nature T(he head uijuiy was sufficient ui fhe to cause deafh. In view of fhis estat)lished fhat fhe nature of deafh was mt of fhe accused/appeUaats ia ^eraed, fhe prosecution case rests on D. 1 Janki Bai who has stated fhat ia [when she along wifh deceased Maaki accused/appeUaats caine to fheir (aaki Bai. On her objection, accused i|ereafter, she went for sleep. In fhe her father retunied to fhe house, (ui. Second ground is tih.at there was (sed Sonarain and Firatrani, fafher of w|ien TiJm (^y^-) XI-HC-22 3^T^T ^i<+)3:n^r $h^icb^f??T (£) T^T^l^Krt^, ^Tfl^^^, f®lcni^^< 3TT^?T ^5|Cft ^l^^l $hHI^ ^ 200 f^§; 3TI^ST ^cfT^K ^TfN' tbat Mr. Shastd argued Guddu Sahu, PW-2 Kashi| PW-11 Jaaki reveals that i|a the house, only wheu Firatjram was inade about Maiiki Ba3. were also iiifomied, but in. could not be known. In fhd seen uear Shishu Maiidir. old aD.itnosity between Fu^traia case has beeu foisted upon perusal of the evidence of PW»1 Prasad Sahu, even tiie evidence. of the evenia.g Maiiki Bai hersetf left retunied to his house, a search Even sonie persons of Sahu Saoiaj jthe uight, whereabouts of Maaki Bai inoniiiig, the body of Maaki Bai was He also subniitted that on account of aad accused Sonaram. a false / On fhe ofher State/ respondeiit supporte' In order to appreci^te Shastri we have perused fh|( perusal of fh.e evidence, w< fhe arguraent advaaced by of star witaess of fhe prose<[: iaspire confidence of the appeUaxits kidnapped Firatram in. fhe presence examination of her evidencl she uifomied her fafher fhe house, fhereafter, she th4it cbl^T^41-< HTOTf ^f fe^ <Ri^K ^3:rf^T3TI^T ^he accused persons. h^nd, leame.d couasel for fhe fhe judgm.ent of the trial Court. tiie argunient advaaced by Mr. evidence of above witiiesses. After ai'e of tlie considered opuiion fhat Mr. Shastd has nierit. The evidence mtion naniely PW-11 Janki does not to fhe extent fhat fhe accused/ Maaki Bai froin the house of ^f Jaaki Bai. In para-20 of cross- (e, she has categorically stated fhat ia the eveniag Maaki Bai had left had not returaed. She asked her Cburt decdased (Ift^^fe^) XI-HC-22 CT^T^T R[<4J<=b 3TI^T $b^ich^cT $b^lch ^ 6 3^ ^||<4M<4, ^Tfl^^Ko, (^<rtl^^< 3TT^?T ^^l^h WWTT^TRTcb ^ 200 f^s 3TT^T 5^<TTW ^rf^T w|as father 'let us go ia search <{) took her to fhe house of N^ persons was convened. TI|L< not at residence, Sonarain her, Before goiag to fhe iae|( went to fhe house of Goik iaformed fhat Maaki Bai our house also,^ Perusal of further shows fhat when a| retum of your fafher what fhis witoaess reinaiaed sUe] request of Additional PitbU<| leading question to fhis categoricaUy stated fhat it| infomiation to her fatherl searched Maiiki Bai. daJLighte PW-1 Guddu Sahu Saaiaj was convened ia fh{ iaformed fheui fhat his tuaae, elder daughter of exaaiuiation, fhis witaess hs elder daughter of Firatraj|i whereabouts of her younge] younger sister is not at re; <=hi^I<n41Ti w:T^rf ^f te^ <f^^<ii< ^3^T3T[^T ^f Maaki Bai\ Thereafter, her father ^ridu where a ineetiag of cominunity ay were iaformed that Maaki Bai is |& Meena Bai niight have kidnapped ;tmg place, she along witii her fafher ?lal. On enquiry froin Gorelal, he not fhere. "We inade a search in >ara-4 of fhe evidence of fhis witaess question was put to her fhat 'after i|aformation was given by her to hira', tt for 3 uiiautes, thereafter on the Prosecutor, he was allowed to put ^itness. Even ia para-5, she has is correct to say that after giviag fhey went to fhe vUlagers aiid Ijias stated fhat a ineeting of Sahu house of Nandu Sahu. Firatrain La|uighter is not at his house, at that Filratrain was wifh. him. In cross- ^s stated ftiat tiiey enqiiired froni tiie who was wifh Firatram about sister, fhen she disclosed fhat her ^idence. She had gone soinewhere (^^{^) XI-HC-22 3:ST;:?n^ra', ^Tfl'y'Ko, (^<rtl^^< ^ll^l M5ich *<l^^l $b*4ich •--•—------ ^j- 200 ^^ ^ 7 ^TT^T^T ^Jch^TF^T $h^icb^cT $h^|cb 3TT^T ^RTTW ^rf?cT cbl<M?C<l41r1 WToff ^* fe^ <(^1<•<;!< ^3Tf^TT3TT^T else. It is correct to say th^Lt a weak mind girl aad she properly. younger daughter of Firatrani was was not able to iinderstand thiags PW-2 Kashi Prasad S^Iiu iti para-3 of his examiaation-ui- chief has stated fhat he wa|s Up-Sarpaach of the viUage aad in tlie fatefal night he was slejepiag ui his house. At about 12 ia the inid night Firatrain ai|id 2-4 ofher persons came to his house. On enquiry, Firatrajai said fhat sonieone has kidnapped his daughter, He enquired his daughter, on which he jGrom him as to who has kidnapped idisclosed fhat Sonaram. aad Meena Bai @ Naradheen have kid4apped, on which I abused Firatram as to why fhey are not goia^ about fhe whereabouts ofl [ to fhe house of Sonaram to enquire his daughter, on which Firatram repUed fhat ia fhe night fhjey would not go to fhe residence of Sonaram, fhereafter, fhose [persons along wifh Firatrain left his house. In para-4, he has s^ated fhat it is correct that fhere was soine dispute between Fira|tTain aad Naradheen. In para-5 of cross-exainiaation, he has persons who were wifh Fir^tram, he enquired froni Jaaki Bai [r sister, on which s^ie disclosed that about fhe whereabouts of h^ when ia fhe eveniag fhey ^ stated fhat on iasistence by fhe rere busy ia cooking the meal, her sister Maaki left ftie house ^iid fhereafter she did not retoiim. (^^f^-) ^)) XI-HC-22 3^T ^II^KI^, ^Tfl<-IJI<o, f^cni^^< 3TT^?T M^cb ^l+iC-ll Sh^licb W^ 200 W^T^T f^TT^3TI^T $h^ich^f?cT 3TT^T 5;RTT8?K ^f?cT <^)l^fcri41T1 iTTR^ff ^f fe^ <f^^l< ^3Tf^T3TT^T ift Therefore, ftie abov^ Guddu Sahu aiid PW-2 Ka^ to Firatrain, shows fhat u|i evenitig, when she did not of PiratoTam to his house, aad a search was inade ul fliat is why before goiag to| dazighter Janki went to thej Bai, as famUy raeiabers of house of Gorelal. Had the ^ the presence of PW-1 1 search fhe whereabouts ofl ofher villagers? evidence of PW-11 Janki, PW-1 ihi Prasad Sahu, who was veiy close fact, Maaki left fhe house ia fhe |retum in fhe night only after retum ^aeetuig of fhe society was convened order to find out her whereabouts jflie ineeting place, Frratram and his house of Gorelal in. search of Maaki piratraoi were frequentiy visiting the iccused persons kidnapped Maold ia a|ki, then where was the necessity to Manki ia fhe house of Gorelal aad JaG|ki, qi|iestioi The niiUion doUar Sonaram aad Meenabai had viUagers had assenibled 04 fhey had not visited the hoi^se about fhe whereabouts of between accused Sonaraial fhere was antaiosity betwee^. registered agamst Firatoran|i when so raaay villagers we[re easily visited the house of fjie fhe whereabouts of Maaki |iestion is when it was known fhat kidnapped ManJd Bai aad so niany the request of Firatram, fhen why of the accused persons to enquire Maaki Bai. It is true fh.at relations aad Firatram. werc not cordial, as fhera, soine criiaiaal case was also at ftie iastaace of Sonaram., but i[re present, fhen th.ey ought to have accused persons to enqnire about This fact itself shows fhat Maaki Bai (^y^) XI-HC-22 CT^T^T ^[ch^n^T $h^ich;Rf?cT Sh^lch ® 3^? •^ll<41d<4, ^Tfl^jl(o, f®l<r11<rl^< 3TT^T M5l<h W^^IT $bNTcb ^ 200 f^R^ 3Tl^T 5^cTTW: ^f?cT ^nd relev^nt 4rs Idft »ed/aj|>pellaats Bai herself left fhe house alnd to Firatrara fhat is why ^. whereabouts of Maaki Bai.| 12 Khambhaa is also hostile, but he has catejgo: Firata'ain along wifh viUag^rs him that Maaki Bai had were not known. He along niade a search, but the wh^ known, fherefore, fhey evidence of PW-11 Jaaki Court fhat fhe accused/aj|>p€ The prosecution has failed kidnapped deceased Maii|< presence of PW-11 Jaaki on record to connect the question. Of course, fhere aaimosity befrween Firatraj|a case was also registered commission of offence but Bierely on fhe ground accused persons cannot be unless sonie legal, convinci^ig by fhe prosecution iii orderj unddr cbl^f^41-1 HHT^Tf ^ te^t <^1^1< ^3?f^R'3TT^T her whereabouts were uot known search was inade to find out fhe In fhis connection, evidence of PW- even fhough he has been declared ite|goricaUy stated fhat in fhe night came to his house aad iaformed ?ft the house and her whereabouts ^vifh fhose persons and Up-SarpaD.ch ^reabouts of Manki Bai coiild not be for fheir residence. Therefore, [does not iaspire confidence of fhe aj|>pellaats had kidnapped Maaki Bai. 1:0 estabUsh fhat tiie accused persous :i Bai from. her residence in the IThere is no ofher evidence avaUable [accused persons wifh. fhe crinie ia |is evidence on record fhat there was aad Sonaram aad sonie criimiial [by Sonaram against Firatraai for Sections 354 aad 322 ofthe I.P.C., of aaiinosity between the two, fhe |conne.cted wifh fhe criine ia question aad cliachiag evidence is adduced |to connect the accused persons witih. (^ft^^Ra^) XI-HC-22 ^TT^T^T f^TW3T^?T $h^i<t)^rf?cT 3^T ^Trai^T, «>Tl)'HII<o, (s|<rtl<1^< 10 3TT^?T tra<^» *<I^C11 $h*1icn ^ 200 ^s Barve ^ y 3^T ?^TT^K ^f?cf fhe crime ia question. ground for comTnission of for false iniplication. Susp^ fhe place ofproof. A^iiniosity For the foregoiiig 4 convicting fhe accused/a^peUaat under Sections 302 aiid 45< In the result, tiie sentences iniposed upon f4< 302 and 450 oftheI.P.C. fhe above charges, As per^ in. custody siace 23-3-99, at Uberty fortiiwifh., if not Sd/- L.C, Bhadoo Judge chl^lfd41^ WMf^te^t<^d< ^ 3:rf^R'3TI^T is a factor which caa be a ffence as weU as it can be a ground non howsoever strong, it cannot take sasons, finduig of ftie tdal Court peUants for coniinission of dffence ) offhe I.P.C. caanotbe sustamed. jappeal succeeds. Conviction and accused/appellants under Sections a|re set aside and fhey are acqiiitted of fhe record, the accused persons are tijierefore, it is directed fhat they be set r^quired ia aay ofher case. ^ Sd7- Dilip Raosaheb Deshmukh Judge (^^^)