IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.t Criminal Appeal No.Mbj of 2011 9.A. 9 s APELLANTs/ :1. Sukmu Potai, aged about 21 years, S/o InJail Budhram Potai, Occupation agricultural, R/o Village Tursani, P.S. Koilibada, Distt. Kanker(C.G.) 2. Ramesh Potai, aged about 23 years, S/o Sukhram Potai, Occupation agricultural, {^(-.1.^-!-{^'^''H'^e4 R/o villa9e Koilibeda Thanapara, P.S. (ta""l'."s.w (y'Wi^.. - Koilibada, Distt. Kanker (C.G.) Koilibada, Distt. Kanker(C.G.) •4..--- RESPONDENT State of Chhattisgarh Through P.S. Koilibeda, Distt. Kanker (C.G.) CRIMINAL APPEAL U/S. 374 (2) OF Cr.P.C. AGAINST THE JUDGEMENT AND CONVICTION DATED 30.05.2011 PASSED IN SESSION TftlAL N0. 35/2010 BY SESSION JUDGENORTH BASTER KANKER (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Appellants/ (In Jail) Respondent Criminal Appeal No. 469 of 2011 1. Sukmu Potai, aged about 21 years, S/o Budhram Potai, Occupation agricultural, R/o Village Tursani, P.S. Kolibada, Distt.Kanker(C.G.) 2. Ramesh Potai, aged about 23 years, S/o Sukhram Potai, Occupation agricultural, R/o Village Kolibeda Thanapara, P.S. Koilibada, Distt. Kanker(C.G.) Versus State of Chhattisgarh Through P.S. Koilibeda, Distt. Kanker (C.G.) (CRIMINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. D.N. Prajapati, counselfor the appellants. Mr. D.K. Gwalre, Govt. Advocate and Ms. Madhu Nisha Singh, Panel Lawyer for the State. ORAL JUDGMENT (Passed on 09th August, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30.05.2011 passed bythe Sessions Judge, Uttar Bastar Kanker, in Sessions Trial No.35/2010, whereby & whereunder learned Sessions Judge after holding appellants guilty for commi.ssion of culpable homicide amounting to murder of Rajma Usendi (since deceased), convicted them under Section 302 read with section 34 ofthe I.P.C. and sentenced each of them to undergo imprisonment for life and to pay fine of Rs.500/, in default of payment of fine to further undergo R.l. for one month. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & seritenced the appellants as aforementioned and thereby committed illegality. 3. As per case of prosecution, unfori:unate deceased Rajma was in jail, some day before the incident he was released from jail. On 20.12.2009 at about 12.00 p.m., both the appellants came near the courtyard and assaulted deceased by wooden stick (Khotala) and burned wood. Manaro Bai (PW/3), wife of deceased was present near the spot, she shouted for help. Deceased died on the spot. Manora Bai (PW/3) went to police station and lodged F.1.R. Ex.P/5 and merg was recorded vide Ex.P/6. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/16, inquest over the dead body of deceased was prepared vide Ex.P/17. Dead body was sent forautopsy to Community Health Center, Koyalibeda. Dr. A. Sambhakar (PW/2) conducted autopsy vide Ex.P/2 and found flowing injuries: (1) Bleeding from both the ear. Multiple abrasions found over the right and left thigh of 1.5x1.0 cm. in size. (2) Left arm was deformed and humerus bone was found broken. (3) Right ear found bruised. Two ribs were found fracture. (4) Lacerated wound over right temporal region of 8x1x1 cm. (5) A haematoma of 4x2 cm found beneath the scalp. (6) Temporal occipital bone of skull was found fractured in size of 8x0.5 cm. Death was caused by intra cranial sub-dural massive hemorrhage due to head injury by a forceful impact over the head. Death was homicidal in nature. 4. During the course of investigation, appellants were taken into custody. Appellant Sukmu Potai made disclosure statement of burnt fuel wood vide Ex.P/11, same was recovered at his instance vide ExP/14. Appellant Ramesh Potai made disclosure statement of wooden stick vide Ex.P/10, same was recovered at his instance vide Ex.P/13. Blood stained clothes of deceased was seized vide Ex.P/1. Blood stained soil and plainsoilwere recovered from the spot vide Ex.P/7. Spot map was prepared vide Ex.P/8. 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, Bhanupratappur, who in turn committed the case to the Court of Sessions Judge, Kanker from where the learned Sessions Judge, Kanker received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as nine witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in thecrime in question. 7. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Shri D.N. Prajapati, learned counsel for the appellants submits that this is a case of no evidence. Prosecution has not collected any evidence to show the involvement of appellants. Appellants are in custody since 21.12.2009. 10.0n theother hand, Shri D.K.Gwalre, learned Govt. Advocate and Ms. Madhu Nisha Singh, learned Panel Lawyer for the State opposed the appeal, but during course of argument they are also not in a position to show any incriminating evidence against the appellants. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.1n the present case, homicidal death as a result of fatal injuries found over the body of deceased has not been substantially disputed on behalf of the appellants, even otherwise same is also established by the evidenee of Dr. A. Sambhakar (PW-2) and autopsy report Ex.P/2 that death of deceased was homicidal in nature. 13.As regards complicity ofthe appellants in crime in question is concerned, prosecution has examined Manaro Bai (PW/3), wife of deceased, Mansai (PW/5) and Motiram (PW/7). As per evidence of Manaro Bai (PW/3), eye witness of the incident.she has not seen the incident. When she came back to her house then she saw the dead body of her husband. Prosecution has declared her hostile. Mansai (PW/5) was informed about the incident by Manaro Bai (PW/3) and he himself has not seen the incident. As per evidence of Chaitram (PW/8) he was informed about the incident by Mansai Potai (PW/5), both the appellants made confession at police station, which is not admissible in terms of section 25, 26 and 27 of the Evidence Act. Prosecution has examined other witnesses relating to death of deceased. Recovery of blood stained stick and burnt fuel wool at the instance of appellants and chemical examination report Ex.P/23 is not sufficient to connect the appellants in crime in question. Evidence adduced on behalf of prosecution is not sufficient for drawing any conclusion that appellants have caused homicidal death of deceased. 14.While convicting and sentencing appellants under Section 302 read with seetion 34 of the IPC, Court below has not considered the evidence of witnesses in its true perspective and there by committed illegality. 15. In our considered view, this case is of no evidence and appellant is in custody since 21.12.2009. 16.Consequently, the appeal is allowed, conviction of the appellants under Section 302 read with section 34 of the I.P.C. is set aside and they are acquitted of the charges. They be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge /ijov