;^'"s; HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.LJHANWAR, JJ. C^rjminal Appeal No. 334/2004 APPELLANT (injail) RESPONDENT Kishore Hathi, Son of Muroli Hathi, aged 38 years, occupation - Agriculture work, resident of Dasiyadih, Police Station Rengali, Dist. Jharsuguda, presently residing at Kolaibaha], Jamgaon, Police Station Chakradhar Nagar, Raigarh (C.G.) VERSUS The State of Chhattisgarh, Through P.S. Chakradharnagar, Distt. Raigarh (C.G.) CRIIV1INAL APPEALUNDER SECTION374 (2) OF THE CRIMINAL PROOEDURE CODE Appearance: Mr. V.P.Gupta, counselfor theappellant, Mr. Sandeep Yadav, P.L. for the State. JUDGMENT (Passedon 30.08.2010) PerT.P.Sharma, J. The challenge in this appeal is to the judgment of conviction and order of sentencedated 24.02.2004 passed in S.T.No. 166/2003 by the 3rd Additional Sessions Judge, Raigarh, whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Savitri Hathi, the Court below convicting the appellant under Section 302 of the I.P.C. sentenced him to life imprisonment. 2. The conviction is impugned on the ground that without iota of evidence, the Court below has convicted and sentenced the appellant and thereby committed illegality. •*!:'^^^a' ';:ESiS»i ^ 3. Brief facts of the prosecution story are that on 02.09.2003 at about 12.15 noon the appellant assaulted his wife Savitri by axe over his neck and by causing her death fled from the spot. Brother of the deceased Nandlal chased him but he fled towards forest, then he came back and went to police station and lodged F.I.R.Ex.P.9. Merg was recorded vide Ex.P.10. After summoning the witnesses vide Ex.P.4, inquest over the dead body was prepared vide Ex.P.5. Dead body was sent for autopsy vide Ex.P.6A and autopsy was conducted vide Ex.P.6 by Dr. M.M.Wase P.W.4 and found the following injuries: 1. Incised wound of 2" x 1" x 2/3" bone deep muscles over right mastoid region. 2. Incised wound of2 %" below injury No.1, 1" x 1" at right side of neck. 3. Incised wound of 2" x 1" at the back of neck in midline transversely stretched out cervical vertebra 5 cut and spinal cord was found cut. 4. Incised wound of 2" x 1/;" at left side of back obliquely stretched nearthe hair below. Injuries were ante-mortem in nature. Cause of death was opined to be injury on vital organ and homicidal in nature. The present appellant was taken into custody. He made disclosure statement vide Ex.P.1. The axe was recovered at the instance of the appellant vide Ex.P.12. Bloodstained soil and plain soil were seized vide Ex.P.2. Map was prepared vide Ex.P.S-A. 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the J.M.F.C. who in turn committed the case to the learned Sessions Judge. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to appreoiate the guilt of fhe appellant, the prosecution examined as many as 6 witnesses. Accused was also examined under Section 313 of the Cr.P.C. and pleaded his false implication and innocence. ^;\ ^. \ .':••;•.•'^»fc-, ''•'-;'. .*'' 3 6. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri V.P.Gupta, learned counsel for the appellant and Shri Sandeep Yadav, Deputy Government Advocate are heard. Judgment impugned and record of Court below perused. 8. Leaned counsel for the appellant vehemently argued that the conviction is based on the evidence of P.W.1 Fazal Hussain and P.W.2 Anantram but their evidence is notsufficient for conviction ofthe appellant. Virtually, they have not deposed anything against the appellant relating to commission of murder of his wife. The Court below has convicted the appellant and sentenced the appellant only on conjectures and surmises. 9. On the other hand, learned counsel for the State opposed the appeal-and submitted that the Court below has rightly convicted and sentenced the appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material evidence on record. Homicidal death of deceased as a result fatal injuries found over the body of Savitri has not been substantially disputed on behalf of the appellant, on the other hand also established bythe medical evidence of Dr. M.M.Wase P.W.4 and autopsy report Ex.P.6 which revealed that fatal injuries were found over the neck and mastoid region and death was homicidal in nature. 11. As regards complicity of the appellant in crime in question, the conviction ofthe appellant is substantially based on the evidence of P.W.1 Fazal Hussain and P.W-2 Anantram. As per evidence of P.W.2 Anantram he has notseen the incident but he was informed that wife of the appellant has been murdered and hesaw the dead body of wife of the appellant. Members of the ward told him fhat appellant committed murder pf his wife and the police came and conducted investigation which shows that he has not seen the incident npr has accused made extra judicial confession before him. As regards the evidence of P.W.1 Fazal Hussain, he deposed y}: •^sf / ^ that the appellant, his wife and his brother-in-law as also son were residing in his house. On the date of incident when he came after taking bath along with family he saw 4-5 women standing before his house and they told him that murder took place here, whereupon he saw the dead body lying on the verandah. The appellant was not present. He has intimated about the incident to Vijay Mishra and Mohammad Akhtar by telephone and at that time other members gathered there. After some time brother in law of the accused came and tolcTthat the appellant has committed murder of his sister. He has chased the appellant but the appellant fled towards forest and was standing in a tree, thereafter some persons caught holdf of him in the village where he made extra judicial confession before the villagers that he has committed murder of his wife. Thereafter, police came and matterwas investigated. The defence has cross-examined this witness at length. As per evidenee of this witness, he came to know by villagers and brother of the deceased that the appellant has murdered the deceased i.e. his wifeand appellant has made extra judicialconfession before the villagers which shows that the appellant has not made any extra-judicial confession before this witness. 12. As per the case of the prosecution, brother in law of the deceased i.e. Nandlal was the eye witness but for the reasons best known to the prosecution, he has not been examined by the prosecution. Before Nandlal also the appellant made extra judicial confession. The prosecution has not collected any otherevidence to eonnect the accused in crime in question. In the absence of any evidence against the appellant, the conviction of the appellant is not sustainable under law. 13. Consequently,the appeal isallowed. Conviction of the appellant under Section 302 of the I.P.C. and sentence awarded thereunder is set aside. The appellant/accused in custody. The appellant/accused be set at liberty at once. He be released if nof required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge '/,'-/ '/ ?