^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No.336 of 2005 Appellant (in jail) Vs. Respondent Complainant Preetam Lal, aged about 55 years, s/o. Shri Benilal Kenwat, r/o. village Govinda, Police Station House Saragaon, District Janjgir- Champa (CG). State of Chhattisgarh through Police Station House, Saragaon, District Janjgir-Champa (CG). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Ashok Verma, counsel for the appellant. Mr. Akhil Mishra, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Deliveredon 16-8-2011) Per T.P. Sharma. J. ® 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 18-3-2005 passed by learned 3 Additional Sessions Judge (FTC), Janjgir, in Sessions Trial No. 12/2005, whereby and whereunder learned Additional Sessions Judge, after holding the appellant guilty for causing culpable homicidal death amounting to murder of his wife, convicted the appellant under Section 302 of the IPC and sentenced him to undergo life 1^,vy •€ '. tL. imprisonment and fine of Rs.500/-, in default of payment of fine to undergo further Rl for two months. Conviction of theappellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned on the basis of evidence of hearsay witness Ganeshi Bai (PW/14) andthereby committed an illegality. As per case of prosecution, on 14-10-2004 at about 11.30 a.m,. on account of some dispute and quarrel, appellant assaulted his wife Dharmin Bai by club while she was working in her field and caused eight injuries, resulting into her instantaneous death. The incident was witnessed by Sadhram, son and daughter-in-law Ganeshi Bai (PW/14) and other relatives ofthe deceased and appellant. PW/1 Dhaniram Kenwat went to Police Station House Saragaon and lodged first information report vide Ex.P/1, merg was recorded vide Ex.P/2, Investigating Officer left for scene of occurrence vide Ex.P/11 and inquest over the dead body of the deceased was prepared vide Ex.P/12, spot map was prepared vide Ex.P/13-A, blood stained soil and plain soil were recovered from the spot vide Ex.P/13, dead body of deceased was sent for autopsy to Community Health Centre, Bamharidih/Saragaon vide Ex.P/14 where Doctor Anita Shrivastava (PW/8) conducted autopsy vide Ex.P/15 and found following injuries; i) lacerated wound over right ear of 2.5cmx0.5cm; ii) lacerated wound over right mastoid region 1.5cmx0.5cm; iii) swelling of4"x3" with contusion of2"x2" over right leg; iv) lacerated wound over right parieto-temporal region w €- (^-] 2.5"x1.5cm x 1cm deep; v) contusion over right glottal region 5"x1.5"; vi) contusion over left upper scapular region 3.5"x1"; vii) swelling over left mastoid region 2.5"x1.5"; viii) swelling over right cheek 3"x3"; ix) intracranial hematoma was noticed and opined that cause of death was coma due to intracranial (head) injuries and dead was homicidal in nature. During course of investigation accused was taken into custody and he made a disclosure statement of two wooden pieces vide Ex.P/9 and same was recovered at the instance of appellant along with other clothes vide Ex.P/10. Sealed clothes of the deceased were recovered vide Ex.P/17 and seized articles were sent for chemical examination to Raipur vide P/20. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short, "the Code") and after completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, Janjgir, who in turn committed the case to the Court of Sessions Judge, Bilaspur. Learned Additional Sessions Judge, received the case on transfer for trial who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. In order to prove the guilt of the appellant the prosecution examined as many as eighteen witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him, innocence and false implication in crime in question is ^ 1^^-. ^ ^. .%.. ^^ ^"-,.-^^ claimed by adducing evidence of DW/1 Deriha Soni and took the defence of alibi. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 9. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment 10. Mr. Ashok Verma, learned counsel appearing for the appellant vehemently argued that conviction is based only on the evidence of PW/14 Ganeshi Bai, daughter-in-law ofthe deceased and appellant which being untrustworthy does not inspire confidence because as per her statement recorded under Section 161 of the Code as Ex.D/1, she was hearsay witness and has not seen the incident, but in her evidence recorded before the court below she has deposed that she has seen the incident. However, in her cross- examination this witness has not corroborated her version given in examination-in-chief and that being so virtually this is a case of no evidence in which accused is in custody for the last six years. 11. On the other hand, Mr. Akhil Mishra, learned Deputy Govt. Advocate appearing on behalf of the State opposed the appeal and submits that evidence of Ganeshi Bai (PW/14) who is daughter-in- law of the deceased and appellant is sufficient for convicting the appellant and after considering all evidence and aspects of the case, learned Additional Sessions Judge has rightly convicted and sentenced the accused/appellant. .// 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adducedon behalf ofthe prosecution. 13. In the present case, homicidal death of the deceased as a result of fatal injuries found over the vital parts of deceased Dharmin Bai has not been substantially disputedon behalf of the appellant. On the other hand, it is also established by the evidence of Doctor Anita Shrivastava (PW/8) and autopsy report (Ex.P/15) death of deceased Dharmin Bai was homicidal in nature. 14. As regards complicity of the appellant in the crime in question, prosecution has examined 18 witnessed including son, daughter- in-law and other relatives of the deceased and the appellant but except Ganeshi Bai (PW/14) - daughter-in-law ofthe deceased and appellant, other witnesses have not supported the case of the prosecution. As per evidence of Ganeshi Bai (PW/14) when she along with her mother-in-law- Dharmin Bai was working in kitchen garden, her father-in-law i.e., appellant came there, picked quarrel with them and assaulted over the head of the deceased with club and then left the spot. She has further deposed that she did not know as to when her father-in-law again assaulted her mother-in- law and caused her death. In para 5 of her cross-examination she has admitted that at the first instance her father-in-law i.e., appellant quarreled with her mother-in-law and thereafter left the place of incident but she had not seen the appellant again on the spot. However, she has denied the suggestion that the appellant has not quarreled with her-mother-in-law and not caused injuries to 6 ^ ^,, her. She has deposed that in her statement recorded in the Police Station under Section 161 ofthe Code as Ex.D/1 she had disclosed that her father-in-law assaulted with stick over the head of her mother-in-law but the same does not find place in Ex.D/1. As per Ex.D/1 statement recorded under Section 161 of the Code of this witness, initially she was present on the spot when altercation took place, thereafter she came back toher house but had not seen the incident and was informed by her husband Sadhram (PW/2) that appellant caused death of his wife i.e., her mother-in-law. As per Ex.D/1, Ganeshi Bai (PW/14) was not the eye-witness but as per her evidence before the court she was an eye-witness. Thus, minute scrutiny of her evidence reveals that her evidence that she was working near the kitchen garden of her mother-in-law where incident took place, is self-contradictory. As per her evidence, she had seen the first assault and thereafter she has not seen the other assault although as many as eight injuries have been noticed by Doctor Anita Shrivastava (PW/8) over the body of the deceased. The evidence of this witness is also not in consonance with her previous statement recorded under Section 161 ofthe Code. In this view of the matter, we are of the considered view that the evidence of this witness is not sufficient for drawing a definite conclusion because it is manifestly clear from the record that the appellant has caused homicidal death of his wife. Dujmati (PW/15) and Sadhram (PW/2) have not supported the case of the prosecution i.e., who have not deposed against father and father-in-law. Prosecution was unable to prove its case beyond all reasonable doubt as the N,;r '^, Raju evidence adduced on its behalf is not sufficient for drawing an inference that the appellant has caused homicidal death of his wife. Thus, conviction and sentence of the appellant is not sustainable under law. 15. Consequently, the appeal is allowed and conviction and sentence of the appellant under Section 302 of the IPC and sentenced to undergo Rl and fine of Rs.500/- deserve to be set side and are hereby set aside. The appellant shall be set free forthwith, if not required in any other case. —- Sd/- T.P. Sharma Judge Sd/- R.N.Chandrakar Judge @