HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No.88 of 2005 Appellant Kartar Singh, S/o. Sohan Singh, age (injailcustody) about 45 years, resident of village Madoda (Bhilai), Distt. Durg, CG. x r Vs. State of Chhattisgarh through P.S. Nevai, Distt. Durg (CG). Resgondent (Cgiminal Appeal under Section 374 (2) of the Cr.P.C.) o Present: Shri V.P.Gupta, counsel for the appellant. Shri Sudeep Yadav, Dy. Govt. Advocate for the State. ORALJUDGMENI (Delivered on 23—10-2010) Per T.P. Sharma, J. 1r. Challenge in this appeal is to the judgment dated 7—12—2004 passed by Sessions Judge, Durg, in Sessions Trial No. 235 of 2003, whereby learned Sessions Judge has convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment and to pay ’fine of Rs.100/-, with usual default clauses for causing homicidal death of his wife Shanti Bai.. 2. Conviction is impugned on the ground that without any iota of evidence the trial court has convicted and sentenced the ' appellant.- The case of the prosecution, in brief, is that on 15-6-2003 at 7.30 p.m., the appeilant was present in his house along with his wife Shanti Bai and on account of some suspicion on her character he assaulted his wife Shanti Bai by spade as a result of which she died. When the mother of the appeilant namely Dasmuni (PW/6) tried to intervene to save Shanti Bai, the appellant assaulted his mother also and she received injuries. Thereafter, the accused came to his brother’s house and informed about the incident to his a 1* brother Gurdeep Singh. Gurde‘ep Singh‘(PW/3) lodged FIR vide Ex. P/5 and gave morgue intimation vide Ex.P/6 in Police Station, Newai on the basis of which Station House Officer prepared spot map vide EX. P/23 and inquest vide Ex.P/7 overthe person of the deceased in presence of witnesses. Thereafter, the dead body was sent for autopsy to Primary Health Centre, Utai, vide Ex.P/21 where Dr. Lal Mohmad (PW/1) condUcted postmortem and gave his report (Ex-P/1). On the basis of memorandum of the appellant (EXP/17), weapon of offence spade was recovered at the instance of the appellant vide EXP/18. Clothes of the accused/appellant were seized vide EXP/19 and the clothes of the deceased were seized vide EXP/22. The seized articles were sent for chemical examination to FSL, Raipur (EXP/24) and a report thereof is EXP/27 and report of serologist is EXP/28. ”After completing the investigation, charge sheet wastiled against the appellant in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions Judge, _. \ Mauw > , J Durg, who framed charges under Sections 325 and 302 of th e Indian Penal Code against the appellant who abjured his guilt. Prosecution in order toestabiish the charges against the appeilant examined ten witnesses in ail. Thereafter the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and faise implication. The? trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph- 4 one of the judgment. Homicidal death of deceased Shanti Bai is not in dispute. However, from the evidence of Dr. Lal Mohammad (PW/1), who conducted postmortem and proved the report (Ex.P/1) in which he found the injuries‘on the person of the deceased as mentioned in para 8 ofthe impugned judgment and opined that the deceased died due to shock as a result of head injury and the injuries were ante-mortem in nature, homicidal death of deceased is established. Mr. V.K. Gupta, learned counsel appearing for the appellant submits that the trial Court has convicted the appellant without proper consideration of evidence. There is no eye-witness to the incident. The witnesses PW/3 Gurdeep Singh, PW/6 Dasmuni and Ramesh PW/8 have turned hostile and the deceased was not seen alone in the company of the accused/appellant at the time of incident. Therefore, the appellant was not under obligation h»- yv %1L‘ 9 to offer any explanation about the incident. He further argued that the report (EXP/28) received from Serologist does not reveal that the blood found on the seized articles were of the same origin that of the deceased. Therefore, conviction under Section 302 of the IPC cannot be sustained. Thus, the conviction of the appellant deserves to be set aside. 10. On the other hand, Shri Sudeep Yadav Government Advocate, appearing on behalf of the State supporting the impugned judgment‘vehemently argued that the deceased was in the house of the appellant at the time of incident at 7.30 p.m and the 1 appellant has nQt offered any explanation though his name was shown in FIR, therefore, inference can be drawn against the appellant that the appellant was the person who committed murder of his wife. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment.- The trial Court has convicted the appellant on the basis of the FIR (Ex.P/5) and the evidence of Dr. Lal Mohammad (PW/1 ). As far as, the homicidal death of Shanti Bai is concerned, as per case of the prosecution, especially FIR (Ex.P/5) and Morgue lntimation (EXP/6), deceased Shanti Bai received fatal injurieson the date of incident at 7.30 p.m. At the time of incident, PW/6 Dasmuni, mother of the appellant was also present who tried to ;. intervene the quarrel in which she had also received serious injury over right middle finger which was examined by Dr. LA. W ». W i. Wadhwani (PW/7) who found fracture on the right middle finger vide reports Ex. 14 & 15. 14. Prosecution has examined PW/6 Dashmuni, mother of the appellant, who has not supported the case of the prosecution and has not deposed any thing against the appellant. This witness has turned hostile. 15. PW/3 Gurdeep Singh, brother‘ (of the appellant has also not supported the case of the prosecution. He has also turned hostile. As p%Fevidence of PW/3 Gurdeep Singh, the appellant was in his house in drunken condition at the time of alleged incident and he was not present in.the house along with the deceased Shanti Bai, therefore, he was not under obligation to offer any explanation when he parted the company of the deceased or who has committed offence in secrecy. The prosecution has not adduced any evidence and all other witnesses have turned hostile. ln absence of any clinching, credible and cogent evidence, conviction of the appellant could not be sustainable under law. While convicting the appellant, the learned Sessions Judge has ' not considered the fact that the appellant was not under obligation to offer any explanation under Section 106 of the lndian Evidence Act 1872 and the prosecution has not adduced any evidence in support of the case of the prosecution, therefore,‘ committed illegality. . For the aforesaid discussion, we are of the considered opinion that the conviction and sentence of the appellant under Section \ 302 of the IPC is not sustainable under law. £ \ 18. Accordingly, the appeal is allowed. Conviction of the appeliant under Section 302 of the IPC is set aside. The appellant is acquitted of the charge under Section 302 of the IPC. The appellant be set at liberty forthwith, if he is not required to be detained in any other case. l Sd/— l Sdl- ‘ T. P. Sharing: l‘l 1L, n R.N.Chandrakar Judgef Judge 23-1 0-201 0 23-1 0-201 0