^s HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON^LEJWR^ T.P. SHAMIA& HON'BLE MR. RANGNATH CHANDRAKAR, JJ. Criminal Appeal No. 1185/2003 APPELLANT (IN JAIL) RESPONDENT I)aura Swamy, Aged 62yrs, S/o Alan, Occupation Labour, R/o Teabber Colony, Dallirajhara Distt. Durg (C.G.). VERSUS State of Chhattisgarh. AN APPEAL U/S 374 (21 CR.P^C. Present:- Shri A.P. Sharma, Advocate for the appellant. Shri N.K. Mehta, P.L. for the State/respondent. ORAL-JUDGBMENT (Passedon 23/10/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19/6/03 passed by Additional Sessions Judge, Balod District Durg (C.G.) in Sessions Trial No. 277/2002 whereby and' where under after holding the appellant guilty for the commission of offence of culpable hoinicide amounting to murder of his son Mahalingam convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 500/- in default of payment of fine amount additional rigorous imprisonment for 3 months. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant •i., as aforementioned and thereby committed an illegality. 3. As per case of the prosecution, on fateful intervening night of 2/8/2002 at about 12:00 at night appellant has caused fatal-injury to his son Mahalingam by axe and Musal and has caused his death. Ganesh brother of the deceased Mahalingam was present on the spot who immediately rughed to the shop of PW7 Mohinibai and narrated the -incldent to Mohinibai and PW8 Indirabai. They immediately came to the house of appellant and saw the injured dead body of son of appellant. On second day at about 10.50 A.M. Daura Swamy lodged Marg intimation vide Ex. P-29. Ganesh lodged Dehatinalashi vide Ex. P-20. On the basis of Ex. P-20 finally First Information Report was lodged vide Ex. P-30. Investigating Officer left for scene of occurrence and after summoning the witnesses Vide Ex. P-17 inquest over the dead body of Mahalingam was prepared vide Ex. P-18. Dead body was sent for autopsy to Primary Health Center, Chikhalakasa vide Ex. P-4A, where team of doctor conducted autopsy vide Ex. P-2. As per autopsy report Ex. P-2, PW2 Dr. R. Ramteke found following injuries:- (i) Lacerated wound over right side of the scalp ofr'xVz'x l". (ii) Lacerated wound with contusion of 1 1/3" x 1 Y4" upon left side ofthe scalp. (iii) Lacerated wound with contusion upon scalpofl/3"xl/2"x 1 3/4". (iv) ' Scalp coupled with fracture of bone and bone was crust. (v) Fracture of left parietal & temporal and right parietal bone were found. Mode of death was coma and death was homicidal in nature. 5^) ^•8 ^.:^^^ During course of incident appellant assaulted his son Ganesh who was also examined by PW2 Dr. R. Ramteke vide Ex. P-3 and found two contusions over the body. Appellant was also examined by PW2 Dr. R. Ramteke vide Ex. P-4 and found injuries over right leg. Spot map was prepared-vide Ex. P-21. Blood stained and plain soil were recovered frpm the spot vide Ex. P-23. Blood stained axe was seized frpm the house of appellant vide Ex. P-24. Other blood stained articles were seized vide Ex. P-25. Musal was seized from the house of appellant vide Ex.P-26. Blood stained cloths were seized from the house of appellant vide Ex. P-27. Two sticks were seized from the Ganesh vide Ex. P-28. Cloths of the appellant were seized vide Ex. P-32. Sealed cloths of deceased were seized vide Ex. P-33. Sealed articles were sent for chemical examination vide Ex. P-36. Presence of blood over the cloths of appellant was confirmed vide Ex. P-35. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Balod District Durg who in turn committed the case to the Court of Sessions, Durg from where learned Additional Sessions Judge, Balod District Durg has received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Accused/appellant was examined under Section 313 of the Code where he dented the circumstances appearing against him, innocency and false implication is claimed. iili. Ui.i.iii i1!!! : :;:IS;;:.^^%'i^tais^^ 10. 11. 12. After affording an opportunity of hearing to the parties leamed Additional Sessions Judge, Balod District Durg convicted and sentenced the appellant as aforementioned. Shri A.P. Sharmg., Advocate for the appellant and Shri N.K. Mehta, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. - '/ Leamed counsel for the ^appellant vehemently argued that Court below has convicted the appellant without any clinching, credible and legal evidence. Conviction is not legally sustainable. Entire case is based on the evidence of PW5 Ganesh son of appellant who is not supported the case of the prosecution. As per evidence of PW7 Mohinibai 8s PW8 Indirabai, Ganesh has narrated the incident to them that his father has com.mitted the murder of Mahalingam but in absence of any corroboration in support of the prosecution by PW5 Ganesh the evidence of PW7 Mohinibai & PW8 Indirabai is of no use for convicting the appellant. On the other hand, learned Panel Lawyer for the respondent/State opposed the appeal and submits that PW5 Ganesh has immediately narrated the incident to PW7 Mohinibai SE PW8 Indirabai they had gone to the house of appellant and has seen the injured dead body of Mahalingam which is substantive piece of evidence sufficient for conviction of the appellant. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of th.e prosecution. In the present case, homicidal death as a result of fatal injury found over the body of deceased Mahalingam has not been substantially disputed on behalf of the ll'::.:l;^^^5^^ appellant on the pther hand, otherwise also established by the evidence of PW2 Dr. R. Ramteke and autopsy report Ex. P-2 which reveal that fatal injury resulting into death of Mahalingam was found and death was homicidal in nature. 13. As regard the complicity of the appellant in crime in question is concemed, conviction is substantially based on the evidence of P^!7 Mohinibai & PW8 Indirabai whom Ganesh has narrated the incident immediately after the incident. As per evidence of PW7 Mohinibai Cf aqi-J^sd-^'V-^l^ while she was sitting in her shop-the^ Ganesh came to her and told that his father has killed Mahalingam by axe and Musal at that time PW8 Indirabai was also present then they immediately went to the house of appellant where they saw the dead body of Mahalingam in injured condition. In Para-6 of her cross examination she has deposed that appellant was not present in the house when they went to the house of appellant. PW8 Indirabai has deposed in her evidence that between 8:00-9:00 A.M. Ganesh came to her and narrated the incident then she told his why he has not called them at the time of commission of the incident thereafter they went to the house of appellant where they saw the injured dead body of Mahalingam. 14. Prosecution has examined PW5 Ganesh who has not supported the case of the prosecution. Prosecution has turned him hostile. As per Dehatinalishi Ex. P-20 and Marg Ex. P-29 incident took place at 12:00 at night. There was no occasion of presence of PW7 Mohinibai 12:00, at night in any shop that too along with other woman. PW8 Indirabai has not substantially corroborated the evidence of PW7 Mohinibai. As per her B ^vss-'SS^WS evidence they were informed by Ganesh between 8:00 - 9:00 A.M. and not at 12:00 at night. 15. As per Para-6 of evidence of PW7 Mohinibai she went to the house of appellant at that time appellant was not present in his house even otherwise in absence of any corroborative evidence of Ganesh hearsay evidence of these two wtaesses is of no use. Prosecution has not examined any other vyitnesses in support of the case of the prosecution. In absence of any credible, clinching and legal evidence conviction of the appellant under Section 302 of the Indian Penal Code is not sustainable under the law. 16. For the foregoing reasons, criminal appeal is allowed. Conviction and sentence of the appellant Daura Swamy under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released if not required in any other case. 8d/- T.P. Sharoia Sd/- R.N. Chandrakar Judge