HIGH COURT OF CHHATTISGARH BILASPUR Criminal Agpeal No.513 of 1992 § APPELLANT: Shivlal son of Janakram Patel 1 (In Jail) ‘ (Aghariya) aged 40 years, R/o Village ‘ Selar, P.S. Teepat Distt. Bilaspur (MP) (now CG) ‘ ' 1 Versus RESPCNDENT: The State of Madhya Pradesh (now i Chhattisgarh) {Crimihal i appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: lVlr. Avinash Mishra, counsel for the appellant. Mr.‘Sudhir Bajpai, Deputy Govt. Advocate for the State/respondent. Divisibn Bench: - Hon’blle Mr T.P. Sh‘arma & Hon’bfle Mr. N.K. Ag‘arwal, JJ 3 ORAL JUDGMENT (5—3—201 0) T.P. Sharma J: — 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29-4-1992 passed by the 3rd Additional Sessions Judge, Bilaspur, in Sessions Trial No.339/91, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for {I commission of culpable homicide amounting to murder of his daughter Chandrakala, convicted the appellant under Section$302 of the l.P.C. and c. sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any evidence, the trial Court has convicted & sentenced the appellant only on the basis of conjectures 8t su‘rmisesand thereby committed illegality. 3. Case of the prosecution, in brief, is that on 30—5-91 Chandrakala (since deceased), 8 years aged child — daughter of the appellant, was sleeping in her house. The appellant was also sleeping in his house. At about 12 » / m id night, the appellant assaulted his daughter with carpenter axe and caused her death. Other persons sleeping in the house of the appellant woke up and cried, and they caught hold of the appellant. The appellant immediately thrown away the carpenter axe. F.l.R. was lodged by Usatram (PW—1) vide Ex.P-2 within 1 1/2 hours of the inci‘dent. The investigating Officer left for the scene of occurrence and after sunffmoning the witnesses, prepared inquest over the dead body of i Chandrakala vide Ex.P—3. Blood stained & plain soil were recovered from the spot vide EXP—4. Dead body was sent for autopsy to Primary He‘alth‘ Centre, Sipat. Dr. é Venkatesh (PW-5) conducted autopsy vide ExiP-14 and found following injuries: - l i(1) lhcised wo‘und over neck of 3" x 1 1/2” x 2", blood vessels were found cut. ‘(2) lncised'wound of 1" x 3" x skin deep over chest. (3) incised wound of 2 1/2" x 1/2” over right palm, right carotid artery and jugular artery were found cut. Mode of death was shock as a result of haemorrhage. 4. The appellant was taken into custody. He made discloser statement of carpenter axe vide EXP-5 and the same was recovered from him vide a EXP-6. Blood stained lungi was seized from the appellant vide Ex.P-7. Blood stained bed sheet‘was seized from the spgt vide EXP-8. The accused was arrested vide Ex.P-9. Spot map was: prepared vide Ex.P- 16. Seized clothes of the deceased were seized vide EXP-18. Seized articles were sent for chemical examination and presence of blood over lungi & carpenter axe was confirmed vide EXP-19. Trx Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where L/ux l l t learned 3rd Additional Sessions Judge, Bilaspur, received the case on transfer for triaL . In orcjier to prove the guilt of the appellant, the prosecution has examined as many i as eight . Witnesses. . The accused was examined . under Section . 313 iof the Cr.P.C. in which he denied the circumstances appearing agairjist him, pleaded innocence and false implication. 7. After; affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid man‘ner. t V. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Mr. Avinash Mishra, learned counsel for the appellant,.frankly admits that this is moral conviction rather legal conviction and the trial Court has convicted & sentenced the appellant on the basis of conjectures & surmises which is not permissible under the law. The prosecution has examined eight witnesses, but no witness has supported the case of the prosecution. They have admitted presence of the appellant along with them. At the time of incident, the appellant was not sleeping with deceased Chandrakala, his daughter and he was naot present in some secret place along with her daughter. Conviction is‘i‘not based on direct evidence. 10.0n the other hand, Mr. Sudhir Bajpai, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, opposes the appeal and 3 submits that the case is based on circumstantial evidence and considering the evidence of hostile witnesses the Court belowhas arrived at a finding that the appellant has committed the murder of his daughter. U E's %j1 1 1.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. / 12.in the present case, homicidal death of Chandrakaia as a result of ante- mortem fatal injuries has not been substantially disputed by the appellant, otherwise also established by the evidence ‘of Dr. G. VenRatesh (PW-5) & autopsy report Ex.P-15 which reveal that fatal injury l E was found over neck of the deceased and death was homicidal in nature. 13.As regards complicity of the appellant in the crime in question, conviction of the appellant is based on the evidence of Usatram (PW—1), Va Bundelchand (PW—2) —- uncle of the appellant, ltwari (PW—3) — younger brother oj the appellant, Jar‘nuna Bai (PW—4) — wife of.the appellant and recovery of carpenter axe at the instance of the appellant. The aforesaid four‘witnesses are close relatives of the appellant. They have specifically deposed that Chandrakala died as a result of fatal injuries at about 12 mid night on 30-5-91 and the appellant was also present along l with them. But they have not deposed anything against the appellant that the appellant has committed the murder or caused injury to Chandrakala. The prosecution has declared them hostile. They have denied the suggestion that the appellant was sleeping with his daughter Chandrakala (since deceased) at the time of incide’ht, inter alia, they have specifically deposed that the appellant was sleeping on a separate gk cot and the deceased was sleeping near Bundelchand (PW-2). 14.As regards recovery of weapon at the instance of the appellan, Panch t witness Ramkumar.Singhm(PW-7) has not supported the factum of Cv‘ confessional statement and recovery of axe vide Exs.P—5 & P-6. NLA. Khan (PW-8) — Sub Inspector/Investigating Officer has deposed in his evidence that he has taken the appellant into custody, the appellant x w made discloser statement of carpenter axe vide Ex.P-5 and the same was seized at the instance of the appellant vide Ex.P-6. The articles ‘ were sent for chemicai examination and presence of blood over lungi of the accused & carpenter axe was confirmed vide EXP—19. However, presence of blood on carpenter axe or lungi of the accuseditself is not sufficient i for drawing inference that the appellant has committed the f f offence It may be the case that after death of the deceased who was daughter of the appellant the appellant could have come Into contact with the dead body of the deceased & her blood, and therefore, his lungi muSt‘have stained with blood. Even in absence of blood group, mere presence of blood over carpenter axe i.e. the weapon of offence is not sufficiertt to conne‘ct the appellant with the crime in question. 15.After appreciating the evidence available on record,.learned Additional Sessions Judge has convicted the appellant under Section 302 of the l.P.C. But in absence of legal and clinching evidence, conviction of the appellant is not sustainable under the law. Suspicion howsoever grave cannot take the place of evidence. Conviction cannot be based on conjectures & surmises. The prosecution is required to prove its case by adducing legal, clinching & credible evidence. 16.0n close scrutiny of evidence, we do not find any incriminating circumstance against the appellant for sustaining his conviction. Consequently, the appeal is allowed. Conviction & sentence of the appellant under Section 302 of the l.P.C. are hereby set-aside and he is 6‘ ‘ acquitted of thexsaid charge. The appellant is on bail, surrender to his ball bonds. \_ l k Sd/. j , 7/ l Sdl- r 7/ » s T. P. Shanna L l N.K. Agrawal Soma g Judge l Judge u