HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon’ble Shri T.P. Sharma & Hon’ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 445 of 2005 Jitendra Kumar Sahu s/o. Maniram Sahu. A‘ged 23 years, r/o.village Dhardai, Police Station Sheorinarayan, Dist. Janjgir— Champa. Appellant Vs. m State of Chhattisgarh through Station House Officer, PS Sheorinarayan, Distt. Janjgir—Champa (CG). Respondent 4 JUDGMEN'T FOR CONSIDERATION Sdl- RN.Chandrakar i Judge r5 -7-2011 Hon’ble Shri T.P. Sharma , J. Sd/- T, 1). Sharma: l. ‘ Judg l l 7 OST FOR JUDGMENT ON lf-7-2011 P é?) HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal4Appeal No.445 of 2005 Jitendra Kumar Sahu, s/o. Maniram Sahu, aged 23 years, r/o. village Dhardai, Police Station Sheorinarayan‘ District Janjgir— Champa(CG). Appellant Vs. &e§pondent. State of Chhattisgarh through " Station House Officer, Police ‘ Station Sheorinarayan, District Janjgir-Champa (CG). A (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. Dhirendra Pandey, counsel for the appellant. Ms. Madhu Misha Singh, Panel Lawyer for the State. t NLSEA h JUDGMENT (Delivered on is’—7-201 1) Per Ranqnath Chandrakar, J. 1. The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 28—4-2005 passed by Additional Sessions Judge, Janjgir, in Sessions Trial No. 333 of 2004, whereby and whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicidal death amounting to murder of his own wife, Duleshwari Sahu, convicted the appellant under Section 302 of IPC and sentenced \ @ him to undergo Iife imprisonment and to pay fine of Rs. 500/—, in default of payment of tine to undergo further RI for 2 months. Conviction of the appeiiant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appeliant as aforementioned and thereby committed illegality. 3. As per case of prosecution, qn 2-6-2004 Duleshwari Sahu, wife of the appellant was not feeling well in the morning, therefore, the appellant gave her one Becosule capsule and after consuming the same she did her routine work. At about 12.00 noon she went to A take rest in her room after taking lunch. The appellant had gone to Patwari for some work and when he returned to his house at about 2.30 pm, his wife did not wake up, therefore, he tried to, wake up his wife. When she did not wake up, he called Doctor Shukla, who after examination declared Duleshwari Sahu dead. The intimation was given to Police Station Sheorinarayan by Maniram, father of the appellant and father—in-law of deceased ' Duleshwari Bai vide Ex.P/1 1. Police registered the morgue No.32/04 under Section 174 of the Cr.P.C., and' investigated the matter. During course of investigation, inquest over the dead body of deceased. was prepared in presence of Executive Magistrate J. Khindo (PW/'17) vide Ex.P/5 after summoning the witnesses vide Ex.P/10. The dead body was sent for autopsy to Primary Health Centre, Sheorinarayan vide EXP/12, where Doctor N. Prasad (PW/11) ext conducted postmortem examination of the deceased along with‘ \m (7 Doctor Anita Dhruw vide Ex/P/6 who found the injuries as mentioned in para 8 of the impugned judgment and opined that the cause of death was asphyxia due to strangulation resulted in cardio respiratory failure and death was homicidal in nature. After receiving postmortem report, first information report was lodged on 16-6—2004 under Section 302 of IPC against the appellant at Police Station, Sheorinarayan vide Ex.P/13. Memorandum of the appellant under Section 27 of the Evidence Xc‘i‘t was recoded vide Ex.P/8 and at his instance one full shirt of the appellant was seized vide Ex.P/9 and the appellant was £ arrested. Thereafter, spot map was prepared by Patwari vide EXP/3. After completing the investigation, charge sheet was filed against, the appellant in the Court of Judicial Magistrate, First Class, Janjgir, who in turn committed the case to the Court of Sessions Judge, Janjgir. Learned Additional Sessions Judge, received the case on transfer, who framed charge under Section 302 of the IPC against the appellant who abjured the guilt. in order to establish the charge against the appellant prosecution examined 17 witnesses in all. 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 false implication. The appellant took the defence that he was not in his house at the time of incident and has not committed murder of his wife. @ 4 The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of the judgment. 4 Mr. Dhirendra Pandey, learned counsel appearing for the appellant vehemently argued that the conviction of the present appellant is only based on circumstantial [evidence and on surmises and conjectures. :l'he court below ought to have seen that at the time of incident, the present appellant was not in his hopse and the court below has erred in relying on the evidence of PW/1 Shyamlal Sahu and PW/2 Dhanesh Kumar who are A interested witnesses being relative of the deceased, therefore, their evidence ought to have been scrutinized with great care. The trial Court has not appreciated the evidence adduced before it ,. in its right perspective. 10. Per contra, Ms. Madhu Nisha Singh, learned Panel Lawyer appearing on behalf of the State supported the impugned judgment and submits that the court below ‘after considering all the aspects of the case has rightly convicted and sentenced the g accused/appellant. He further submits that the evidence adduced on behalf ofthe prosecution is sufficient for drawing inference that the appellant had committed homicidal death of his} wife Duleshwari Sahu. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. @ 12. In order to appreciate the arguments advanced by Iearned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, conviction of the appellant is mainly based on postmortem report (Ex.P/6) given by Doctor N. Prasad (PW/11), evidence of Shyamlal Sahu (PW/1), father of deceased, Dhanesh Kumar (PW/2), brother of deceased, Phooi Bai (PW/3), sister of deceased, Ku. Laxmi Sahu (PW/8), niece of deceased and on %§tra judicial confession said to have been made by the appellant before Ramial @ Chhotu Sahu (PW/9) . £ 14. On a close scrutiny of entire evidence available on record, it is clear that Shyamlal Sahu (PW/1), father of deceased, Dhanesh Kumar (PW/2), brother of deceased, Phool Bai (PW/3), sister of) deceased, Ku. Laxmi Sahu (PW/8), niece‘ of deceased, are interested witnesses being close relatives of deceased. Their statements were recorded after registration of first information report (EXP/13) on 16-6-2004 whereas the incident took place on 2-6—2004 i.e., after more than two weeks of the incident. All the aforesaid witnesses have made the similar statement that on the occasion of “Chhatti” function, the appellant along with his wife (deceased) had gone to his in-laws house and after staying there for two days he asked the deceased to return to his own house at village Dhardei. On this, the deceased refused toaccompany the appellant on the pretext that she wanted to stay for further two days as her elder sister had come from Nagpur. On refusal of \deceasedpthe appellant became furious and threatened by \\ stating her that if she comes to his house after two days, either of them would remain in viilage Dhardi at his house, returned to his house. Previousiy the appellant had demanded Rs.20,000/- from in—laws for starting business of STD/PCO which was not fulfilled by PW/1 Shyamlal Sahu whereupon Rs.5000/— was given to him by Phool Bai. PW/8 Ku. Laxmi Sahu corroborated the threatening given by the appellant to the deceased at Kasdol (parental house of deceased) stated in her deposition that after Ehhatti function she went to the maternal house of deceased and stayed for 15 days. During her stay there, she found that her £ aunt (deceased) was scolded in petty matters by her in—laws and there was some hot exchanges between the appellant and deceased with respect to the photograph‘of some girl found in the V, pocket of appellant. The appellant used to threaten the deceased to give divorce and try to press her neck in petty matters. On the basis of aforesaid story they suspected that the appellant would have caused death of deceased but on perusal of their cross examination it is clear that they all have admitted good relations between the appellant and deceased. Apart from this, the aforesaid witnesses despite being present during inquest over the dead body (EXP/5) they did not raise any objectipn or apprehended that the appellant would have caused death of deceased which is clear from the deposition of James Kindo (PW/17), Executive Magistrate who conducted the inquest and categorically stated in para 2 of his cross examination that the a \ inquest was prepared in presence of the family members of \ . ’ \ deceased along with the witnesses and nobody told him that the deceased was tortured or harassed by the appellant. He further. stated that no external injury was found on the body of deceased at the time of inquest. The version of the Executive Magistrate is well corroborated by the Investigating Officer K.S. Rathia (PW/16) who admitted in para 7 of his cross examination that no written compiaint was ever made py the family members of deceased stating that the appellant had caused death of deceased. He uftirther admitted that at the time of inquest also the family members of deceased did not make any complaint against the A appellant or his family members. In para 9 he admitted that prior to death of deceased also no complaint regarding harassment or torture to the deceased was made by her family members against. the appellant or his family members. It is also pertinent to mention here that the relatives of deceased stayed at Dhardie for 10-13 days during performance of entire last rituals of deceased but they did not make any complaint against appellant to Police. They made compliant against appellant to Police for the first time when the Police went to Kasdol for recording their statements that too after receiving the postmortem report and registration of first information report which goes to show that the police tried to make the story according to postmortem report. Thus, in view of the aforesaid, the evidence of relative witnesses does not inspire confidence and the same cannot be relied upon as it appears to be after-thOught looking to the exaggerations in their deposition. @ As regards extra judicial confession is concerned, it is said to be made before Ramlal @ Chhotu (PW/9) who admitted in para 3 of his cross examination that he did not narrate the extra ‘judicial confession made by the appellant to anybody. He further stated that he narrated the same to Upsarpanch Daduial. In para 4 he admitted that his statement was recorded by Police on 13—9—2004 when the police called him. his statement regarding extra judicial confession is not reliable in absence of corroboration as bgsarpanch Dadulal has not been examined in this case and till 13—9-2004 he did not inform the Police or the relatives of A deceased about the extra judicial confession made by the appellant. The extra judicial confession is a weak type of evidence which requires corroboration by other cogent evidence. As regards memorandum of appellant (EXP/8) and seizure of his full shirt (EXP/9) is concerned, it is only admissible to the extent of seizure of shirt of appellant but in this case the witnesses Shivkumar Sahu (PW/13) and Munshi Ram Sahu (PW/15) have not supported the memorandum and seizure. Shiv Kumar Sahu (PW/13) has admitted in para 3 of his cross examination that he put his signatures on Ex.P/8 & Ex.P/9 on the same day at Police Station Sheorinarayan and he was not read over about the contents of the same. The appellant did not give any statement to police before him. Munshiram Sahu (PW/15) also made the similar statement that he was not told by the Police about the contents of Ex.P/8 & P/9 and at the time when he put his signatures on Ex.P/8 & P/9 the appellant was not present there; @ Thus, the memorandum and seizure loose its significance as the same are not corroborated by the witnesses. 18. As regards homicidal death of deceased is concerned, as per evidence of Doctor N. Prasad (PW/1 1), on external examination of the deceased, he found that face of deceased was swalten, eyes were closed, mouth was semi-open, blood mixed froth was oozing from nose and mouth, blood was oozing from ears, ligature mark r (ecchymosed) around neck. On internal examination of neck ‘extravasations of blood into subcutaneous tissue under the ligature mark, lacerated muscles, infusion of blood, fracture of £ hyoid bone, redness over trachea were found. Doctor opined that cause of death was asphyxia due to strangulation resulted in cardio respiratory failure within 24 — 36 hours. In his cross, examination he admitted that the ligature mark might be caused ~ by ornament or thread worn around the neck if the body was swallen. ln case of strangulation by hanging or throttling, intestine finds ruptured, tongue comes out and chambers of heart find full of blood. He admitted that autopsy was performed by a sweeper who was not a specialist and the injuries on bones and muscles might be caused during autopsy. From perusal of the postmortem report (EXP/6), it is found that there were no external injuries over the body of the deceased, both the chambers of heart were empty and there was no rupture of intestine. It is pertinent to mention here that there is no evidence available on record that the viscera of the deceased and full shirt seized from the appellant were sent to the FSL for C chemical examination. Thus, in absence of corroboration of the postmortem report by the other evidence such as FSL report and in View of the suggestions given to the Doctor regarding symptoms of stranguiation, postmortem report (EXP/6) of deceased with respect to homicidal in nature becomes doubtfui. 20. Further, the presence of appellant at the time of incident has also not been established by the prosecution as is evident from perusal of morgue intimation (EXP/11) that he left the house in the *r‘norning and returned at 2.30 pm. It was mentioned in morgue intimation that the appellant tried to wake up the deceased but £ could not succeed. On this, the villagers werecalled and on their advice doctor was called who after examination, declared her dead. Maniram Sahu, father of appellant who lodged the morgue , intimation has not been examined by theprosecution and the investigating officer has admitted in para 12 of his cross examination that during investigation the statement of Maniram Sahu was not recorded with respect to the death of Duleshwari Sahu. In para 10 he admitted that no statements of the neighbours were recorded regarding the incident. Thus, on perusal of morgue intimation, the fact that he had gone to Patwari at the time of incident was established which was; well corroborated by the evidence of Arjun Sahu (PW/5) & Dhujeram (PW/6), the Patwari but there is no evidence available on record to show that at the time of incident appellant was present in his n house. 11 @D Having considered ail the aspects of the matter and on a close scrutiny of entire evidence available on record, we are of the considered opinion that the prosecution failed to prove the charge against the appellant beyond all reasonable doubt and the trial Court while passing the impugned judgment failed to appreciate the evidence in its proper perspective and thereby committed illegality. 22. For the foregoing discussion, we are of the firm opinion that the “impugned judgment of the trial Court deserves to be set aside and is hereby set aside. Consequently, the appeal isallowed. Conviction dtthe appellant under Section 302 of the IPC is set aside. He is acquitted of the charge under SeCtion 302 of the IPC and he be set at liberty forthwith, if not required to be detain-ed in; v r 4 any other case. /i l Sdl- l l Judge l T. 1’. Sharrg?’/L l Raju '21. a