$11: J ‘1 ¥ HIGH COURT OF CHHARTTISGARH AT BILASPUR Hon’ble Shri Justice Dhirendra Mishra & Ho'n’ble Shri Justice R.N. Chandrakar Criminal Appeal No. 451 of 2004 Comm:- Appellant Trika! Das, s/o. Baboolal aged about' 29 (injail) years, resident of village — Khuteri, P.S. Somani, Distt. Rajnandgaon (CG). Versus ‘K State of Chhattisgarh. Respondent (Appea! under Section 374 (2) of the Code of Criminal Procedure) Present: SEri G.S. Ahuluwalia, counsel for the appellant. Shri Ashish Shukla, Govt. AdVocate for the State, JUDGMENT ark (Delivered on this 12 day of July, 201g)“ Per Ranqnath. Chandrakar, J. 1. The appellant has preferred this criminal appeal under Section 374‘ (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 19-4-2004 passed by Additional District Judge, Rajnandgaon, in Sessions Trial No. 161 of 2003, whereby the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.25,000/—, in default 9f payment of fine to undergo further R.l. for one year. 2. The case of the prosecution, in brief, as projected in FIR is that on 9/5/2003 report (EXP/1) of the incident was iodged against the appellant by the Kotwar Biselal (PW/1) in Police Station Somani at 3.30 a.m., stating that on the date of incident i.e., in the intervening night of 8-9/5/2003 between 1 —' 1.30 am. Vishnu Nishad (PW/1m r I. o i i a‘xquv—sm. my emw’a, m n and Punuram Sonkar (PW/9) brought the accused Trikal to his house for going to lodge the report in Police Station. Trikal told him that at about 12.45 he assauited Shivkumar by Sabbai and Danda and killed him due to previous animosity on the ground that the deceased Shiv Kumar had illicit relation with his wife Daso Bai. He told this fact to Kotwar Biselal in presence of Vishnu Nishad (PW/10) and Punuram Sonkar (PW/9). ,The accused Trikal also‘suspected that the deceased committed theft of electric motor-pump and wat’er from his field. The villagers were also aware of the fact that the deceased had illicit relation with the wife of the accused. Before giving the information to Kotwar Biselal (PW/1) the accused narrated the fact of committing murder of Shiv Kumar to Vishnu Nishad (PW/10), Punuram Sonkar (PW/9) and other villagers. The accused Trikal caused injuries by means of Sabbai and" Danda on the head and body of the deceased Shiv Kumar as a result of which he died. The dead body of the deceased was lying near the pump house situated in the field of accused Trikal. . After registering the crime, police proceeded to the scene of occurrence and prepared inquest (Ex-P/11) onthe person of the deceased in presence of the witnesses. Thereafter, the dead body of the dece sed was sent for autopsy to Government Hospital, Rajnandg , where Dr. Harish Kumar Joshi (PW/13) conducted ‘ post—mortem and gave his report (Ex-P/14). Sealed packet containing the clothes of deceased Shiv Kumar and two sealed packets containing viscera of the deceased in plastic jar were seized vide EXP/16. On the memorandum of accused Trikal Das, one iron rod (Sabbai) and one stick were seized vide Ex.P/8. One iron knife, bunch of hair of the deceased, piece of violate coloured Baniyan and one Photostat letter without signature, blood smeared soil and plain soil were seized vide Ex.P/9. Spot map (Ex.P/2) was prepared by Investigating Officer before Kotwar, Biselal (PW/1). In response to the query of the investigating Officer, Dr. Harish Kumar Joshi (PW/13) opined that death was caused due to hemorrhage as a result of injuries sustained by the deceased. After completing the investigation, charge sheet was‘filed against the appellant in the Court of the Chief Judicial Magistrate, Rajnandgaon, who in'turn committed the case to the Court of Sessions Judge, Rajnandgaon who transferred the case to Additional Sessions Judge, Rajndngaon for trial, who framed charges under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. Prosecution, in order to bring home the guilt against the appellant examined 11 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 and pleaded innocence and false implication Appellant examined the defence witness Gopi (DW/1). The trial Court after hearing counsel for the respective parties convicted and sentenced the appellant as mentioned in paragraph W one of the judgment. . Shri G.S. Ahluwalia, learned counsel for the appellant submits that in the present case, there is no direct evidence against the appellant to connect him with the crime and the case is based on circumstantial evidence. The evidence adduced by the prosecution has not been corroborated by the independent witnesses. Prosecution witnesses, I // l ‘L. . . . . m !Wig namely Punuram (PW/9) and Vishnu (PW/10) have not supported the prosecution story. The intention and motive is not proved by the prosecution. The trial Court has not seen the act of sudden provocation and the aggravation on the part of the deceased. He further submits that the trial Court has not appreciated the rightof private defence, because the prosecution story itself goes to show that the deceased was aggressor and also inflicted injuries on the to " I appellant and his wife with sharp object. The appellant lodged the report about the incident and theft of motor-pump in Police Station. The prosecution deliberately suppressed the report of the appellant, because, the prosecution witnesses as well as Kotwar Biselal (PW/1) admitted that the appellant was injured at the time of lodging the report. Learned counsel further submits that thesprosecution has not V proved the weapon of offence by which the injury wa's caused to the deceased. 8. On the other hand, Shri Ashish Shukla, Government Advocate, appearing on behalf of the State supported the impugned judgment. 9. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 1o. Biselal (PW/1) deposed that Vishnu Nishad and Khom brought the accus'e‘d Trikal to his house then accused Trikal. told him that deceased Shivkumar was with his wife in the night. Deceased Shivkumar came to his kitchen garden in the night. Accused Trikal had constructed a room in the kitchen garden where deceased Shivkumar came in the night. Trikal further deposed that he had assaulted deceased Shivkumar by Danda (club), thereafter he went l v to police station and lodged report vide Ex.P/1 and morgue intimation vide Ex.P/4. Thereafter, he along with police personnel went to the scene of occurrence where site map vide Ex.P/2 and Panchanama vide Ex.P/3 were prepared. Biselal (PW/1) deposed in para 3 of his cross-examination that deceased Shivkumar indulged in performing jugglery (hocus-pocus) and his character was also bad. He further deposed in para‘6 that accused Trikal Das told him that t i his wife had illicit relation with deceased Shivkumar. He also deposed in para 8 that when he saw the accused Trikal in his house hefound that blood was oozing from his both hands and his palms were injured. . Khomlal (PW/4) deposed that Shiv Kumar was his cousin. His house is adjacent to the house of Shiv Kumar. There is’fencing in the field of the accused and the deceased. They used to visit the house of each other. The motor pump of the accused was stolen and he did not know as to how Shiv Kumar died. He had no conversation with the accused/appellant about the death of Shiv Kumar. He saw the accused [appellant in the Police Station in injured condition. He did not know how the injury was caused to Trikal. He saw the dead body of Shiv Kumar in the kitchen garden of Trikal. There were injuries i over head and chest. Lacerated wounds were found on the hands of the deceased on 2 — 3 places. He stated in his cross-examination that he did not know about the illicit relation between deceased and Daso Bai, whereas he stated in his diary statement that the deceased had illicit relation with the wife of the accused, which was known to the villagers. This witness turned hostile. @ 12. Punuram Sonkar (PW/9) deposed that he, Khomlal and Vishnu went to the house of Ketwar Biselal in the night itSelf where Bihari and others were standing in front of the house of Trikal. Thereafter, Trikai told that he had altercation with Shivkumar because he had come to his kitchen garden. They saw that there was injury on the both hands of Trikal and blood was also found there. Kotwar Biselal, It Vishnu Nishad and Trikal went to lodge the reportto Police Station on the same night. ln the morning, he along with the villagers saw the dead body of deceased Shivkumar in the kitchen garden of Trikal I where pump was situated. There were injuries over the head and body of Shivkumar who was wearing underwear and baniyan. Then police came to the scene of occurrence and inquest (Ex.P/11)~was prepared. He further stated in cross-examinatiog that he‘did not know how Shivkumar died. 13. Vishnu Ram Nishad (PW/10) deposed that in the intervening night village Kotwar came to his house and told that accused Trikal Land deceased Shivkumar had altercation with each other and asked for his help for going to police station to lodge the report. Thereafter, he went near the house of Trikal where Trikal was standing on the road along with 2 — 4 persons. Bihari (PW/5) was also-with Trikal who was asked by Biselal to take Trikal to Police Station whereupon he took Biselal and Trikal to police station on his motor-cycle. Next day in the morning he saw the dead body of Shivkumar in the kitchen garden of the accused Trikal.. There are contradictions in his deposition and the statement made before the police. The witness was declared hostile and cross examined by the prosecution wherein .A gm; s i, he denied the suggestion that it was stated out to him by the accused that he killed Shivkumar because he was having illicit relation with his wife. On careful scrutiny of the evidence of PW/9 Punuram Sonkar and PW/10 Vishnu Nishad, it is clear that tl'tia‘re statements are not corroborated by each other. Thus, the extra judicial confession made before them by the accused in the house of Kotwar Biselal (PW/1) that the accused killed the deceased Shiv Kumar because of the illicit relation of his wife Daso Bai with the deceased is not established. Dr. Harish Kumar Joshi, (PW/12) deposed that on 9-5-2002 he was working as Medical Officer in District Hospital, Rajnandgaon. He conducted the post-mortem over the body of deceased Shiv Kumar and gave‘his report vide EXP/14. Injuries causedto the deceased were anti-mortem and homicidal in nature which were sufficient to cause death. He found the following injuries. i) Blunt injury caused by blunt object. ii) Crushed wound caused by hard and plain object iii). Abrasion caused by light rough object. iv) Lacerated wound caused by plain object.” He advised to send the blood' stained Baniyan and underwear fOr chemical examination for confirmation of human blood. He preserved the viscera and advised that the same may be sent for chemical examination, if necessary. On perusal of the evidence on record, it is clear that despite the advice of the Dr. Harish Kumar Joshi (PW/12) vide ‘Ex.P/14 & P/15; the seized articles were not sent to FSL for chemical . examination, 9 . as there . Is no eVIdence . on 4r . . record to show that the seized articles were sent to FSL. In absence of FSL report, it is difficult to hold that the blood found on these articles was human blood. 1s. Rajesh Joshi (PW/1 3) deposed that on 9-5—2003 he prepared spot map (Ex.P/2) and admitted in his cross-examination at para 6 that there was injury over the head of Daso Basi and she was admitted in Government Hospital by Police for treatment and thereafter she was referred to Bhilai Hospital. ln Para 8 of hisxcross-examination he admitted that no separate crime was registered regarding the injuries sustained by Daso Bai and the accused Trikal. The Investigating Officer admitted in para 3 that he sent the accused and his wife for medical examination vide EXP/19 and EXP/20 respectively though he neither enclosed any such statement regarding the assault made on Daso Bai and injuries sustained by, the accused Trikal nor made any investigation about the same as admitted by him in para 9. On perusal of medical examination reports of the accused (EXP/19) and his wife (EXP/20). it is clear that the accused and his wife also sustained injuries. Thus, the argument advanced by the learned counsel for the appellant that the deceased was aggressor, cannot be ignored in absence of any explanation given by the prosecution regarding the injuries sustained by the~ accused/appellant and his wife. The prosecution committed grave error by not investigating the matter regarding the assault made on Daso Bai and the accused, which is fatal to the prosecution. 17. So far as the seizure of weapon of offence is concerned, it is also doubtful. On perusal of seizure memo (EXP/8), it is clear that the \ -( I, ) p ti? tee-«W atticles Sabbal and Danda were seized on 9—5-2003 at about 10.20 a.m., on the basis of memorandum of the accused Ex.P/7 whereas the spot map (Ex.P/2) was prepared on 9-5-2003 at 7.00 a.m., including the description of weapon of offence. On perusal of the' spot map, it is clear that the Investigating Officer found the articies in the open place prior to recording the memorandum of the accused, then why he did not seize the same immediately and waited for more than three hours for recording the memorandum and seizure of articles despite the fact that the memorandum is required only for recovery and seizure of the articles, which are concealed. Apart from this, the accused was present in the police station alongwith the. Kotwar in the night itself as deposed by Punuram Sonkar (PW/9) in para 2 and Vishnu Ram Nishad (PW/10) in para 1 which also creates serious doubt on the role played \by the l.O. that why he did not record the memorandum of accused in the police station in the night 'itself. . d The witnesses PW/2 Vishram and PW/4 Khomlal have turne hostile and they do not support the prosecution story. So far asthe so called letter said to be written by Daso Bai to the deceased and seized vide Ex.P/9 is concerned, Kali (PW/3), Neharu (PW/7) and Ramld (PW/11) have stated about the same but it is neither put on record nor any suggestion about the same was given to Daso Bai. Therefore, the same is not admissible in evidence. So far as illicit relation between deceased and Daso Bai is concerned, Kali (PW/3), Naharu (PW/7) and Ramlal (PW/11) have stated about the illicit relation of Daso Bai with the deceased but there is no direct L 0/ o 10 evidence in this regard and all the witnesses to that effect are hearsay witnesses. Thus, the intention and motive for commission of murder of the deceased by the accused appellant is also not proved. On close scrutiny of the evidence, it is clear that there is no eye- witness in this case and it is totally based on circumstantial evidence, specifically on the basis of extra judicial confession made by the accused/appellant, that too has not been established by the prosecution in absence of corroboration by the witnesses. The memorandum and seizure of the weapon of offence are also doubtful and the same have not been established by cogent evidence. There a are contradictions and omissions in the statements of the prosecution and the chain.of circumstantial evidence is not complete to connect the accused/appellant with the crime f‘n'question. On due consideration of the facts and circumstances of the case, we find that the prosecution has failed to establish beyond reasonable doubt that the appellant had committed the murder ofthe deceased. .- For the foregoing discussion and considering overall evidence available on record, we are of the considered opinion that the learned trial Court erred in convicting the appellant for the offence punishable under Section 302 of the IPC. Thus, the appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith, if not required in any other case. . . Sd/- ””Mwsa/n \ Dhirendra Mishra .i KN. GHANDRAKAR. l\ Judge l i Ii . v udg‘e ff/ ‘ \ \V Raju ///r l \