HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 600 of 2003 Dhaniram, s/o. Maruti Gadaria, aged about 38 years, r/o. village Nandvai, P.S. Dhamdha, Distt. Durg(CG). Appellant Accused (in jail) Vs. Respondent State of Chhattisgarh (Criminal Appeal under Section 374 (2) of the Cr.P.C.) it Present: Mr. Arun Kochar, counsel forthe appellant Mr. Neeraj Mehta, Panel Lawyer for the State. JUDGMENT (Delivered on 8-12-201 1) Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order t of sentence dated 8—5—2003 passed by Vth Additional Sessions Judge, Durg, in Sessions Trial No. 250/2002, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of his wife Shivbati, convicted him under Sections 302 of \ ‘\ the IPC and sentenced him to undergo imprisonment for life and to \\ pay fine of Rs.500/—, in default of payment of fine to further undergo R.l. for three months. Conviction of the appeiiant is impugned on the ground that without w any iota of evidence, the court beiow has Convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, appellant was residing along with his .wife Shivbati in the same house, situated at Village Nandvay, PS Dhamdha. On fateful day of 2—9—2002 at 1.30 p.m., appellant assaulted his wife Shivbati by drilling machine (Bhanwari) and Gaity and caused brutal murder of his wife. PW/7 Ethi Bai, mother of appellant and PW/9 Kanti Bai, sister of the appellant had witnessed the incident. PW/7 Ethi Bai, mother of the appellant informed-about the incident to Tribhuan (PW/1), Kotwar who went to Police Station and lodged first information report vide Ex.P/1 and merg vide EXP/2. After summoning the witnesses vide Ex.P/7, inquest over the dead body was prepared vide EXP/8, blood stained soil, plain soil, gunny bag and broken pieces of bangles were seized from the spot vide ‘ EXP/6, spot map was prepared vide EXP/14 and dead body was sent for autopsy to Primary Health Centre, Dhamdha where Dr. RB Chandrawanshi (PW/3) conducted autopsy vide EXP/9 and found the following injuries: i) Lacerated wound of 4"x2" scalp depth over right parietal region; ii) Lacerated wound of 3”x2" scalp depth on right side of the scalp; Stab wound over abdomen of %"X%”x1/6 to 1 1/2"x1/ "1/2"; ¢ case on \ / iv) Stab wound of 1”x1/2"x1 over right elbow; V) Stab wound of %"x1/2”X1 over Ieft side of right elbow; vi) Stab wound of 1"x3/4"x1” in Iower part of right side of the back; vii) Right parietal bone was fractured; viii) Right temporal bone was fractured; ix) Clotted blood was found inside abdomen. Doctor has opined that mode of death was hemorrhage and shock and death was homicidal in nature. 5. During course of investigation, appellant was taken into custody and he made a disciosure statement of drilling machine (Bhanwari) and Gaity Vide Ex P/3 and same was selzed at his Instance Vlde Ex P/4 Clothes of the appellant were seized vrde Ex P/5 Sealed clothes of deceased were seized vide Ex.P/15. Seized weapons Bhanwari and Gaity were sent for examination by the Doctor vide Ex.P/11 and EXP/12. Seized articles were sent for chemicai examination to FSL Raipur and presence of blood over drilling machine (Bhanwari), Gaity and clothes of the appellant was confirmed vide Ex.P/19. 6. Statements of witnesses were recorded under Section 161 of the t Cr.P.C. After completion of investigation, charge sheet was med against the appellant in the Court of Judicial Magistrate First Class, \\ Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned Additional Sessions Judge received the In order to prove the guilt of the appellant, prosecution examined as many as ten witnesses. Accused/appeiiant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced \the appellant as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. Mr. Arun Kochar, learned counsel for the appellant vehemently argued that although the appellant is in custody for the last nine years, but prosecution has not collected any evidence against him l to prove his involvement in crime in question and he is not disputing the homicidal death of his wife, but prosecution has not adduced any evidence to show the involvement of the appellant. Learned counsel further submits that as per initial case of prosecution, PW/7 Ethi Bai, mother of appellant and PW/9 Kanti Bai, sister ofthe appellant had witnessed the incident, but they have not supported the case of prosecution and prosecution decla‘red them hostile, therefore, in absence of any cogent and clinching evidence, conviction of appellant is not sustainable under, the law. 11. On the other hand, Mr. J.A.Lohani learned Panel Lawyer on behalf of the State opposed the appeal and submitted that the evidence adduced on behalf of the proSecution is sufficient to prove the \ case against the appellant and after appreciating the evidence availabie on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death of deceased Shivbati has not been disputed on behalf of the appellant. Even othenNise, it is also established by the evidence of Dr. P.D. Chandrawanshi (PW/3) and autopsy report vide Ex.P/9 that death of deceased was homicidal in nature. 14. As regards the complicity of appellant in crime in question, conviction is based on circumstantial and direct evidence. Prosecution has tried to prove the following circumstances: "m $m§f i Deceased was wife of appellant and was residing with appellant in the same room; ii) Deceased died on 2-9-2002 at about 1.30 i) p.m. in her house; iii) ‘Death of deceased was homicide amounting to murder as a result of multiple fatal injuries; Appellant has not offered any explanation that he has not caused injuries and has not caused homicidal death; 15. PW/7 Ethi Bai, mother of appellant and PW/9 Kanti Bai, sister of the appellant initially stated against the appellant and have supported the case of prosecution on account of their relation. ¢ . . PW/7 Ethi Bai and PW/9 Kanti Bai, mother and sister of the appellant have not deposed against the appellant relating to incident, even they have not deposed that whether the appellant was present in the house at the time of incident or not. Other witnesses‘deposed that they have been informed by PW/7 Ethi Bai & PW/9 Kanti Bai that the appellant has caused murder of his wife, then they went to her house to see the dead body, thereafter the matter was reported. Bhanwari and Gaiti were seized at the instance of the appellant and Vide EXP/19 presence of blood was confirmed over seized Bhanwari, Gaiti and clothes of the appellant. In absence of proof of any similar blood ‘group in‘the aforesaid instruments, recovery made on the memorandum of the appellant is of no use in the present case. Even otherwise, it can be used as a piece of corroborative evidence. Prosecution has not proved the fact that appellant was present at the time of incident, incident took place in the broad day light at about 1.30 p.m. but in absence of any evidence relating to presence of appellant, appellant was not under obligation to offer an explanation for the same. Virtually, prosecution has not collected any evidence to establish involvement of the appellant in crime in question or even his presence at the time of incident. ln absence of any clinching and cogent evidence; conviction of the appellant under Section 302 of the IPC is not sustainable in law. Thus, conviction and sentence of the appellant under Section 302 of the IPC deserves to be set aside. Consequently, the appeal is allowed. Conviction and sentence of the appellant under Section 302 of the IPC are hereby set aside. The appellant be set at liberty at once and be released forthwith, if not required in any other case. i —? pl rm , V > sw— i, Sm- i J RN. Chaim i ‘ Judge \ ‘