HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA 8& HON'BLE MR. RANGNATH CHANDRAKAR. JJ. Criminal Appeal No. 508/2005 Appellant (IN JAILl VERSUS Respondent Jems Tirky, aged about 40 years, son of Shri Lukas Tirky, occupation Labourer, resident of village Toisor, P.S. Kurdeg, Distt. Simdega, State Jharkhand Presently resident at Village Jaambahar, P.S. Tapkara, Distt. Jashpur (C.G.). State of Chhattisgarh, through P.S. Tapkara, Distt. Jashpur (C.G.). CRIMINAL APPEAL UNDER SECTION 374 12} OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:- Shri A.N. Bhakta, Advocate for the appellant. Shri Arun Sao, G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 25/11/2010) 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 11/3/2005 passed by Additional Sessions Judge, Jashpur, District Jashpur in Sessions Trial No. 17/2005 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his father-in-law Pulikar Kujur and concealing the evidence of criminal case i.e. concealing ^' - (^ the dead body, convicted the appellant under Sections 302 & 201 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine amount additional imprisonment for 6 months & rigorous imprisonment for 7 years and fine of Rs. 1,000/-, in default of payment of fine amount additional imprisonment for 6 months. 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 as aforementioned and thereby committed an illegality. As per case of the prosecution, deceased Pulikar Kujur father of PW1 Berna Tirki and father-in-law of appellant was residing with PW1 Berna Tirki and appellant along with their children at village Jaambahar Kukadatoli, Police Station Tapkara District Jashpur, from 12/12/2004 he was missing. On 13/12/2004 missing report was lodged vide Ex. P-13 and on same day Marg was recorded vide Ex. P-2. During inquiry of missing report PW1 Berna Tirki lodged Dehatinalishvide Ex. P-1 that appellant has murdered her father and has buried the dead body in the field adjoining to her house. Dead body was exhumed and Panchnama was prepared vide Ex. P-3. After summoning the witnesses, inquest over the dead body of Pulikar Kujur was prepared vide Ex. P-6. Spot map was prepared vide Ex. P-7. Blood stained and plain soil were recorded from the house of deceased Pulikar Kujur vide Ex. P-8. Dead body was sent for autopsy to Govt. Hospital Tapkara. PW7 Dr. Sunil Kumar Xess conducted autopsy vide Ex. P-14 and found following injuries:- ^ (i) Depressed lacerated wound of4x 1 x 1 c.m. comprising fracture of frontal and mandible bone. (ii) Lacerated wound of 3 x 1 c.m. over scrtum. Death was homicidal in nature. During course of investigation Patwari also prepared spot map yide Ex. P-4. Appellant was taken into custody, he made discloser statement of axe vide Ex. P- 9 same was recovered at the instance of appellant.vide Ex. P-10. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). Finally numbary Marg was recorded vide Ex. P-18. First Information Report was lodged vide Ex. P-17. After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Jashpur who in turn committed the case to the Court of Sessions, Jashpur from where learned Additional Sessions Judge, Jashpur, has received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 9 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing ' against him, innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned Additional Sessions Judge, Jashpur, convicted and sentenced the appellant as aforementioned. Mr. A.N. Bhakta, learned counsel for the appellant and Mr. Arun Sao, G.A. for the State/respondent are heard. Judgment impugned and record of the Court below perused. ^ ^ 9. Learned counsel for the appellant vehemently argued that in the present case, he is not disputing homicidal death of Pulikar Kujur and also recovery of dead body from the field of Pulikar Kujur which was buried but submits that prosecution has not adduced any prima facie evidence against the appellant to connect the appellant with crime in question and in absence of any such evidence, conviction of the appellant is not sustainable under the law. 10. Learned counsel for the appellant further submits that as per evidence of PW1 Berna Tirki daughter of deceased Pulikar Kujur, when she came from market she saw injured dead body of her father in her Baranda then she came out from her Baranda, at the same time appellant was coming towards his house from village side whom she asked then appellant told that her father hasconsumed liquor and fell down but she has not stated anything that appellant has made extrajudicial confession to her or appellant has buried the dead body in the field. Other witnesses have deposed that dead body was found buried in the field and same was exhumed. Evidence of PW7 Dr, Sunil Kumar Xess and autopsy report Ex. P-14 reveal that death was homicidal in nature but same is not sufficient to connect the appellant in crime in question. 11. On the other hand, learned Govt. Advocate for the respondent/State opposed the appeal. 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death of Pulikar Kujur has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW7 Dr. Sunil Kumar Xess and autopsy report Ex. P-14. 14. As regard the complicity of the appellant in crime in question is concerned, as per evidence of PW 1 Berna Tirki wife of appellant and daughter of deceased Pulikar Kujur, when she came from market dead body of her father was lying in her Baranda and she came out from her house at the same time appellant was coming from village side whom she asked then appellant has told that deceased Pulikar Kujur has consumed liquor and fell down on the stone. She has not supported the case of prosecution. Prosecution has declared her hostile. She has not stated anything to show that appellant has made extrajudicial confession before her or appellant has buried the dead body in the field of the deceased Pulikar Kujur. Other witnesses have deposed that dead body was recovered from the field and postmortem was conducted. Evidence of PW1 Berna Tirki shows that appellant, deceased himself, & her children were residing in same house, her father was found dead but she has not lodged First Information Report relating to murder of her father. Dead body was not found in her house which was buried in the field. She has not stated anything against the appellant. Other witnesses have also not stated anything against the appellant. Dead body has not been recovered at the instance of appellant. Virtually only the fact that appellant was also residing with the deceased Pulikar Kujur and his wife PW1 Berna Tirki also with children, prosecution has not adduced any other evidence and only common residence and recovery of dead body from field is not sufficient to connect the appellant for commission of ^- d? -Yi offence of murder. Virtually Court below has convicted the appellant without any prima facie evidence. 15. For the foregoing reasons, we are of the considered view that conviction and sentence of the appellant under Sections 302 and 201 of the Indian Penal Code is not sustainable under the law. Consequently, criminal appeal is allowed. Conviction and sentence of the appellant Jems Tirky under Sections 302 and 201 of the Indian Penal Code are hereby set-aside. He be set at liberty at once. He is in custody, he be released forthwith if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge