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2010 DIGILAW 17 (CHH)

BUDHESHWAR PRASAD v. STATE OF C. G.

2010-01-22

R.L.JHANWAR, T.P.SHARMA

body2010
ORAL JUDGMENT As per Hon 'ble Shri T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28.2.2006, passed by the First Additional Sessions Judge, Baloda Bazar, District Raipur (CG) in Sessions Trial No. 140/2004, whereby and where under the learned Additional Sessions Judge after holding the appellant guilty for commission of causing homicidal death, amounting to murder of Ku. Sanjay, convicted the appellant under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 3 months. 2. The judgment is challenged on the ground that without any sufficient and clinching evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. The brief facts are that Ku. Sanjay was residing in the Girls Hostel at Odkakan, District Raipur and the appellant was Teacher and Warden of the Hostel. On the fateful day of 19.3.2004, in between about 2.30 p.m. to 3.00 p.m., dead body of Ku. Sanjay was found inside the kitchen occupied by the appellant. She died as a result of bum injuries. Smell of kerosene oil was coming out from the dead body. The accused/appellant intimated to Police and merg intimation was recorded vide Ex. P /14. Written report was lodged by the father of the deceased Ramadhar vide Ex. P/9. First Information Report was lodged vide Ex. P/10. Dead body of the deceased was sent for autopsy to the Community Health Centre, Bilaigarh vide Ex. P/15. Autopsy was conducted by Dr. Pradeep Singh vide Ex.P/18. The Doctor found 100% bum injuries at the person of the deceased and a strong smell of kerosene oil over the body, but any other injury was not found. Stove containing 1/2 litre of kerosene oil and burnt clothes were seized vide Ex. P/ 1. Burnt pieces of other clothes containing smell of kerosene oil were seized vide Ex. P/4 from the spot. Burnt pieces of clothes removed from the body of the deceased after autopsy were seized vide Ex. P/5. School Register was seized vide Ex. P/8. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973. 4. Burnt pieces of other clothes containing smell of kerosene oil were seized vide Ex. P/4 from the spot. Burnt pieces of clothes removed from the body of the deceased after autopsy were seized vide Ex. P/5. School Register was seized vide Ex. P/8. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973. 4. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn, committed the case to the Court of Sessions, from where the learned First Additional Sessions Judge, Baloda Bazar received the case on transfer for trial. 5. Charge sheet was filed under Section 306 of the IPC, butt after hearing the parties, the learned Additional Sessions Judge framed charge under Section 302 of the IPC against the appellant vide order dated 22.6.2004. 6. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 14 witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure, in which, he admitted the circumstances but denied the material appearing against him, pleaded innocence and false implication. 7. After affording the opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as above. 8. We have heard learned counsel for the parties at length and have perused the judgment and record of the Court below. 9. Learned counsel for the appellant vehemently argued that the case is based on circumstantial evidence, but the evidence adduced on behalf of the prosecution is not sufficient for drawing presumption that the appellant has committed the crime and the fact that except the appellant nobody has committed the crime. He further argued that the appellant was Warden of the Hostel and he was present in the Hostel. Deceased- Ku. Sanjay has died inside the kitchen, at that time, gas burner was also burning. The appellant immediately intimated to Police and also intimated to the father of the deceased, who came at the time of inquest. The matter was investigated by the Police and a case of suicidal death was found, but suddenly the learned Additional Sessions Judge framed charge of commission of murder without any evidence. The appellant immediately intimated to Police and also intimated to the father of the deceased, who came at the time of inquest. The matter was investigated by the Police and a case of suicidal death was found, but suddenly the learned Additional Sessions Judge framed charge of commission of murder without any evidence. He further argued that there is no incriminating evidence on record, which could connect the appellant with the crime in question and the prosecution cannot take benefit of weakness. 10. On the other hand, learned counsel for the State opposed these arguments and stated that the conviction of the appellant is based on the following circumstances: i. Firstly the deceased, who was in the custody of the appellant, was died inside the kitchen of the appellant as a result of burn in Junes. ii. Gas burner was found in burning condition and strong smell of kerosene oil was coining out from the body of the deceased, which shows that the deceased was burnt with kerosene oil and not due to accident. No satisfactory explanation has been offered by the appellant for such unnatural and abnormal death of the deceased. 11. In 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, death of deceased- Ku. Sanjay as a result of excessive bum injuries, has not been substantially disputed by the appellant. Or the other hand, the appellant has admitted the postmortem report Ex. P/18 and has also lodged merg intimation vide Ex. P/14. It is sufficient for drawing an inference that the deceased had died as a result of burn injuries and the injuries were anti-mortem. 13. As regards complicity of the appellant in crime in question is concerned, prosecution has examined the evidence of Khiyeram. (PW-2), Bhuwansingh (PW3), Ramadhar (PW -7) father of the deceased, Smt. Mayamati (PW -8) mother of the deceased, Ku. Soraj Kumari (PW -9), Ku. Siya Manhar (FW -10) and Motilal (PW -11). They have deposed that the deceased was found inside the room used for kitchen by the appellant. Ku. (PW-2), Bhuwansingh (PW3), Ramadhar (PW -7) father of the deceased, Smt. Mayamati (PW -8) mother of the deceased, Ku. Soraj Kumari (PW -9), Ku. Siya Manhar (FW -10) and Motilal (PW -11). They have deposed that the deceased was found inside the room used for kitchen by the appellant. Ku. Saroj Kumari (PW-9) has deposed that just before death of the deceased they were plucking Semhar fruits along with some other girls and at about 2.00 to 2.30 p.m. Sanjay told them that she is going to drink water and went away from the place. However, thereafter she did not come back and her dead body was found inside the room. In para 6 of her evidence, she has categorically deposed that firstly, deceased Sanjay went from the place, where they were plucking Semhar fruits and thereafter, she along with the girls went to Hand pump for washing hands. The appellant was also present there. He washed hands and went 10 his quarter and immediately come back and informed that the deceased-Sanjay has burnt. Then they went on the spot and found the deceased- Sanjay in burnt condition. In para 7 she has admitted that Gas burner was burning at that time. Other witnesses have not deposed anything against the accused/appellant. The above circumstances, adduced on behalf of the prosecution revealed that deceased -Sanjay went inside kitchen and subsequently, she was found burnt. Her dead body was lying inside the kitchen. Accused was present near Hand pump along with the girls. He went to his house/quarter and immediately come back and informed that the deceased has burnt. Although, when there was already the Gas burner with the appellant then there was no question of using of kerosene oil, which is used for stove. If even the evidence adduced on behalf of the prosecution is admitted, it cannot be presumed that before her death, she was plucking Semhar fruits along with some other girls. The deceased herself went after telling the girls that she is going to drink water and thereafter, she did not come back. The girls went to the Hand pump for washing hands, where the accused/ appellant was also present. He washed hands on the Hand pump and went to his quarter, but immediately he come back and informed the girls that Sanjay has burnt. The girls went to the Hand pump for washing hands, where the accused/ appellant was also present. He washed hands on the Hand pump and went to his quarter, but immediately he come back and informed the girls that Sanjay has burnt. The Hand pump and living place of the appellant is not far from the Hostel, therefore, the presence of the appellant on the spot is not unnatural. Prosecution has not adduced any evidence that the deceased was called by the appellant for any work or for any other purpose. She herself had gone after informing the other girls that she is going for drinking water and thereafter, she did not come back. The appellant was not inside the house and he was present on the Hand pump along with the girls. When the appellant went inside the house, he immediately come out and informed that the deceased- Sanjay has burnt. Even the prosecution has not adduced any evidence referring to the motive of the appellant for commission of homicidal death of the deceased. The deceased was a student and she was living in the Hostel. Father of the deceased, Ramadhar (PW-7) has deposed in para 12 of his evidence that the deceased had never complained against the appellant. 14. Even if the evidence adduced on behalf of the prosecution is admitted on its face value, then only it can be inferred that the deceased was plucking . Semhar fruits along with other girls and after informing them, she went for drinking water and thereafter, she did not come back and she was found dead as a result of bum injuries inside the kitchen. The appellant was also present near the Hand pump along with other girls and when he went inside the house, he immediately come back and informed that the deceased has burnt. These facts are not sufficient to establish that the appellant was also inside the house or in the kitchen or the appellant has caused bum injuries to the deceased. In the present case, prosecution has not adduced any evidence concerning the motive of the crime. In the absence of any evidence, it is not sufficient to connect the appellant in crime in question. The conviction of the appellant is not legally sustainable under law. 15. In the present case, prosecution has not adduced any evidence concerning the motive of the crime. In the absence of any evidence, it is not sufficient to connect the appellant in crime in question. The conviction of the appellant is not legally sustainable under law. 15. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant under Section 302 of the IPC, but has not considered the above aspect of the case, which did not incriminate the appellant in the crime in question. 16. On close scrutiny of the evidence, we do not find any case of commission of homicidal death of the deceased- Sanjay by the appellant. The conviction of the appellant is not sustainable under law. 17. For the foregoing reasons, the appeal deserved to be allowed and the judgment impugned deserves to be set aside. Consequently, the appeal is allowed. Conviction and sentence awarded to the appellant under Section 302 of the IPC are set aside and the appellant is acquitted of the charge. The appellant is in custody. He be released forthwith, if not required in any other case. Appeal Allowed.