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2011 DIGILAW 70 (CHH)

LAKSHMAN v. STATE OF C. G.

2011-02-22

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28th February, 2005 passed by the 151 Additional Sessions Judge, Kanker, Dist. North Bastar (C.G.) in Sessions Trial No. 126/2004 whereby and whereunder after holding the appellant guilty for the commission of culpable homicide amounting to murder of Prem Singh, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced him to life imprisonment with fine of Rs.500/- and in default to undergo further R.I. for one month. 2. Conviction of the appellant is impugned on the ground that without any iota of evidence, the Court below convicted and sentenced the appellant and thereby committed illegality. 3. As per prosecution case, on 28.12.2003, present appellant and the deceased Prem Singh were coming towards their village after consuming intoxicating material. They were under intoxication and even they were not in a position to walk. They were also quarrelling and in that process appellant pushed Prem Singh in the river and pressed his body in the water of river. Appellant also pressed neck of the deceased and caused his instantaneous death. Incident was witnessed by P.W.3 Dev Singh and P.WA Mangtu. On second day of incident, merg was recorded vide Ex.P.9. Investigating Officer left for scene of occurrence and after summoning witnesses vide Ex.P.10, inquest over the dead body was prepared vide Ex.P.11. Dead body was sent for autopsy to Primary Health Center, Tadoke vide EX.P.5. P.W.7 Dr. U.N.Diwan conducted autopsy and opined that cause of death was Asphyxia as result of fall on the water and death was accidental in nature. He also noticed scratch over knee and chest. After enquiry of merg, F.I.R. was registered vide Ex.P.13. 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). During the course: of investigation, statement of Mangturam was recorded under Section 164 of the Code vide Ex.P.2. Finally, charge sheet was filed before the Court of judicial Magistrate First Class, Bhanupratappur, who in turn committed the case to learned Sessions Judge, Jagdalpur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, prosecution examined as many as 08 witnesses. Finally, charge sheet was filed before the Court of judicial Magistrate First Class, Bhanupratappur, who in turn committed the case to learned Sessions Judge, Jagdalpur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, prosecution examined as many as 08 witnesses. Accused appellant was also examined under Section of the Code where he denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. We have heard Smt. Renu Kochar, learned counsel for the appellant, Shri S.R.J.Jaiswal, P.L. for the State and perused the judgment impugned and record of the Court below. 8. Smt. Renu Kochar, learned counsel for the appellant submits that conviction of the appellant is based on the evidence of P. W.3 Dev Singh and P. WA Mangturam. As per statement recorded under Section 161 of the Code, the present appellant pushed the deceased in the river, suppressed and twisted the neck of the deceased and thereby caused homicidal death but other witnesses have not corroborated the statement recorded under Section 161 of the Code during the course of evidence in Court. Their evidence has been relied on to the extent that deceased was last seen alive in the company of the appellant and thereafter he was found dead. As per evidence of Doctor, the death of Prem Singh was accidental in nature. On a query, he has opined that if the mouth of the deceased was pressed in the water for considerable time, then he may die as a result of Asphyxia and that would be homicidal in nature like in the present case. This shows that prosecution has not collected evidence of sterling quality. Evidence adduced on behalf of prosecution is insufficiency and on the basis of aforesaid insufficiency evidence, conviction of the appellant is not sustainable under law. 9. On the other hand, Shri S.RJ. Jaiswal, learned counsel for the State opposes the appeal and submits that evidence of P.W.3 Dev Singh and P.W4 Mangturam is sufficient for drawing definite conclusion that present appellant has caused homicidal death of the deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution. Jaiswal, learned counsel for the State opposes the appeal and submits that evidence of P.W.3 Dev Singh and P.W4 Mangturam is sufficient for drawing definite conclusion that present appellant has caused homicidal death of the deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution. As per evidence of P.W.7 Dr. U. N. Diwan, cause of death was as a result of Asphyxia and death was accidental in nature but he has also opined that if a person was pushed down in the water and his mouth was pressed for considerable time, then he may die and death would be homicidal in nature. As per evidence of P.W.3 Dev Singh and P.WA Mangturam, appellant and deceased were coming towards their village. They have consumed liquor and were under effect of intoxication. They were not in a position to walk properly and were quarrelling. Evidence of these witnesses revealed that the deceased was seen alive last time .in the company of appellant. Thereafter, he was found dead. Merg was recorded at the instance of Amar Singh P.W.8. In the present case, appellant has not offered any explanation relating to cause of death of deceased but was present at the time of recording of merg in which it has I been mentioned that deceased has died as a result of fall on the water. In present case, this is sufficient explanation on behalf of the appellant. 11. In order to convict the appellant under Section 302 of the I.P.C. that I too for such offence, prosecution is under obligation to adduce sufficient evidence of sterling quality to exclude the possibility of suicidal death, accidental death and homicidal death by other person. In the present case, evidence of P.W.3 Dev Singh and P.W.4 Mangturam is only sufficient to the extent that appellant was coming to his village along with deceased and thereafter dead body of deceased was found but the same is not sufficient for drawing an inference that appellant has pushed down the deceased in the water or has pressed his neck or has twisted his neck and no injury of pressing or twisting has been noticed by the autopsy Doctor. In the absence of aforesaid evidence, the evidence of P.W.3 Dev Singh and P.W4 Mangturam coupled with autopsy, the medical evidence is not sufficient for drawing any definite conclusion. 12. While convicting the appellant under Section 302 of the I.P.C., the Court below has not considered quality and insufficient of evidence and thereby had committed grave illegality. 13. For the foregoing reasons, the appeal deserves to be and is hereby allowed. Conviction and sentence of the appellant under Section 302 of the I.P.C. is hereby set aside. He be set at liberty at once, if not required in any other case. Appeal Allowed.