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2013 DIGILAW 80 (CHH)

BAGARSAI v. STATE OF C. G.

2013-03-01

R.N.Chandrakar, Sunil Kumar Sinha

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 21st July, 2006 passed in S.T. No. 116 of 2006 by the First Additional Sessions Judge, Surajpur. By the impugned judgment the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- with default sentence of RI for two months. 2. The facts, briefly stated, are as under: Deceased Shivdhari was close relative of the appellant. Manglibai (PW/1) is wife of deceased. On 18-7-2005 deceased Shivdhari, Manglibai (PW/1) and their daughter Phoolmati had gone to the house of the appellant who had invited them for dinne. There they consumed liquor with the appellant. The case of the prosecution is that in the morning Manglibai (PW/1) saw that her husband (deceased) was lying dead in the Badi of the appellant having sustained multiple serious injuries. Phoolmati, daughter of deceased, told Manglibai (PW/1) that in the late night deceased was assaulted by the appellant by spade. Manglibai (PW/1) lodged first information report (Ex.P/1). The Investigating Officer reached to the place of occurrence, gave notice (Ex.P/2) to the panchas and prepared inquest (Ex.P/3) over body of the deceased. The dead body was sent for postmortem, which was conducted by Dr. Rojbuln Tirky (PW17). He found four lacerated wounds on the skull of the deceased. On internal examination he found that there were fractures on left parietal, temporal and occipital bones. The brain was also lacerated. The autopsy surgeon opined that the cause of death was shock due to multiple head injuries and fracture of bones and it was homicidal in nature. Postmortem report is Ex.P./12. In further investigation, on 19-7-2005 itself, a Pawda (spade) was seized by the police from the place of occurrence vide seizure memo (Ex.P/5). However, when the appellant was taken into custody on 1-8-2005, his memorandum statement (Ex.P/9) was recorded under Section 27 of the Evidence Act leading to discovery of Pawda (spade), which according to the said statement, was kept in the hutment of the appellant. Phoolmati was not examined on trial. Manglibai (PW/1), who was not an eye-witness according to the prosecution, claimed to be an eye-witness on trial and deposed that she had seen that the appellant had assaulted the deceased by spade who sustained multiple serious injuries and succumbed to those injuries. Phoolmati was not examined on trial. Manglibai (PW/1), who was not an eye-witness according to the prosecution, claimed to be an eye-witness on trial and deposed that she had seen that the appellant had assaulted the deceased by spade who sustained multiple serious injuries and succumbed to those injuries. The Sessions Judge relied on the testimony of Manglibai (PW/1) and held that it was proved beyond all reasonable doubts that the deceased was assaulted by the appellant in the above manner and, therefore, appellant was liable for conviction under Section 302 IPC. Hence, this appeal. 3. Mr. Vivek Shrivastava, counsel appearing on behalf of the appellant has argued that according to the first information report (Ex.P/1), Manglibai (PW/1) was not an eye-witness as the incident was narrated to her by her daughter Phoolmati; Phoolmati, who was solitary eye-witness, was not examined by the prosecution; Manglibai (PW/1) in the first information report or in her diary statement never stated that she was an eye-witness. Therefore, she was not reliable and conviction based on her solitary testimony cannot be sustained. 4. On the other hand, Mr. Rajendra Tripathi, Panel Lawyer appearing on behalf of the State has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the Sessions case. 6. Conviction of the appellant is based on solitary testimony of Manglibai (PW/1) who is wife of deceased. She deposed that on the fateful day she along with her husband (deceased) and daughter had gone to the house of the appellant. There they took their meals. After taking their meals they stayed in the house of the appellant in the night. They had slept in his house. In the night she saw that the appellant had assaulted her husband (deceased) by a spade. Her daughter Phoomati had also seen the incident. She became frightened after seeing the incident. She had narrated the incident to villagers, who took her to Police Station and a report was lodged. 7. In cross-examination she admitted that after taking their meals they consumed liquor in the house of the appellant, and thereafter she along with her husband (deceased) and Bagarsai (appellant) slept there in the night. In the morning when she woke up, she saw that her husband was lying dead having sustained multiple injurieson his skull. 7. In cross-examination she admitted that after taking their meals they consumed liquor in the house of the appellant, and thereafter she along with her husband (deceased) and Bagarsai (appellant) slept there in the night. In the morning when she woke up, she saw that her husband was lying dead having sustained multiple injurieson his skull. We find that the fact that Manglibai (PW/1) had seen the appellant assaulting the deceased is an omission in the first information report (Ex.P/1) lodged by her. It is also an omission in her diary statement recorded under Section 161 Cr.P.C. Even, according to the prosecution, Manglibai (PW/1) was not an eye-witness. The case of the prosecution was that only Phoolmati, daughter of deceased had seen the incident and she had narrated the incident to Manglibai (PW/1) in the morning and then only the report was lodged. These facts are also mentioned in the first information report and the diary statement of Manglibai (PW/1). However, when Manglibai was examined in the court, she deposed as an eye-witness and stated that she herself had seen the entire incident. 8. We have carefully scrutinized the evidence of Manglibai (PW/1) and find that the above facts relating to seeing the appellant assaulting the deceased are exaggerations in her court evidence as they were omissions in her diary statement and the first information report. In the above facts and circumstances of the case, we are of the view, that Manglibai (PW/1) was not a reliable witness and conviction based on her solitary testimony cannot be sustained. It appears that when Phoolmati could not be examined by the prosecution, Manglibai (PW/1) deliberately deposed in above manner before the court claiming herself to be an eye witness. 9. That apart, memorandum of the appellant under Section 27 of the Evidence Act, was recorded on 1-8-2005 leading to alleged discovery of the spade. However, the spade was already seized by the Police on 19-7-2005 vide seizure memo Ex.P/5. Therefore, in fact, there was no discovery made through the above statement made by the appellant and it was of no use to the prosecution. 10. According to the map (Ex.P/6) as also inquest (Ex.P/3), dead body of deceased was found in the Badi of Jhala (small hutment) belonging to the appellant. Thus, it was not a case in which dead body was found inside the house of the appellant. 10. According to the map (Ex.P/6) as also inquest (Ex.P/3), dead body of deceased was found in the Badi of Jhala (small hutment) belonging to the appellant. Thus, it was not a case in which dead body was found inside the house of the appellant. It was argued by Mr. Tripathi that the appellant ought to have explained as to how the deceased died homicidal death in his Badi and if nothing is explained by him, it shall be an incriminating circumstance against him. We have already stated that the dead body was found in the Badi of the appellant which was an open place accessable to all. Moreover, Manglibai (PW/1) deposed in para 5 of her cross-examination that after taking their meals and liquor she along with her husband and appellant had slept in the house of the appellant. Therefore, it was not a case in which things were in the special knowledge of the appellant and he was required to explain them by discharging his burden under Section 106 of the Evidence Act. 11. For the foregoing reasons, we are unable to sustain the conviction of the appellant. Conviction and sentence awarded to the appellant under Section 302 IPC deserve to be set aside. 12. Accordingly, the appeal is allowed. Conviction and sentence awarded to the appellant under Section 302 IPC are set aside. The appellant is acquitted of the charges framed under Section 302 IPC. It is stated that the appellant is in jail since 1-8-2005. He be released forthwith, if not required in any other case. HEAD LINES Wife, though not an eye-witness claimed to be an eye-witness in trial exaggerating her version in the FIR and 161 Cr.P.C statements - Held not reliable - Conviction based on her solitary testimony cannot be sustained. Appeal Allowed.