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2016 DIGILAW 280 (CHH)

Jaisingh Sahuram Gond v. State of Chhattisgarh

2016-08-10

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

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JUDGMENT : Chandra Bhushan Bajpai, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 5-2-2003 passed by Second Additional Sessions Judge (FTC), Mungeli in Sessions Trial No. 205/2001 convicting the accused/appellant under Section 302 (in two counts) and 201 of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo imprisonment for life, imprisonment for life; RI for seven years and to pay fine of Rs. 1000/-, Rs. 1000/- and Rs. 500/-, in default of payment of fine to further undergo RI for one year, one year, and six months respectively with a direction to run the sentences concurrently. In the present case, names of the deceased are Inderbai alias Inderwati, w/o. the accused/appellant and Dhansingh, aged about 5 months, son of the accused/appellant and the deceased. On 23-3-2001 at about 11.20 a.m., Phool Singh (PW-1), a villager, reached to Police Station Kukdur and lodged merg (Ex-P/1 & P/2) stating therein that in the morning at about 6.00 a.m. Tihar Singh Gond, villager informed him that Inderbai and Dhansingh are lying dead on account of burn injuries. Thereafter, the villagers assembled at the place of incident and enquired about the incident. Appellant Jaisingh, husband of deceased Inderbai informed that at about 10-11 p.m. on 22-3-2001 on hearing a call to save "Bachao Bachao", he came out from the house and saw fire near the nala. When he reached near the spot, he saw that his wife was lying dead having burn injuries and his son Dhansingh was alive but after some time, he succumbed to those burn injuries. The Police registered merg intimation (Ex. P/1 and P/2) and thereafter prepared inquest on deceased Inderwati (Ex-P/5) and deceased Dhansingh (Ex. P/7) before the panch witnesses and sent the body for autopsy. Dr. V.P. Jaiswal (PW-7) conducted autopsy on deceased Inderbai (Ex. P-14) on 24-3-2001 and noticed following injuries, and symptoms: (1) burn marks present over head, face, neck, chest, abdomen and both thighs and upper portion of back and chest. P/7) before the panch witnesses and sent the body for autopsy. Dr. V.P. Jaiswal (PW-7) conducted autopsy on deceased Inderbai (Ex. P-14) on 24-3-2001 and noticed following injuries, and symptoms: (1) burn marks present over head, face, neck, chest, abdomen and both thighs and upper portion of back and chest. (2) burst of abdomen organs i.e. intestine coming out (3) hair and scalp burnt with face (4) tongue coming out from mouth (5) eye ball and cornea conjunctiva ecchymosed (6) upper portion of chest, back of chest and both upper arms at elbow region were deeply burnt upto muscle layers (7) cracks present at right side of the neck and right arm (8) trachea congested but not showing carbon particle In the opinion of the doctor, cause of death of deceased Inderbai was asphyxia due to strangulation, the burns present on the deceased were post-mortem in nature and death was homicidal. He also conducted autopsy on Dhansingh and gave his report (Ex. P-16) and found the following injuries and symptoms:- (1) burn marks present over body of various degree (2) small vesicles present over different parts of the body (3) both legs and foot were deeply burnt upto muscle layers (4) scalp hair was signed with basis of vesicles. (5) penis was also burnt deeply (6) burnt area is of 30% In the opinion of the doctor, cause of death of deceased Dhansingh was asphyxia due to strangulation, the burns were post-mortem in nature and the death was homicidal. 2. On the basis of the merg enquiry, Investigating Officer S.N. Sidar (PW-8) lodged FIR on 26-3-2001 by registering Crime No. 18/2001 under Sections 302 and 201 of the IPC against the present appellant. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Mungeli, who registered the matter as Criminal Case No. 533/2001 and committed the matter for trial to the Court of sessions. The learned trial Judge received the case on transfer and conducted the trial. The accused was charged for the offence under Sections 302 (in two counts) and 201 of the IPC. 3. So as to prove the guilt of the appellant, the prosecution examined 9 witnesses. The learned trial Judge received the case on transfer and conducted the trial. The accused was charged for the offence under Sections 302 (in two counts) and 201 of the IPC. 3. So as to prove the guilt of the appellant, the prosecution examined 9 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'), in which he denied the charges levelled against him in the case, pleaded innocence and false implication in crime in question. 4. After hearing the parties the trial Court convicted and sentenced the appellant as aforementioned, hence, present appeal. 5. Learned counsel for the appellant submits that:- 1. the prosecution has not adduced any eyewitness to the incident; 2. there is no witness who has seen both the deceased alive in the company of the accused/appellant; 3. the prosecution has not adduced any evidence for extra-judicial confession; 4. though, both the deceased and the appellant were residing together as husband and wife, father and son along with their another son Dhaniram (PW-2), but as per spot map (Ex. P/18), the dead bodies were recovered in burnt condition from an open place near Mahua tree, therefore, this is not a house murder and a possibility may not be ruled out that the deceased were killed by some one else; 5. Dhaniram (PW-2), son of deceased Inderbai and the appellant and brother of deceased Dhansingh, has not supported Police statement (Ex. P-3) and turned hostile. As per this witness, his mother along with his brother Dhansingh left their house for guarding the Mahua tree and there only they were found dead in a burnt condition. Hence, the prosecution has utterly failed to connect the appellant with the crime in question. 6. As per memorandum statement (Ex. P-12), shirt of the accused/appellant was seized vide seizure memo Ex. P-10 and in the FSL report (Ex. P/20), on chemical analysis presence of kerosene was found on the shirt and also smell of the kerosene was noticed by the FSL on the articles seized and collected from the spot. The said circumstances alone are not sufficient so as to connect the accused/appellant with the crime as the smell of kerosene may be present on the shirt for other reasons, as the kerosene is commodity used widely by the villagers for their day-to-day work; and 7. The said circumstances alone are not sufficient so as to connect the accused/appellant with the crime as the smell of kerosene may be present on the shirt for other reasons, as the kerosene is commodity used widely by the villagers for their day-to-day work; and 7. this is a case of no evidence and prosecution has failed to prove the case hence, appeal may be allowed. 6. On the other hand, learned counsel for the respondent/State supported the judgment impugned and submitted that conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the findings recorded by the trial Court. 7. We have heard learned counsel for the parties and perused the material available on record. 8. Phool Singh (PW-1) is a villager, who lodged merge (Exs. P1 and P2). As per this witness, bodies of Inderbai and Dhansingh were found near the Mahua tree away from the house of the accused/appellant. Dhaniram (PW-2), a child witness is the son of the accused/appellant and the deceased Inderbai. He had not supported his police statement (Ex. P/3) and turned hostile and deposed that in the said night his mother along with his brother Dhansingh went to guard the Mahua tree and his father i.e. accused/appellant was sleeping in a separate room. Next morning, villager Tiharsingh came and informed him regarding the incident. Mahasingh (PW-3) was informed by Tiharsingh at about 10.00 p.m. As per this witness, Tiharsingh came and informed him that Inderbai and Dhansingh died on account of burn injuries near Jhori nala below the Mahua tree. Thereafter, this witness went to the place of incident and witnessed the dead bodies of both the deceased in burnt condition. This witness was also present at the time of inquest (Exs. P5 and P7) and also admitted the signatures on seizure memo (Ex-P/8), but has not supported the facts mentioned therein. This witness turned hostile and has not supported his diary statement (Ex-P/9). Khusiram (PW-4) after receiving information regarding the incident reached to the spot in the night and saw both the dead bodies. He was also present for the inquest (Exs.-P/5 and P/6). As per this witness, one shirt and kerosene container were seized vide seizure memo Ex-P/8 and also before them the police has seized one mug vide Ex-P/11. Khusiram (PW-4) after receiving information regarding the incident reached to the spot in the night and saw both the dead bodies. He was also present for the inquest (Exs.-P/5 and P/6). As per this witness, one shirt and kerosene container were seized vide seizure memo Ex-P/8 and also before them the police has seized one mug vide Ex-P/11. At para 6 this witness admitted that there was earlier dispute between the appellant and one Heeralal. He further stated that villagers were doubting that Heeralal might have set the deceased ablaze. Shriram (PW-5, Village Kotwar, also saw the burnt body of Inderbai and Dhansingh. This witness admitted the signatures on memorandum (Ex-P/12). He has not admitted any statement given by the accused/appellant but supported the seizure memo Exs.-P/10 and P/11 and panchnama Ex-P/8. Heera Singh (PW-6), villager, has not said anything specific regarding the incident. The appellant has admitted his signatures on the memorandum (Ex-P/12) and seizure memo (Ex-P/8). Dr. V.P. Jaiswal (PW-7) conducted autopsy of Inderbai and Dhansingh and found multiple burn injuries over dead bodies. He opined that the burn injuries were post-mortem and death was homicidal in nature. Investigating Officer S.N. Sidara (PW-8) has duly supported the prosecution. Dinesh Kumar (PW-9), Police Constable has taken the dead body for post-mortem. 9. A minute examination of the evidence I makes it clear that nobody saw the accused/appellant killing his wife and son by setting them on fire. There is no witness who saw both the deceased alive lastly in the company of the accused/appellant. There is no evidence regarding extra-judicial confession. The accused/appellant and deceased Inderbai were husband and wife and admittedly they were residing in the same house. Admittedly, dead bodies of the deceased were found in an open place much away from the house near the Mahua tree and Jhala nala. Dhaniram (PW-2), has not supported the diary statement and turned hostile. As per this witness, his father was sleeping in a separate room. His mother along with brother Dhansingh left their house for guarding Mahua tree in the evening and thereafter he came to know regarding the incident in the next morning when Tihar Singh informed him. Thereafter, he went to the place of incident and saw his mother and brother lying dead in burnt condition. There is no further evidence by which the accused may be held responsible for the incident. Thereafter, he went to the place of incident and saw his mother and brother lying dead in burnt condition. There is no further evidence by which the accused may be held responsible for the incident. The conviction of the accused/appellant is based on circumstantial evidence. As per FSL report, in chemical analysis smell of kerosene was found on the shirt seized from the accused/appellant and the presence of kerosene on the articles seized from the spot. In absence of any other admissible evidence, this circumstance alone is not sufficient for conviction. This circumstance itself is not so conclusive so as to draw any proposition that the accused is the only person who has killed his wife and son. Nobody witnessed the accused near the place of incident. 10. Considering the facts and circumstances of the case, we are of the considered view that on the basis of FSL report (Ex-P/20), merely presence of smell of kerosene on the shirt of the accused/appellant and presence of kerosene on the seized articles, the accused cannot be held guilty and it would not be safe to convict him on the basis of this piece of circumstantial evidence, which cannot connect him with the crime in question. 11. Barring this, the prosecution has failed to adduce any admissible evidence in the trial so as to hold the accused/appellant guilty for committing murder of his wife and infant son. Moreover, the prosecution has failed to establish that the accused/appellant concealed the evidence of murder which could warrant his conviction under Section 302, IPC. 12. For the foregoing reasons, conviction and sentence awarded to the appellant cannot be sustained and the same deserves to be set aside. Accordingly, the appeal is allowed. Conviction and sentence awarded to the appellant under Sections 302 (in two counts) and 201 of the IPC are hereby set aside. He is acquitted of the charges levelled against him. It is stated that the appellant is on bail. His bail bonds shall continue for a further period of six months from today in view of the provision of Section 437-A of the Cr.P.C. Appeal Allowed.