Nafr High Court
Case Details
1 2025:CGHC:944 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 65 of 2003 Smt.Dropati Sahu aged about 22 years W/o. Late Dwrika Sahu R/o. Vatgan, Police Station Palari, District Raipur, CG versus ... Appellant State Of Chhattisgarh through Police Station Palari, Raipur, District Raipur, CG ... Respondent For Appellant
Legal Reasoning
: Ms. Sangeeta Mishra, Advocate For State / : Mr. Aman Tamboli, PL Respondent(s) Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board 07/01/2025 This appeal is against the impugned judgment of conviction and order of sentence dated 12.11.2002 passed by the Additional Sessions Judge, Baloda Bazar, District Raipur, CG in Sessions Trial No. 318/02 convicting the accused/appellant under Section 304 Part-II IPC and sentencing him to undergo RI for five years and pay fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for one month. 2. Case of the prosecution in brief is that on the basis of intimation given by Ramvishal (PW-3) brother of the deceased Dwrika Prasad Sahu, merg (Ex. P-2) was 2 recorded on 29.05.2002. According to the merg, the deceased was dumb since childhood and was living with his wife and children separately. On being asked by the witnesses as to why she was living in the house of her brother-in-law (PW-3), first it was informed by her that her husband had gone out of the village and being afraid of living alone in the house, she was living in his house. The same thing regarding her husband being out of the village was stated by the accused-appellant to her neighbor Sakultala (PW-1) also, however, on sensing a foul smell coming out from the neighborhood i.e. the house of the accused-appellant, she (PW-1) again asked her of the reason thereof, on which she told her that as her husband (deceased) used to pick-up quarrel with her after consuming liquor, she killed him by assaulting with a piece of stone and buried his body in the house itself. On the basis of merg Ex. P-2, FIR Ex.P-1 was registered against the accused-appellant under Sections 302 and 201 IPC, and during investigation the body of the deceased was exhumed from her house. After completion of investigation, the charge-sheet was filed under the same sections succeeded by the charge being framed only under Section 302 IPC. 3. The prosecution examined 10 witnesses to prove its case. Statement of the accused-appellant under Section 313 Cr.PC was recorded in which she abjured her guilt and claimed trial. 4. Learned trial Court having heard the parties and seen the evidence on record, convicted and sentenced the accused-appellant as mentioned above. Hence this appeal. 5. Learned counsel for the appellant submits that there is no eye witness to the incident and the entire prosecution case is based on the extra judicial confession purportedly made by the accused-appellant to PW-1 and PW-3. She submits that the extra judicial confession is very weak type of evidence and cannot be made a sole basis for conviction unless there is other evidence pointing her involvement in the crime in question, which in this case is completely lacking. She submits that though 3 the un-exhibited FSL report shows the presence of blood on the stone allegedly used by the accused-appellant while assaulting the deceased, as the genesis of the said blood is not gatherable therefrom, it loses its evidentiary value in the eye of law. Lastly, she submits that if the conviction of the accused-appellant is not going to be disturbed by this Court, the sentence imposed on him may be reduced to the period which she already spent in jail. In support of her submissions, reliance in placed on the decision of the Supreme Court in the matter of Moorthy V. State of Tamil Nadu reported in 2023 LiveLaw (SC) 679, and another judgment dated 14.08.2024 rendered in Criminal Appeal No. 1691 of 2023 (Hussainbhai Asgarali Lokhandwal Vs. State of Gujarat). 6. On the other hand, State counsel supports the judgment impugned as a whole and submits that the findings of the trial Court being strictly in accordance with law do not need any view other than the one already taken by the trial Court. 7. Heard counsel for the parties and gone through the material on record minutely. 8. The important witnesses in this case happens to be Ramvishal (PW-3) in whose house the accused-appellant stayed for days together, and PW-1 – the neighbor of the accused-appellant. From the testimony of both these witnesses it appears that the accused first made a disclosure as to the deceased having been out of the village in connection with delivery of rice, but subsequently, on being asked by Chokelal (PW-2) in the presence of Ramvishal (PW-3) she confessed her act of stoning her husband to death and buried his body as he frequently used to involve in fight with her having consumed liquor. This confession was made by the accused on the basis of enquiry made by PW-1 and PW-2 after sensing the stink from her house. From the evidence of these witnesses, it is also apparent that after the police and Tahsildar came to the spot, the dead body was exhumed in a decomposed condition. Another important witness Dr. F. R. Nirala (PW-9) who conducted autopsy on the body of 4 deceased has stated that when the skeleton was taken to him, many of the vital organs were missing and the death could have been caused by some heavy object which could be the stone produced before him also. His report is Ex. P-19 which gives the cause of death as shock on account of excessive bleeding, and the death was homicidal in nature. The stone recovered under Ex.P-6 and sent to the laboratory for chemical examination is opined to be stained with blood but there is nothing on record to show that it was human blood much less belonging to the blood group of the deceased. What is important in this case is that so called extra judicial confession was made before the witnesses about 15-20 days after the incident. True that the conviction can be based on extra judicial confession provided that it is made voluntarily and appears to be truthful. In this case the accused-appellant first made disclosure to the witnesses (PW-1 & PW-2) in the presence of (PW-3) that her husband had gone out of the village in connection with delivery of rice but after the stink started emanating from her house after the incident, the accused was asked about the reason therefor and only then she spoke about her husband having been killed by her with stone and buried in her house. Of course, the extra judicial confession does not need any corroboration from any other independent testimony but at the same time for being acted upon it has to be truthful and genuine. It is not so in this case because the extra judicial confession has been made by the accused- appellant to PW-1 & PW-2 in presence of PW-3 after a considerable long period from the date of incident which makes the same highly suspicious. This apart, it appears to be difficult for this Court to believe as to how the present appellant - a women could have used a heavy stone weighing about 7.5 kg while assaulting the deceased – a robust man and healthy man and then intering his body. More importantly, even the blood found on the stone cannot be said to be of the deceased as no such opinion has been given by the chemical examiner who gave his report dated 12.08.2002 which remain un-exhibited at the trial. 5 9. Thus in aforesaid view of the matter, this Court is of the opinion that the prosecution has not been able to establish its case beyond all reasonable doubt and being so the benefit has to go to the accused. Being this, the conviction of the accused-appellant under Section 304 Part-II IPC recorded by the trial Court cannot be sustainable in the eye of law. As already stated, no other material than the freakish one in the form of extra judicial confession, pointing an accusing finger at the accused is available on record. The FSL report cannot be pressed into service of the prosecution in this case as it lacks the further particulars about the history of the blood. 10. Accordingly, this Court proceeds to set aside the judgment impugned in this
Decision
appeal by allowing the same. Order accordingly. As in compliance with the non- bailable warrant issued against the appellant, she is in jail since 12.12.2024, let she be set free forthwith if not needed in any other case. 11. The Lower Court record be sent back immediately to the trial Court concerned, along with a copy of this judgment, for compliance and necessary action. Sd/- (Sachin Singh Rajput) JUDGE Pawan