Nafr High Court
Case Details
1 2025:CGHC:32596 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 65 of 2008 Bitawan Bai @ Kumari Bai, D/o Govind Ram Gond, aged about 41 years, R/o Lodhi Para, Near Mandi Gate, Raipur, Police Station – Mowa, Tahsil – Raipur, District Raipur (C.G.) Versus ---- Appellant State of Chhattisgarh Through : Station House Officer, Police Station – Kharora, District Raipur (C.G.) ---- Respondent For Appellant For Respondent/State : : Ms. Pooja Loniya, Advocate Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey (Order on Board) 14.07.2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 26.10.2007 passed by the Sessions Judge, Raipur, District Raipur (C.G.) in Sessions Trial 2 No.165/2007, whereby the appellant stands convicted and sentenced as under :- CONVICTION SENTENCE Under Section 304 Part-I of IPC R.I. for 10 years. 2. Prosecution story, in brief, is that on 16.06.2007 at around 11.00 P.M., appellant and deceased Giriraj went to Hema Lodge at Kharora and demanded for a room to stay. The Manager of the Hotel after ascertaining their identity gave them a room No. 6 in the hotel. After some time deceased Giriraj went to buy meal and after 15 minutes he came back and demanded two plates from Manager, which was given by him and the Manager went to sleep in his room No.2. Next day at around 5.30 AM, when the Manager woke up, he saw that the door of Room No.6 was opened. He entered the room in fear and saw that deceased Giriraj was lying dead on the ground and blood was oozing from his head. Thereafter, the Manager came out of the room and saw the appellant in nervous state who, on being asked, said that the deceased was drunk, he was forcing her to drink alcohol, to which she denied then he slapped her and she pushed him out of anger. The said incident was informed to the owner of the Hotel by the Manager and on being
Legal Reasoning
reported the matter in police station, an FIR under Ex.P-5 3 for the offence punishable under Section 302 of IPC was lodged against the appellant. 3. The inquest on the body of deceased was prepared vide Ex.P-8 and dead body was sent for postmortem examination to Primary Health Center, Kharora vide Ex.P- 1A, where Dr. S.R. Banjare (PW-1) conducted postmortem examination on the body of deceased and gave his report under Ex.P-1, noticing following symptoms/injuries :- 1. Yellowish colour semi digested food present over nostril. Mouth was opened. Right eye was semi opened, left eye was closed. Nails were bluish. Rigor mortis present all over body. Post death colour change was found on back of chest and abdomen. Both legs turned at knees, hands were extended and palm was folded. 2. There was no bleeding from nostril, mouth and ear. No feces and semen came out from body. External genital was healthy. 3. External Injuries :- Deep lacerated wound in the size of 1 ½ inch long x 0.5 cm wide x 0.75 cm deep on middle occipital region with oozing blood. 4. Two contusions in the size of 1 ½ long x ½ cm wide over left side of neck. The autopsy surgeon opined the cause of death of deceased to be asphyxia and neurogenic shock & mode of death depending on circumstances and corroborative 4 evidence. 4. From the spot, clothes of deceased, ladies chappal, english liquor bottle, condom, chilam, oil, pieces of bangle, key ring, souf, gutkha etc. have been seized under Ex.P-10. Query report on the postmortem of the deceased was obtained under Ex.P-2. The statements of the witnesses were recorded and seized articles were sent to its chemical examination to FSL, Raipur vide Ex.P-15 and P-16. After completion of usual investigation, charge sheet was filed before the jurisdictional Court. 5. After filing of the charge sheet, the trail Court framed the charge under Section 302 of IPC against the accused/appellant. 6. So as to hold the accused/appellant guilty, the prosecution examined as many as 06 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which she denied the circumstances appearing against her in the prosecution case, pleaded innocence and false implication. However, no defence witness was examined in the case. 7. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as 5 mentioned in para-1 of this judgment. Hence, this appeal. 8.
Legal Reasoning
Learned counsel for the appellant submits that the learned trial Court did not consider the evidence of Dr. S.R. Banjare (PW-1) to establish the mode of death, who has categorically stated that it depend upon the facts and circumstances of the case. The impugned judgment of conviction has been passed by the learned trial Court on the basis of conjuncture and surmises. Learned counsel further submits that the learned trial Court has failed to appreciate that the sole witness PW-2 Komal Das Manikpuri, Manager, has not supported the prosecution case. The learned trial Court failed to appreciate that in absence of nature of death, conviction on the basis of sole witness PW-2 is not proper particularly when the witness turned hostile. The learned trial Court failed to appreciate the present documentary evidence. Learned counsel also submits that even if the death of deceased is presumed to be homicidal but it is apparent from the finding recorded by the learned trial Court that the deceased was trying to get the appellant to drink alcohol and when she refused to drink, the deceased slapped her then the appellant pushed the deceased, as a result of which he fell down on the ground and died due to shock being under influence of liquor. As such, the the 6 appellant has right to her private defence under Section 100 of IPC and no offence under Section 302 or 304 IPC is made out against her. So, the impugned judgment of conviction and order of sentence is liable to be set aside. 9. On the other hand, learned State counsel supported the impugned judgment of conviction and submits that the learned trial Court has rightly appreciated oral and documentary evidence and has rightly convicted the appellant. So, the appeal being without any merit is liable to be dismissed. 10. I have heard learned counsel for the parties and perused the material available on record. 11. It is apparent from the record of the learned trial Court that the learned trial Court framed charge under Section 302 of the IPC against the accused/appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant under Section 304 Part I of the IPC. 12. It is apparent from the evidence of all the prosecution witnesses that there is no eye witness to the incident and the prosecution case rests upon the circumstantial evidence. 13. Dr. S.R. Banjare (PW-1) is the Autopsy Surgeon, who 7 conducted the postmortem of the deceased and noticed two injuries ; (i) deep lacerated wound in the size of 1 ½ inch long x 0.5 cm wide x 0.75 cm deep on middle occipital region with oozing blood and (ii) two contusions in the size of 1 ½ long x ½ cm wide over left side of neck. & has opined the cause of death of deceased to be asphyxia and neurogenic shock & mode of death depending on circumstances and corroborative evidence. This witness, in para 17 of his cross-examination, has stated that looking to the nature of injuries, it would be difficult to tell whether injury on the head of a person sustained due to falling from the bed while asleep or being pushed and falling. This witness has admitted in para 18 of his cross-examination that after postmortem examination, it would be difficult for him to give opinion on the basis of the facts found in the postmortem whether the death was of homicidal, suicidal or accidental in nature. Therefore, he had mentioned in his opinion that the nature of death depends on circumstantial and corroborative evidence. So, the evidence of Dr. PW-1 clearly established that the prosecution has failed to prove the death of deceased to be homicidal in nature. 14. Komaldas Manikpuri (PW-2) is the Manager of the Hotel where the incident took place. He has stated that on 8 16.06.2007 at night when he was alone in the lodge, at around 11.00 PM, he heard the sound of gate then he came out of the lodge and saw that the appellant and deceased was standing there. He has also stated that the appellant and deceased told that they had to go to Raipur but they did not get vehicle, therefore, they demanded a room to stay. Thereafter, this witness asked about their relationship then the deceased told that the appellant is her aunt in relation. This witness has also stated that after ascertaining the relationship and asking from the owner, he gave them a room No.6. This witness has also stated that after some time, the deceased went outside to bring meal and returned after 15-20 minutes. He demanded a plate which he gave him and went to his room to sleep. This witness has also stated that when he woke up at 5.30 AM and went to levotory, he found the door of room No.6 opened and then went inside the room and found the deceased was lying on the ground and blood was spread on the flood. The appellant was not in the room. Thereafter, when he was going to his owner to give the information of the incident, on the way he met with appellant. Then he said that first he went to his owner and informed the incident and came to Dena Bank where he met with appellant. This witness has 9 also stated that his owner called the police and took the appellant with them. The prosecution declared this witness hostile and cross-examined him then he admitted this suggestion of prosecution that when he was going to lavotory, he saw the deceased lying on the ground and came outside and saw the appellant strolling around in feared state. The appellant told him that the deceased had forcibly made her drink alcohol at night, and when she refused the deceased had slapped her, on which she pushed the deceased, due to which he fell on the floor. He has also admitted that the appellant told him that she was also drunk and so she fell asleep and thought that deceased had also fallen asleep on the floor. The appellant also told him that when she woke up in the morning, she tried to wake up the deceased but he did not wake up and blood was oozing from his head due to which she got scared and went out from the back door. He has also admitted that he went to the police station with Sajan Agrawal to report this and there he and Sajan Agarwal gave a written report. He had signed the report. In para 5 of his cross-examination, he has also admitted that there is no vehicle facility to come to Raipur from Kharora at 10-11 PM. He has also admitted that when he saw the deceased in dead condition he was 10 frightened and ringed his owner Sajan Agrawal. The appellant was with deceased at night. He had not seen that when and from where the appellant went outside. He has also admitted that he had gone to police station with Sajan Agrawal and the police had arrested the appellant and questioned her. He has also admitted that he had not written the report (Ex.P-4) and the same was written by the police and had got it signed by him. He has also admitted that neither did the police read out Ex.P-4 nor did he read it. He has also admitted that police did not read out the FIR (Ex.P- 5) to him. 15. Sajan Agrawal (PW-4) has stated that on the date of incident, Komal Das (PW-2) told him that one male and one female were demanding a room in lodge and the male was calling the woman as his aunt. On this, he told PW-2 that if they seem right, then give them the room. He has also stated that next day at around 6.00 AM, Komal Das (PW-2) came to him and told that the man staying in the lodge was lying on the floor and a wound was visible near his head and the woman staying with him was not there. Komal Das (PW- 2) told him that he had seen the woman on the way. On this, he (this witness) informed the police over phone. The police caught the appellant and brought her to the police station 11 and two police officers went to the lodge with him. He and Komal Das (PW-2) went to the police station and Komal Das gave a written report of the incident to the police station. This witness has also stated that the police had seized the register of lodge under Ex.P-9 and inventories vide Ex.P-10. 16. Mukesh Singh Thakur (PW-5) has stated that the deceased was his maternal cousin. This witness has not supported the case of the prosecution and only admitted his signature on inquest memo (Ex.P-7) and inquest (Ex.P-8). 17. Close scrutiny of the evidence of prosecution witnesses makes it clear that the appellant and deceased went to the lodge of Komal Das Manikpuri (PW-2), demanded room to stay, the appellant and deceased stayed there and when PW-2 woke up to answer the call of nature, he saw the body of deceased lying on the floor. The learned trial Court on the basis of statement of PW-2 find that the deceased had forcibly made the appellant to drink alcohol at night, and when she refused to consume alcohol, the deceased slapped her, on which she pushed the deceased, due to which he fell down on the floor and died. It is clear that the prosecution has failed to prove this fact that the death of deceased was homicidal, suicidal or accidental. Thus in absence of any specific opinion regarding the mode and 12 cause of death of deceased, it would be difficult for this Court to hold the accused/appellant guilty for commission of offence punishable under Sections 302 or 304-I of IPC. 18. In view of the aforesaid discussion, this Court is of the opinion that the findings of the learned Sessions Judge, Raipur by which the accused/appellant was convicted for the offence under Section 304 Part-I of IPC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled for acquittal. 19. Accordingly, this appeal filed by the accused appellant is allowed and the impugned judgment of conviction and order of sentence dated 26.10.2007 passed by the learned Sessions Judge, Raipur (C.G.) are set aside and the accused appellant is acquitted of the charge levelled against her. 20. The appellant is already on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (new section 481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an 13 undertaking that in the event of filing of Special Leave Petition against the instant judgment for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 21. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) JUDGE Digitally pekde signed by VIJAY BHARATRAO PEKDE