Anil Kumar v. State of Chhattisgarh

Arising out of judginent of conviction and sentence r dated 07/02/2013 passed by learned 1]^- Additional Session Judge, Raigarh [C.G.] in Session Trial No. 79/2011, the appellant named above, most < respectfully begs to prefer this instant appeal inter- alia on following facts and grounds: - \~( COURT OF DB: Hon'ble Shri Justics SuniS Justice Radha Hon ble U^r^hls Shri .lissfit Sham Cr. Appeal No.163 of 2013 Late Kumar BudhfBm S/o Ani! 30 years- Caste - Shravan, Nageshiya, R/o Viliage Alola, P.S. KBW, District - Raigarti (C.G.) Vorsus MHPMT Chhattisgarti Through Statton House OffiiBi; Thana- Kaai, District - rtelgarTi (U.G.) In-chaige : 374(21 of tha Code of Crimina! Procedure, 1973 Shri Santosh KumarThwari, fflunse! for the appeilanl SnriAshish Gupts, Panel Lawy'erforthe Stute. Judanwnt fit •?;^-g^i f4ss 1,1 -v3- imyi This i-s directed agalnst the judgment 7" of Febpjaiy, 2013 in Sessions Ttial No. 79/2011 by the Second Sessions Judge, teigaiti (C.G.). By the Impugned judgment the appellant has been convicted under Section 302 IPC and sentenced to underao imurisonment for life snd to oav fine of Rs. 3,000/-with default sentence of rigorous imprisonm8ntft)r6 monfts.

The facts, brieflv stated, are as under- Shanti Bai was motheE-ln-law of ihe appeiiant. (PW-3) is dauahter of the She was to the apDeliant 6 back. The was missina since 06-04-2011. Her bodv was in the outskirts of •••S-*:-S;*- •••% .se!r .. :f S ,'^li ^ .*» t ^. ? l I 8 /'-^' "^ 1..^. / ihe villsge on 07-es4-2011. Intlmation (Bs.-P/IO) v/as lcdged by Daiit Nageshiya fPW-1, son of the deceased). The investiaating offitsr (Bached IB the oface of occurrence, notice (Ex.-F"2) to the pendies snd fEx.-P/l) on of the deceased snd It was .serit for postmortem. The postmortem eramjnstion conducted bv [toctor B.L.Bhaaat fPW-91 He found iniusies owrthe neck and ultimateiyopined that the of death of the was asphi'xia as a result of ihrottlina and the death was homidaal in nsture. The postmortem report is Ex.-P./7. Inltlaliy, wss no eye-witness to the Incident. However, on 30-05-2011 one Pawan Kurnar (PW-5) came as an eye-v/itness and that he had seen the ttirottling the deceased. The case of the prosecution inffls on solltary evidencs of Pa'A'an Kumar (PW-5'i. Pawan Kumar (PW-51 examination-in-cnief that he had the appeliant throttllna the in his but, in ciDss-exsmination he admitted that he could not identify the persons who scufflina at the time of the incident. It also mmes in the cross-examination that they peisons. The Judge has observed all ihls in para 16 o.f the judgment and has not relted on ihs testimony of PawBn fajmsr (PW-5). The tfie prosecution is that since the deoeased was not her daughter (Balmoti, wife of the sppeliant, PW-3) to the house of the appellant, therefore, the appeiiant hsd threatened Balmoti (PW-3) that he will see the and thereafte!; of the fffls Ibund on the next dav. The Sessions Judae held these circumstaness to be Incriminaiing and recorded the finding Shat the appeiiant for commission of murder of the dsceased. The appellant, thus, wes convicted and sentenced as above. Hence, this appeal.

Shri Santosh Kumar Ttav/ari, munsel on behalf of the appeiiant r has aigued that soiitery sye-ivitness Pawsn Kumar (PW-5) has not suppcirted the of the prosecution. He hss furtner that the other circumstances frie Ctourt not ftjlly and w-sre not sufficierit to hold the appeliani juilty of the offenw under Section 302 IPC, therefore, the conviction can not be sustained.

On the other hand, Shri Ashish Gupta, Psnel Lawyer on behaif of the Stete has Sessions Court. and suDported the iudgment passed bv the .Ws counsei for the psrties.

The of the prosecution 'MQS on the solitarv evidence of Pawan Kumar (PW-5). Kumar (PW-5) that on the day in the evsning he was in the nearfav' ares v;here ttie boijy of the deceased v"as ultlmateiy found. h'e had s-sen that the yvas ihrotfljng the by usina ssri of the deceased. However, in cross-examination he thst he had that 2 (male) scufliina with other at the Brt occunence which was 4-5 ftom the he was arazing his bufialoes. He fflt^orically admitted in the cross-examinatbn that he identiiy persons as they were slightly from that plsce. He very categorically admitted in para 7 of his c'oss-eiamlnstfon that he could not see that those (wo persons and the and he took their names on suspicion the persons v/eie saying like that. He fdrther admitted In ctear iflCids that it is taie that he had not seen She appeliant committing muider of any by throttiing. The evidenss of Pain@n Kumar (PW-55 wouid show that in fact he had not supported the of the prosecution and it was not '^ y.. /'~'~-4| i &., ^-. y ^ '%-.f,''v~y'.s<? )y his evidence that in fact he had seen the aDpellant throtfling the deceased.

The Sessions Judae has mainl'v relied upon the drcumstanGe that on the a'sy i.e. ( -04-2011, in thg moming, the sppellant had visited the matrimonial unde of his wlfe Balmoti (PW-3). In fact, Balmoti (PW-3) was not to the house of the appeliant, therefore, ttie was pressurizing her to go to his house. Bsimoti (PW-3) has that at that time the appeitsnt had said that since her mother was not her to ao to his house, he wiii see 'nsr. TTie Sessnns Judae has held these drajmstances to be incriminatina aaainst the inrLalJSSFif uuciiaiiL

Apart from the above, the Sessfons has aiso that the had given a memorandum stetement (Ex.-P/13) under Section 27 of the Evidence Act and had said in the intoductory para of the memorandum that he had mmmitted muider of bv throttling. The contents of staiBment wouid show that It was not ieading to any discovery Therefore, the said bv the oolice officer under Section 27 of the Evidence Act was not admissibte aaain.st th-s SDDeltant.

Other diajmstance heM to be incriminating is that Sunl! (PW-6) at a neaiby place at the foievant time. Sunil iPVM) has in para 2 of his cross-emmination that the place he had the aDpellanS at a distance of one kilometer from that piace where of the was found. These are the only drcumstanffis on convictlon has been awarded to the aoDeilant.

If convldion is to be on circumstantiai evidence, the drcumstances must be fuliy and they should be of condusiw and tendency and ^'^-s:'QlS%. f &-"11 ~^'t'^ ''l''''>-:. '':..'1;\ ^ s the clrcumstances so chain of drcumstantial evidence aiso must be compiete. In ttie must not be of being and the Gfise, even s as teten by the we sdmit tfie entire cireumstances Sessions Judge, we find that these drcumstanceswere not of conduslve nature ana tendency and afmost all the clreumstsnces were capable of being explasnea. we are Judge was not in uf the view that in iight Qf the'above, the leamed asnvictlns the on the above set of circumstantial evidence. .•i^ i i. in the resuit, the The rom'ictten and under Section 302 IPC are set aside. The of the him. It is steted that the appeilant is in jaii since 07-04-2011. He be forthwith if not required in any other case. Sd/- Sunil Kumar Siitha Judge Sd/- Radhe Shyam Sharma Judge ASdil