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2022 Supreme(Chh) 385
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
SANJAY K. AGRAWAL, RAKESH MOHAN PANDEY, JJ.
Padeshvar, S/o Tangaru – Appellant
Versus
State of Chhattisgarh – Respondent
Criminal Appeal No.1104 of 2014
Decided on : 16-11-2022
Advocate Appeared:
For the Appellant :Mr. Praveen Das, Advocate.
For the Respondent:Mr. Sudeep Verma, Deputy Govt. Advocate.
Point of Law: Section 313 of CrPC confers a valuable right upon an accused to establish his innocence.
Headnote:
Criminal Procedure Code, 1973 - Section 374(2), 161, 313, 293(1), (2) – Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872 - Section 106 - Murder Offence - Poured Kerosene and Set on Fire – Appeal against Conviction - Appellant poured kerosene oil on his mother and set her on fire by which she suffered burn injury and died – (PW-3) has clearly stated that the accused was not present in the house on the date of offence. [Para 20]
Finding of the Court:
Trial Court has relied upon evidence of (PW-3) who has seen accused pouring water on body of deceased and thereafter, absconding from spot, whereas in cross-examination, however, she has clearly stated that date of incident being dark night, she could not notice person who absconded from room of deceased - As such, prosecution has miserably failed to bring home offence against appellant- Moreover, (PW-3) has clearly stated that accused was not present in house on date of offence which has also been stated by (PW-4) in his statement before Court - In that view of matter, prosecution has failed to bring home offence against appellant beyond reasonable doubt and trial Court has committed legal error in convicting and sentencing appellant under Section 302 of IPC – Court is unable to sustain conviction and sentences imposed upon appellant under Section 302 of IPC.
Result: Appeal allowed.
JUDGMENT :
Sanjay K. Agrawal, J.
1. This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of Rs. 1,000/-, in default, to further undergo additional rigorous imprisonment for three months.
2. Case of the prosecution, in brief, is that on 9-2-2014 at 11.00 p.m. in Village Bagbahar Para, Bastar, Police Chowki Bastar, District Bastar, the appellant poured kerosene oil on his mother Hirai Bai and set her on fire by which she suffered burn injury and died. Further case of the prosecution is that the appellant, his mother Hirai Bai and his brother Phoolchand (PW-4) were residing separately in three parts of one ancestral house and earning their livelihood independently. Deceased Hirai Bai was widow being wife of Tangru. She used to prepare food herself and on the date of incident, Phoolchand (PW-4) being truck driver has gone to Jagdalpur and the appellant was in inebriated condition in the house and on 9-2-2014 in the evening, deceased Hirai Bai was also under the influence of liquor and in the night she prepared her food and ate the food, and the electricity (light) being unavailable, she was sleeping after closing the door. At about 11.00 p.m. in the late night, smell of some burn came from the room of deceased Hirai Bai, then Smt. Lachhmani (PW-3) – wife of Phoolchand (PW-4) and daughter-in-law of deceased Hirai Bai, went inside the room and noticed that her mother-in-law has completely burnt and she has died and the appellant herein was present there and pouring water on the body of the deceased and was trying to extinguish the fire. Since her mother-in-law has burnt completely, Smt. Lachhmani (PW-3) firstly lodged report to Police Chowki Bastar on 10-2-2014 pursuant to which morgue intimation was registered vide Ex.P-3 and thereafter, panchnama was prepared vide Ex.P-10 and spot map was prepared vide Ex.P-8. Muffler, burnt sari, blanket ( kathri) and coconut oil container were seized from the dead body of the deceased vide Ex.P-7. Dead body of the deceased was sent for postmortem which was conducted by Dr. Kamal Singh Sete (PW-9) vide Ex.P-12 in which cause of death was stated to be due to asphyxia caused by burn leading to cardio-respiratory failure. Thereafter, on the disclosure statement of the appellant vide Ex.P- 5, burnt white towel was seized vide Ex.P-6. Seized articles were sent for forensic examination vide Ex.P-18 to the Forensic Science Laboratory, Jagdalpur and acknowledgment receipt was also received from FSL, Raipur vide Ex.P-19, but the FSL report is unexhibited, however, the same is available on record.
3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Bastar at Jagdalpur, for trial in accordance with law.
4. The accused / appellant abjured the guilt stating that he has not committed the offence and entered into witness. In order to bring home the offence, the prosecution examined as many as ten witnesses and exhibited 19 documents. The defence has not examined any witness and exhibited no document.
5. The trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.
6. Mr. Praveen Das, learned counsel appearing for the appellant, would submit that the extra judicial confession allegedly made by the appellant before Smt. Lachhmani (PW-3), Vis
