Advocates:
['SK MEHTA', '', 'NEERAJ KUMAR MEHTA', 'A G']

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.981 of 2002

Vijay Kumar alias Lolo Panika, son of Narmada Prasad Panika, aged about

29 years, R/o Village Barsara, P.S. Jhilmilee, District Surguja, Chhattisgarh

---- Appellant

versus

State of Chhattisgarh

---- Respondent

For Appellant

:

Shri Neeraj Kumar Mehta, Advocate

For State/Respondent

: Smt. Smita Ghai, Panel Lawyer

Hon'ble Shri Navin Sinha, Chief Justice

Hon'ble Shri Justice P. Sam Koshy

Judgment on Board

Per Navin Sinha, Chief Justice

27/4/2016

1.

The Appellant, who is the husband of the deceased stands

convicted under Sections 302 and 201 IPC to life imprisonment by the

6^th Additional Sessions Judge, Fast Track Court, Surajpur in Sessions Trial

No.26 of 1996 dated 28.8.2002.

2.

The deceased was aged 16 years, married to the Appellant two

years earlier. Her dead body was found on the railway track dismembered

into four pieces on 11.7.1995 in the morning. Merg 14/95 was registered

by the then Head Constable Christopher Tirki proved by PW-10, Dilip

Pandey. Formal FIR, Exhibit P-12 was lodged on 23.7.1995 by the latter.

Post Mortem, Exhibit P-7, was conducted on 12.7.1995 at about 11:30

am. by PW-8, Dr. Rakesh Kumar Sharma along with one Dr. Kalawati

Patel, both of whom signed the report opining that death was due to

asphyxia caused either by throttling or smothering and the dead body

then placed on the railway track and run over by train.

3.

Learned Counsel for the Appellant submitted that there is no

eyewitness to the occurrence. The allegations against him are based on

circumstantial evidence only. It was therefore mandatory for the

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prosecution to establish the chain of circumstances inter linked with one

another leading to the inevitable conclusion of the Appellant alone being

the assailant. In the absence of any chain of circumstances having been

established by the prosecution it cannot be said that the charge has been

proved beyond reasonable doubt to warrant conviction. In fact, there was

no evidence whatsoever linking the Appellant in any manner with the

death of the deceased either remotely or even on suspicion. There is no

evidence to invoke the last seen theory also. In a case of circumstantial

evidence, motive is a very important factor. The Learned Trial Judge has

arrived at a finding that there was no motive for the Appellant to kill his

own wife. The Learned Trial Judge has grossly erred in convicting the

Appellant on what can well be described as a speculated conclusion

based on misappreciation of evidence which does not necessarily lead to

the conclusion of the Appellant being the assailant. There is no evidence

of any cruelty by the Appellant towards the deceased much less for dowry

or otherwise. The plea of alibi taken by the Appellant that he was on duty

at the flour mill of DW-1, Ramu Prasad Goswami has not been considered

and appreciated properly causing prejudice to the Appellant. Merely

because the deceased was the wife of the Appellant who died in unnatural

circumstances at night, outside the house, it cannot be presumed or the

onus shifted onto the Appellant under Section 106 of the Evidence Act in

absence of the prosecution having first established a prima facie case for

homicidal death against the Appellant. If the body was dismembered into

four pieces on the railway track, the possibility that the deceased may

have committed suicide by jumping onto the track cannot be completely

ruled out. If this possibility exists even remotely, the benefit of doubt must

go to the Appellant. Reliance in support of the submissions was placed on

(2009) 14 SCC 415 (Subramaniam v. State of Tamil Nadu), (2009) 13

SCC 565 (State of Kerala v. Anilachandran alias Madhu) and (2011) 12

SCC 545 (Varun Chaudhary v. State of Rajasthan).

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4.

Learned Counsel for the State opposing the appeal referring to the

evidence of DW-1, Ramu Prasad Goswami submitted that the deceased

w