1 2025:CGHC:894-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 464 of 2024 1 - Smt. Savitri Prajapati W/o Lt. Rajesh Mishra Aged About 36 Years Residential Address Village Markandand, P.S. Rajpur, District- Balrampur- Ramanujganj, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through Police Station Rajpur, District- Balrampur- Ramanujganj, Chhattisgarh. ... Respondent(s) For Appellant : Shri Akhilesh Mishra, Advocate. For Respondent : Shri Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 07.01.2025 Per, Ravindra Kumar Agrawal, J. 1 The case was being listed for consideration on IA No.01/2024, an application for suspension of sentence and grant of bail, however, with the consent of the parties, the matter is heard finally. 2 This appeal arise out of judgment of conviction and order of sentence dated 12.01.2024 passed by the Ist Additional Sessions Judge, District Balrampur-Ramanujganj in Sessions Trial No.116/2020 whereby the appellant has been convicted for the offence under Section 302 IPC Digitally signed by INDRAJEET SAHU Date: 2025.01.14 17:08:59 +0530 2 and sentenced to undergo RI for life imprisonment with fine of Rs.500/-, in default of payment of fine, further SI for 30 days. 3 Brief facts of the case are that, on 05.07.2020 the brother of deceased namely Umesh Mishra, PW-2, lodged a merg intimation that his brother Rajesh Mishra (Since deceased), residing with the appellant at village Markadand, was found dead in his house. This information was intimated to him over telephone by one Arjun Prajapati, resident of village Markadand. Merg intimation Ex.P/3 was recorded by the police. Inquest, Ex.P/2 was prepared in presence of witnesses and dead body was sent for its postmortem to Community Health Centre, Rajpur where PW-9 Dr. Richa Khanna has conducted the postmortem of dead body and gave her report Ex.P/11-A. During postmortem, the doctor found bleeding from mouth and nose, swelling over left cheek, abrasion over right eyebrow, abrasion over left side of chest. She also found fracture of 3rd rib of right side and opined that cause of death is coma due to hemorrhage along with shock and nature of death is probably homicidal. Spot map Ex.P/4 was prepared by the police. FIR Ex.P/13 was registered against the appellant for the offence under Section 302 IPC and she was arrested on 20.07.2020. Her memorandum statement Ex.P/9 was recorded. The statement of witnesses were recorded and after usual investigation charge sheet was filed before the Judicial Magistrate First Class, Rajpur. The case was committed to the court of Sessions Judge, Balrampur, Ramanujganj from where the same has been transferred to the trial court for its trial. 3 4 The trial court has framed charge against the appellant for the offence under Section 302 IPC. The appellant denied the charge and claimed trial. 5 In order to prove charge against the appellant, the prosecution has examined as many as 9 witnesses. The statement of appellant under Section 313 CrPC has also been recorded in which she denied the material appears against her and submits that she has been falsely implicated in the offence. 6 After appreciation of oral as well as documentary evidence led by the prosecution, the trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 7 Learned counsel for the appellant would submit that there is no direct evidence against the appellant. The trial court has convicted the appellant only on the basis that she is wife of deceased and she was unable to explain how her husband was found dead in injured condition inside the house whereas, there were other inmates also present in the house. The prosecution has failed to prove its case that at the relevant point of time the appellant was present in the house along with the deceased. There are material omissions and contradictions in the evidence of prosecution witnesses. The prosecution has to prove its case beyond reasonable doubt that appellant was present in the house at the time of incident and only then reverse burden would shift upon the appellant to explain about the injuries found on the body of the deceased. The prosecution has also failed to prove any motive against the appellant. Therefore, there is no sufficient evidence available on record against the appellant to convict her and as such she is entitled for acquittal. 4 8 On the other hand, the counsel for the State opposes the submissions and have submitted that presence of appellant in the house itself is sufficient ground to shift burden to explain as to how her husband found in injured condition inside the house. The incident was of night time and in normal circumstance her presence could be presumed inside the house. The conduct of appellant is also relevant that she did nothing when she saw the dead body of her husband. There are evidence that relation between the appellant and deceased was not good and frequent altercation took place between them. Therefore, in view of the evidence available on record, trial court has rightly convicted the appellant and sentenced her which is not required to be interfered with. 9 We have heard the counsel for the parties and perused the records of the case. 10 So far as nature of death of deceased is concerned, the prosecution projected that deceased died due to homicidal death. To prove death of deceased to be homicidal in nature, the prosecution has examined PW-9, Dr. Richa Khanna who conducted the postmortem of the dead body of deceased. She found swelling and abrasion over right side of chest and fracture of 3rd rib of right side and opined that cause of death is coma due to hemorrhage along with shock and nature of death is probably homicidal. In cross examination, she admits that if a person falls on the ground after consuming liquor, then he could receive the injuries which she has described in the present case. She also admits that she has not disclosed any exact time of death of the deceased in her postmortem report. 5 11 From the evidence of PW-9, Dr. Richa Khanna, it has not been clearly established that death of deceased was homicidal in nature, but has opined that probably it would be homicidal in nature. Once she admits the fact that by falling on ground in an intoxicated condition such type of injuries could have been received by the deceased, then there is every possibility in the facts of the case that deceased in an intoxicated condition fell down in the house and received fracture of his 3rd rib of right side causing damage to his lung and ultimately died. It is admitted by the witnesses that deceased was a habitual drunker. It is also not the case of the prosecution that deceased was being assaulted by the appellant by any weapon. Therefore, in the facts situation of the case and the evidence available on record, it is difficult to hold that deceased died due to homicidal death by the assault made by the appellant and the same has not been proved by the prosecution beyond reasonable doubt. 12 So far as involvement of the appellant in the offence in question is concerned, since the death of the deceased is not found to be homicidal and the evidence of witnesses is not required to be discussed, yet this court deem it fit to go through the evidence of witnesses. 13 PW-1, Naresh Mishra, is the father of deceased. He is not resident of the place where the deceased was residing. He deposed on the basis of information gathered by him from the other witnesses. He admits in his cross examination that his son (since deceased) had performed love marriage with the appellant and therefore he was not happy with his son and appellant. He has not seen any injury on the chest of the 6 deceased. He further admits that altercation between the appellant and the deceased was disclosed by him on his own. 14 PW-2, Umesh Mishra, is the brother of the deceased. He too have stated that he is deposing on the basis of information gathered from other witnesses. He is also resident of other village from the place where the deceased was residing. He too have admitted that they were not happy with the marriage of his brother with the appellant. 15 PW-3, Bablu Mohna Prajapati, who is the brother of appellant, have stated in his evidence that the appellant and the deceased were expelled from the community. Therefore, he used to visit their house occasionally. On the next day of incident, the appellant came to his house and informed that her husband is died. When he went to the spot, he saw his dead body, but no injuries were seen in the dead body. He too have admitted that since the appellant and deceased performed love marriage, their relation with them was not good and they were not happy with their marriage. He also admits that the appellant and deceased were expelled from their community and how deceased died, he did not know. 16 PW-4, Phulsai, is the father of appellant. He too have stated that the appellant had informed him that her husband has died. When he went on the spot, he saw his dead body, but the appellant did not inform as to how her husband died. He did not know the cause of death. In his cross examination also he has stated that since the appellant and deceased performed love marriage, their family members were not happy with them. 17 PW-5, Dharmjit is the brother in law of the deceased. He too have stated in his evidence that deceased was habitual in consuming liquor. 7 On the date of incident, there was no quarrel between them. After receiving information about his death when he went on the spot, the dead body of deceased was already taken to the hospital. 18 PW-6, Manish Jaiswal, is the witness of memorandum of the appellant Ex.P/9, who turned hostile and not supported the case of prosecution. 19 From the evidence of all these witnesses, it appears that none of the witnesses have stated that the appellant was with the deceased at the time of incident and there was any quarrel between them. Rather, PW- 5, Dharmjit have specifically stated that on the date of incident there was no quarrel between them. 20 When no injuries have been seen by the witnesses on the body of the deceased, his death was not proved to be homicidal in nature and further the prosecution could not establish that at the relevant point of time the deceased was with the appellant in their house, it cannot be said that it is the appellant who caused injuries to the deceased by which he died. The doctor who conducted postmortem of the deceased have admitted that injuries found on the body of the deceased could have been received by falling on the ground after consuming liquor. Further, in the next morning of fateful day, the appellant herself informed her brother PW-3, Bablu Mohna Prajapati PW-4, Phulsai about incident and death of deceased. Therefore, it cannot be said that she tried to flee from the place of occurrence after commission of the offence, but she went to the house of her brother and father to inform them about death of her husband and as such her conduct cannot be said to be suspicious, but was natural. 8 21 In the matter of Digamber Vaishnav and Another Vs. State of Chhattisgarh, 2019(4)SCC522 the Hon. Supreme Court has held in paragraph 19 as under : “19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].” 22 Therefore, in the facts and circumstances of the case, it can safely be held that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and her conviction is liable to be set aside. 23 In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 12.01.2024 is set aside. The appellant is acquitted from the alleged offence. She is reported to be in jail since 20.07.2020. She be released forthwith, if not required in any other case. 24 Keeping in view the provisions of section 481 of BNSS, 2023, the appellant is directed to forthwith furnish a personal bond of some of Rs. 25,000/- in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 9 25 The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder