1 2025:CGHC:32524-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 317 of 2016 1 - Samhar Singh S/o Kuwar Singh Baiga Aged About 45 Years R/o Village Durgadhara P.S. Gaurela, Distt. Bilaspur Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Gaurela, Distt. Bilaspur Chhattisgarh. ... Respondent(s) For Appellant : Shri Shivang Dubey, Advocate. For Respondent(s) : Shri Vivek Mishra, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (14/07/2025) Deepak Kumar Tiwari, J 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 29.2.2012 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur in ST No.20/2011 by which the appellant KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.07.16 12:11:54 +0530 2 has been convicted under Section 302 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 3 months. 2. Case of the prosecution is that on 7.12.2010, in the evening, Panch of village Durgadhara namely, Bhuri Bai informed the Sarpanch of the said village namely, Santram that Munni Bai, aged about 65 years, is dead. On 8.12.2010, Sarpanch Santram along with Hanuman Singh, Lalta Prasad, Dipak, Santosh, & Bablu went to the village Durgadhara at about 11 am and saw that the dead body of Munni Bai was lying in the house and nobody was there. The deceased was grandmother (Nani) of Chukun Bai (PW-4). The Sarpanch & other persons enquired from Chukun Bai (PW-4) on which she informed them that on the last Saturday at about 7 pm, the appellant has assaulted the deceased with club on suspicion that she was practicing witchcraft and ran away. On the basis of said information, on 8.12.2010 at about 8 pm Sarpanch Santram has lodged an FIR against the appellant with the Police Station Gourela and also lodged merg intimation (Ex.-P/10). 3. Spot map was prepared vide Ex.-P/1. After giving notice, inquest was conducted and inquest report (Ex.-P/3) was prepared. Memorandum statement of the appellant was recorded vide Ex.-P/4 in pursuance of which club was seized vide Ex.-P/5. The postmortem on the dead body of the deceased was conducted by Dr. A.I. Minj (PW-6) and he gave the postmortem report vide Ex.-P/9, according to which, cause of death was cardio respiratory failure due to head injury, multiple injuries and subdural haemorrhage and the death is homicidal in nature. 3 4. After completion of the investigation, charge sheet was filed before the concerned Magistrate from where the case, being triable by the Sessions Court, was committed to the trial Court where the charge was framed against the appellant under Sections 302 of the IPC. The charge was read over and explained to the appellant, who abjured his guilt, took a plea of false implication and entreated for trial. 5. In order to bring home the charges, the prosecution has examined as many as 7 witnesses and exhibited 11 documents. Statement of the appellant was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the prosecution evidence and pleaded innocence and false implication. However, the appellant has exhibited 3 documents vide Ex.D/1 to Ex.D/3 and did not examine any defence witness. 6. After conclusion of trial, the trial Court by the impugned judgment, on appreciation of evidence available on record convicted and sentenced the appellant as mentioned in para-1 of this judgment, which led to filing of present Appeal by the appellant. 7. Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. The incriminating circumstances relied upon by the trial Court are not proved beyond reasonable doubt and, therefore, the appellant deserves to be acquitted. 8. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in 4 convicting the appellant for offence under Section 302 of the IPC. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 9. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. The first and foremost question, as to whether the death of deceased Munni Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. A.I. Minj (PW-6) who has conducted the post-mortem examination and also proved the post- mortem report (Exhibit P-9) in which cause of death has been opined to be cardio-respiratory failure due to head injury, multiple injuries & subdural haemorrhage and the nature of death to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court, holding that the death of deceased was homicidal in nature. 11. Now the next question would be whether the accused/appellant herein is the author of the crime in question. 12. In the present case, Chukun Bai (PW-4) is an eyewitness to the incident, who is also the wife of the appellant. She has been declared hostile and not supported the case of the prosecution. She has clearly deposed that on the date of the incident the deceased was heavily drunk and while she was returning to the house, on way, she got injured, as she fell on stone. This witness has stated that due to such injuries, the deceased died in the 5 night. She has clearly stated that the appellant has not assaulted the deceased in any manner and denied the suggestion of the prosecution that the appellant has assaulted the deceased by using club, as the deceased was practicing witchcraft. She admits that on the next day Sarpanch Santram (PW-7), Lalta Prasad Gurjar (PW-3), Hanuman Prasad and Kallu Ram (PW-2) came to her house, but she denied that she had informed to these persons that the appellant has assaulted the deceased by using club. The other witnesses namely, Santram (PW-7), Lalta Prasad Gurjar (PW-3), and Kallu Ram (PW-2) are hearsay witnesses. The prime witness (PW-4) Chukun Bai has completely destroyed the story of the prosecution. 13. Further, in pursuance of memorandum statement of the appellant vide Ex.-P/4, the club was seized vide Ex.-P/5. Santram (PW-7) and Kallu Ram (PW-2), both the independent witnesses have supported the aforesaid proceeding. However, the prosecution has failed to prove that the club, which was seized, was used for committing the offence. Moreover, mere recovery of the weapon i.e. club cannot form the basis for conviction unless the same is corroborated by any other evidence that too for offence under Section 302 of the IPC. {See : Mustkeem alias Sirajudeen Vs. State of Rajasthan {(2011) 11 SCC 724} and Raja Naykar Vs. State of Chhattisgarh {2024 SCC OnLine SC 67}. 14. Considering the entire fact situation of the case, particularly the fact that the prime witness i.e. Chukun Bai (PW-4) has turned hostile, the recovery of the club has also not been established to show that the same was used for commission of crime and that on the date of the incident the 6 deceased was heavily drunk, we are of the considered opinion that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt and the trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC and the appellant is entitled for acquittal by extending him benefit of doubt. 15. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge by giving him benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve