NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1655 of 2015
Judgment Reserved on : 4.3.2022
Judgment Delivered on : 17.3.2022
Himi Ekka, wife of Maniger Ekka, aged about 21 years, resident of Village
Dahidand, Police Station Kapu, District Raigarh, Chhattisgarh
---- Appellant
versus
State of Chhattisgarh through Police Station Kapu, District Raigarh,
Chhattisgarh
--- Respondent
For Appellant : Shri Govind Ram Miri, Senior Advocate with Shri U.R.
Koshley, Shri Basant Kaiwartya and Shri Pawan
Shrivastava, Advocates
For Respondent : Shri Sudeep Verma, Dy. Govt. Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Hon'ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
Per Arvind Singh Chandel, J.
1. This appeal is directed against the judgment dated 6.12.2013 passed by the Additional Sessions Judge, FTC, Raigarh in Sessions Trial No.91 of 2012, whereby the Appellant has been convicted and sentenced as under:
Conviction Sentence Under Section 302 of the Imprisonment for Life and fine Indian Penal Code of Rs.15,000 with default stipulation Under Section 201 of the Rigorous Imprisonment for 5 Indian Penal Code years and fine of Rs.5,000 with default stipulation The jail sentences are directed to run concurrently 2
2. In this case, name of the deceased is Anmol. He was aged about 3½ years. He was son of co-accused (acquitted) Maniger Ekka. The Appellant is second wife of Maniger Ekka. Brother of Maniger Ekka, namely, PW4 Jugsai lodged First Information Report (Ex.P6) on 18.2.2012 at 12:05 noon stating therein that from the wedlock of Maniger Ekka and his first wife PW1 Anita, there were 3 children. Between both the wives of Maniger Ekka, a dispute was existing due to which they had been quarreling frequently. On 15.2.2012 at 9:30 a.m., the Appellant took Anmol (deceased) along with her saying that she will feed him ber (jujube). Thereafter, Anmol did not return. A search was made. Thereafter, on 18.2.2012 at 8 a.m., PW2 Silbinus Tirkey, PW3 Raju Ekka, PW5 Chhattar Sai and PW6 Vimal Ekka inquired about Anmol from the Appellant. She admitted her guilt saying that she took Anmol in the forest and fed him poison and thereafter she hid his dead body beneath a stone in a drainage in the forest. Thereafter, she showed them dead body of Anmol in the forest. After recording of the FIR (Ex.P6), police reached the spot. Inquest proceeding (Ex.P2) was conducted. On 19.2.2012, statements of witnesses were recorded under Section 161 Cr.P.C. It was found that co-accused (acquitted) Maniger and the Appellant are the persons who committed murder of Anmol. On 19.2.2012 itself, memorandum statements of Maniger and the Appellant were recorded vide Ex.P10 and P11, respectively and at their instances, 1 blood stained stone was seized from Maniger vide Ex.P13 and 1 another blood stained stone was seized from the Appellant vide Ex.P12. Post mortem examination on the dead body 3 was conducted by PW8 Dr. B.L. Bhagat. Post mortem report is Ex.P15. In the post mortem examination, following injuries were found:
(1) 1 contusion of 4x2 cms. on left forehead
(2) 1 contusion of 3x1 cms. in right mastoid region of
scalp
(3) 1 abrasion of 6x2 cms. In lower part of left chest
Blood clot was found in injuries No.1 and 2. No definite opinion could not be given by the doctor, but he suspected that the death occurred due to heart attack as a result of excessive suffering of cold by the deceased. The seized articles were sent for chemical examination. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges.
3. In support of its case, the prosecution examined as many as 9 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. No witness was examined in her defence.
4. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, this appeal.
5. Learned Counsel appearing for the Appellant argued that the Trial Court has wrongly convicted the Appellant without there being any evidence on record against her. There is no eyewitness in this case. The whole case of the prosecution is based upon the 4 circumstantial evidence. The motive of commission of the murder is not proved in any manner. PW1 Anita, who is wife of Maniger Ekka and mother of the deceased has admitted the fact that the Appellant had cordial relation with her and the deceased. The Appellant was loving the deceased very much and she never beat him. It was further argued that as stated by PW1 Anita, the Appellant took the deceased on 15.2.2012 and the dead body of the deceased was found on 18.2.2012. In paragraph 4, PW1 Anita admitted that on being asked, the Appellant said that she had brought the deceased back. Therefore, looking to the time gap, which is about 3 days, it cannot be said that PW1 Anita was the witness who last saw the deceased and the Appellant together. Reliance was placed on 2022(1) CGLJ 320 (Tillu alias Shiv Kumar Nishad v. State of Chhattisgarh), a judgment of a Coordinate Bench of this Court and (2016) 1 SCC 550 (Nizam v. State of Rajasthan). It was further argued that the Trial Court has convicted the Appellant on the basis of extra judicial confession made by her before PW1 Anita, PW2 Silbinus, PW3 Raju and PW4 Jugsai, but their statements are not reliable. From their statements, it is established that the said extra judicial confession was made in presence of police officials. Therefore, the said extra judicial confession made by the Appellant is not legally admissible. In this regard, reliance was placed on 2019 (2) ANJ (SC) 215 (Chakarai @ Chakaravarthi v. State). It was further argued that though the seized stones were sent to the Forensic Science Laboratory for chemical examination, there is no FSL report on record. Therefore also, it is not established that those stones were used for 5 commission of the murder. It was lastly argued that according to the contents of the FIR, the deceased was murdered by feeding him poisonous substance, but, PW8 Dr. B.L.Bhagat, who conducted the post mortem examination on the body of the deceased, admitted the fact that no poisonous substance was found in the stomach of the deceased. According to the prosecution case, only 3 injuries on the body of the deceased were present and the doctor has admitted that those injuries could occur due to fall also. According to the prosecution case itself, the deceased was missing for the last 3 days and according to the doctor's opinion, his death could occur due to heart attack as a result of excessive suffering of cold. Therefore, a possibility cannot be ruled out that the deceased would have gone out for playing and he would have fallen there and would have been lying there for 3 days and he would have suffered excessive cold and, therefore, he would have suffered a heart attack. Thus, the conviction of the Appellant is not sustainable and she is entitled to get benefit of doubt.
6. Learned Counsel appearing for the State opposed the arguments advanced by Learned Counsel for the Appellant and supported the impugned judgment of conviction and sentence.
7. We have heard Learned Counsel appearing for the parties and perused the record of the Trial Court, gone through the statements and other evidence minutely.
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8. In this case, there is no eyewitness. The conviction of the Appellant is based only upon the circumstantial evidence.
9. One of the circumstances relied upon by the Trial Court is last seen together. In this regard, the prosecution has examined PW1 Anita, who is mother of the deceased. In her Court statement, she deposed that on 15.2.2012, the Appellant took the deceased for feeding him jujube. In paragraph 4 of cross-examination, she admitted that on being asked about the deceased, the Appellant said that she had brought the deceased back. This witness also admitted that she had no dispute with the Appellant and the Appellant was loving the deceased very much and she had never beat the deceased. Undisputedly, the Appellant, being second wife of Maniger Ekka, is saut of this witness. Looking to the above relationship, even if the Appellant had taken the deceased away along with her, there seems no abnormality. There is also no dispute on the point that the dead body of the deceased was found 3 days after his missing. But, no missing report was lodged by PW1 Anita or her husband Maniger Ekka or any other member of their family. Therefore, only on the basis of the statement of PW1 Anita, without other corroborating evidence, the Appellant cannot be convicted.
10. With regard to the evidence of extra judicial confession, as per the contents of FIR (Ex.P6), on 18.2.2012 at about 8 a.m., the said extra judicial confession was made by the Appellant in front of PW2 Silbinus, PW3 Raju, PW5 Chhattar Sai and PW6 Vimal Ekka. PW5 7 Chhattar Sai and PW6 Vimal Ekka have not stated anything in their Court statements in this regard. They have turned hostile. PW2 Silbinus has deposed that after the recovery of the dead body, police officials came to the village and on being inquired by them, the Appellant admitted her guilt. Thus, from the above statement of this witness, it appears that the said extra judicial confession was made by the Appellant in presence of the police officials. Another witness of the extra judicial confession, i.e., PW3 Raju has not stated that in his presence the Appellant had made extra judicial confession or had admitted her guilt. Rather, according to this witness, the said confession was made by the Appellant before her mother-in-law. But, her mother-in-law has not been examined by the prosecution. According to the Court statement of PW3 Raju, it was informed by Maniger Ekka that deceased Anmol was killed by the Appellant. But, this fact is not mentioned in his case diary statement. Apparently, this witness has improved his statement before the Court. Likewise, PW1 Anita has also deposed that on being asked, the Appellant admitted her guilt. But, this witness has also admitted that this fact is not mentioned by her in her diary statement (Ex.P1) recorded before the police. Thus, on this point, this witness has also improved her statement. PW4 Jugsai, lodger of the FIR (Ex.P6) has also admitted that the said extra judicial confession was made by the Appellant in front of police officials. This witness has also admitted that no quarrel or dispute took place between the Appellant and PW1 Anita and the Appellant was behaving well with the deceased and was maintaining good relation with him.
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11. In this case, on the basis of disclosure statements of the Appellant as well as acquitted co-accused Maniger Ekka, 2 blood stained stones were seized and they were sent to the FSL for chemical examination vide Ex.P26. But, the prosecution has not produced examination report of the FSL for the reasons best known to them. Therefore, the seizures of blood stained stones also do not help the case of the prosecution.
12. On a minute examination of the above evidence, it is established that the Appellant and PW1 Anita, being wives of Maniger Ekka, are saut to each other. From the statements of the witnesses, it is also established that there was a cordial relation between the Appellant and PW1 Anita and the Appellant was also behaving well with the deceased and was loving him very much. The prosecution has totally failed to prove any motive on the part of the Appellant to commit murder of the deceased. With regard to the "last seen together", the statement of PW1 Anita is not trustworthy. Looking to the gap of 3 days of recovery of the dead body of deceased, without other corroborating evidence, only on the basis of statement of PW1 Anita, the conviction is not sustainable. From the evidence available on record, it is also established that the witnesses of extra judicial confession of the Appellant, i.e., PW5 Chhattar Sai and PW6 Vimal Ekka have not supported the case of prosecution and turned hostile. From the statements of PW2 Silbinus and PW3 Raju, it appears that at the time of making of said extra judicial confession by the Appellant, police officials were present. Therefore, the said extra judicial confession cannot be 9 based for conviction of the Appellant. Material witness of the extra judicial confession of the Appellant, i.e., her mother-in-law has not been examined by the prosecution. PW3 Raju and PW4 Jugsai have also improved their statements on this point. From the evidence, it is also established that though 2 blood stained stones were seized and they were sent to the FSL for chemical examination, the prosecution has not produced any FSL report in this regard. Therefore, the seizures of the blood stained stones do not help the case of the prosecution. Looking to the entire evidence adduced by the prosecution, in our considered view, the prosecution has failed to prove its case beyond reasonable doubt and the Appellant is entitled to get benefit of doubt.
13. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges framed against her. She is reported to be in jail. She be set at liberty forthwith.
Sd/- Sd/-
(Rajendra Chandra Singh Samant) (Arvind Singh Chandel)
Judge Judge
Gopal