Himi Ekka vs State Of Chhattisgarh
2022 Latest Caselaw 1405 Chatt

                                                                        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. 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

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

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

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.

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

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.

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

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