HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1107 of 1992 Heeraman Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON BLE SHRI JUSTICE RAJEEV GUPTA 3 Sd/- Chief Justice Qg‘A /o7/2o1d 7 W Post forJudgment 22107/201 9 Sd- / Sunil Kumar Sinha Jud e L/ /0nzum W / HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. 'V. Criminal Appeal No. 1107 of 1992 APPELLANT Heeraman S/o Itwari Gond, aged abouf 21 years, R/o Gadhaghat, P.S. Khairagarh, District Rajnandgaon Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Khairagarh RESPONDENT “\e (Criminal Aggeal under Section 374 (2) of The Code of Criminal Procedure_,_1 973) , . Appearance: > Mrs. Savita Tivrari, Advocate for the appellant. Mr. Kishore Bhaduri, Additional Advocate General; for the State. JUDGMENT (22.07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant— Heeraman stands convicted u/ss 302 & 376 IPC and sentenced to undergo imprisonment for Iife & R.l. for 10 years, by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No. 35/92 on 9th of September, 1992. 6 (2) The facts, briefly stated, are as under:- Deceased— Amrika Bai was aged about 13 years. On 9.7.91 at about 8.00 a.m., she had gone towards her neld with the meals of her elder brother Rajesh, who was working in the field. When she did not return till 1041.00 a.m., search was made and her dead body was found at an open place near a nala. There were injuries on the body. A report (Ex.-P/1) was immediately lodged in g the concerned police station. The Investigating Officer reached to 2 Criminal Apgeal No. 1107 of 1992 the scene of occurrence, prepared inquest (Ex.—P/2) on the body of the deceased and the dead body was sent for its post-mortem examination. The post-modem report (Ex.-P/5) revealed that firstly the deceased was subjected to forcible sexual intercourse and thereafter she was strangulated to death. At the time of preparation of inquest (Ex.-Pl2), various other articles, including one ear-ring ‘ (ordinary,not of gold or silver), were also seized from the place of occurrence. The seizure memo is Ex.—P/3. In further investigation, after taking the appellant into custody, his memorandum statement (Ex.—P/6) u/s 27 of the Evidence Act was recorded on 16.7.91 and the other piece of ear-ring was seized at his instance from a nearby place which was kept under the stone. The seizure memo is Ex.- P/Z. The said piece of ear-ring (seized at the instance of the appellant) was put for identification and was duly identified to be that of the deceased; The identification memo is Ex.—P/9. _ (3) of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the appellant was held guilty for commission of the aforesaid offences:- (i) Rekhchand (PW—4) & Umend (PW-5) saw that the appellant was going towards the fields in the morning; The second piece of the ear-ring of the deceased was seized at the instance of the appellant on° 16.7.91 and in .t, identification, it wasduly identified & (iii) The appellant stated before Radheshyam (PW—8) that he has committed some mistake,and he was frightened. Admittedly, there are no eye-witnesses to the incident and the case l (ii) (4) Mrs. Savita Tiwari, learned counsel appearing on behalf of the Gappellant, argued that none-\of the circumstances were consistent with the guilt of the appellant; they were not ofconclusive natureythe seizure of the ear-ring from the place of occurrence is highly suspicious; the ear-ring f,A \ $.- xf/ ,” ) 3 Criminal Appeal N0. 1107 of 1992 was,not a valuable al1iCle, therefore, culprit had no reason to hide it for some gain and the said piece of evidence appears to be concocted; and the statement made before PW-8 is of no consequence. 9 (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and ; have‘also perused the records of the Sessions case. 7) ln. Dhananjqy Chhatterjee —Vs- State of W.B, (1994) 2 SCC 22 ( the Supreme Court held “in a case based on circumstantial evidence, the circumstances from which the conclusion of’guilt is to‘be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasOnable ground for the belief consistent with the innocence of the accused. lt needs no reminder that ‘legally established ‘x circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” g (8) In Bodh Raf alias Bodha and others —vs- State of Jammu and Kashmir, AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but »ta. ix 4 Criminal Aggeal No. 1107 of 1992 the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: t 1) the circumstances from which the conclusion 9f guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and no ‘may’ be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature V ‘ and tendency; 4) they should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground‘for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (9) Rekhchand (PW-4) deposed that on the fateful day at about 7.00 a.m., he saw that the appellant was going toward his fields which were near kanhar—nala. He had -' talked with the appellant. Umend (PW-5) also deposed in similar fashion. He deposed that on the fateful day at about 7.00 a.m., he was ploughing his field. He saw that the appellant was also going towards his fields. The above evidence of these 2 witnesses, in our view, does not connect the appellant with crime in.question. lf the appellant was going towards his own fields in the morning and other persons were also going towards their fields, nothing was unusual. MogeoVer, these witnesses ‘hka'Ve never stated that firstly they saw the deceased going towards the fields and the appellant followed her)or even they had seen the deceased going towards the fields of the appellant. V‘ ew t \ Criminal Apgeal No. 1107 of 1992 (10) So far as seizure of the: ear-ring from the place of occurrence is concerned, it is highly suspicious. A perusal of the contents of the seizure memo-Ex.-P/3 would show that by the said document five qrticles were seized. One piece of ear-ringhas been mentioned as article No.5. This clearly appears to be an interpolation in the seizure memo by different hand-writing. We do not find any reason for the culprit to hide one of the ear-ring and leave the other atthe place of occurrence. They were ordinary ear-ring having no’measurable value. lf the culprit would have thoug‘ht that they were valuable articles, he would have taken both of them, instead, leaving one on the place of occurrenceywhose seizure memo appears to b.e concocted on the face of’lt. We further note that the incident took place on 9.7.91, whereas, memorandum statement (Ex.- P/6) of the appellant was recorded On 16.7.91 and the aforesaid article was shown to be seized at his Instance Ratan (PW 3) Is a Witness of seizure of articles (Ex P/3) He deposed that the panchnama (Ex P/2) of the dead body was prepared In his presence and the police also seized one bag filled with kodo, some sarota-bhajhi and one katori. He very specifically mentioned that no other article was lying at the place of occurrence. He further added that ear-ring was thereain one ear of the o‘ k deceased but no ear-ring was lying at the place of occurrence. This further creates doubt that the ear-ring was seized by the police as an article lying near the place of occurrence lt appears that for connecting the appellant wrth crime in question an Interpolation was made in the seJzure memo Ex.-P/3 and the portions regarding seizure of ear-ring were also» mentionedinit. This makes the prosecution story highly ’ 5 . g3“ , \ ,: §w/ riminal Appeal No. 1107 of 19 C 92 kw < suspicious. The above circumstance cannot be held, at all, as established against the appellant. (11) So far as making confessional statement before Radheshyam (PW—8) is concerned, it has also not been established. Radheshyam was declared hostile. He has not supported the case of the prosecution. He never deposed that the appellant made extra-judicial confession before him. He simply deposed that the appellant stated that he has committed somemistake. When he asked that what mistake he has committed, the appellant did not reply and went away from his place. Even in the cross- examination by Public Prosecutor, nothing material could be brought on record in the evidence of this witness. (12) In appreciation of the entire evidence on record, we tind that none of the circumstances were fully established by the prosecution. The above circumstances pressed into motion were explainable and were not of conclusive nature and tendency so as to exclude every possible hypothesis except that the appellant committed rape against the deceased and he also committed her murder. It is not a case that on the above circumstantiai evidence, it can be inferred .that in all human probability the alleged act must have been done by the appellant. .(13) For the foregoing reasons, we are unable to accept the findings recorded by the Sessions Court that the prosecution proved beyond all reasonable doubts that the appellant Committed rape against the deceased and then she was murdered. n;a .1-\ 7 Criminal Appeal No. 1107 of 1992 (14) In the result, the appeal isallowed. The conviction and sentences awarded to the appellant u/ss 302 & 376 IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant was arrested on 16.7.91 and was directed to be released on bail on 10.4.2002. Mrs. Savita Tiwari submitted that thereafter he was released and now he is on bail. His bail bonds are cancelled and the surety stands vatti discharged. ‘ Sd/— p . ‘* ‘V Sdl- ‘7 Trix” SunilKumar Sinha Chlef . Justlce . _ L Judge