:^1 '-:<t.,. .p-.' 1.. -- %i •iysi(iu r;^ ^ ,P & CFOOOOOS8819 ^ Knsion Bencn (CrimiBa] ^ "~N®. ^i©4- FaAer's aame ^T^y ^-^^ ^,^ ^ CWs^ ^^); ^/-^^r' ^A^i:_'-.^t'^^^" " ' ^ /^-. ^yw} - ^\^,<^W^~°~ ^* ,<^cl cm;<-v^^ J^ ^q7 76.7- 4'59 2- •^\-\i. x7, _ __ ,_,__^ ^<^ ^ _ ^_ /) 3o^ ^^^. by'^?^^'- s^^T^^imr^lW^Wcl? ttt__' -tsteiT-'s?T2p7?'C?r<'5^ ^ra-^iraBrss-. -3, :3SS71SSS'-3d' ^tisexpldtted to tlie pFisoner.thaf if fce states <»r 'wislies 't<» 'be represented'by legal 8ec the Appeiiate Conrtwill not'proceed witfa tfae base for seveadays unless 'As te'ta{ practitionef appe&re. Ifthe legal practitianer daes aot appear w.ithin sevea '•:Saysbe nay aat heard at.ali . IS the prisoaer states Aat i»edoes aot wisk to be repre- 'seoted by ^ali pactiticner the court aay ^roceed at. oace with d»ecase an4 will not be o&fced Eo ^ -I ,2 3 4 Wl l^ y- ^992- ^ 8, 1992-^ ^g-^ ^SfT^TT^ST^ Jail ^-ft tPVS. N®.^C.^Z-ZS^^M •f-. ffi^ v^tGf^q-^ ~4--JOSf^ 'v^n^'- "W^ y^faVyTq^^fe^y 'cHdtefi^^ to. gat.tter wfeich a. eopy of otder passed ia the case for fxyosi of transiaission to 'Hle ^v :-•• •'•:^. 'lpRii ^g^tp^ (ff. ss.) l.-s Meao of Appeal oftfae Appdiate court -[j!. 111 •^:!"t' :'SL: 1 ^' )^ CRIMINAL APPEAL N3.1035 OF 1992 Ganesh Raa Vs_. The Sta-te of M.F. (Chhattisgarh) Judgment for consideration Sd/- R.S.Garg judge _, »r A^/OV2001. Hon'ble Ibe Chie-C Justice: y ^ ^.^^ 1.1^ Post it for: 3.^ ^04Z2Q01 Sd/- ~\. ^)} HISH COURT OF CHH&a'TISGARH i AET .BIIASPUR. Crim.i.Hal Appeal No. 1035 of 1992. eanesb Ram, s/o Hariram ..: Vs. Tbe State of Madlaya Pradesh •, (Ghbattisgateb) « * * « * * * * J u^ g_m e n t By. Hoa.sbri R.s. Garg,«r t Appellant. Respondent. Tbe appellant naaed above, toeing aggrieved by tbe judgment dated 16.7.92, passed by the learaed Additionat Sessions Judge, Dbamtari, in Sessl.ons trial N0.3 02/91, convicting -the appellant uneler section 302 I»P«C* aad seatencing bim to undergo R.I. £er life, iaas filed this appsal against the findings.conviction and sent«»ce« 2). Tbe present appellant, his brofcher Ran- Shankar* uncle Dhukal, cousin Benuram. Sister Latabai, mottiar Janaltibai, brotber's wife Dlnesbwari- bai, and Sister's busband Jairam. in all eigbt persons were prosecuted by the prosecution.inter- Uia alii.&gAng that these persoas ccxnmitted murder of the deceased aad caased dis-appearance of tbe material eyidence relating to the alleged crinie. It is note-worthy that the other seven persons.on the sane set o£ facts and evidence, -/-26 have been acquitted and against the said acquittal, the State has not filed any appeal. 3)« The prosecutAon ease in brief is that Dayabai- wife of the present appellant Ganeshreua was issue-less, tberefore. the appellant Ganeshram and his relations dj-d not like the said Dayabai. They were treating faer wii.feb cruelty and were figbting with her just £or nothing. On 9-6-91, at about 7»00-8»00a.a», all the accased quarrelled witb tbe deceasesl, abetted/lnstigated tbe present appellant to beat and raurder tbe deceased. The appellant caused certain Injuries to the deceased by means of wooden log, tbrottled tecc' a»d ateeo'cdtoglg' murdered her. Iwmediately, after committing tbe mtirder of Dayabai, tbe present appellant. came out o£ his house, bparded on a cycle and ran away from the spot. The accused persons infonaed the •villagers tbat tfae deceased died beeause o£ epilepsy; but before they could cremate the dead-body, the police reached cax tbe spot and seized the body, The body was.thereafter sent for Its post morteat. The doctor i-nformed tbe police authoritles that the deceased died as a result of throttling and she had certain aarks of injdries on ber person. After recording the stateaents of the witnesses and preparation o£ the pancbanaiaas • armed wlth suff.lcient material, the police fileel t.be ehallan agains-t tbese eight persons « 4). &fter recording the evidence and hearing ^l — 3 - the parties. the learned trial Court convicted the present appellant Ganeshrare, but aequitted the all others* Belng aggrieved by idaa said conviction and award of sentence, tbe appellant has filed this appeal. 5). Sbri Vishnu Kosbta, learned counsel for tbe appellant submits that from the oral ev.l.dence adduced and tbe documentary evidence produced by the prosecutlon, it does not appear tbat the accased cQiaaitted nurder of bis wife» According to hia, i£ on the aame set of evidenGe, seven persons have already been aequitted, tben the present appellant alone could not be convlcted. It is atsosubniitted by him that the leamed Court below has presumed Vto^. tbe accused to be the nurderer simply because some witnesses said that the aceused was absco»ding for scme time. He submits that tbe abseonsion at the best may be a circuiastance agalnst the present appellant, but that would aot take tbe place o£ positive proofo It is also submltted that in absenee o£ positive statanents that the appellaat eoiafttitted mtirderof his wife, the findings are bad and the appellant deserves to be aequitted» 6)» on ifctae other hand, Stei Gautam Bhaduri. learned counsel for the State submits that frcm the statements of the witnesses. it would clearly CT/ appear that the deeeased died dS honieidal death. The appellant was treating the deeeased witb cruelty and as immediately after the alleged ^2) Ineident, tbe accnsed ran away frcan the spob, tbe Court below was absolutely justified in recording tbe findings against the present appellant, He also submits that in »-givea set of cirGumstances• abseonsioa may prov»|e-tbe missing link to connect tbe ascused witb the crime. He bas prayed £or dismissal of the appeal. 7). We have heard the parties at length and bave gone tbrougfa tbe conplete records. 8). i P.W.l I^aakisbua.is not an eye-witness. He has stated before the Court tbat the deceased died on 9-6-91. According to bjjn, hs was invited by the motber o£ tlie present appellant to see tbe condi- tion o£ DayabaA. Aeeording to him, Dayabai was sufferlng witb crasaps. some froth was coming^from her mouth. He has also stated that be stayed -^rr ^ there'/'about fieas- 10 miautes aad tbereafter-, Dayabai's body became action-less. He stated that the doctor came te the spot and declared that she was already dead. Tbereafter. be sent the inforinaticat to the police station; poU.ee came to the spot and recocded fais statements. In the cross- exainination, natblng substantial was asked to bim » Prom the stalements of this witness»:it would clearly appear that whea he was invited by the motber of tfae preseat appellant, Dayabai was alive. 9). P.W. 2 Gbaashyaa bad stated that on the fateful day when be was sitting at bis bouse with some of bis relations, be heard the sbouts from 5 - the house o£ the aceused. The accused was abzising bis wife and the deceased was weeplng. After some time, the • accused came out of the house, boarded on a cycle and raa away. AeGOrding to biia, thereafter, sister of the accused requlred th.e mother of the acetised to giv® a massage to ^IOC\-OV- ;fc^' ^ _ . tbe ^fttsaaAad and also asked the otber persons to call other vlllagers* He also stated that oa the call of jetat relations of the accused, Sadaram, Kaleshwar Rao Tokaae and Ramkisbun Kotawar came to the house o£ tbe accused. When Kaleshwar Rao Tokene asXed Janakibai (aother of tbe accused) that since when the deceased was doing like that, tbe mother of the aecused infcarmed hin that the deceased was suffering with attacks o£ epilepsy« The doctor, after his arrival declared that Dayabai was dead. In paragrapb 7 o£ bis statement. he clearly admitted tbat be was not a witaess to the incident of marpeet. According to him, from the different types pf voices. he tbought that the accused Ganeshram was beating bis nrife. In para- graph 8, be adnu.tted that on the fateful day, -the accused persods were making earthen tiles» He also admitted tbat from his house, t.he place where \^e-X^- . the accused persoas^ aak.i.ng earthen ttles was not visible» In paragrapb 10, on being eonfronted with the ease diary statement-Ex.D/1, he admltted the raaterial faet tbat inmediately after the incident, the aecused Ganesbram ran away frora the spot, wa^ not availatole in Ex.-D/l. From his 6 - statements, tbree materiai facts wteca emerge&tbat the accused was beating bis wi£e, the accused left his house on a cycle and on arrival o£ eertain persons. motber of tbe accuBed infomed thern that tbe deceased was suffering witb attacks o£ epilepsy« It also appears from bis statanents that he did not see tbe said marpeet aad the material fact tbat tbe accused ran away from the spot on a cycle was not stated by hia before the police* 10). P.W. 3 Paradesirani inforraed the parents of the deceased that she was unwello P.W. 4 Ghanshyam is the brother of tbe deceased. According to hia, the deceased was treated with cruelty becaiise she was issue-less. He requested -the faiaily members o£ tbe accused ROt to treat Dayabai witb cruelty. According to bim, after receivtng the informa'tion tbat Dayabai was unwell, he reached the house of the accused where he was •i.n£ormed that sbe bad already died* He was informed by Shankar that the accused was not available in the hoxise. Tbe material allegations that the acci.eed persons were not permltting the deceased to play with the cbildren and be advised tbe famiaiy members of the aGcused to treat the deceased properly were missing in bis case diary statements. Neitber he is an eye-witness aor he was infomed by anybody tbat tbe accused ccminitted inurder of his sister. Tb.e material allegations that the deeeased WS treated witb crueltyand he bad advised the aecused and his family members to tr^at tbe deceased prpperly are missi.ng in his case diary statenents. 11)» 9.W. 5 Dasra is a village doctor. Aceording to bim, when be had exainined Dayabai, she was already dead. 12). P.W.6 sadaram stated before ttfae Court that the deceased Dayabai eaace eane to his house and infonned him tbat the accused and his family manbers were treating her with craelty. She also informed hisa tbat her busband was also extending crael treatment. In paragraph 4 of his statemeiit, be stated thafc he gave some advice to accused Ganeshram. Neitber he is a witness to tbe incident, A^t.ce-^fc; nor -to any otber circuHis'tances, Itafe for tbe alleged £act tbat be was informed by the deeeased that tbe aeeused persons were treatxng faer witb cruelty. 13). P.W.,7 shyamlal is aeitber an eye-witness nor knew about the relation' o£ the deeeased with her husband. He was.tiowever, declared bostile, bat he did not support tbe prosecution o 14). P.WoS Kruparamstated before tbe Court tbata-day before the death of Dayabai, he heard about scaie figbfc betweea thededeased and ber raotber-in-lawo 15). P.W.9 iDeluraa is brotber o£ tbe deceased. la paragraph 3 of bls statemeat, he stated tbat Dileshwari and Janakibai were quarrelling with the deceased and Dileshwari, Shankar and the preseat appellant were tahing tbeir s.ide. AccOTdinia_. /-s6 V- - 8 - to him, one Paradesi came to te/is laouse and iaformed then that Dayabai was unwell. thereafter, he was inforaed by his torother tbat Dayabai was-t"^ expired. According to bim, findiag the deatta to be saspicious, be lodged fehe report wJ.th the police. In paragraph 8 o£ his cross-examination it was suggested to hira that evea at the time of naarciage Dayabai suffered an stta.ck of epilepsy- Tbis witness is not a witness to the iiicident, but simply suggested tbat tbe family members of the accused were quarrelllng witb the deceased. 16). p.W«10 Kalesbwar Rao was Informed by Janakibai about the ill-health of Dayabai. According to him, when be reacbed to the house of the accused, he found that Dayabal was roaking gaggling sounds aad was unconseious. He also stated that thougb he was informed by the facaily members that Dayabai. suffered an at.t.aekiOf, epilepsy, bat be bimself being suspicious about the incident, requirecltbe others to eall the doctor. Tbe village doctor came to tbe spot and deelared that Dayabal was dead. From his stataaents, it does aot appear that be is a witness to the incident. He has made a positiye statement ia favour o£ tbe accused fehat when he yja-3 o^-VL. reached the house of the accused, DayabaA daa •W2K. WB^ AeGording to hlro, the wooden log was dis- covered on the information o£ tbe accusedo On ttie very next day of tbe incident, Ganeshram was available in the village and at his iastance, fche said wooden log was recovered.i I ~"~—— -. f /-S7. S-- - 9 - 17 }. P.W.llSbrikant sbukla performed autcpsy on tbe toody of tbe deceased. He clearly stated that the deceased died as a result o£ tbrottling* He also stated that there were marks on tbe sedSt of tbe deceased and there were two contusion marks on the body o£ the deceased. la the cross-exaraina- tion 1& was suggested to bim tbatthe death was not result o£ throttli.ng, but he denied the suggestioa. 18). P.W.12 Ferharam is the fatber of the deeeased. Xn paragrapb 3 of bis statement, be stated that tbe accused and bis family merabers were treating the deeeased with ernelty. He is neitber a witaess to the incident nor he knew that bow tbe deceased died. P.W.13 Diwakar Singh Bhagel had recorded the statemeats of Paradesiraa, Shyamlal,Ramltisbun, Janakibai, and Jeerabai. He alsosent tbe woodea log for the qpinion of tfae doctca;. 20). P.W.14 Harlshchandra Saboo was the patwari.wbo prepared tbe spot nap. P.W.15 Ramswaroop had taken the body of the deceased for post raortan and the woodea log for the •iBp*TO!nB opinion of the doctor, to the hospital. 21). P.W.16 shivjati Giri was the Investigating Officer. After reeelving tbe information on 10.6.91, he reaebed tbe spot, prepared panchanama of the body, sent the body for post mortea and after receiving the post mortaa report, registered Dehati NaUsfa at Ex.-P/9. He had also seized___-- ^ - 10 - wooden log at -fcbe Instance of the accused». He also prepared tbs spot map Ex.-P/lO and recorded the statemen-fes of number of the witnesses. On the basis of Dehati Nalisb Ex.-P/9, be registered the F.I.R. at Esc.-P/ll. 22)» The above is sian fcotal o£ the evidence produeed by the prosecution. Basically, the Court beloiy has relied upon tbe stateaents of brothers and father o£ tbe deceased t@ bold that the deceased was treated with cruelty and to record the finding against tbe appellant, the Court below has relied upon tbe statanent of P.W.2 Ghanshyam. The above narration of the evidence would show tbat barring tbe stateaent of P.W.2 Gbanshyam, tbe prosecutlon bas nofc brought anything on the record to sbow that on the fateful day the accused ceaBnitted murder of his wife. The Court below has also drawn inferenees against the accused because iinmediately after the alleged marpeet, tbe accused ran away frcna the spot. 23). Shri Vishnu Koshta. leamed counsel for the appellant sutBiits that if the possibillty that because the other aceused persons were beating tbe deceased and he feeling helpless left tbe house cannot be ruled out and, tbe accused could not be convicted. According to him, even fraa the state- ments of P«W«2Ghanshyam it would not appear that tbe accused was the autbor of the crime. 24)« Sbri Gautam Bhadurl.learned counsel for the State sutomits tbat iinmediately after tbe f ^ t c - 11 - ' . marpeet, tbe accased ran away from the tiouse apd <»-s tbe bedy o£ the deceased was found in bad shape, would lead to only irresistible conclusioa that tbe aceused after causing injuries to his wi£e, ran away. 25). P.W.2 Gbanshyam tbougb stated in para 2 of bis statanent tbat the accused was beating his wife, but be no-where says that be bad seen tbe accused beating bis wife. According to him, he beard certain sbouts and cries from tbe bouse of •bhe accused. Tbe reliability of Ahis witness In relation to tbis statement would stand seriously bampered. in view of bis statemeat as contained in para 8. In para 8, he clearly stated that on the date of incident, all the accused persons were l^v~.<hi^ preparing earthen tlles and the place^they were making tiles was not visible from his house. Frcn tbe stateraents of number of witnesses, it woald appear that whaa they had gone to see the deceased, she was not dead, byt v'&a makiag strange sounds. The doctor in tbe present case did not say that even after throttling the deceased could siuvive for sane time. The ordinary estperience in the life Ct^ is tbat/persMi dies inunediately after throttling. The doctor (P.W.ll) Sbrikant Shukla in para 22 of bis statement bad clearly stated that tbere was no £raeture in tracbia. Tbe doctor clearly stated that the deceased died as a result o£ tbrettling. but he di-d not say tbat witbin how-much time the deeeased must hasre died* —~ i i i8Ui. ^6 12 - 26 )» Be that as it may, the fact remains that the accused, aceording to P,W»2 came oufe o£ bis house, boarded oa a cycle and left his house, tbereafter eertain persons came to the house of the accused aad fouiusl tbe deceased in bad shape. 27)» On the strength of tbls evj-dence. it cannot be held tbat the accused ccmmltted nurder of bis wife. The prosecution caane out witb tbe case that tbe co-aGcased(since acquitted) instigated/ abtttted tbe aecused to conamit tbe crime, their aequittal would lead to tbe coaclusioB tbat they did aot abet the camnissioa of crime. It is not in dispute before us that no-body bas seen the aceused committlr>g murder of his wife. The prosecution is relying upon two cireunstanGes; firstly, tbat P.W.2 Gbanshyara heard volces frcm ttie house of the accused, secondly, tbat tbe aeciised ran away fran tbe spot. The third circtan- staace that a wooden log was recovered at the instanee of the accused and the doctor opined tbat the contiision found oi» the body of tbe deceased ®ouldbe caused by the said wooden log, woald not be material becatise tbe deceased did not die as a result o£ tbose contusiona injarj.es. 28)» The evidence simply shows that the aJlte-eynA-*^ <^\ aeeased ran away from tbe spot. Whetber "•. pacA&taa- ptdAo' is the proof of the guilt or not has been eonsidered by the Supreme Court in the matter of Ralanan Vs. Tbe State of O.P<. repcarted j-n &IR 1972 Supreme Court-llfl , the Supraae Coiyt bas lr f -13 - oteerved tbat absco&ding may b® one of tbe circumstance, but that would not lead to the guilt o£ tbe accused. In tbe matter of sat Kuraar Vs. State of Haryaaa, reported in SSS. - 1974 Supreme Court- 294, the Suprsae Court has held that i£ the evidenee is coamon and £or convictj.ng sarae accused it cannot be accepted, then, acqii-lttal of some of tbe accused must provide a foundation for acqaittal o£ all» 29). In oiar opiaion, ia a case of circuinstantia evidence, the prosecution 1s obliged to bring scae prima faeie evidenee on reeord to connect tbe aGcused with the alleged crime. I£ tbe evidenGe falls short in connectiag tbe accused with the alleged crime, then the benefit would go to the aceused and nok to the prosecution. Xn case of eireumstantial evidenee, the burden 1s still higber on the prosecution. In a case depending upon circunstantial evidence • the prosecution must bring on reeerd such facts whicb complete •the ehain, at one end of whiah the crime stands wbile on the other band the accased stands. If there are missing llnks. thea again tfae beaefit would go to the aecused and nob to the prosecuticaa. & person cannot be convicted slmply becatise he happens to be busband of the deceased. The prosecution in every case is obliged to prove its case to a reasonatole eertaini-ty and if the prosecution fails in bringing tbe evidence on the record or the evidenee torougbt on record fails to conneet tbe accused witb tfae crjime. tben._ ^ i:^-W [ }. V 14 - convictlon cannot be recorded. In our opinion, in the present case, it would be aost. unsafe to rely upon tbe statement of P.w.2 Ghanshyaa t® conaect tfae accused with the alleged crime. 30)» After giving our anxious consideration to tbe facts of tbe case, we are of the opinion that the proseeutioa could not prove its case beyond doubt. Tfae findings recorded by the Court below are not in accordaace witli law aad records.there- fore, the sarae cannot be approved. Thefindings are based on eonjeetures and suxaaises. We are unable to approve ttie said findings* The said findings are hereby set aside. 31)., The appeal is alloiired. The accased is acqiiitted of tbe charges. TheacGused appears to be in jail, be be immediately released, if not required in conneGtion with any otber offence* _G- Sd/. chief Justice Sd/- R.S. Garg Judge /Subbu/.