HIGH COURT OF CHHTTISGARH, A BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, U. Criminal Appeal No. 1145 of 1992 Shiv Prasad Vs. gate of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration T Sdl— Sunil Kumar Sinha HON’BLE SHRI JUSTICE RAJEEV GUPTA 5} i W /; // :cw‘e£ / gdl’ 3&‘366 Postfor Judgment :f/07/2olgM/\\ Sd/- $1M“ Kumar Sinha‘ Judge " ..... ”TTO I’IZU'l‘U" ‘ ” X .,,#—j V 2 Criminal Appeal No. 1145 of 1992 namely Narbadiya Bai (mother—in-law), Radhelal (brother-in-law — jeth) and Vimla Bai (daughter of Radhelal). On 24.9.86, the appellant made a report in out-post Nawagarh of police station Shivrinarayan regarding missing of the deceased since early morning and discovery of the dead body in the well situated in their badi. The police took‘out the dead body from the well and found that a rope was tied around the neck of the body and the terminal of the rope was tied with a bucket filled with heavy stones. In the post-mortem, it revealed that it was a homicidal death caused by strangulation. a The brother of the deceased namely Bahoran (PW—3), later on, lodged a written report (Ex.—P/9) on 3.10.86 in the police station s Shivrinanayan. He made allegations against the appellant and his family members that they were treating the deceased with cruelty and they were responsible for her murder; Before that the First Information Report was already registered on 2.10.86. The police investigated the matter and filed the charge-sheet against the above 4 accused persons. The prosecution came with the case that all the accused persons i.e. husband, mother—in-law, brother-in-law (jeth) and daughter of brother—in-law, who were present in the house on the date of incident i.e. in the intervening night of 23rd & 24th September 1986, committed murder of the deceased and thereafter the dead body was thrown into well in such a condition. (3) Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. The learned Sessions Judge, on due appreciation of evidence of 13 witnesses, examined by the prosecution, acquitted 3 accused persons of the Charges framed. against them. However, the appellant was convicted as aforementioned. The following are the circumstances, on which, the Sessions Judge held the appellant guilty of the offences punishable u/ss 302 & 201 IPC :- 3 Criminal Apgeal No. 1145 of 1992 (i) The death was homicidal in nature; (ii) The dead body of the deceased was found in the well of the accused persons, situated in their badi at a distance of about 25 steps from their house & (iii) The accused persons were treating the deceased with cruelty and the deceased was unhappy in her in—laws place. f (4) Mr. V.C. Ottaiwar, learned counsei appearing on behal of the appellant, argued that the Sessions Judge erred in law in holding the V ‘ appellant guilty of the offences punishable u/ss 302 & 201 IPC. He argued that even if all the circumstances held to be proved by the Sessions Court are accepted as it is, they do not lead to the conclusion that the appellant had committed murder of the deceased. He specially referred to Para—35 of the impugned judgment, in which, the Sessions Judge has discussed the possibility and has based his conclusion on 'self- settled hypothetical ground. (5) Mr. Kishore Bhadur, learned Additional Advocate General i appearing on behalf of the State, opposed these arguments and sUpported the judgment passed by the Sessions Court. e’ (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) So far as principles relating to a case based on circumstantial evidence are concerne'd;~itis well established that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established. The facts so established should be consistent only with the Criminal Appeal No. 1 145 of 1992 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. The circumstances should be of a conciusive nature and tendency they, 0 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 (Please see - Bodh Raj alias Bodha and othe‘rs —vs- State of Jammu and Kashmir, AIR 2002 SC 3164 and State of Goa —Vs- Saniay Thakran & anr., 2007 {4) SBR 321). ¢ (8) Now reverting to the present case, we find that on the basis of evidence of Bahoran (PW-3), it was only established that the deceased was not happy in her matrimonial house. He deposed that when the deceased used to visit their place, she used to tell them about her problems. For proving the previous conduct of the accused persons, a photocopy of inland-letter (Ex.P/7) was filed by the prosecution. lt is said that this letter was written 8-10 days prior to the date of incident, but the Sessions Judge observed that the date of letter was not clear. This letter 9 was address to another brother of the deceasedsThe letter is said to have been written in the hand-writing of Mohd. Salim (PW-11). Mohd. Salim admitted that the letter does not bear signature of the writer. The Sessions Court held that there Was no other evidence to show that it was a letter written’in the handwriting of Mohd. Salim (PW-11) and the letter was the photocopy, therefore, it cannot be made basis for proving the I, facts contained their in or that, in fact, such a letter was written to the family members of the deceased on the instructions of the deceased. 4 Criminal Apioeal No. 1145 of 1992 (9) Another evidence is that of Milapram (PW-4). The appellantvwas working in the tailoring-shop of Milapram. According to Milapram, when the dead body of the deceased was seen in the well, they took out the dead body and saw the above condition. He advised accused persons to throw the dead body again into the well and the dead body was thrown , again inside the well before making report to the police. The Sessions Judge observed vide Para-31 of the impugned judgment that the above portion of his evidence relating to discovery and taking out of the body and again throwing it into the well was an omission in his 161 statement, therefore, no reliance can be placed on the evidence of this witness. After discussing of the evidence, as above, the Sessions Judge concluded in Para-35 that since the appellant used to quarrel With the deceased and the dead body of the deceased was found in the well belonging to the appellant which was at a distance of 25 steps from their house. therefore, there was possibility that the appellant would have murdered the deceased and then the dead body was thrown 'into the well for causing disappearance of the evidence. G (10) No doubt the dead body was found Ins1de the well of the appellant which was Situated In their bad! and the distance of well was about 25 steps from their house. But only on this circumstance, the appellant cannot be held liable for punishment punishable u/ss 302 & 201 IPC. The well was at an open place and was accessible to all. Therefore, in the facts and circumstancesgf the case, a possibility of indulgence of any other person cannot be fully ruled out. lf the dead body would have been found inside the house of the appellant, then. only, the appellant was reguired to explain as to how the deceased died a homicidal death. But *N‘ >‘\ " ‘ 5" _ the present was not the case of that nature. Therefore, only on the evidence that the dead body was found in the well of the appellant, the appellant cannot be held responsible for commission of her murder. We E must not forget that the suspicion how so ever grave cannot take the place of proof. In criminal case guilty of the accused must be proved beyond all reasonable doubts. in the present case, the circumstances wich were pressed into moton by the prosecution to establish the guilt h i of he appellant were plainable and were not of conclusive nature so as t ex I to e‘Xc‘lude every possible hytsis except the one to be proved. We pohe alo find that the prosecution has failed to prove the complete chain so as s no to leave any reasonable ground for the conclusion consistent wit the t h innocen of the appeant. In our view, it was no established by the ce ll t prsecution by the above circumstancesthat in all human probability the o ofnce was committed by the appellant. fe (1) For the forgoing sons, we find that the prosecution uld not 1 rea co eablish the guilt of the appellant beyond all reasonable doubts and the st judgment and finding record by the Sessions Court cannot be ed sustained. (12) In the result, the appeal is allowed. The conviction and sentences awarded to the appellant are set-aside. He is acquitted of the charges framed against him. The appellant is on bail. His bail bonds are cancelled and surety stands discharged. 7-K W, i . sd/- l Sunil Kumar Sinha Sdl- Chief Justice ' Judge vatti