It 1s explamed to the prlsoner that 1f he states he w1shes to be represented by a legal practxtwner the appellate Court W111 not proceed W1th the case for seven days unless the %§W3 legal practitioner appears earlier If the legal practitioner does not appear within seven CF0000061 343 w :32 é {:9 XEI-'1'8f 1Jail) C J.P.R‘19~94 APPEAL OF ‘PR!SQN§R Name Father s name oa/éy’W/mgg/ Readence Age 24" xr-L Sentenced to/ y Under Secuon .. by /w y W davs he may not heard at all 1f the Pnsoner states that he does not wrsh to be repre~ r \d by legal practltloner the court may proceed at once w1th the case and W111 not bt obhged to give a hearmg to my legal practmoner who should appear l Date of Applrgaaon for copy of Judgement 2 @ate on which copy received Date on whichiAppeal sent l (4‘ ghg} Whether the prisoner wishes to be represented or note m t NO Conflned 1n Jarl ,/) 1 Fom irded to the 1: / a’; t M74’7d Wbi$ W%W% to gctner w1th a copy ofJudgement or order passed 1n the Case for favour of transmi- ssion to the proper Appellate ecu/Pu C 1m 1' v r ' Name V I M 2e a aArettWemed totem» 99 ‘ l x Wq (Z‘ Super§§§€nt Date of receipt in Date of receipt of record to accompany the i at; . Memo of Appeal to the Appellate court aNo Eorwarded to the a; Eate of receipt in. Appellate court (P. T. O.) ’ §3 g M% 21 HIGH COURT OF CHHATTISGARH, BILASPUR V CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. a Criminal ADDeal No. 1926 of 1997 Mangal Singh Vs. State of M.P. (Now Chhattisgarh) ‘ ‘ Post for Judgment :1 / /1 1/2008 sci/— ISUNIL KUMAR SINHA Judge JUDGMENT Sdl- Sunil Kumar Sinha \ Judge \ 20/17/5068’ HON’BLE SHRI JUSTICE RAJEEV GUPTA n J M \ ' ”sE- \ ' chieuustice (29 HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta,C.J. & Hon’ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 1926 of 1997 APPELLANT Mangal Singh S/o Raju Rajput, Aged 35 years, R/o‘Village— Goudtara, P.S. Barampur, District- Ganjam (Orissa) Versus RESPONDENT State 6f M.P. (Now Chhattisgarh) Through- P.S. Jaijaipur, District u . Bilaspur (C.G.) (Appeal under‘Section 374 (2) of The Code of Criminal Procedure) Appearance: ‘ Mr. Abhay TiWari, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, feqthe State. JUDGMENT (2;.112008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Mangal Singh stands convictedKu/ss 302 & 201 l.P.C. and sentenced to undergo rigorous imprisonment for Iife & fine of Rs.500/— and rigorous imprisonment for 1 year & fine of Rs.250/- with default sentences by the Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 463/96 on 25.7.1997. (2) The deceased namely Jyoti Bai was the wife of the appellant. Both were workers in Saroja Circus which was camping in village Birra ’ ‘near Jaijaipur police station. On 4.10.96, at about 12 in the Noon, some quarrel took place between the appellant and the deceased on account of bath of their child, on which, the deceased left the camp and went 2 Criminal Appeal No. 1926 of 1997 somewhere. When she was searched by the appellant along with one Teras, they found that she was sitting near a well. On the next day, the dead body of the deceased was found in the well. 5 (3) A merg intimation (Ex.-P/13) was lodged by the appellant in police station Jaijaipur. The Investigating Officer, reached to the place of occurrence, gave notice (Ex.-P/6) to the Panchas and prepared inquest (Ex.-P/7) on the body of the deceased. The dead body of the deceased was sent for its postmortem to P.H.C., Jaijaipur, where the postmortem u , examination was conducted by a team of two Doctors namely Dr.(Mrs) S. Kachcha (PW:9) and Dr. J.C. Meshram, who prepared their report Ex.—P/9. They noticed that the froth was coming out of nostrils; nails were bluish; trachea was highly congestéyand lungs were reddish. In further examination, they found that the hyoid bone of the deceased was fractured and the injury sustained was antemortem in nature. They opined that the cause of death was asphyxia which may have resulted from strangulation and it was homicidal in nature. They also preserved viscera and suggested for their further examination. (4) In further investigation after taking the accused/appellant into custody, his memorandum (Ex.—P/1) u/s 27 of the Evidence Act was recorded on 17.10.96 leading to discovery of the slippers of the deceased, in pursuance of which, a pair of old slippers were seized at the instance of the appellant’from a paddy field near the well under Ex.- P/2. Site plan(was prepared under Ex.-P/11, viscera preserved for further examination was seized under Ex.-P/16. The seized articles, including viscera, were sent for their chemical examination to Forensic Science Laboratory, Sagar (M.P.) under Ex.-P/17, but examination A l Criminal Appeal No. 1926 of 1997 report of the viscera could not be obtained on account of huge pendency of viscera cases in the F.S.L., Sagar, which was informed to the concerned police authority under Ex.-Pl23. Based on the investigation of merg, a First Information Report (Ex.-P/21) was registered against the appeliant. (5) After completion of usual investigation, a charge-sheet was tiled in the Court of Judicial Magistrate First Class, Sakti on the allegations that the appellant has murdered the deceased by strangulation and V‘ thereafter :threw her dead body in the well thereby. causing disappearance of evidence of offence of murder and given false § information to the police to screen the offence. (6) The Magistrate, in turn, committed>the matter to the Court of Sessions Judge, Bilaspur, from where, it was received on transfer by the Additional Sessions Judge, Sakti, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. 1 (7) Admittedly, there are no eye witnesses in this case and the conviction of the ‘appellant is based on circumstantial evidence. The main circumstances, which the trial Court appears to have considered are I- (i) On account of certain quarrel between the husband and the wife, the wife left the camp of circus and went towards the well & (ii) The appellant gave a discovery memo u/s 27 of the Evidence Act leading to discovery of slippersgf his wife, in which he also made statement about kilting of his wife. “E (8) A perusal of the impugned judgment would show that the learned ‘\‘~~s\\£essions Judge has treated the introductory part of the memorandum of \7\ i \ 4 Criminal Agpeal No. 1926 of 1997 the appellant, in which he made statement about killing of his wife, as his confession and has taken it as main circumstance against him aiong withvthe circumstances of seizure of slippers and that of previous quarrei between the husband and wife. (9) We are surprised to see such view taken by the learned Sessions Judge. The essential ingredients of Section 27 is that the information given by accused may lead to‘ discovery of the fact which is' direct 5 outcome of such information and only the portion of the information V t given, which isndistinctly connected with the discovery of the fact, can be received in evidence and that the discovery of the fact must relate to the commission of the offence. The condition necessary to bring Section 27 . into operation is that the discovery of’\a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to_ the fact thereby discovered may be proved. For the application of Section 27, the statement must besplit 'x into its components to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Therefore, a confession made by an accused while he is in custody must be excluded from evidence leaving the discovery part as same would not be admissible in the evidence u/s 27 of the Evidence Act. ln our considered view, the learned Sessions Judge erred in lawin resting the conviction on so called admission/confession made by the appellant while recording his discovery memo u/s 27 of the Evidence Act and the above fact cannot be an incriminating \ Circumstance against the appellant. \ 5 Criminal Appeal No. 1926 of 1997 (10) So far as the circumstance of seizure of the slippers from a paddy field at the instance of the appellant is concerned, the same is of no use to the prosecution. Firstly because the seizure was made from an open place and secondly it was not established by the prosecution that the said slippers were that of the deceased. (11) We do not take the circumstance of quarrel between the husband and the wife as an incriminating‘circumstance because it’s the case of the prosecution itself that most oftenly they used to quarrel on petty V ‘ matters and the wife used to leave the company of the husband for sometime. This time also, she left the company of the husband on a account of dispute relating to bath of the child and in search, the appellant saw that she was sitting near thmell in the village. How it can be incriminating against the appellant. (1 2) ln Hanumant Govind Nargundkar and Anr. —Vs- State of Madhya Pradesh, AIR 1952 SC 343, the Apex Court observed that “It is well to remember that in cases where the evidehce is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. ln other words, there must be a chain‘of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” (13) In the matter of Dhananioy Chhatterjee —Vs- State of W.B, 2 SCC 22, the Apex Court held that “in a case based on circumstantial evidence, the circumstances from which the conclusion of uilt 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 beuso complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. eminder tl1at legali'y established circumstances and not merely indignation of the court can form the basis oj\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." 6 Criminal Appeal No. 1926 of 1997 H needs no ’ \ (14) ln Bodh Rai alias Bodha and others —vs- State of Jammu and ir, AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conciusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is.sto say, they should not be explainable on any other hybothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and (1994) 'g r ” Kashm Criminal Appeal No. 1926 of 1997 5) 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 aii human probability the act must have been done by the accused. (15) Almost similar view was again taken by the Apex Court in the matter of State of Goa —vs- Sanjay Thakran & anr., (2007 (4) SBR 321. ‘While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case (supra). V , (1 6) If we applythe above principles in the facts and circumstances of the present case, we do not find any incriminating circumstantial evidence against the appellant from which the conclusion of his guilt may be drawn. In our considered view, the prosecution has utterly failed to prove the guilt of the appellant beyond all reasonable doubts and the learned Sessions Judge erred in law in convicting the appellant under the aforementioned Sections of l.P.C. z (17) In the result, the appeal is allowed. The conviction and sentences imposed against the appellant are set aside. He is acquitted of the charges framed against him. lt is reported that the appellant is in jail since 17.10.96 as he could not furnish the bail bond even after passing of an order of suspension of sentences and grant of bail by this Court on 15.3.2004. He be set at liberty, forthwith, if not required in any other vatti case. Sdl- Sunil Kumar Sinha Chief Justice Judge