iN THE HIGH COUT OF JUDICKI‘URE AT BILASPUR (LG. Cr.A.No.§?.‘3. ./2903 m'W ” Deolal age 3O yrS. s/0.§%£ik;&m ah\q£ RRM sinha 2. De$pak age 46 yrs. S/o Bhaskarwliao 3. Udgo ram @ Udao Age 32 yrs. s/a Brijlal Satnami. 4. Veeru @ Veerandra Age 29 yrs. 3/0 Bhagkar Rae. 5. Akhil age 34 yrs. S/o Prem Izek. abave all R/® village Mohandi, P.s. Magarlao‘. Distt Dhamtari C.G. VE RSU S : State of Chhattisgarh. y n g . APPELLANT IN JAIL) . ‘ RE SP ONDEN T CRI‘MINAL APPEAL U/S.37 CR.P.C.Arising from the Judgement ccmvictien and. sentencino orde‘r ciated 24.2.03”e§:s”sed by leamed Ye AM;€hu‘£ A.s.J. Dhamtaree in S.T.2s10.35®/ 001 state Vs. Deolal -aEd_4_OEh§r§ 23(15- Wh HON ’ HIGH COURT OF CHHATTISGARH BILASPUR ‘ CORAM: Hon’ble Shri Raieev Gugta, C.J. 85 Hon’ble Shri Sunil Kum’ar Sinha J. Criminal Apgeal No. 638i 2003 Deol‘al and others Vs. State of Chhattisgarh JUDGMENT For consideration W " Sdil ‘ Sunil Kumar Sinha Judge Sdl- 3 ‘Chiefgustice g; 3 [7/2069" Post for /¢ /7/2009 Sdl— SUNIL KUMAR SINA I Judge \ BLE SHRI JUSTICE RAJEEV GUPTA / \ ‘ H EEW @ HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No.638 of 2003 1. Deolal, aged about 3O y§ars, son of Gya'nik Ram Sinha APPELLANTS 2. Deepak, aged about 46 years, son of Bhaskara Rao 3. Udoo Ram @ Udao, aged about 32 years, son of Brijlal Satnami 4. Veeru @ Veerendra, aged about 29 years, son of Bhaskar Rao -5. Akhil, aged about 34 years, son of Prem Izek, above all residents of Village Mohandi, P.S. Magarlod, Distt. Dhamtari (C.G.). Versus RESPONDENT State of Chhattisgarh Through P.S. Magarlod, Distt. Dhamtari (C.G.) (APPEAL UNDER SECTION 374 l2) OF THE CODE OF CRIMINAL PROCEDURE) Appearance: Mr.Ram Krishna Sharma, Counsel for the appellants. Mr. Sudhir Bajpai, Deputy Govt. Advocate, for the State. x w van a 3Wm x t ~ ,1 2 Cr.A.No.638/2003 Z/5 JUDGMENT ( /¢..o7.2oo9) Following judgment of the Court was delivered by Sunil‘Kumar Sinha, J. W (1) The appellants have been convicted and sentenced by the Addl. Judge to the Court of Addl. Sessons Judge, Dhamtari, Distt. Dhamtari (C.G) in Sessions Trial No.350/2001 on 24th of February 2003 in the following manner: Sentence Conviction Imprisonment for life and to pay fine of Rs.2000/—, in default of payment of fine to further undergo R.I. for one year. u/s 302 IPC Imprisonment for life andto pay fine of Rs.2000/—, in default of payment of fine to further undergo Simple Imprisonment for one year. (Sentences to run concurrently) u/s 396 IPC (2) The facts, briefly stated, are as under: Deceased Nand Kumar was the Chowkidar of Primary Agricultural Society, Mohandi. The allegations are that on 21.06.2001 at about 9.30 p.m., the appellants entered into the premises of the said Society and committed murder of deceased Nand Kumar by pressing his neck with a loop of cloth, and then tried to break open the iron safe (cash box) which they could not open and they took it with them to the forest nursery on the bicycle of deceased Nandkumar. The cash box was opened in the nursery but the appellants did not get the cash because the cash in sum of Rs.54,890/— was in the double lock and they could not break open the second lock of the safe. The appellants had also taken a bag belonging to the said Society with an intention to carry the cash amount, but after being 3 Cr.A.No.638/2003 unsuccessful in getting the cash, the bag was also thrown in the forest nursery. The matter was reported to the concerned police station by Jagdeshwarnath Sahu (P.W.1), Asst. Clerk of the Society, and the First Information Report (Ex.P.1) was registered. The inyestigation Officer reached to the scene of occurrence, gave notice (Ex.P.3) to the Panchas and prepared inquest (EXP—4) on the body of the deceased. The dead body of the deceased was sent for its post mortem to Primary Health Center, Magarlod, under EX.P.32 where the postmortem examination was conducted by Dr.K.J. Som (P.W.10), who prepared his report EX.P.29. He noticed external injuries over the neck; neck muscles were congested and larynx 85 Pharynx Were also congested. The Autopsy Surgeon opined that the cause of death was asphyxia, as a result of throttling due to ligature thrown around the neck and it was homicidal in nature. In further investigation, the cash box containing Rs.54,890/-, Tangia, one umbrella, an iron rod, pieces of stones and some documents (in all 13 articles) were seized from an open place under Ex.P.5. A bicycle was also seized from a nearby open place under EX.P.6. A cash book (register) was also seized under EXP. 15. After taking the accused/ appellants in custody, their memorandum statements u/s 27 of the Evidence Act (Ex.P-l8, P—19, P—20, P-21 85 P-22) were recorded and in pursuance thereof, Chappals were seized at the instance of appellant Deepak under Ex.P.23; another Chappal was seiz‘ed at the instance of appellant Akhil Isai under EX.P.24; one hand bag was seized at the instance of appellant Deolal under EX.P.25; one torch light was seized at the instance of appellant Veeru @ Verendra under EX.P.26; and another torch light was seized at the instance of Uduram Satnami under EX.P.27. Site plan was prepared under Ex.P.28. The seized hand bag was put to identification and it was rightly identified by Jagdeshwar'Sahu (P.W.1) and Ghanshyam Sinha (P.W.4) belonging to the Society and“an identification memo (Ex.P.9) was prepared to this effect A pair of Hawai Chappals, one 4 @ Cr.A.No.63 8/2003 plastic Chappal and a piece of cloth (Rumal) were also put for identification under EX.P.1O 85 P—ll and were identified to be that of accused persons. ’ \/ After completion of the usual investigation, the charge sheet was f11ed in the court of Judicial Magistrate, First Class, i Dhamtari, who in turn committed the matter to the Court of Sessions Judge from Where it was received on transfer by the II Addl. Judge to the Court 0f Addl. Sessions Judge, Dhamtari, who conducted the trial and convicted and sentenced the appellants, as aforementioned. (3) Admittedly there ar no ey-witnesses in this case d the convicton of the appellants is based on circumstantial evidence. (4) . Ram Krishna Sharma, learned counse appearing on Mr l behalf of the appelants argued that the conviction of the appellants is ased on conjectures and surmises as there is no incriminating evidence ainst the appellants to connect them With the heinous crime like dacoity with murder. He argued that present is a case of absolutely no evidence against the. (5) on e other hand, Mr. Sudhi Bajpai, learned Deputy Govt. Adocate appearing on behalf of the State opposed these y auments and supported the judgnt a order passed by rg me nd the Sessions Court. (6) We have heard learned counsel for the parties at length and have also ruse the recors of the Sessions Case. ped d a e e an i l b ag m th r ,.Y‘ 2 A ;g.g, : ‘ 5 Cr.A.No‘638/2003 (7) For resting the conviction solely based on £he circumstantialevidence, the law laid down by the Apex court in the matter of Dhanan'o Chhatter‘ee —Vs- State o W.B 119941 2 SCC 22 is that “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. It needs no reminder that legally established 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.” [8) In Bodh Rai alias Bodha and others —vs- State of ammu 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 the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: W I 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; mw“ . 6 Cr.A.No.638/2003 @ 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 and tendency; 4) they should exclude every possible hypothesis except the one to be proved; and 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 all human probability the act must have been done by the accused. (9) Now we shall analyze the evidence of the present case; (10) It appears that the learned Sessions Judge has relied on discovery memos; seizure pursuant to those discoveries and the identification of seized articles for holding the appellants guilty of offence punishable u/ss 302 and 396 IPC. The contents of the discovery memos and the seizure in pursuance thereof would show that a pair of Hawai Chappals, one brown coloured plastic chappal, one hand bag having some mark of the Society and the torch lights were seized at the instance of the t l appellants. The articles like torches, Hawai Chappals and Plastic Chappal are the common articles and their seizure at the instance of the appellants would not be the incriminating evidence against them. Moreover, these articles have been shown to be seized from an open field near a forest nursery which was accessible to all and it does not come in the evidence 50f the prosecution that these articles were kept in hidden 7 Cr.A.N0.63 8/2003 condition. Therefore, there was no question of discovery of such articles and in pursuance thereof, their seizure at the instance of the appellants. We are of the considered View that the learned Sessions Judge erred in law in treating the articles to be seized on the basis of discoveries made by the appellants or at the instance of the appellants on such discoveries. x (11) so far as identifications of the cloth (hand—kerchief) and the Chappals are concerned, they are also of no use to the prosecution. As we have already said that these articles are common articles and anybody can have such articles. The - Witnesses of the identification of these articles have not stated that how .they‘ can say with certainty that in fact these articles (Chappals and piece of cloth) were being used by the accused persons only. Therefore, the learned Sessions Judge further erred in law in placing reliance on identification of such articles and treating them to be incriminating against the appellants. (12) As far as the seizure and identification of the hand bag is concerned, according to the prosecution the hand-bag was having some mark of the concerned Society which was seized at the instance of the appellant Deolal @ Deval Sinha under EX.P.25 on his memorandum statement EX.P.20. Admittedly, this bag was also seized from an open place. PV.W.8 Jodhan deposed that the Police had seized this bag from the field of one Fugua Marar. The bag was lying in the field. He has never ‘ deposed that the said bag was kept in hidden condition and it was appellant Deolal who took out the same or pointed out the place and then the same was seized. Since the seizure of bag at the instance of appellant Deolal itself was not established, therefore, the identification of the said bag through identification memo (EXP—9) shall not be read as a circumstance against appellant Deolal. (13) For the foregoing reasons, we do not find the above circumstances proved against the appellants and the conviction based on such circumstances cannot be sustained. The learned Sessions Judge completely erred in law in resting the conviction of the appellants on the basis of above circumstantial evidence. (14) In the result, the appeal is allowed. The conviction and sentences awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are continuously in jail since 28.06.2001. They be set at liberty, forthwith, if not required, in . any other case. \ ,‘Chief Justice . Sunil Kumar Judge Sinha ( \ . l / \ _x Rao Sdl-n l Sdl- Cr.A.No.63 8/2003