KB CFOOOo6S3"09"] ^9 OTSl ?TR:TiTT 3^zT '•=-TreT(iPT 11'oyo ^PTgT 3^... y. y. !--3-^' .'J_?:^.A?.TS. -1-65^9! g~I. 3i»y. ^ ("rinima^ ,ion 6ew.i BTe^i 5FTr?i5i' tTTCT' SH^ 22 qtT, '•rgrr ®nT"R'ETnrr 7~i~Ii' Q<*ri i-CTr'; oiC—?tTT'?' i'SFTi" - EUS:(T?~ Ti'OyG OT'iTn-e.ff / yr^sw 'itr f s N* 1,'ojo smpr mrr snr^t ^g, ^ i^-." ^ rv. ^k -^i ^Te'-sTTT "ra?n- - Ei?nT Tj'Og'O STtTTTTr /3iT3-[~<4TIT ETHT 302 snTcfre 'as TQ'ETFT (Wr- 3rruni~E5;:i' uTR'TCTtT. SiT'^yri' / 3ffl~T?TT<Tr 3|(r Q. H^tn S^nrfn 374 j2J d'Sq yiyTT iifenT i 975. .jr 'TiSH /'Oi.'RT OF .TljhT/'ATlJE I?^ 'i y Tjtp? ^rfr ^tc^' B "L ^ '^a? 3 •Uf ^y ^s^ 'rffc'^t .3 r^/ wr flsminai Agoeal No.726 of 2000 Sohari Stcrte of teadhya Praciesh (now Chhsttisgar ^sy I if.1 '•isa^ i a ^"i^ Sd/- L.C. •(& ' ~&,w^ I..S fiAI !sy Sd/- Dilip Raosaheb Deshmukh Judge il... !?••' isf 3^.1/1^ Sd/- ^0_^^ 1 '^f&-l 'A^^^a ^.ii'aaiiifgE! B®1 Soiian - Versus State of AAadhya Prcdesh (nou' Chhattisqarh) Mrs. Kiron Join. Advocate: Mr. Sochin Singh ftajput <S iVir. Akhil Mishra, .awvers; For the appeliant. State/resDonden" ^.ELf, JU &6 ME NT (beiivered cn iz^ Jufi^ 2005) 'he followinQ Judqment of the Court was delivered by L.€. Bhadoo, J'.- i. At the time of arguments on M.(Cri.)P.No.3131/2004, cppiicatior, for siispension of sentence imposed on the appe'iant and grant of bail, Isarned counsel fo" the parties submitted that the appeal stseif may be flecided as the cccused/appellont is in custody since 1°°8. Accordingiy, it was decided tc' dispose ofthe appea! itself, 2. The accussd/sppeiiont has preferred this crlmlnal appeal under Section 374 ,(Z) of the Code of Crimina! Procedure, being aggrieved by the Judgmeiit of conviction and sentence dated 11 Jnnuary, 2000, passed by the Sessions Judge, Jagdaipur, in Sessions Tria! No.189/93, whereby, the learned Sessions Judge after holding the cccused/appellant guiity for the rr.urder of Sushiia, conviCTed him for the commission of offence under Sectio',1 302 of ths I.P.C. and sentenced him to undergo imorisonrnsnt for life. ll /1\ Page 2 of11 a(?'v£/ .....<»8'S3 tsfesssw^ - -u.ga'S •.•.;;-i;:'^^;'S^r2:y" 3. The prQSecutioii case in brief necessary for the disposai of this crimincl appea! is thot Sushila, a widow of Mahru, hod conceived on account of her physical "eicri'ions with the accused/appellant. A meeting of 6ram Panchc^'at; Sulenga was convened in which deceased Sushi'a informed the Panchayat that shs has conceived due to her physicQ' reiations with the accused/appeilant. The accussd/appellant on enquiry by the Ponchayat oiso admitted this foct. On thls, the Panchoyat asked the nccused/appeiiant To keep Sushiia with him, whsch was not liked by the occused/ appeiSant, a^d on the very nsxt day Sushila was found dscd near Madin r-iver. In the rnor'ning of 2-3-1998 Manki Bai (PVi/-l), ressder.t of Umargaon, u'ent to the rive" for taking both, on r'eaching the river she sa.v thcrr a dead body of a" unknown femaie WGS iying on the bank of river, therefore, she retur'ned to her house and informsd to her father Kahru. Qr, receiving this informcEticri.. Kahru and other' viilagers went to the scene of occur'rence from where after seeir.g the dead body' of Sushi!a, Af'^oii'tki Bai aiong u'ith others went to Police Station: Chotedongar, and gave merg intimation Ex.P-7, based on thcri-, F.1.R. Ex.P-5 was registered. 4. Afte'c registration of the case, Assistant Sub-Inspector 5.N. Sharm^ leff fo" the scene of occurrence, inspected the dead body, and enquiries were rnade from the vil'aaers. After giving notice to the witnesses, he prepcred Panchanama of the body under Ex.P-1. For conducting post-mor—sm "equisitio.'i Ex.P-8 wcs sent. Blood stained soi! and simple soil were tGken into possession by him ond also he took into possessicn from the scs»e of occurrencs, the knife (weapon of offence) under Ex.P-2. Site plan of the scene of occurrence was also prepared. Post-rnor'tem w'as conducted by Dr. Prabhakar Chhote (PW-7) ar,d &r. M.L. Chaudhary, Assistant Surgeon, on the scene of occurrenca itself on 3-3-1998. Post-mortem report Ex.°-10 was prep'arsd dr'd they noticed tivo injuries on ths neck of the decsased. Trachea of the deceased was found cut by a shcrp obj-sct. On opening th.s body it was found that trachea, carotld artery and interna! jugular v's'm were found cut. The doctors were ofthe opinlon that the injuries 'uers sufficient l£ :iS:9'C7P ."?i nf 1 1 '-*-sv''-" "'-''" -L"- 'ss/ y ^.-.^-^•Sti m the ordinarv course of nafure -t heart taiture dus to excessjve has death was homicidal in nature. 'o cause death. Sushila died on account of haemorrhnge. They were of the opinion that 5. PV/-5 Hemant Kumar Shrivastava, Station Houss C'fficer, Police Station; Chotedonga" took up the investigation, inspected the scene of occurrence and took 'nto possession one button of the shir-t under Ex.P-4. Thsreafter, he aiso took into possession the terricot shirt of the cccused f"ow him under Ex.P-5, The seized articles were sent for cheiTiicai anah"sis. ,As per the rsport of the chemicai examiner, b'.ood wo.s found on the soi! cotlected frorn the scene of occurrence and aiso on the shirt of the accussd, ss"i d. biouss of the deceased. The FSL, Raipur aiso gave report to the affect tha1' the button, which WGS ssnt fo" examination, was found to be ofthe shirt of tiie accused. 6. After corr;s!etior, of investiqat'on, charqe sheet wc,s filec! 'aqainst th.s accused for the commission of offence under Section 302 of the I.P.C. befors the Court of Judiciai AAaaistrcte, Flrst Class. Narainpur, irfhQ in turn, committed the case to the Sessions Judqe, Jaqdcipur. 7. The prosecution in order to prove charge agalnst tli'e accused/ appei!a!/!t examined as many as seven witnesses. The learned Sessions Judge pecorded the sl-ofement of the accused under Section 313 of the Cr°.C. in which tiie accused denied the pr'osecution evidence and stcrt'ed that the witnesses are false, no Panchayat was convened, he is innocent, cnd he has been fa'ssly ;mDiicated in the crinie. 8. The 'ear'ned Sessions Judqe afrer hearing the argurrients of the Pubiie Prosecutor nnd counsei for' the accused, ond oftw perusal of the evlderice ond record reached to the conciusion that the accused w,'as the a'uthor ofthe crime, therefore, he convicted him in the manne" mentioneci in the previous po.rt of this judgment, Page 4 of 11 Lus^^:s^a.sas-SS^^S 2® 9. We have heard i'Ars. Kiran Jain, ieQrned counss! for the appe!lant cnd M". Sachin Singh Rajput A Mr. Akhi! Mishra, Pane! Lawyers on behalf of the State/respondent. 10. As far as the questiors of nat'ure of death of the deceased being hornicidal is concerned, learned counse! for ths appeilant did not dispute the same. PVV-7 &r. Prabhokar Chhote hos stated that on 3-3-1998 he conducted the post- morteiT, on the body of Sushila anci noticed two injurles on tlie neck caused by a shsrp edged weapon, ivhich were sufficient in the orc'inary cour'se of nature to cause death. On dissection it wo.s found thct trachea, carctid crterv and internal JuQular vein were cut, and Sushiia died on account of haemorrhage and excessive b!eedin9. Apart from that as per the evidence of PW-1 fAonki Bai a PW-6 S.N, Sharma body of Sushi'c »'cs iying oi'! the basik of river AAadin iri nn injured condition. Therefore, in visuv ofthe abovs evidence, it stands proved +hot the nature of desth of Sushila was honiicidci. 11. Now, coming to tlie qusstion of involvemerrt ofthe accused in committirig ths rnurde" of Sushila, in this case, there Is no direct nnd ocuiar evidence, The whole case rests on the circumstantial evidsnce. In order to fcsten the liability on the accused for the commission of crirne in a case based on circumstantla! evidence only, the prosecut'on is required to provs the offence as per th.e settlsd principies of lcw !a 1^;3? I.^E^ f4,f*l«aSn l^-'i.? DV me npex <-ou[ Cou"t in the motter of Neser Ahmsd vs. State of Blhar reported in AIR 2001 SC 2416 i.e, in a case based on circurnstantia! evidence, before the Court can "eco"d convistion, it must satisfy itseif thct circumstances frorn which an infer'snce of guiit couid be drawn have been established by unimpeaehable svidence !ed by the prosecution and that ali the circurnstances put togethe;- are not oniy of a cor)c!usive'natu"e but also coi'npiete the chain so fuliy as tc une.-ringiy point only to the guiit of the accussd and are not capable of any explonation which is not consistent with the hypothesis of the guilt of the IT-. ;e 5 of II ,^ ^ ^^SS-^s'S^S^ S:.(SSaBi!t 12.In this cose, the prosecution tried to establish the crime against the accused on the following circumstances; Q. that, the accused made e.xtrajudicic.l confession before PWs 2, 3 & 4; b. that, the accused admitted before the Panchayat that Sushilc widow had conceived due to her physica! re'ations with him, and the Panchayat asked the accused to keep Sushila, lyho was a widow, wi"h him, whieh wos not liked bythe accused/appellcnt; c. that, the button of the shirt of the acsused was found on ths scene of occurrence which tallied »/ith other buttons of the shirt of the accused, which was taken into possession under Ex.P-5; d d. that, blood was found on the shirt ofthe accused. 13.As far as the circurnstancs (a) is concerned, ws have carefuliy scrutinized the evidence of PW-Z Motiram, PW-3 Bajauram & PW-4 Lachhu;"arfi. Having scrutinized the evidence and gone through the Judgment of the trial Court, we are of the considered opiniori that the trial Court has rightly ciscarded ths evidence of these witnesses that the accused/appsl'ant made voluntary extrQJudicia' confession "egarding commi+ting the murder of Sushilaby him, cs the abovs extr'ojudicia! confession is said to have been made m presence of the Police and on enquiry ofths Police which is evident from the evidence of PW-2 Motiram. Therefos^e, the extra judicia! confession was not adrnissibie m eviderice in view ofthe bar ereated by Sections 25 A 26 ofthe £vldence Ac'i'. In the circumstances. the Drosecution has failed to estabiish thls circumstance of extrajudicial confession rnode bythe occused. 14.As fc" as +he circumstance (b) is concerned, learned counsel for the appeitant argued that the evldence of pr'osecution witnesses does not inspire confidence and there ar'e contradictions in the evidence of these prosecution witnesses, as such same cannot be be'ieved. 15.0n the other hand, learned P supportedi thi indinas o- Lawyers for the State/respandent The triol Court has beiisved the Page 6 of 11 (c^ ^l^l-S'^fe^^^Ss SSsS irosecution witnesses narneiy, PW-2 iV'.ctirarn, PW-3 BqjauratTi & PW-4 Lachhuram, rejecting the argument advanced by counsel for the accused. 16. We havs scrutinizsd the evidence ofthese three witnesses (PWs 2, 3 & 4). PV/-2 iF'Ao+iram, who is the br'other-in-iaw of Sushila, has cateqorica!!y stated •tha'i" Sushiia WGS the wiciow of Mahru. As she bscame pregnant, Panchaya" wo.s convened in the viliage, in thnt Panchayot Lachhu, Laila, Bajau cnd other viihgers were also present, the accused also came w that Panchayat, urid oi' enquiry from Sushila she disclosed bsfore Pcnchayat tho- she is pregnant by fivs months due to her physical reiations with ths accused. Ofi this, the PBini'"hfivflt p-r'iHi'ir'PTl "fs'Tjrrs th^ om ^^.fi /n^ripJinnt hp; ^i^n nrii-ri i'M?t.'~i 'thi'.^ '^1^?'"" ^ 3 i: ^A'?' l^i '^'lil^uaa ^^g ^ t -t^jgi silt^j iiji,i»'^ui^j'^^t^i / i»iy^^^iiuiiiit^ ai^u' ^AiiE<j\/ VL'^iijaiisi^-^ ^i;;^ j \i^'^ before the Panchayat. Therefore, the Panchoyat asked the accused/ appellant to keep Sushiia with him. In cross-examiriation, tnis witness has s+atea that the Panchayat was convened only onca, no Pcnchffl'at a/as eonvened after the death of Sushiia. Similar is the evidence of PW-3 Bajauram who hos corroborated the evidence of PW-2. PW-3 has stcrted that Sushila was not seen from the next day of Panchayat and 'oter on, he corne to know tiiat SushilG has been murdered. He has also corroboroted the evidence of PW-2 iViOtiram regardlng convening of Panchayat meeting o.nd adinission by the accused that Sushila conceived due to her physicc! relations with him. The accuseci was arrested by the Pciice and h.e confessed before the villagers. Similar is the evidei'ice of PVV-4 Lachhuram. PW-4 has also proved the fact of conceiving chiid by Sushiia due to Sier physicai relations with the accused. This fact was ac'mitted bythe accuE'ed, therefore, the Panchayot harided over Sushiic to ths accused. This witness has also stated tha'S' second time before the PanchoyoT the accused made a confsssian that Sushiia wanted to ressde with him which was not acceptabls to him, therefore, he rnurdered Sushiia with knife. In cross-sxamination, this witness has stated that In the viliage, Panchayat u?as convened once, second time, next day, Panchayat was at the spot and in that Panchayat he done went to the scene of occurrence. From the evidence, it appears thcrt This witness (PV/-4) referred to the second Panchayat, when peopie Page 7 of 1 ....SSS9SS wSKa9s!^ r^) /" r'f r-^y ittP'.d h?it!" ^/ :=*/ S "<^F i F^F- coltected on the site of occur'rence and in that the accused the Poiice regarding the cornmission of crime. 17. yif'e do not find any rnaterial contradiction in the evidence ofthese fe'itnessss as has besn argued by learned counsel for the appellant thut there is a contradiction' in the evidence of thess witnesses obout the piace of Panchayat. If we carefuily examine the evidence of these three a'itnesses, there is no contradiction, rcrther' in the uricnimous evidencs they havs stated ih-xf one day before when the dead body of Sushiia was found, Panchcryat iSs't'^ •FTi^vfi.'s^p1.^ ira th^ vi1^rt?i nnf^ thiS villfinR Pnrif'hnvit f!:;:?l<'(s'!lrl "t'h?F fii"fi3^?SH t; '"^ ^=3 iL? ^/U y <S<? 3 iwj \^ S U 3 U Gr V U l^A^I'S' tiAl' S^B l B ii t? "tf i ll'UU^-' 2 '^tri'i^- S B ^itV ^ 1 ^^^^.Sw*<kFti :U^ 1Jt^^iU^~^L<-4 S k'eep Sushiia with hirn. The next Panchayot which PW-4 refers is ct the scene of occurrence, about that hs has stated thct he aione wos present in the viilage at that piace, PvV-2 & PW-3 we"s not present and that people coiiected at the scsne of occurrence, to that occasion, the witness is referr'ing as Panchayat. As such, we do not find any contradiction. Counssl for the accused was not abie to elicit in cross-examinotion of these ^^ t'^'yti£^sas2'Stf^ •ft^'¥^\^ ;fnl ii ^fl^^ !y¥*S^^"^^^"ff^ i^j'l^i^i^l >T*li -tl- witnesses any cir'cumstance whic'n discredits thesr evidence r'egarding convening of Panchayat meeting and adrnission by the accused that Sushiia was conceived by him and that the Panchayat askrsd him to keep Sushilo '.a'Jth him. 18. From the evidence of these three witnesses it' is aiTiply proved th.ot widow Sushilo hcd conceivsd on ccccunt of her physical reiotions with the accused, a'nd this fact was adrnitted by both Sushi!a and cccused befors the Panche/at, then the Panchayat asked the accused to keep Sushiia with him, which he never wanted becayse Sushila was a widow, much eider in age in corsparison to the accused, ond that made hins to finish Sushila. On the very next day of the Panchayat in which the accused was asked to keep Sushila with hirn, desd body of Sushila was found ors the bank of rsvep AAudin. 19. VVhen the pi-osecution case Is entirely basej on circumstantial evidence, then it is the duty of the pr'osecution and the Court to ascertain as to whot wcs the immediate impeliing motive on the part of the accused, which ied him to Page 8 of ,/.<2 .^,,c^ ^^~^^v^-^^ commlt the c"ime in question. As in the present case, the accused/o.ppellant did i-10t want to keep Sushila with him as per the decision of Panchayat that is why there wos a stronq motivs in the mind ofthe accussd for conimittini the mura'er of Sushiia. Therefore, we a"e ofthe considered opinion thst the trial Court hos right'y held that thi3 circurnstcsnce (b) stcnds establishsd by tlie pr'osecution evidence against the accused. 'O.Now, coming to the question of recovery of button of ths shirt of tl'ie accused fr'om the scene of occurrence, recovery witnesses havs not been p.-'oduced, but PW-5 Hsmant Kumar Shrivsstsavo, S.H.O., P5: Chotedongor, has state-d that from the yea" 1997 he wos posted as SHC', P5: Chotedongar, under Ex,P-4 he took into possession sky coiour button ofthe shirt from ths scene of occurTence snd sky colour shirt was also token into possession from the body of the accused/appeilant on the some day ynder ExP-5. Button und shirt were sent for chemical sxamination to the Forsnsic Science LaborQtory, Raipur under ExP-fi. In further evidencs, he hss stated that shirt Artide 'B' was taken into possession after getting it removsd fron, tl-ie body of the accused and he noticed that fi''om the upper portion of the shirt, button was rnissing and it was a!so noticed that fiber of ths piace of upper button u;'as st"etched, It was further noticsd that middie portion of the button ivas found ."nissing due to pulling of shirt. Report of the FSL also mentions that button Article 'E' which WQS found on the Dlocs of occi wcs simii.ar in co!our, make and size of other two buttons (5-1 A 5-2) ofthe shirt. Article 'D', 'l.Learneo counsel for the appsllan* argued thct in the ssizure memo it has bss'n rnentioned that the upper button was missing, whereas in ths FSL r'eoort it has been mentioned 2" and 3 buttons were aiso missinci which has not been msntioned in the seizur'e memo, therefore, it creates doubt. the plocs of occur'rence 22.8ut, we do not find Griy substi . by the trial Court ct Senoth. i3 rightiy rejectei ih this arqument. It has bsen discussed 'e also of the opinion that the t"ia! Court counse! 'for the accusec. In fact, Page 9 of 11 /^^D L^rf-J .;:'-Si;-."i-S4?.*"?^ KE^fSS-S^^-S there is no contradiction, because, in the seizure .'nemo as per the evidence of PVi/'-5, he mentioned about missing of upper button as there u'ere signs of puiiing of the shirt at the place of upper button, as fiber of the shirt of that p!ace wo.s strstched, and since the 1.0. was satisfied that ths button in question, which was recovered from the scene of occurrence tallies with the place of upper' button from where the upper button was missing, therefore, he mentioned about that fact on!y. '3.Now, •corni'ng to the' question raised by lear'nec' counsel for the -accused/ appellcnt that in the seizure memo colour of the shii-t has been mentioned cs blue, whereas, in the F5L report colour of the shirt has been inenrloned o.s green, therefore, it is a contradicticsn. it is true that this discrepancy is there, but on this count, recovery of shirt from the body of accused and button frorn the place of occurrence cannot be disbeiieved as PW-5 Hemant Kumar Shrivastava has categoricaiiy stated that the shlrt Article 'B' whic^i was produced in the Court and exhibited was taken into possession '::rom the body of the accussd. This point about the coiour was not "aised before the trini Court. Therefore, at this stage, when the shirt was producsd before the Court and no qusstion w-as ra'sed about cobur of the shirt, as has been riientloned in ths judcirrient of the tria! Cou"t thcf counse! for the accused did not request that in ora'er to QScertoin whethe" the shlrt is of the •accused or not, the accused rnay' be asked to wear the shirt in the Court, cnd afte" discussing the evidence nnd arguments, the tr'ial Court "eached to the conciusion on the basis of "eport of the FSL, that fhe button whlch wos recovered frorn the plcce of occurrence and other buttons of the sh'rt of the accused which was taken into Dossession by PW-5 under E%?-5. were raiiying, we do not find any reason to differ from the finding of the trin! Cour't. Zn the circumstances, the findino of the trial Court thct the buttons of the shirt of the occused ond the button, which was founcf on the place of occurrence, were Sifflilar is based on the legn! evidence cvailable on record and that has been critically e>;amined as per ths nrgu.Tient advonced by T>age 1U ol --.ts-asifelilll •:.''S^.'1Sf-if~: learned counse! for the appeilant. Therefore, the Court below has rightly held thct this circumstance stonds estab'ished aQainst the accused. Z4.Noii', coming to the point thct blood was found on the shirt of the accused, it is tr-ue that Serologist's report is not -hsre to sho»that hiiman blood »'as present on the shirt and thct too ofthe blood group ofthe deceased, but as has been he!d by the Apex Court in the matter of 6ura Singh vs. State of R^asthaH reported in (2001) 2 SCC 205, "Faiiure of Serologist to detect origin of blood - With the iapse of time classification of the blood could not be determined - In the circumstances held, accused cannot ciaim ofsy benefit on the strength of c beiated and stale argument that in absence of "eport r'egarding the origin of the blood, accused cannot be convicted." It !S trus that if through Sero'ogist's report the prosecution can establish the fsct that b!ood found on the articies of the accused cnd the biood group of the deceased are same, then it is a strong circumstcnce cgainst ths accused, but where other circumstantial evidence estobiishes connection of the accussd with the crims and further evidence is on record that blood was found on the shirt of the accused, even though there is no origin of blood in the "eport, evsn then, looking to the facts and circumstQnces of ths case, fina'ina of blood on the shirt of the accused can also bs tcken as a circumstance coupled with other circumstantial evidence to support that other clrcumstantia! evidence. Independently, this circumstance may not bs ab'e to prove connection ofthe accused with the crime. Z5.No 3+hsr point was argued by iearned couiisel for the accused/ appe!lc.nt. 26.In the circurfistances, for the foregoing discussion, we are cfthe considered opinion that the trial Court has'rightly heid that widow Sushila conceived on account of he" physicai relations with the accused and t'ne Panchayat asked the accused to keep Sushiln with hirn, which was not iiked by ths accussd, and on the ver'y same day he took Sushila toM,'a"ds rive" i'Aodin and finished her with a knife. Therefore, this circumstance coupied with recovery of button of the shsr't of the accused/appeilant from the ptace of occurrence Page 11 of 3. 1 7~'-«->T !'^>I, o,s also presence of blood on the shii-t of the accus'sd con-ipletes the chsain of cir'cumstances which unerringly points that the accused a'one wc.s the perpetrato" of the crime, and establishes invclvement of the accused in the isomnnitting the murdei" of Sushiia bevond anv reasoncble ooubt. Hence. the Court below has, on circumstantics! evidencs, rightly he!d ths occussd/appeilanf gullty for committing the niurdsr of Sushila. As such, we do not 1 ind any ground to mterfere with the finding the triai Court. 27.In the resuit, we do iiot find any rnerit in this appsai, therefoi-e, same is iiabie to be disinissed and it is hereby dismissed. .._._-— Sd/- L.C.BHADOO Judge Sd/- Dilip Raosaheb Judge s;?-^^£s SWfSSi'v-'