^. it*^l «K ""IIIE-: Appe!!ants ffiU iF* z. Jagdish son of Hiraman Gond, Aged about 42 years, resident of Viliage Vashing, PS Nandini Nagar, Distt. Durg, MP. Ash'A'ani Gond son of Jagdish, Aged about 19 years, resident of Village Vashing, PS Nandininagar, Distt. Durg. The State of iVI.P. (now Chhattisgarh) S3pssy, 'resent Isarned counset for the appeliants. Mr. MPS Bhatia, learned Dy. Govt. Advocate for the Stat( 01 02, iffT ^J The appellants have preferred this crimina! appeai under Section 374(2} of the Code of Criminal Procedure against fhe judgment of com'iction and order of sentence dated 13 November, '! 990 passed In S.T.No.74'90, whereby learned First Additionai Sessions ige, Durg, after holdlng fhe appellants |ui!ty of causing homicidat death of Kodu, convicted Section. 302/34 of the tPC and sentenced each of therr fife imprisonment. However, the {rial Court acquitted Kailashpuri. to undergo co-accused Briefly stated, case ofthe prosecution, as projected In She impugned judgment, are that the wife of appellant Jagdish namely Radhabai hgd gone to cut gross in the ridge of the field. There was some oral sltercation between the deceased and Radhabai in relation to cuttlng of grass and abuses were hurled, whereupon ths deceased snatched the grass and placed.Jt on the ridge. The deceased had gone fo his field in the interi/ening night of 18 & 19 October, 198i for guarding his pump set, where he was murdered in the nlght by assauiting with axe and c!ub. His brother Soman (PW 1) went to the fieid in the next morning and found the dead body of his brothsr in .the 'field. He wsnt to poiice station with the vi!lage Kotwar where 'after registering morgue, the crime was rsgistered on 19.10.1989 l.a!iS!!l! j; 03. 04. vide Ex.P/1 against unknown person. The police proceeded for the scene of occurrence. inquest of Ex.P/3 was prepared on the person of the deceased in the presence of witnesses. ThereafEer, the dead body was sent for autopsy to Govt. Hospital, Durg, where Dr. M.C. Mahnot (PW 9) 'conducted postmortem and gave his report vide Ex.P/13. A bioodstained axs, a bloodstained elub, plastic pipe, plain soii and bioodstained soii v/ere taken into possession frorn the place of incident vlde seizure memorandum of Ex.P/11 on 19.10.1989. Memorandums of appellants Jagdish, Ashwani and Kailashpuri were recorded vide Ex.P/4, P/6 and P/9 respectiveiy and in pursuance thereof, btoodstained axe, shirt and a pair of shoes from appeliant Jagdish vide Ex.P/5; a bioodstained c!ub from Kailashpuri vide Ex.P/7 and bioodstained ciothing of appeiiant Ashwani and a pair of iioves, shoes stained with biood vide Ex.P/10 were taken into possession. Spot map of Ex.P/12 was got prepared by Haika Patwari Sheshnarayan Pate! (PW 8). The seized articles stained with biood were sent for chemical examinafion to Forensic Science Laboratory, Sagar. The FSL in its report dated 8.3.1990 (Ex.P/20) opinec' that except Articie-D i.e. plain soi!, other articles inciudin< ixe seized at the instance of Jagdish, club seized at the instance of Kailash and axe seized from the place of incident, were stained v»'ith blood. The aforesaid articfes were forwarded to the serologist for confirmation of origin and group of the blood. The serologist in its report dated 24.7.1990, which has not been exhlbited, however, which is avaiiabie in the record, opined that blood present over Items No.20) Kulhadi, 22} stained soil, 23) Danda, 25) shoes, 26) Tangia and 31) shoes was disintsgrated and therefore, their origln could not be determined, whereas other articles were stained with human blood, however, the blood group could not be ascertained due to insufficiency of blood for tesi. r AfSer cornpleting investigation, charge siieet was fi!ed against the appellants and accused Kai'ashpuri in the Court of Judiciai Magistfate First C-iass, Durg, who, in turn, committed the case So the Court of Sessions Judge, Durg and She same was rec'eived on trarisfer for trial by the iearned Addltlonai Sessions Judge. Leamed triai Court framed charge under Section 302/34 of the IPC a.g.ainst the accused persons, who abjured their guilt. The pFosecution in order to estabiish charge against the ,-s^ ^'^.^ •'•Saf^ f^^? v ^* 07. accused/appellants examined 10 witnesses in a! statements of the accused were recorded under Cr.P.C., in which they denied the cireumstances app them in the prosecutlon case, and pleaded innocei impiication. Learned trial Court after hearin; convicted and sentenced the appe this judgment. How-ever, accused aforesaid charae. Thereafter, sction 313 of iaring against ce and faise ounsel for the respective parties, iants as described in para-1 of Kailashpuri v/as acquitted of the Homicida! death of deceased Kodu is not in dispute. Even otherwise, frorn the evidence of Dr. M.C. Mahnot (PW 9), who conducted postmortem over the person of the deceased Kodu and proved his postmortem report of Ex.P/13, in which he found follovving injuries over the person of the deceased and opined that the aforesaid injuries were antemortem in nature, the same were caused by hard and sharp edged weapon & were sufficient to cause teath in the ordinary course of nature, the deceased died due to shock as a result of excessive bleeding, homicidal death of Kodu is estabiished. (i) (i') one incised wound of 2" x 3/4" x bone deep behind the ieft fracture oftemporal bone extending up to middle and interior cranial fossa, in which larger haematoma was also present. Smt. Fouzia Mirza, leamed counsel for the appellants, vehementiy argued that there is no eyewitness to the incident. Conviction of the ippellants is based on circumstantial evidence. The circumstances relied upon by the trial Court are that appellant Jagdish nourished grudge with deceased Kodu and his family membsrs. A year before the incident, there was a dispute between Koduram and Jagdish in relation to imgation. A day before the incident there was a dispute behveen wife of Jagdish and deceased Kodu in reiation to cutting of irass and lastly, that on the basis of disclosure statement of ippellant Jagdish bloodstained axe, shirt and shoes were discovered. Simiiarly, on the disclosure statement of appellant Ashwani, his bloodstained clothes and shoes were recovered from se. 'iS^^^M^^Sy^SsS^. .:-,::--^^Si^~- ''•: ^SBS-S^ •^saa-' '^ -^ •Si-t ^tfe-: '•^ii:iEi^-t^ It is aiso argued that the bioodstained club was also seized at the instance of accused Kailashpuri, however, the trial Court disbelieved the aforesaid seizure on the ground that the injuries sustained by the deceased were not possible by hard and blunt object and the weapon of offence axe was seized from the house of Jagdish. There is discrepancy in the evidence of memorandum and seizure witnesses. in any case, the seizure of axe at the instance of appeliant Jagdish is of po avaii as the prosecution has failed to establish that it vvas stained with human blood and that too, of the youo of deceased Kodu. It is further argued that one bloodstained axe v/as foynd from the place of incident, one club v/as seized at the instance of Kaiiashpuri and one club was seized from the spot, but the prosecution has failed to prove as to by which of the weapons the injuries present over the person ofthe deceased were caused. in his also Referring to the finding recorded by the trial Court that appell Ashwani is son of appeilant Jagdish and resides with him house and therefore, it can safely be presumed that he had motive for committing the crime, it is submitted that the finding is whoiiy illega! and unsustainabie as no such, legal presumption can be drawn for the aforesaid reason, P!acing reliance on the judgment in the matter of Badhraj ailas SoffAs ana others v's. State of Jammu and Kashmsr , it is argued that in order to base conviction on the circumstantia! evidsnce, it is settied law that ihe circumstances from which the conclusion of gui!t is drawn shou'd bs fuiiy proved and such circumstances must be concSusive in nature and the cireumstances shouid be complete and there shouid be no gap ieft in the chain of evidence. The proved circumstances must beconsistent with tiie hypothesis of the guilt of ihe accused and totally inconsistent with his innocence. / On the other hand, learned counsel for the State has supported the impugned judgment of the trial Cffurt. L We have heard learned counsel for the parties and perused the materia!s avaiiabie on record as also.impugnedjudgment. '-1 f2Q021 S SCC 45 .y^ tE:>'-^' 'SiS^e' The trial Court has convicted the appeliants on the basis of circuiTistantiai evidence. The circumstances reiied upon by the trial Court are -as foiiows: (i) There was animosity bet'jveen appei!ant Jagdish and the deceased & .his brother since long and they were not on ialking terrns. A year before the incident, there was a quarrel behveen the appeliants and the deceased in relation to irrigation water. A day before the incident, there was orat altercation and exchange of abusive words between Radhabai, wife of appellant JagdisSi, and the deceased and as such, the appel'ant Jagdish had motive for commission of ^filTIS- (ii) Bloodstained weapon of offence axe, shoes and shirt were discovered from the house of appe!!ant Jagdish on hjs disclosure staternent and the sarne were found to be stained vi/ith blood by FSL vide Ex.P/20 and appe'lant Jagclish does not offer any explanation for the presence of blood. (iii) Appeilant Ashwani is son of appeilant Jagdish and resides with him and therefore, it is naturai that he wouid nourish grudge with the deceased. Bioodstained clothes, gioves and shoes kepf In the house were recovered on the basis of disciosui's statement and the same were found to be stained Wlth blOQd. However, co-accused Kaiteshpuri has been acquitted on the ground that though She ciub discovered at his instance was found stainsd with biood, but this accused has not stated thaf he hsd conceaied the club in the house of Jagdish and the same has been recovered frorn the house of Jagdish and therefore, !t cannot be sai( that'the seizurs was made from the possession of Kailashpuri. Moreover, as per evidence of the doctor performing autopsy, fhe injuriss founo' ori the' person of .the deceased were not caused by hara' and blunt object and thus, th6 chaln of circumstances potnting towards the guiit of accused Kailashpuri is not complete. 11. PW-1 Soman has lodged the FiR of Ex.P/1. This witness has .deposed that a yeas' before the incident in the fnonth of Ktinwar, quarrel- topk piace between Jagdish and his brother Koduram. sasa&sisaawssssK^ :-'.,Mta^ Koduram was fined Rs.20/-. On account of this, they nourished grudge with each other. In the year 1980, in the month of Aashad while he (Soman) was sleeping, appellant Jagdish was throwing light in his house by torch through a whole. He got up and opened the door, whereupon Jagdish fled towards garden and fell in the water of the field. However, the above fact was not disclosed by this witness at the time of lodging of report. 12. PW-4 Judavan has depo'sed that in last Kartik, a quarrel took place between Jagdish and Kodu about irrigation water. On being persuaded, Kodu had given water to Jagdish. Kodu never complained against Jagdish about irrigation as water reaches Kodu's field first. He is not aware about any other quarrel between Kodu and Jagdish. 13. PW-5 Jambati is mother of the deceased Koctu. She is a witness of the quarrel between Radhabai and Kodu regarding cutting ofgrass, which took place a day before the incident. She has deposed that Radhabai abused Kodu when he asked her to leave the gross cut by her and she leftthe grass and went to her home. 14. FW-6 Loknath is also a witness of the incident of quarrel, which took place between Radhabai and the deceased a day before the incident in relation to cutting ofgrass. He has deposed that both of them abused each other by using filthy language and thereafter, Radhabai left the place. On the next day, he learnt about murder of Kodu. In cross-examination, he has admitted that such quarrel commonty take place in village. After the deceased left the grass, the quarrel ended. 15. Admittedly, the first quarrel between appellant Jagdishand brother Bfthe deceased pertainstotheyear 1980. The second incidenttook place a year before the incident, whereas last incident is between the deceased anchRadhabai^vife of appellaht Jagdish.TAfter careful consideration oftheevidence'Qftheaforesaid witnesses.we are of the considered opinion that only on the basis of above three incidente between the parties, established by the prose;cution, which were trivial in nature, the trial Court was not justifited to impute motive tp the appellants for committing the offence <pnd that too, ;murdeF of Kodu for the aforesaid reasorr. The fihdir^g ®fthe^rial i;y:: ^ri ^,. 16. 17. Court that since appellant Ashwani is son of appellant Jagdish, it can be presumed that he had also inimical relationship with the deceased and as such, motive for committing the murder of Kodu, is perverse and not based on any evidence. So far as the next circumstence that weapon of offence axe and bloodstained clothes worn by the appellants at the time of incident were discovered on their disclosure statements of Ex.P/4 and P/6 is concerned, PW-2 RakesTi and PW-4 Judavan have proved the memorandum of Ex.P/4 of Jagdish and memorandym of Ex.P/6 of Ashwani. Though there are some discrepancies in their evidence with respect.to seizure of weapon of offence, wearing apparels of the appellants and shoes on the basis of memorandum of the appellants, however, even if recovery of the same is considered to be proved, the same cannot be made basis for convicting the appellants, particularly when there is no scientific evidence that the weapon of offence axe seized at the instance of Jagdish was stained with human blood and that too, of the group of the deceased. We also observe that apart from axe that is allegedly seized at the instance of Jagdish, a bloodstained axe and a club were seized from the spot and another club stained with blood was seized at the instance of accused Kailashpuri from the house of Jagdish. In these circumstances, learned trial Court was notjustified to arrive at aconclusion that the axe, which was discovered at the instance of appellant Jagdish was used for murdering the deceased, particularly when there is no explanation as to how and in what circumstances, the other weapons stained with blood were seized during investigation. It is settled law that in order to rest conviction based on the circumstantial evidence, the prosecution is required to establish that sucM evidence satisfy the following tests:- (i) the circumstances from whjch an inference of guilt is sought to be drawn, must be cogerifly and firmly established;; (ii) those circumstances should be of a definite tfendency uherringly pointing towards guilt of the accused; | (iii) the circumstances, taken cumulatively, should form a chain 'so complete thatthere is no escape from the conclu^ion that within all humanprobability the crime was committejj bythe accused and none else; and <',aESSi;% /A % tw (iv) the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis thatof the guilt of the accused and such eyidence should not only be consistent with the guilt of the accused but should beinconsistent with his Innocence. 18. If we apply the above principles of law taid down forconvicting the accused persons on the basis of cireumstantial evidence, we are of the considered opinion that no complete chain ofcircumstances, as observed in the foregoing paragraphs, to hold the aecused persons guilty, has been established by the prosecution. 19. In the result, the appeal succeeds. Conviction and sentence imposed upon the appellants under Sections 302/34 of the IPC are set aside. They are acquitted of the said charge. They are on bail, therefore, their bail bonds are discharged and they need not surrender. _ Sd/-. .:- DhirendraMistara Judge - Sd/- Mamndra Mohan Shrivastava Judge