(„ i,., ®' HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.587 of 2005 1. Foturam @' Baratu Ram Sahu S/o Karmaha, aged 55 years 2. Ram Kumar, S/o Foturam '@ Baraturam Sahu Aged about 20 years Both cultivators and resident of Village Bhorkadipa (Pirda) in the Police Staiion Bilaigarh Dist. Raipur (C.G.) Versus The State of Chhattisgarh Through P.S. Bilaigarh District Raipur (C.G.) {Appeal under Section 374 (2)0f Criminal Procedure Code} Present: Mr. Janak Ram Verma with Mr. Santosh Sahu, counsel for the appellants. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT (14-6-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-5-2005 passed by the 2nd Additional Sessions Judge, Baloda Bazaar in Sessions Trial No.358/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Ramgilash - son-in-law of appellant No.1 Foturam & brother-in-law of appellant No.2 Ram Kumar and concealing the evidence of criminal case in sharing common intention, convicted the appellants under Sections 302 read with Section 34 & 201 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.500/-, in default of paymentof fine to further undergo Rl for three months and to undergo Rl for five years& pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for three months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, unfortunate deceased Ramgilash was residing with the appellants for last some days, some days prior to the date of incident Ramgilash (since deceased) came to the houseof the appellants with his wife Rambai and they were staying in the house of the appellants. In the intervening night of 6-7-2004 & 7-7-2004, deceased Ramgilash was found dead in the verandah of the house of the appellants. Appellant No.1 Foturam lodged merg vide Ex.P-19 in which he has informed the police that the deceased died as a result of falling on stone. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex. P-8, prepared inquestover the dead body of the deceased vide Ex.P-9. Bloodstained and plain soil were recovered from the spot vide Ex.P-10. Spot map was prepared by the Patwari vide Ex.P-11. Spot map was also prepared by the Investigating Officer vide Ex.P-12. Dead body was sent for autopsy to Community Health Centre, Bilaigarh. Dr. Narayan Singh (PW-9) conducted autopsy vide Ex.P-15 and found following injuries: - (1) Lacerated wound of 8 c.m. x 2 c.m. x skin deep over right parietal region. (2) Left temporal bone was found fractured. Cause of death was injury and death was homicidal in nature. During the course of inquiry, dehati nalshi was registered vide Ex. P-20 and finally FIR was registered vide Ex.P-21. Appellant No.1 Foturam was taken into custody, he made discloser statement of stone vide Ex.P-2 and same was recovered at his instance vide Ex.P-3. Bloodstained cloth of appellant No.1 Foturam was seized vide Ex.P-4. Bloodstained cloth of appellant No.2 Ram Kumar was also seized vide Ex. P-5. Seized ctothes and stone were sent for chemical examination vide Ex. P-25. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazaar who committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. ^^rf^ 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as twelve witnesses. The accused/appellants were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants submits that the case is based on circumstantial evidence. In case of conviction based on circumstantial evidence, as held by the Supreme Court in the matter of Kusuma Ankama Rao v. State ofA.P., the prosecution is required to satisfy the following circumstances, (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; (ii) 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; (iii)the circumstancesshould be of a conclusive nature and tendency; (iv)they should exclude every possible hypothesis except the one to be proved; and (v) 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. Learned counsel for the appellants further submits that in the present case, the prosecution has not collected and adduced any evidence to show the involvement of the appellants herein. The appellants are close relatives of the deceased. The alleged bloodstained stone and bloodstained cloth have been seized from appellant No.1 Foturam and bloodstained cloth was also seized from appellant No.2 Ram Kumar, but 1 2008 AIRSCW 4669 ff 1 :^^^^%l j \^syi the prosecution has not produced the chemical analysis report to prove the presence of blood on the aforesaid articles. In absence of any report, no inference can be drawn that stone and clothes were stained with blood or human blood. As per merg Ex.P-19, appellant No.1 Foturam has given false explanation that Ramgilash died as a result of falling on stone, the only circumstance of giving false explanation may be sufficient for creating doubt or suspicion that the appellants would have committed the offence, but same is not sufficient for drawing definite conclusion that only the appellants have committed the aforesaid offence. The prosecution has not collected any iota of evidence against appellant No.2 Ram Kumar. The discloserstatement of appellant No.1 Foturam is not the incriminating circumstance for co-appellant Ram Kumar. Therefore, virtually, this is a case of no evidence relating to appellant No.2 Ram Kumar and insufficient evidence relating to appellant No.1 Foturam. 10.0n the other hand, learned State counsel opposes the appeal and submits that the prosecution has collected sufficient evidence and after appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examinedthe evidence adduced on behalfofthe prosecution. 12.In the present case, homicidal death of deceased Ramgilash as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. Narayan Singh (PW-9) and autopsy report Ex.P-15 that death of deceased Ramgilash was homicidal in nature. 13.1n order to prove the guilt ofthe appellants on the basis of circumstantial evidence, as held by the Supreme Court in the matter of Kusuma Ankama (supra), the prosecution is required to establish the five circumstances. 14.1n the present case, the prosecution has tried to adduce evidence relating to the fact that appellant No.1 Foturam has given false explanation relating to cause ofdeath of Ramgilash which was negated by medical evidence and autopsy report Ex.P-15 and death of the deceased was not possible as a result of falling on stone. Another circumstance adduced on behalf of the prosecution is that at the instance ' § ^ ..^,^^ J ^:. -^/ '^...'fi:^" ^NNN» -® of appellant No.1 Foturam, bloodstained weapon/object i.e. the stone has been recovered vide Exs.P-2 & P-3. Likewise, bloodstained clothes have been recovered from the appellants vide Exs.P-4 & P-5 and the appellants have not offered any explanation that how blood was found on their clothes and how appellant No.1 Foturam was having knowledge about the bloodstained stone. The prosecution has not produced the chemical analysis report/FSL report relating to examination of stone and clothes. In absence of any report, it is difficult to hold that the aforesaid clothes & stone were stained with blood/human blood/blood group ofthe deceased. Appellant No.2 Ram Kumar has not given any discloser statement and nothing has been recovered at his instance. 15.As regards the false explanation for cause of death of deceased Ramgilash offered by appellant No.1 Foturam vide Ex.P-19 - merg, as per.Ex.P-19, appellantNo.1 Foturam has lodged merg in which he has informed the police-that on the fateful night, initially the deceased had gone out of the house for easing, he came back and thereafter, at about 12 mid night when he (the present appellant) opened the door, the deceased was found lying in verandah of their house, the deceased was unconscious as aresult of falling on stone and he was in drunken condition. Therefore, as a result of such situation, the deceased died. This was negated by the medical evidence. 16-Definitely, the false explanation offered by appellant No.1 Foturam may be treated as one of the substantial circumstances against him, but this circumstance alone is not sufficient for drawing definite conclusion that the appellants have committed culpable homicide amounting to murder of Ramgilash and have concealed the evidence of criminal case. The prosecution was under obligation to prove its case beyond the shadow of doubt. The prosecution cannot take the benefit of weakness of the defence, 17.1n the present case, evidence adduced on behalf of the prosecution is even not prima facie sufficient for drawing any suspicion against appellant No.2 Ram Kumar. Evidence adduced on behalf of the prosecution is merely sufficient for drawing suspicion that appellant No.1 Foturam would have committed the aforesaid offence, but same is not sufficient for drawing definite conclusion that appellant No.1 Foturam has ^r^ ^ ^.^. A t^', / '•K ^•^y committed culpable homicide amounting to murder of Ramgilash (since deceased) and that he hasconcealed the evidence of criminal case. 18.While appreciating the evidence available on record, the trial Court has not considered the aforesaid circumstances and evidence in its evidentiary value and thereby committed illegality. Conviction and sentences of the appellants are not sustainable under the law. 19.For the foregoing reasons, the appeal deserves to be allowed and it is hereby allowed. Conviction &sentences of the appellants under Sections 302 read with Section 34 & 201 read with Section 34 ofthe IPC are hereby set aside and they are acquitted of the said charges. They be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge