L<.ilF,.t)I^LaM''MMete)W.. ^.••^SfS-.MKMWWtSfS^i HIGH^OURTO^CHHATTISGARH AT BILASPUR D.B.: Hpn^bie Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma .(-. Criminal Appeal No.1045 of 1995 Mahendra Singh versus TheStateofM.P. (now State of Chhattisgarh) i!M JUDGMENT FOR CONSIDERATION ^_ Sd/- • Radhe Shyam Sharma Judge Hon'ble Shri Sunil Kumar Sinha, J. ^aL s^SL Sd/- Sunil Kumar Sinha Judge ^ -—-•- —— PQSt for C-07-2Q-l 1 Sd/- JUDGE 4- -07-2011 i,i:ils.,l J Lt..Li;±iLi.J HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'bleShri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1045 of 1 995 Appellant versus Respondent Mahendra Singh, son of Yudhishthar Mali, aged 27 years, R/o Village Jogidadar, P.S. Saraipali, District Raipur (MP) (now Chhattisgarh) TheStateofM.P. (now State of Chhattisgarh) Present: Smt. Indira Tripathi, counsel for the appellant. Shri Ravindra Agrawal, Panel Lawyerforthe State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on ^ July, 2011) Per Radhe Shyam Sharma, J,: This appeal is directed against the judgment dated 30-6-1995 passed by the Additional Sessions Judge, Mahasamund in Sessions Trial No.264/1994, whereby the appellant has been convicted under Sections 302 and 201 of the Indian Penal Code and sentenced to undergo imprisonment for life and rigorous imprisonment for two years. The sentences are directed to run concurrently. 2. The case ofthe prosecution, in brief, is as under: Deceased Bedmati was the wife ofappellant Mahendra Singh. Both were residing together in a house. On 8-3-1994, at about 9-10 P.M., they had gone to sleep after having meal. At that time, father ^ of the appellant had gone to attend a marriage ceremony at Dongarraksa. On the next morning, when the appellant woke-up, he did not find his wife at home. He enquired about his wife from the family members and villagers. He also enquired from people of nearby villages. But, he did not get any information about his wife. When the father of the appellant returned from Dongarraksa and went towards the Well, he saw her dead body in the Well. He informed about the incident to the people of the village, namely, Makhan, Panik, eto. A merg intimation (Ex.P-7) was lodged by the appellant. The investigating officer reached the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.P-2) on the body of the deceased. Dead-body of the deceased was sent for post mortem examination to Community Health Centre, Saraipali, where post mortem examination was conducted by a team of two doct'ors, namely, Dr. A.K.Sahu (PW-9) and Dr. Shrikant Shukla (PW- 10), who prepared a report Ex.P-8. They noticed that froth was coming out of the nostrils. Trachea was highly congested. Lungs were congested and swelling was also noticed on both the lungs. They opined that cause of death was asphyxia by strangulation and the death was homicidal in nature. In further investigation, a Geruva (a kind of rope) was seized from the appellant under Ex.P-4. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Mahasamund, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the Additional Sessions Judge, Mahasamund, who conducted the trial and convicted and sentenced the appellant as aforementioned. 3. Smt. Indira Tripathi, learned counsel appearing for the appellant argued that the finding of guilt recorded on the evidence of last seen together is unreasonable. It is not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, it cannot be said that it was the appellant who committed murder of the deceased. Learned counsel also argued that the extra-judicial confession made by the appellant is not admissible in evidence. She further argued that it is well settled that a strong suspicion is no substitute for poof, therefore, the finding recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted. 4. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, argued that the prosecution witnesses are natural witnesses. Their testimonies are wholly reliable and the prosecution has proved the circumstantial evidence of last seen together by cogent and reliable evidence. 5. We have heard learned counsel appearing for the parties and perused the impugned judgment as also the evidence available on record. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. Main circumstances, which the learned Additional Sessions Judge appears to have taken note of are thus: (i) that this is a house murder and that too in the night where only the appellant and the deceased were residing together; and (ii) that the appellant made extra-judicial confession regarding commission of murder of his wife. 6. It is well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence. The circumstances, from which the conclusion of guilt is to be drawn, should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis ofthe circumstantial evidence. 7. In Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, the Hon'ble Supreme Court has observed as under: "17. ........ The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) 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; (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." 8. In Hatti Singh vs. State of Haryana, (2007) 12 SCC 471, the Hon'ble Supreme Court has observed as under: "27. In Ramreddy Rajesh Khanna Reddy v. State of f\.P., (2006) 10 SCC 172, this Court noticed: (SCC p. 181,paras27-28) "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. 28. In State of U.P. v. Satish, (2005) 3 SCC 114, this Court observed: (SCC p. 123, para 22) '22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. ..........." (See also State of Goa vs. Sanjay Thakran and another, (2007)3 SCC 755.) 9. Now we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 10. So far as the question regarding first circumstance that this is a house murder and that too in the night where only the appellant and the deceased were residing together is concerned, it is not disputed that in the fateful night the appellant and his wife Bedmati (the deceased) were residing together in a house and the appellant was last seen in the compariy of the deceased. It is also not disputed that the death of the deceased was homicidal in nature. On 8-3-1994, at about 9-10 P.M., the appellant and the deceased had gone to sleep after having meal. On the next morning, when the appellant woke-up, he did not find his wife at home. When the father of the appellant returned from Dongarraksa and went towards the Well, he saw that wife of the appellant was lying dead in the Well. Dr. A.K.Sahu (PW-9) and Dr. Shrikant Shukla (PW-10) have opined in their post mortem report (Ex. P-8) that the cause of death was asphyxia by strangulation and the death was homicidal in nature. Now, the question arises whether the appellant can be convicted on this basis only. 11. Kapoorchand (PW-1) has deposed in paragraph 5 that they never heard about any quarrel between the appellant and his wife (the deceased) and the appellant and his wife had cordial relationship among them. Panikram (PW-2) has given similar statement in his deposition. Devcharan (PW-5), who is uncle of the deceased, has deposed that relationship among the appellant and his wife was cordial. Thus, according to the prosecution witnesses, there was no motive for the appellant to commit murder of his wife. 12. Ex.P-3 is the spot-map. It shows that to go to the Well from the room where the appellant and the deceased were sleeping together, courtyard of the appellant and courtyard of Phoolsai will have to be crossed. Thereafter only, the Well is reachable and distance between the room of the appellant and the Well is 5 Zarib. It does not come in the evidence that the Well was in exclusive possession of the appellant or it was surrounded by a wall and was inaccessible by anybody else. In the early morning, the villagers usually go to answer the call of nature and a possibility of mishappening, as above, cannot be fully ruled out. In this manner, the above circumstance is explainable. If the dead body of the .? ^t ^ ff a deceased would have been found in the house or room of the appellant, the situation would have been different. In this circumstance, the appellant cannot be convicted on the basis that he was last seen in the company ofthe deceased in the night. 13. So far as the question regarding second circumstance that the appellant made extra-judicial confession regarding commission of murder of his wife is concerned, it is only Gangaram (PW-4) who has stated in paragraph 4 of his deposition that the appellant had made extra-judicial confession about committing murder of the deceased before him. Gangaram is a hostile witness. He deposed in paragraph 4, in cross-examination by the Public Prosecutor, that according to the appellant the appellant had knotted a rope in one of the legs of the cot and another side of the rope was knotted in the neck of the deceased. The deceased was sleeping on the cot. The appellant sat on the waist of the deceased, pressed her both hands with his legs, gagged her mouth with his one hand and pulled the rope knotted in the neck of the deceased with his another hand. Thereafter, the deceased died. 14. Now, it is to be seen whether the evidence of Gangaram (PW- 4) regarding extra-judicial confession is reliable or not? Gangaram (PW-4) has stated in paragraph 5 of his deposition that whatever was stated by the appellant, police officers recorded the same. He has further stated that the Station House Officer had recorded the statement of the appellant. He has also stated that the investigating officer did not interrogate them. Gangaram (PW-4) has stated that ^ ,',s:;" ^' the police officer had recorded statement of the appellant, but he did not enquire from him. Since the so called confessional statement of the appellant was recorded by a police officer in presence of Gangaram, who also heard it, same is not admissible in evidence and, therefore, the extra-judicial confession made by the appellant cannot be made basis for his conviction. 15. After going through the entire evidence available on record, we are of the view that the circumstances pressed into motion were not consistent only with the hypothesis of the guilt of the appellant; they were explainable; they were not of conclusive nature and tendency; they do not exclude every possible hypothesis except the one to be proved by the prosecution; and chain of circumstantial evidence was also not complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant and they do not suggest that in all human probability the act must have been done by the appellant. 16. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 302 and 201 of the Indian Penal C&de are set aside. The appellant is acquitted of the charges framed against him. The appellant was taken into custody on 13-3-1994 and was released on bail on 7-4- 2003. At present, he is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- SumlKumarSinha Judge Sd/- Radhe Shyam Sharma Judge