r— Ifft ws!"rs INTHEHIGH CQURT QF JUDICATURE AT BILASPUR CHHATTISGARH CRIMINAL APPEAL N0. 72005 ^APEBLLANT W)LWJ^ '^^^ •^"v-' ^_ ^a^^ ^ RESPONDENT Amar Sai S/o Jangal Sai aged about 59 years, R/o Sedam P.S. Batouli , District—Sarguja(C.G.) <f, ,.i, VERSUS The State of Chhattisgarh Through-. Batouli, District-Sarguja (C.G.) S.T. No. - 47/93 Offence U/s - 302 ofI.P.C. Court ofll A.S.J., Ambicapur, C.G. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE ^^^^@^^^^^^ 'K^-^^^^^.-, •^^i^?S^^S^^M^' 'K?B^^KS8BaSsS;!iBTRPfc '®BRT're,.T8^R!SB£;'S '••^'7'^!sysfSff~^^^'SS^^SK'.^K''•''''•''''''''•''•^'~''- '^ -—' "'•'''"^'•'''•'•"""'^•S'^'^t''""'""^" ^^•'BS-ff^^-^^i.fS:^^-^,^]^;.^'—;r-'. —~~—'—"'--.•• ••• .';''.'.;.'j'i'l^?^^:^^ ",••/ '^fi^^^^^^^^^S^y ^;/\ -;' •^ ' "^ : •"";^'V@I^^^ -^ opipiigiiich- 3[i^r vs^ 21&A.^Al:;;'ft^-zoo .-...,.^........^......^^....^g^...;...................^..^............^ 3?I^T?iI ^f^'sHt^r: 5t>*ii4i tllsqr B?!!s!aiggaj '•'.• '-'^:-^^1^^ "'^•^^t"; Division Bench: - Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. Dhirendra Mishra, JJ. 3-1-2006 _Mi's,Xiran,Jain, counsg'l forthe Sessiifcns — Mr., G.K-Beriwal, Deputy Govt. Advoeate for the Statefresponde(it Qi-al judgment; %Criminal^Rea|No.1626/1994; to the rpurder pf Batmukund arising) Criminal Appeal No.710/2005 filed b^ murder of Ratan arising out of the Appeal No.729/2005 filed by thesam^ Phulbaso Bai arising out of the of by this cqmmon judgment, as fhej similar and all the three murders 6f B^l committed at the same time, at onel Batmukund, alleged to have been By these appeals, tegality of the judgment of conviction ^i passed in Sessions Trial No.49/93 p^r also the judgment of conyiction anc) passed-in Sessions Trial No.47/93. jydgmentof, eonviction and order of | ^ppellant. • .' :^^ 1. :, ^— . - Advbcate 6eneral wttT Mr.-Alo1<-Bakstli, comhiitted accused/apliellant ;Session$3|rK|DNo.48/93 pertaining to ^Acl3itionat|gessiohs Judge," Ambikapu Jucig&;aftg,,holding;.the accused^F|pellant -k&' ^l1".^- q) ta<itTT "Rra^Tf'.^^1^ ^^I< ^Slf^Pt 311^1 ifiled by accused Amar- Sai pertaining out of the Sessions Trial No.49/93, (the same accused pertaining to the Eessions Trial No.47/93 and Criminal ^ accused pertaining tothe murder of Trial No.48/93 arebeing disposed evidence in all these three cases is ilmukund, Phulbaso Bai & Ratan were place, at the residence of deceased by accused/appellant Amar Sai. Amar Sai has questioned the tndorder of sentence dated 24-9-1994 srtaining to the murder of Balmukund, order of sentence dated 29-9-1994 to the murder of Ratan, and the |sentence dated 28-9-1994 passed in |the murder of Phulbasa Bai by the 2nd ^whereby leamec @itionalTSessrcins guilty for.the commjssioR^of peijtaining .-->flW ~<S"':-<%!r»-!%B%^^^t^j^|3tf^^'3 "%;s^. vs {- ^ 11'' ^ ^^K x:'^ ' »•-.' ?ai(e|eifl'z|3Ji|Mui pgAisosj'seMjj^Stiltit ^Aio}BJpqB-i sousios ai'suaJoa^StB^ saaKeMs pa.jaAgoaji }o6 lesjeuin^jpasf^ae] ^;tK)dTOM:sitt%xe]8tffi3Stea^^^|^jay.as3B|^ u^iey :eAEB ?Ap6}sno sot|bcjs9iflr^uj ^Hliwj p asjnba siji Suuna •psjedejd jo ue|d siis eqi -saipoq esjtii eqt ||e ^ ueiey 3? leg oseqinqd 'pun)jnLU|eg p (9- d) ejqsiifti jeuun>i Aef|A •JQ y> ssipoq aqi uo uuevoiu-isod Buj}3npi|io3 eijl oiiuas sjaM suoiiisinbsy 'souejjf^ooo popiq pue iios .uie|d 'poojq ^IIM peure} SH -seqouec) eqi 01 eoiiou SuiAiB jey^ sqi ^p etueuqouecl sift pue 'z-tl'x3 •sqt •z-d-xa pun>|nui|eg ^o Apoq pe^ si| ejei| 'eoueiinooo p eueos eyi/J 9H 'l.-d'x3 uoitBLURU! 6jsuu ei|} pepfl •uodeeM psBps dieqs e A|q •93Bj ^ smo.iq sAs'uoiBejiB^suBd ei)i| jeg oseqinydio seipoq eijimes pue s^( eift ui SuiA) sew e*uo» ue}ey p Apo(i 4oLssnoq34» 0} iuaM sq 'pun>|nuj| si uosjad suo ip4i log^s etiioiiueieq^g Aep:^eift uo }effi iineieg :uoBe)s,eo!|Odj •2661, 'Aienuer ^QZ uo )eitl si '^uq •|ei4 suois^ oBjapun ot tuiq psousiuas •o'd'l- BytE h(>-J ^. M&tep. <2>2^ ^ jKhlil yliBiUA u3S;;;ajaiA(gS9toiy^^Rau!E)Si^9gl§SiiE! glEi.jUlosayensjtndAiiipujsgffiau^o;'] 'jesS^eyiy rpssnooeIglojteBgsaAU!. 3S|B seM eoueunooo p aaeid aifi podej iu3ijouj-}sod sqi pgjedejd pue ^aipoq sq} uo uj9jjoui-}sod papnpuoo peiey lg i.eg oseqini|c| 'pun))nuj|eg lOt t|neieg 'S4uao t)t|eeH fjeuiii^ p sgoe|d eqi ||e luo^ |ios psuieis \s i]inb suo uoissessod oiui )|00) os|e 'Z-d'x3 !eaoseq|n4d i9 Apoq pesp ^o Apoq pesp aq} p euieuqouecj ^p sqi ^o eiueuyoued ei)} paiedajd |oi ys| pue uoiie6i}ssAU[ aqi dn >|oo} . • • '^ f ' |>oej jsayjo aspOH yonetssyj. pssneo eq 0} jesdde ssunfui eij} pue up saunfui SJSM sjayi 'puni|nuu|eg >g jnoi) sifl^o sjjeisdn "iya sy 'p.ie<4ino3 peeFr ®q}}ei|} mes pue puo)|nui|eg jeg ^o pjeAijnoo ei.il ui.-pesp 6uiA| •ie»40»^q ueAi6 uoiieuujojui SLK uo [ uiuoBBuiiiuLBjei.y je sAe6 seQ nilpng ^! ^uognaasojd si|»p ©seasyi^ ses eqiio i|oeg ui e^ijo^ iuaiuuosudu.il ^w 10 zoe uoDoss jspun eousiio 1^2^!sl|| caj»>|iiii»s y» ESjiiAUi!; I) l^lteifeu:: j'1 lifett^iK .ftSas} 001 'fctt;.....l.............................i£jU&iyhUt ^^•h J^lts ' -' .:;S'£i:^BS'-i;-?;--t "BS8K K?:Sge^i^'aijtBipa^Eifii^je§ji; ZZ-3 8 ^^-'^^Sl^SE^S SSSS^i'!!^SSSS^^^Ss^:S^^^^^^^: Sifel^il' sn^v 5fiH[<t-< W^ B»SSss'seSS 1 311^1 TCiRRTrf?<I' \ investi^ation fildd •i-t- lAd Dhoti, Banian, quilt and blo'od stain^ blood. After completion of connection with each murder were Class, Ambikapur, who in turn Ambikapur, from where, the 2' received the case for trial. The prosecutibn in order to examinetf as many as 16 witnessejs Sessions Judge also recorded the 313 of the Code of the Criminal .Rr innocence or denied the prosecutiort prosecution witnesses are liar, he has] Learned Add'rtional Sessions Additional Public Prosecutor and sentenced the accused in each of th4 6f this judgment. ^.-^r. ;-;-| We have heard IVIrs. Kiran Jj accused/appellant in all the three a| Deputy Advocate General with IVIr. A| beha!f of the State/respondent, Mrs. Kiran Jain, learned dispute the fact of homicidal nature of| & Ratan. Apart from that, from the e( conducted the post-mortem on the b4 and from the evidence of Sudhu^Das,] that the death of Balmukund, Phulbasb ct))<<^<l1l •HW<t?f^ f^1^ <^>(^f< ^ 3iF<f^ (tirt^r ^ ^ hd soil were found to b.e stained with separate charge sheets in in the Court of Judicial Magistrate, 1 cpmntitted the case to the Sessions Judge, Aipditional Sessions Judge, Ambikapur, ^stabtish charge against the accuse'd in each case. Learned Additional stjatement of the accused under Section jrocedure, in which he either pleaded evidence and further stated that the ! been implicafed inua false case. |Judge after hearing the arguments of colunsel for the accused, convicted and sessions trials as mentioned in para 2 fein, learned counsel on behalf of the jspeals and Mr. G.K. Beriwal, learned |ok Bakshi, learned Govt. Advocate on coui|isel for the accused/appellant did not |the death of Balmukund, Phulbaso Bai t/idence of Dr. V.K.Mishra (PW-6) who ^dies of all the three deceased persons IDevkaran & Bokharam it is established Bai & Ratanwashomicidal in natyre. [^^ ^a^. •*t»^>y<<5ST»^^ffPft(tt'fn^^-ant ®^ga@3g ^'^'SSfs.'^t^^. ' M~ '. :i-^*;!'°^?!'-^§',^§^ ^L^^'^^S^^^^^^^ s£^^^^@^^^^^ BfrHiqi s^^^'^ae^^sK'y-;:--.?^:-" ^rtfepN iwraf •?feA tRn?R ^;dfFri4 sn^i 3{I^t'?B 1?;lN:3lt^( ^iHlcb W 3{i^i,^iw?fta. far as the involvement of thesethree murders is cpncerned, lea '•^' '-G.' argtied that whole case rests on t circumstances namely, (1) the decea the accused/appellant ih committing 1-ned counsel for the accused/appellant (ie Circumstantial evidence i.e. three ped persons were last seen alive with the accused before theirdeath^(2) t(ie accused was absconding from the house of Balmukund'after the commi^sion of the crime; and (3) the weapon ofofFel^,theaxe,^inedwithi>lop((wasfecoveredatthein^^ accused^ Th^ prosecution hasnot b^en able to connect the appeltant with these three murders based onthes^ accompanying the deceased perspns circumstances, because there is no evidence on record that any of the pijosecution witnesses saw the accused lonthe wayfrom the house of Derang tothe house of Balmukund,further, thpre is no evidencethatthe prosecution winesses saw accused Amar SaiX^the rtouse idf Balmukund in the fatefut night where the dead bodies,wer&foi)in^-'Sh®also argued that 1n the first instance the fact of giving intotmatioit iind recovery of axe leading to that informatior) is also not proved ^arri^|furtHer;that;theTe^is^no^evidence of Serologist^to the effect4hat4he^ocjd,-wKic :was-found-on the axe, the weapon of offence, was human blood. On the other hand, Mr, G.K Genera! with Mr. Alok Bakshi, lea' Beriwal, learned Deputy Advocate ned Govt. Advocate supported the judgments of the trial Court, tt is admitted position that w^ote case rests on the circumstantial evidence, as there is no direct and ocijilar evidence in all the three cases. In order to convict the accused basey on| Cburtin the matter of DhananjoyCh^ (1994)2 SCC 220 has held thatg^ j| thecircumstantial evidence, the Apex itterjeevs,,StatebfW.B. reported in v 'T^'^^S'S. ^iSBSst^SSSBBi ^u.s.A,».".>e-3«n",iHsM^^!l»s3BSSiSSti^M^SB^M '. 9--WXS^-K''-VI/-Vl--W -WV!:ff.w.--.i.—.r-:-_ !gSS@!%SgBSS'®39nsQ< ..-y»ggi^^^^^^^^^^^^gg^^g|;ga®|^|i;S^g^;^^^^ ?st.^%Sa||^^^^^^J|s||ftl|J§^lt"^F"^|^«i<^""''""^"^^^~^^ i 3f^Wf^ R-fi* s^f sf.ii't •yRd. ^.--^,- wif?r4h iniRff 4'fezt Tte5R •^ 3rf:ipT 311^1 "In a case_based on tircumstantiat evidence, the circumstances from whic^i the conclusion of guilt is to be drawn have not ont^ to be fulty established but also that alt the circymslances so established should be of a conclusive ngtur^ and consistent only with the hypothesis of the,'(guil1 of the accused. Those circumstances should |not be capable of being explained by any other the accused and the cha complete as notto teav^any reasonable ground for the -belief ?consistent ^ith accused. It needs |no established circumstanc^ prpsecytipnrin order to establish' prosecution has adduced evidence tcj lypothesis except the guilt of n ofthe evidence must be so the innocence of the reminder that legally |s and not merely indignation of the court can form th^ basis of conviction and the more serious the crimel care taken to scrutinizel the greater should be the the evidence lest suspicion takes the place ofproof."] ;Now, we'shall proceed to ex^mine ^the evjdence adduced by the (;harge against the accused. . The p.rove the following circumstances jn order to connectthe accused with the three murdere a.*' that, Ihe-accusedwas Jast ^een in the company of the deceased personswhen they were ali\|e; b. that, the accused was abscjonding from the house of Balmukund after commission of the crim c. that, the -weapon of offepi As far as the theory of last seerj Apex Court in the matter of Bodhr&j ^;and se, the axe, was recovered on the information ofthe accused diven under Section 27 ofthe Evidence Act. is concerned, law is well settled. The ^lias Bodha and others vs. State bf Jammu & Kashmir reported in (20Q2]|8 SCC 45 has held that? "the :theory;of^last^seeti|cpmes^"irito/play wherfe Aie jime-gap peiween ~~tKSWSSSSW^ tRS paniof^mewhen'the accus^^.^^^j R s'.svSS'SSKSK^iS^'S'^SSSS^ •^•Ma .^-.-^'.fnsw-ixifssa'siiW^US'isS'S^^S^^^^W -il:aS#BN81B SIlcSl^I R-ii* sn^v -StiHiqi ^f?fl lilltCTlll IWvS 4 fS^lfa't^'l i;3ri5OT3i]^5i and the deceq^ed were dpceased is found deac any person .other than of the crime 'become; hazardous to come,to , where there is h6 c^her that the accused ^nd t together." - |seen last alive andwhen the issosmallthat possibilityof flie accused being the author ["^mRossifcile. ft would be conclusipn of guiltjn;cases frosjtive evjdence to conclucle t(ie deceased were last seeri In the matter of Sybhash Chal (2002) 1SCC 702, theApexCoyrthaj "To constitute evidenc< evidence. must-definitel drawn that the victim together at a point of tir time and date of commisl ^id vs. State pf Rajasthan reported in ^-hetdthat:?,^:^^'::,: '^ :.. ^••^ .^•^•- of last seen together, the ^ permit an inference being ind the accused were seen fie in close proximity with the Isipnpfcrime." Again, in the matter p( State o( in^2003)3SCC353,th&Apex(Sourt "Merelybeing seen last has. to be-established —^definite evidenc&^to-Tinil ^ done to deatfa:ofrwhk;h ^7 aware as also^proximaN to together." Therefore, as per the above la| convicting an accused based on the required to ascertain from the legal| between the point of time when the last together alive and the death ofl proximate that an inference regardjn^ drawn and there is no possjbitityof'co) lastseentogetherandth6cleath;ottti|i clintehing legal evidence? that shoiild p{ Karnataka vs. M.Y. Mahesh reported lasheldthat: ogether is not enough. What in acase of this^nature is licate that Beena had been he respondent is or must be - " 1 the time of.beingJastseen- , (V laid dowh by the Apex Gourt, before last seen together theory, the Court is clinching evidence that the time-gap leceased and the accused were seen the deceased must be'so close and the guilt of the accused can safely be ning pf any th^dpereon in between the ^ ^leceased;SThere must^be uneinngly iintonlytcnrardsltheiriTOlvernentotitl-ie'f •^i^®^^^^^ ;:;-'-!.; ^j'iSA^. ^K'^;^^^^rtfaSs;:::%^t?K%-^n^'^?^ •'^••^Wf ^T=3-ii£S^^53&^^£^3^ ^s^i •.^•SS^fS^sSsS''. SISKBS!^w^ss «m Xi-HC ^Ky?xs"y - ^i'';'ls;<SP'^WSS®Ss -';$LS;%i;:S ......:^^'y^^s<^^^^'^^-^;.\^-.:,.,-''i;^^^ •'-^•^^.:-'^I't~^••':•- ^ -^ J".:-.'. ^.? • . • • - - .'. '" -••:, '. •'•'• • ' ^- ' Jft'',;'^'/^^-^^^S^^^^^1'-J^---'--^^^'^^'^T^^^ :^:-3SiS§KjA"^~sst ^nql?'?^SW^^^BS;S^B '.-.::. WS^^SSSSSSS9SS »• ^^'s-^^^^^^^^^^^^^^ LW^-H *W'h~^^SySS^s^^ayff^a ^^a^^^fc^^i^:.-- .f - .........^.........-............^...-"-^^g. @'S:E^55'%^^^@^£S:3="..•. ss^ssssssssss'-^ 311^1 qn r<;-)]i*i 3ii^i shllicf) •tif?fl SI-^B'FRIIWHtet 7 accused in commission^of murder. Fprther, it is unsafe to convict a person based oh the last seen theory unlejss the last seen eoupled with other cireumstances is indicator of the fact cnme. <f. \J ,'• . •'. •. Now, based on this principle, if Ive scrutinize the evidence available on aecused along with his son went for to his house and requested him to listening to the Bhajan, accused Amai his wife Phulbaso Bai and Khamar evidence of Khamar that he was with t was at the residence of Derang. In pi stated that he along with deceased ^iT^l^41'1 WT^f ^^S'^^<f^ $I< % SlPOT 3iI^T..S£'.^ that the accused is the author bf the record, witness Derang to 'whose h^iuse the deceased pereohs and the |the purpose pf treatment, has clearty stated in his evidehce that-deceaseitl Balmukund, his wife Phulbaso Bai, accused Amar Sai, his son and one a^iother person namely, Khamar, came [enchant the religious Bhajan. After Sai, son oftheaccused, Balmukund, lleft for their houses.^Similar is the ie deceased persons and the accused kra 6 Qfthe cross-examination, he has Palmukund, Anandi and elder son of AmarSai returned totiishouse and B^lmukund left forhis-house, thereafter when he was iRformetl by the Kotwari This witness has not even stated that f Next day morning, he came to know taken place in Tongipara. Atthetime| he along with Balmukund and Basant came there and the uncle of Amar Sai for taking treatment for Amai\Sai. Ott^ his wife was not keeping well, therefo house of Derang where dance and he went to the scene of occurrence. mar Sai accompanied them. Witness Chanda has also stated that he went tja the house of Derang, as he was not keeping wetl. At the house of Oeran^, Navratri programme was.going on. labout the fact that some murder has |of dance, at the residence of Derang, |were present, accused Amar Sai also ]was saying that they have come there jer witness Balmukund has stated that jre, he alongwith his wfe went to the song was orggnized, thereafter ;hg ^^^^^^^ Effis^Ki-i'wsaSit-^ibiaiW ;""-"S-s"----""~"-~--"-""US^^^^S<St^»3st5B ,'^;%%^^'^:-:!;M^S®SB8BBSgaHB^; •• atl^l^l •ft-ii'* .311^1 sh*l ef?tt returned to hls house and the next Balmykund, his wife Phulbaso Bai & <tii<il(n-^lt 'Iira^'^:1fe^^ "^ 3Tf;(PT 3{T^T day moming he came tp know that Ratan ar.e murdered. Whether Amar Sai was at the residence or not,;he ttad nomformatJori.^Theevidehceof Bokharamis to the effectthat accusec(Amar Sai was residingwith bis unde ',<?- ''' ' ,1.."'11;: :''1;'^;';';;'"';.-:^'^-'..:? ;".' ' Baimykund since last twp dg'ys andjthe accused was abscpnding since morningofthe date of incident in whic^ While applying the above princ] order to convict the accused in the 'i the three persons were murdered.. iple- laid idown by th®;Apex Cpurt In rime in questioh, ifwe 166k into the above evidence adduced bythe pro^ecution, 'rt is established that on the previous evening of the date of incid^it i.e. evening of 19 January, 1992, the accused and the deceased perso^s went to the house of Derang and they left the house of Derang after ^jratehing the dance and listening the Bhajan. There is no jegal evidence 0(1 recor<±tosstablishthat~the;accused accompanied the deceased personst(|)thehouseoffialmukunct:and-asper record, the distance between Derang'^ where the dead bodies were found, is| to the effect thatanybodysaw the acc^secl inlhexbmpany ofW^^^^ persons' on the way to the house of th . hpyse:and^thehQuse.of.Balmukund, about 1 -%-t;msr"There is ho evidence deceased or in the house where the murders were committed or in the neaijby vicinity in the fateful nightwhen the incident took place. Therefore, based on the above ^videncg when there is no evidence to the effect that the accused was seen \^ith the decieased persons on the way when they were coming back to the hjouse of Balmukund and also that the accused was seen in the house or in tll such a situation based on the abovfeeviclence,^it^s^ifficult;todrawan inference based on the lastseen-theotylthat.ttie^ccuseyaOTs^lthe^authorof the ghastfy murders. In prder ^to.CDni( ^ e nearby vicjnjty in the fateful night, in (ectthe^aecusey;Wit tMefmureiers3ori'g'S -:f.-<^^®^&A^'-^S<iw^»s^^^^^i^^^^ ;y-T-,.^?r^^;y^s^^^^^^^^ss^'^'-" 'r"~i'^'?~v?"'^^ Y ^;,.'^',;£^^K^S^^^^^^&'UJ[U(SH£c&U*<h''lj>;^'^^^^^^^^ KSa'iKaaaitieaui \'''\'-iJ:^y^i'^'/^-'f^j'S£if1-s^\^S'^^^^—-^ 311^1^51 T^ll ^^1 '^f^l ^HI^i the basis of last seen theory, as.has] between when the accu3ed and the d^ceased were seen last tpgether ajive <*i'<fi'iyi-i'4iidf,§ '?^t("i«;i<; ^ " ^aif'Bffaife'].•^ ^~':^"^'--"^?:'-7--^ been held by the Apex Cqurt, time iroximate that inferenGe regarding the there is no ppssibility of coming^ny andthedeath.mustbesoctpseand^ gyilt of the 'aecused can.be drayi/n an(( third pereon in between the^last s^en together and the. death of .the deceased: We are ;of the consider^d opinion that merety .because the accused was residirig with Balmukund .^.y^. since last 2-31 aaysarid on the.fateful evenirig the accysed Was withlhe cl^csased^^^ Derangwhich was at a distance of 1^ kms. from the place^of occurrence, based only on this evidence, the ac^used cannot be Connected with the murders without corroboration of thi^ evidence from any clinchmg legal evidence which poirits towards tte Involyement of the accused in -the Commission of murders^— : . 1 . ^ ^ 1t js true^that the^accused was +>und missing from the jTiqrrung of the date of incident, from the residence |of Balmukund.where the crime was committed. But, merely on this 1-ciretimstahcTO of IHe^case, the ^cc Iground, looking to- the facts and lised cannot be connected with the heinous crime, as there is no eviden|se on rerord that the accused came along with the deceased persons to th^ house of Balmukund after leaving the residence of Derang. Merely bec^us^ of the absence of the accused from the place.of occurrence, no infer^nce can be drawn regarding his involvement in the crime. The accusec! 1992. Therefore, possibility cannot be was arrestedfrom his house on 24-1- ruled out that the accused must have left for his house after taking treatment|at the hands ofDerang. In the matterofAkhile^Hajaijn^s.SteteofBiharreportedJrT^MS SCC (Cri) 883/appdlant Akhjlesh^i^mwasiAargedwi^^ ^ir,^ife^&,xlaugh^|chaKiejagainst^m.;wa^^^^teffi ^i; @^a^^^?^K^6te '"^^^"e^ -^St^^^?SA:^-: ^^&^^^^^&i&'^SS-^^B^^^ ^^^^^^'W^^CWg^^SSf^^^^ •^'-^•ss^^^ Rraita ^iiq) <yi?^r ^*fli^^ifia g®Sfi8iI^dJi^r**<ii>a<-'afei. Wt^ tit^^l ^H^f '^^St-^f^gTC^ ^; sipgii CT^I . ~ ' committing the murders absconded (rom his house, and the evidence was that he was not present gt house ^nd was seen going towards Village: ^Tumba which was only^one mileavj'ay from Village: Oehlabad where the occurrence took place. TheApex C6(irt held that from the evidehce 'rt cannot be jnferred tha^ tKe appellant h^d atisconded after the occurrence as the .:,'^ ...'l .- - '. . .. . •' appetlanf was found in the village itsjelf from where he was taken by some one of the witnesses to the house and ^ ^s^imilarly, ^in the present case] village on24-1 -1992. tf he Kad any detained. , the accused was'arrested from his intention to disappear or abscond after committing the crime, he could have ^asily disappeared from his village and remained absconding and'he shoi^ld not have remained at his house. Therefore. the ground sthat the accpsed disappeared from the house of Balmukund cannot be taken as a-cir4 ^fte crime in question, becEHjise in the that Amar Sai went to the^-hbuse Qf ;umstance to cbnnect the accused with first instance, there is no tegal evklence Balmukund from the house of Derang, there is no eyidence that in the fatefjjl night the deceased was seen in the house of Balmukynd,,OT^_the^cii[^of Balmukund's^ho^ and after comraittingUha -crime—in—qu'estion^rhe-abscondedfrom the place of occurrence. Moreover, as per the prosei] nephew of deceased Balmukund wh| his house for treatment and the pros^cution has not been 'able to show any motive behind committing the three nr is difficult to knowthe motiveof an ac| on circumstantial evrdence, motive pl ;ution case, the accused is the real > said to have broughtthe accused to iurders by the accused. It is true that it cused person, but where the case rests ^ys a vital role. As has been held by the Apex Court in the matterof<?ursish<;handra Bahrivs.State of Bihar ^BSEt^jn A|R^994^;2420,;,sorr|etjmes mbtive playsan impo^^ '^3::yh^l F^&S« ^•aateaa" ai.^mfcsSMg® :^:;^^E.;:.'' XI-HC-22 -ya '-^WM^, 's^ftwis, ^?irey 3ff^T XR^ *<|t|CTI aitfiqi '"" ' ' ^il. 200 fg^y' SlT^SiS? i<;-iidi an^Ti *'ii+~Bf?tI and becomes a compelling force to| behind the crime is a relevant factor to achieve that intention. In a cas'6: Court that the accused was guilty absence of proof of motive does not of the accused nonetheless untrustwc is onty the perpetrator of the cri +itflct41-1 41-fditifs^t <r"i+<;i< ^; sipOT sn^i commit a crime and therefore motive or which evidence may be adduced. A motive is something, which prompts ^ person to form an opinion or intention to do certain illegal act or even a leg^] act but with illegal means with a view where.there is clear proof of motive for the commission of the crime it afforjjs added supportto the finding of the For the offence charge with. But the |ender the evidence bearing on the guilt ^rthy or unreliable because most often it ime alone who knows as to what circumstances prompted him to a cjertain course of action leading to the commission ofthe crime. As far as recoyery of the aj concerned, even if it is accepted that| of the accused, such axes are norm^lty found in every house in the village side. In order to connect the accuseijl with the crime, based on the recovery of the axe, it was necessary that the examined by the Serologist and the S has been filed in which the Laboratory e at the instance of the accused is the axe was recovered at the instance prosecytkin^ ought to have gpt the axe erologist's report must have been filed and proved that the axe which was reicovered at the instance of the accused was stained with human blood, that t(>o the blood was of the blood group of the deceased persons. Only the rep^rt of the Forensic Science Laboratory has given the opinion that the axe was stained with blood, whether it was hluman blood or other blood it has not been mentioned. Therefore, without the Serologist's report to the effect that the blood, which was found on the a^e, was of the same blood group of the deceased persons, merely on the t(asis of the recovery of the axe, the [^^fet XI-HC-22 •^si'^W?n. ^ww.hwvy. 3{lif?T T^OR WKCT'*X|cti '^ 200 fq^y' 311^1 qil fc-li* B^ll *^i+ tlf^l Soma BT^i^aiWBf?3 -1^ accused cannot be connected with fie murder of Balmukund, Phulbaso Bai & Ratan. Therefore, in view of the considered opinion that there is no through which an inference of guilt murder of Balmukund, Phulhriso Bai orders of sentence passed by the t i»i]<i!d'ifl-i'wmf 4 fs^l tfa^TC iTsrfirnsn^i ^ foregoing discussion, we are of the legal clinching circumstantial evidence {>f the accused connecting him with the |& Ratan can be drawn. In view of the foregoing disci^ssion, the judgments of conviction and ial Court in all the three sessions trials mentioned in the'second paragraph ijif this judgment cannot be sustained, as the conviction is not based on any connecting the accused with the r^urder of Balmukund, Phulbaso Bai & Ratan. In the result, Criminal Appealj required in any other case. Sd/- L.C.Bhadoo -^_ Judge legal clinching circumstantial evidence No.1626/1994, 710/2005 &,729/2005 succeed and the same are allowejd. The judgments of conviction and sentences imposed upon the accu^ed/appellant in ali the three sessions trials are set aside. The accused thould be set at liberty forthwith, if not Sd/- Dhirendra Mishra Judge ^ ^c [^SfisPI