HIGH COURT OF CHHATTISGARH. BILASPUR CORAM : Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kunnar Sinha, J. Criminal Appeal No. 404 of 1991 State of Madhya Pradesh (now Chhattisgarh) Vs. Hinsaram (dead) and Others JUDGMENT For consideration Sd/- SuniiKasmar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J Sd/- ', CSiietJustic'—-T—I^- Post for Judgment: ^_^/03/2010 Sd/- Sunil Kumar Sinha Judge f i: ^"'"^. :3 .,i HIdLCOURT QF CHHATTISGARH. BILASPUR CORAM : Hon'ble Shri Rajeev Guota. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 404 of 1991 APPELANT RESPONDENTS 1 4. 7. State of Madhya Pradesh (now Chhattisgarh) Versus Hinsaram, son of Ramprasad Chandravanshi, aged about 65 years, r/o Dalpurwa (C.G) (dead). - Name deleted as per Court order dated 05.11.2009 Omkar son of Hinsaram Chandravanshi, aged about 40 years, resident of Dalpurwa (C.G) Jankuram, son of Dalendra Chandravanshi, aged about 36 years, resident of Dalpurwa (C.G.) Dropati Bai, wife of Hinsaram Chandravanshi, aged about 55 years, resident of Dalpurwa (C.G). Chameli Bai, wife of Omkar Chandravanshi, aged about 40 Years, resident of Dalpurwa (C.G). Kaushalya Bai, wife of Jankuram Chandravanshi, aged about 35 years, resident of Koko Pipariya (C.G). All residents of Tahshil Kawardha, P.S. Pipariya, Distt. Rajnandgaon (Now Kavardha), C.G. Bhagwan Singh, son of Hinsaram Chandravanshi, aged about 35 years, resident of Dalpurwa, at present resident - of Ethiopia, Adis Ababa Office. k "I l;!lit''M':"':"l' !JFI'»8ni!ffi3EBt: /fe 'm ^ Criminal Appeal No. 404 of 1991 (CriininaIAppeal under Section 378(1) oftheCode of Criminal Procedure Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate, for the State/ appellant. Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Pradeep Singh, for the respondents. JUDGMENT ( ^ .03.2010) Following Judgment of fhe Court was delivered by Synil Kumar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 11.09.1990 passed by theAddl. Sessions Judge, Khairagarh Camp at Kavardha in Sessions Trial No.76/1987, the State has filed this appeal. (2) The facts, briefly stated, are as under:- Deceased Sushila Bai was married to Bhagwan Singh in the year 1964. It was a child marriage. Gowna was performed in the year 1974. After Gowna, she was residing in her in-laws place in village Dalpurwa. In the year 1980-81, Bhagwan Singh shifted to Ethiopia for earning his livelihood. The deceased remained in the house of Bhagwan Singh along-with the in-laws and other family members. Respondent Dropati Bai is mother-in-law. Omkar and Chameli Bai are the brother-in-law and sister-in-law (Jeth & Jethani). Respondent Kaushalya is daughter of Hinchha Ram and respondent Jankurarg is the husband of Kaushalya Bai. The allegations are that they were treating the ' deceased with cruelty. The deceased was murdered in the intervening night of 3I'd-4th September, 1986. •/ \; After the murder, the dead body of the deceased was [Tr'i- TCTtTTr~7ratt^m^''f^Bfls < "CT"mBB :fy"% j j ,y .<•• l^' •\ Criminal Appeal No. 404 of 1991 kept in her room in the house of the respondents. A report was lodged by Bharatlal (P.W.l) on the instructions of respondent Omkar, on which, a merg intimation (Ex.P.l) was recorded in the Police Station on 04.09.1986. The Investigating Officer reached to the scene of~ occurrence; gave notice (Ex.P.2) to the Panchas and prepared inquest (Ex.P.3^ on the body of the deceased. Blood stained and plain soils were seized, under Ex.P-5 from the room and nearby places where the dead body was lying. Other articles like mattress and clothes were also seized under Ex.P.7. The dead body of the deceased was sent for postraortem to Government Hospital, Kavardha, where the postmortem examination was conducted by Dr. T. K. Agrawal (P.W. 18) who prepared his report Ex.P.20-A. According to the postmortem report, the cause of death was asphyxia due to suspected smothering. Pieces of nails and hair of the accused persons were also collected. The seized articles were sent for their chemical examination to Forensic Science Laboratoiy, Sagar, from where a report Ex.P.35 was received. According to FSL report, blood stains were not found on the pieces of nails and hair of the accused persons. Though human blood was confirmed on the mattress, Saree and blouse of the deceased but the origin of blood stains on the said articles could not be deterrained. After coinpletion of the usual investigation, the /charge sheet was filed in the Court of Judicial Magistrate, First Class, Kavardha, who in turn committed the matter to the concerned Sessions Court from where it was received on transfer by the Additional Sessions Judge, Khairagarh, camp at Kavardha. The trial Court framed charges u/ss 498-A SE -302 IPC against the father-in-law and mother-in-law. -I1 tii'ni'ii; ••'r: !?i;(:^:-"-^w" ra-==s i.uiua(Bi"iias.^ai)it»^ti»ss "";'i*&. l^e«;':;i^: Cruninal Appeal No. 404 of 1991 The brother-in-law and his wife were charged u/ss 302 SE 302/34 IPC respectively. The daughter of Hinsa Ram and husband of the daughter were also charged u/s 302/34 IPC, whereas the husband ofthe deceased was charged u/ss 498-A SE 302/109IPC. The Sessions Court recorded the finding that the deceased died homicidal death in her in-laws place; respondents Janku, Kaushalya Bai and Bhagwan Singh were not present in the house on the date of incident; and the prosecution failed to establish that the respondents were treating fhe deceased with cruelty and were responsible for cominission of murder of the deceased. Therefore, the respondents were acquitted of the charges framed against them. (3) Mr. Sudhir Bajpai, leamed Deputy Govemment Advocate, appearing on the behalf of the appellant/State argued that fhere were three strong circumstances against the respondents, therefore, the acquittal of fhe respondents was bad in law. He argued that the relationship between the deceased and the respondents were not cordial and there was strong motive to cause murder of the deceased; the deceased died homicidal death; and the dead body of the deceased was found in the house of the respondents which they could pot explain. / (4) On the other hand, Mr. P.K.C. Tiwari, learned senior counsel appearing on behalf of the respondents opposed these arguments and supported the judgment passed by the Sessions Court. V- ,][:1I;'1i; "T]':';T!5(' -".ius^-Biu^iSa-sssBM&t'iiWi; "~wl.s. '''%..is' "s'iaffS" '^ t, Criminal Appeal No. 404 of 1991 (5) We have heard leamed counsel for the parties at length and have also perused the records of the Sessions Court. (6) Rikhi Ram (P.W.12) is the father of the deceased. He deposed that Gowna w&s performed in the year 1974. After Gowna, fdr about 2 - 2 V2 years, his daughter was frequently visiting his house. However, when she lastly visited his house, no body came to take her, therefore, she remained in his house for about one year. He sent his daughter with Gaya Dau, Jagdish Dau, Gordhan Dau and Dukalu. Hinchha Ram allowed his daughter to remain in his house. She remained there for about 7-8 months. In the said period, her husband Bhagwan Singh also came from Ethiopia. Thereafter, she was called back to his house. One Rambisal, who was sent for calling his daughter, told him that wife of Hinchha Ram (raother-in-law) had said not to send his daughter and she also said deceased Sushila Bai, not to come to her place. Thereafter the deceased resided for about 3 - 3 Vz years in his house and was again sent by some persons to the in-laws place. In the evening those persons returned back along-with his daughter and told that Hinchha Rarrt was not ready to keep his daughter. / Thereafter, he himself took his daughter to her in-laws' place. At that time, Bhagwan Singh was also present. Bhagwan Singh said that he would not keep his daughter. • • On the next day, a Panchayat was convened. Some ;. fSkrcimama was .written. Deceased Sushila Bai and he - hunself dehied to sign the Ekramama. He returned back to v —^~~L,l^f^' Aaj.i«,Uii"a i^SSa,. .?*| j ./ .9 •ftliEiP' ,af yi . Criminal Apueal No. 404 of1991 his house with his daughter. After one day, Bhagwan Singh, Itwari, Ram Kinker, Mangal Singh and one Rautain (lady member) came to his house for taking his daughter and she was taken by them. in fhe evening. After one year of the said incident, Bharat (P.W.14 - brother ofthe deceased) had gone to bring the deceased on the occasion of Pola festival, but the respondents did notsend the deceased. Bharat told him that the deceased was telling him that her in-laws use to treat her with cruelty and they abuse her. She wanted to come with Bharat but Hinchharara and his wife came to the door and stopped her and they did not allow her to go with Bharat. In the next moming at about 10 a.m., Basant, servant of Hinchharam, came to their house and informed that his daughter has died. On this, he alongwith his son and other members of the village went to the house of Hinchha Raxn andsaw the dead body. (7) P.W.14 Bharatlal deposed that he had gone to Dalpurwa for bringing the deceased but she was not allowed to come with him. It was the occasion of Pola festival. He deposed that Hinchharam and his wife Dropadi Bai came to the door afid did not allow her to go with him. His sister / was telling that the fafher- in-law, mother-in-law, Jeth Pmkar.Prasad and other members of the family use to harass and abuse her. As per his cross examination vide Para 6, there are some material omissions in his Police Case >'Diary stateinents (Ex.D-2). WT' '•3»i^^ ;* ...ri^-/ Criminal Apueal No, 404 of 1991 (8( The Sessions Judge has referred to the cross- examination of Rikhi Rara (P.W.12) vide paras 21 8s 22 and has held that there was hardly any evidence of treating the deceased with cruelty by the husband or the other respondents. The Sessions Judge has also referred to Para 26 of his cross-examination, in which, he admitted that his daughter-in-law belonging to village Anchhi used to visit the in-laws place of deceased Sushila Bai. She used to meet Sushila Bai, but Sushila Bai never disclosed to her about treating her with cruelty by the respondents. He also said about an incident that he met Sushila Bai in a social meeting in village Dalpurwa but she did not tell him about treating her with cruelty by the respondents. The Sessions Judge has also dealt with the contents of some letters (Ex.l3/Bl, 13/B2, 13/A1 SE 13/A2) and has held that the contents of those letters would also not constitute mental cruelty against the deceased. (9) We S.nd that after considering the entire evidence available on record, the Sessions Judge has held fhat it was not established that the deceased was treated with cruelty by the resp.ondents. Therefore, there does not appear to be / any strong. motive for the respondents to commit murder of the deceased in their house. (10) No doubt the death of the deceased was homicidal in nature. The defence has also not disputed that it was a homicidal death. It was argued that the aceused persons ^' y^!,-. 'V, ^slS^i ^ -/ 3 ^'' .^'. Crimmal Appeal No. 404 of 1991 have not explained as to how the homicidal death took place in their house. We find that the Sessions Court has recorded a finding that respondent Janku Ram and his wife Kaishalya Bai, daughter and son-in-law of Hinchha Ram, were not present in the house of Hinchharam in the festival night and it is also an admitted position that the husband of the deceased i.e., respondent Bhagwan Singh was also in Ethiopia. After considering the entire evidence on record, we find that there is 'no infirmity in such finding. (11) The leamed sessions Judge has considered the evidence of BharaUal (P.W.l) who deposed that the house of the respondents was a Pukka house and a Kotha (place for keeping cattle) was attached to their house. The Kotha was in dilapidated condition and there was a way for making entry in the court-yard of the house. He further admitted that if a person comes in the courtyard, he would have easy access to the room of the deceased or the other rooms of the house. The Sessions Court held on the evidence of this witness that any body could have access to the house of the rcspondents. P.W. 1 has also admitted in Para 7 of the cross- examination that there was house breaking and a whole was / niade in the room of deceased Sushila Bai, for which a -<• reportwas also lodged and boxes etc. were found out side the house which were seized by the Police. The Sessions 'Judge further observed in para 19'that the investigating ., ^'oi'ficer D.N. Sharma (P.W.23) has also admitted these facts. * - The boxes, which were seized out side the house, were ;\~- '•' fl^j.fM -p^: iii^ .1-4; I"!^"""' ld!^,;..,:Li. B T;gffiE ;iS£££S; 3S1WKHS -^^:T~^//f7\: ^"^,\ -;^'(.^^&. :lil£i^ «%( '^>fc.^ Criminal Appeal No. 404 of 1991 handed over on Suprudnama by the Police. The Sessions Judge has further observed vide Para 19 that D.N. Sharma (P.W.23) has prepared spot map (Ex.P-26) and has admitted in the cross-examination, vide para 25, that in the north-west portion, just beside point no.9 in the map, there is an indication of some Rughan but what was the real position of Rughan has not been mentioned. The Sessions Judge has further observed in this paragraph that some ornaments were ' also not present on the body of the deceased and this was informed to the Police Officer also. He has referred to various paragraphs of the evidence of Mangal Singh (P.W.21) and Shiv Kumar (P.W.22). He has also referred to the evidence of Dr. T. K. Agrawal (P.W.18) who admitted in his cross examination vide para 8 that he found injuries on the chest of the deceased and buttons of the blouse were also not there, therefore, a possibilily of an assault for committing sexual offence may be there. It is in these circumstances, the Sessions Judge did not give much importance to the solitary circumstance that the dead body of the deceased was found in the house of the respondents and it was a homicidal death. r- (13) In Subimal Sarfcar -vs- Sachindra Nath Mandal and others (20031 2 SCC 566, the Supreme Court held that the prosecution proved that there was demand of dowry beeause of which there used to be quarrels; on the date of \-- ^'incidenf the brother in law of the deceased along-with some /' I;S:I!IL ,i"'1 =SS'S~ve?ff ../ jS 10 Criminal Aroeal No. 404 of 1991 other persons was seen carrying the body of the deceased which he claimed was being taken to the hospital for treatment and that the deceased died of strangulation. The prosecution, though succeeded in proving the motive, failed to establish the necessary link in the circumstantial evidence. The Supreme Court further held that motive by itself would not be sufficient to base a conviction. All the links in the chain of circumstances have to be established by the prosecution so' as to prove that in all probability it was only the accused persons who could have committed the cnme. (13) In Budh Sinqh and others -Vs.- State of U.P. (2006) 9 SCC 731, the Apex Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a inore probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the' views of the trial Court were perverse or otherwise unsustainable. II; is also entitled to consider as to whether in / arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. '. Similarly, wrong placing of burden of proof may also be a t ^ubjcct i-natter of the scrutiny of the Appellate Court. .1; ItTK 1<alffiilflR'S^=t -••••^.^^^^•SiB^SSS ^®S{S^siSSSMSS. H .^^^^s % •^SlV^ g "^</ K^'y 11 Crimmal Appeal No. 404 of 1991 (14) ln V.N. Ratheesh -Vs.- State of Kerala, AIR 2006 SC 2667, the Apex Coiirt held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Apex Court said that the golden thread which runs through the web of administration ofjustice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Apex Court further said that the pararnount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Apex Court referred to the decision render6d/in the matter of Bhaawan Singh and others -Vs.- State of MadhycLj'radesh (2002_(2) Suoreme 5671. It was further held that the principle to be followed by Appellate Court considering the appeal against the judgruent of ,. acquittal is to interfere only when there are compelling and substantial reasons for doirig so. If the impugned judgment :/ :!.jl3S338s ^ W^wsj J •/: 12 Criminal Aprieal No. 4Q4,of 1991 is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. (15) In Ramesh Babulal Doshi -Vs- State of Guiarat (1996) 9 SCC 225, the Apex Court said that "While sitting in judgment over an acquittai the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order pf acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". (16) We have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Court were perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find. any compelling and substantial reasons to inferfere with the judgment of acquittal. It is not a case in ^ . which the judgment may be said' to be unreasonable or a ca.se in which relevant and convincing materials have been eliminated in the process of appreciation. 'lt-i "t J>- -I ^^^"''''"•'^ i!l'<-;ls'(ID;tl^lii"ai||]BN3'a8sa»i» 33^^B^^^3 ..""•-atfc, 13 Criminal Aupeal No. 404 of 1991 (17) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed. v 0 Sd/- Ciiief Justic Sd/- Sunii KuBiarSiBha Judge fSO-c K I4iaUi!AAt, 5SS3Si4i!^.-iteUi 'S'SSS^TJS'. w