^J:;i&^'3 HIGH COURT OF CHHATTISGARH. BILASPUR r'fi CQRAM: Hon^bleShrLRaieevGupta, C.J. & Hon'ble Shri Sunil Kumar Sinha^jJ. Crjminal Appe^al^lo. 25^»f1992 Guddu @ Roopnarayan Vs. . State of Madhya Pradesh (Now State of Chhattisgarh) & (And connected Criminal Appeal No. 26 of1992) JUDGMENT i^^ltl?'ti| For consideration Sd/- SuniS Kuaiar Siuha HON'BLE SHRI JUSTICE RAjEEV GUPTA Sd/- CttiefJustice Post for Judgment :'2//09/2010 Sd/- Sunil Kumar Sinha Judge ,. -'•••^.,^ " "1;1. W:Ss ^ !^ f HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha. J. APPELLANT RESPONDENT CriminaLAppeal No. 25 of 1992 Guddu alias Roopnarayan, S/o Ramji, aged 20 years, R/o ofVillage Tilai, P.S. & Tehsil Janjgir, District Bilaspur (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Janjgir, Bilaspur APPELLANT RESPONDENT And Criminal Appeal No. 26 of 1992 Chhatrangi Lal S/o Lacchiram, aged 18 years, R/o ofVillage Tilai, P.S. & Tehsil Janjgir, District Bilaspur (M.P.)(NowChhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Janjgir, Bilaspur (Criminal Appeals under Section 374 (2) of The Code of Criminal Procedure, 1973) ADpearan6e/ Mr. Ajsiy Mishra, Advoeate for the appellant in Cr.A. No. 25/92. Mr. Subhash Yadav, Advocate for the appellantiin Cr.A. No. 26/92 Mr. J.A. Lohani, Panel Lawyer for the State in both the appeals. Criminal Aopeals No. 25 of 1992 & 26 of 1992 ^ Sus&^ss ^ JUDGMENT (21.09.2010) Following judgment of the Court was detivered by Sunil Kumar Sinha, J. (1) These appeals are directed against the judgment dated 28.8.91 passed in Sessions Trial No. 179/90 by the First Additional Sessions Judge, Bilaspur. (2) By the impugned judgment, the appellants have been convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life and R.l. for 3 years with a further direction to run the sentences concurrently. (3) The facts, briefly stated, are as under:- On-11.4.90, the dead body ofdeceased- Dhaniram alias Jhingut was found under a culvert in the outer area of village Tilai. There were many injuries on the body of the deceased.A Merg intimation (Ex.-P/9) was lodged by Kotwar- Khikhdas (PW-1) on 11.4.90 at about 7.00 a.m. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-p/2) on the body ofthe deceased. The dead body of the deceased was sent for its post-mortem examination to Government Hospital, Janjgir vide requisition Ex.-P/7. The post-mortem examination was condyc^ed by Dr. S.S. Bhatia (PW-10), who noticed many • injuries on the body of the deceased. A rope was also found around the neck of the deceased. The Autopsy Surgeon opined that the cause of death was asphyxia due to strangulation and itwas homicidal in nature. The post-mortem report is. Ex.-P/16. During the course of investigation ;: statements of Khikhdas (PW-1), Mehattarram (PW-2) and i.,;;;;lai^,, Vismv Cruninal Appeals No. 25 of 1992 & 26 of 1992 Chedilal (PW-3) were recorded. Mehattaram (PW-2) stated that he had seen the deceased in the company of the appellants in the night of 10.4.90. The deceased and the appellants had gone towards the outer area of the village and after two hours, the appellants came back,but the deceased was not with them. The appellants came before him and made extra-judicial confession that they have committed murder of the deceased. In the morning, he stated all this to Chediial (PW-3) who was ex-sarpanch of village. He also narrated the entire story to Khikhdas (PW-1). All went to the place of occurrence and saw the dead body lying under the culvert:. Thereafter Kotwar-Khikhdas was sent to the police station for lodging the report. Chedilal gave aiso similar statement. Thereafter the accused persons were taken intocustody and their memorandum statements u/s 27 of the Evidence Act were recorded. Memorandum statement of Chhatrangi Lal is Ex.-P/S and memorandum statement of Guddu @ Roopnarayan is Ex.R/10. Some utensils belonging to the deceased were seized at the instances of the accused persons. The seizure memo of the articles seized at the instance of Chhatrangi Lat is Ex.-P/4 and seizure memo ofthe articles seized at the instance of Guddu @ Roopnarayan is EX.-P/5. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate Fist Class Janjgir, who in turn committed the matter to the Sessions Court, Bilaspur.'from where, it was received on transfer by the First .Additional Sessions Judge, who conducted the trial and convicted & sentenced the appellants as aforementioned. Admittedly, there are not eye-witnesses in this case and the case of the prosecution is based on circumstantial evidence. The foUowingare the circumstances on which the prosecution relied:- G^ Criminal.ABneals No. 25 of 1992 & 26 of 1992 (i) The deceased was lastly seen in the company of the appellants in the night of 10.4.90 by Mehattaram (PW-2); (ii) The appellants made extra-judicial confession before Mehattarram (PW-2) in the night of 10.4.90 & (iii) Various utensils" belonging to the deceased were seized at the instances of the appellants on their discovery memos. (5) The learned Sessions Judge disbelieved the facts of seizure of various utensils at the instances of the appellants on their discovery statements Ex.-P/S & P/10. However, he relied on the evidence of last seen together as also extra-judicial confession and convicted & sentenced the appellants for the offence punishable u/ss 302 & 201 IPC. (6) Mr. Subhash Yadav and Mr. Ajay Mishra, learned counsel appearing on behalf of the appellants, argued that the evidence of last seen together and extra-judicial confession are not reliable. The case of the prosecution was that Mehattarram (PW-2) stated all this to Chedilal (PW-3) and Kotwar- Khikhdas (PW-1) who lodged the merg intimation,but the factsrelating to last seen together as also extrg-judicial confession are omissions in the merg intimation, therefore, testip'iony of Mehattarram (PW-2) becomes doubtful. On the other hand, Mr. J.A, Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment passed bythe Sessions Court. Crimmal Aroeals No. 25 of 1992 & 26 of 1992 (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) Admittedly, the main witness of two circumstances relied by the Sessions Court is Mehattarram (PW-2). Mehattarram deposed that on the night of 10.4.90, he had gone to fetch water from village hand-pump. Deceased Jhingut and the appellants came to him and they had talked with him. Thereafter they went towards the outer area of the village, He also went to sleep in his house. After two hours, he heard some noise and woke up. He saw thgt both the appellants were coming.but the deceased was not with them. The appellants came to him and madeextra-judicial confession that they have committed murder of the deceased. They stated that they committed his murder by strangulating by a rope and the dead body has been thrown under the culvert. In the night he disclosed this fact to his father-in-law Panchram and Motelal (PW-4). They decided to tell all this to ex-sarpanch. In the morning, they discloSed all these facts to Chedilal (PW-3) and village-kotwar Khikhdas (PW-1). Thereafter many villagers went to the culvert and saw the dead body and-Khikhdas (PW-1) was sentto Iddge the report. (10) The ahove version of Mehattarram (PW-2) is supported by the version of Chedilal (PW-3).~Xhedilal was the ex-sarpanch of the Village. Though it comes in the evidence of Mehattarram and Chedilal that the fact relating to lastly seeing the deceased in the company pf the appellants and extra-judicial confession by the Crimiaal Appeals No. 25 of 1992 & 26 of 1992 6^ appellants before Mehattarram was stated to Khikhdas and Khikhdas was duly briefed by them regarding all these facts but all these facts are missing in the merg intimation (Ex.-P/9). The merg intimation is first hand infortnation of the incident which was lodged at about 7.00 a.m. on 11.4.90. It was lodged by Khikhdas (PW-1) who was duty brief by Mehattarram (PW-2) and Chedilal (PW-3). If these facts were duly stated to Khikhdas and Khikhdas was sent for lodging the report, Khikhdas should have stated all these facts in the merg intimation. These facts are not there in the merg intimation. The omission of these facts in the merg intimation, were fatal to the prosecution. We have also gone through the evidence of Khikhdas. Khikdas has also not deposed that these facts were stated to him by Mehattarram or Chedilal. He simply deposed that a dead body was seen under theculvert. This was informed to him by Mehattarram. He had gone to see the dead body along with Kumbhkaran, Lallu Yadav and Chedilal and then he had gone to lodge the merg intimation. (11) In appreciation of entire evidence on record, we find that the evidence of Mehattarram (PW-2) relating to last seen together and .extra-judicial jConfession was not reliable and the learned Sessions Jud^e erred in law in relying^upon his testimony and accepting the eyidence of last seen togetherand extra-judicial confession. (12) In a case based on circumstantial evidence, the circumstances from' which the conclusion of guilt is to be drawn should be fully Criminal Appeals No. 25 of 1992 & 26 of 1992 €) established and all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis ofthe guilt of the accused. The circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused persons and the chain ofthe evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. In the present case, out of three circumstances, pressed into motion by the prosecution, the circumstance relating to discovery and seizure of the articles of the deceased from the possession of the appellants was disbelieved by the Sessions Court and two other circumstances i.e. last seen together and extra-judicial confession, in our opinion, were not established. Therefore, the conviction ofthe appellants on the basis of above circumstantial evidence cannot be sustained. (13) For the forgoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants are set-aside. The appellants are acquitted of the chargesframed against them. It is stated that the appellants were arrested on 12.4.90 and were released on bail on 8.11.95. Presently, they are on bail. Their bail bonds are c^'ncelled and sureties stand discharqed. Sd/- ChiefJustice Sd/- Sunii Kiisnar SiBha Judge vafti