(w? W HEGH COQRT GF CHI-%ATT§SGARH AT ELAS9UR ’ifarw3 Resgcrxdent $fate a? chha’ii’isgarh Thmugh : The Poke Station Janakpur, Dism‘cf Koriya (CA3) {CRMiNiiKL APPEAL UNDER SEbTJON 374 (2} OF THE CODE OF CRiMiNAL PROCEDURE, ’§9?’3) Pmsani:- Mr. Bhaskar Payashi, counSei fm’the appelmn‘i'. Mr. Neemj Kumaf Mehta, Pane! Lawyar farthe $ta€e. Jié3GMEN‘f {Deiivered an 31 g‘ Oc‘mber, 261 i) Per ?.P.Sh&rm&, J. :- . Shaiienge in this appea§ is 3.m i0 thg judgment of convici§cn & Order a?" semence dated 36.12.2036 passed by iim Is‘t Adaiiéana} $e33i£>ns Judge, Maneiadragarh Digt’t. K0?3ya, in Ses3ions Tziai Na.120/2D05, Whfere‘ay a3 Whaeunder Eeamed lat Addiiionai $e33ions Ju apgeiian’: gui%ty far cummisaien 0f cufpable hamsfde anmantmg is murdgr $f his wife JaswaniE Bai (since decea$$d} eviéenaa 0f crm‘zmai 03%, canvictad the appeHant under Sacticm 3G2 & acniamed mm ta um‘ergc Effé impri'scnmem am h my We af Rs.503/—, R}, far sever: yeam arid m pay fine of R3.5OQ/~, m 5 dge af‘ier ho§d§ng i'he am vsnceaHng tha—2 20‘ a? the was ana w" DWE$EON BENCH aaram: HQN’BLE MR.T.F.SHARM§ & HON’BLE MRRN. CHé‘aNDRAKAR, A'ggeHam JJ. $¥§m§nw J’Aggasw Ne. 5% a? 2m}? Babuia! @ Shivpraséd (in Jai!) @ Daua 5m 0f Bhajanram, aged abaut 40, R/a V§i§age— Pandh Fame 8%afcian Janakpw, Digmct Koriya ((3.3) to défauit of payment of finE i0 fwther undago R§ w six menihg E’espectiv&§y. 2, Canvisticn is impugned 0n the ground that without any iata 0t evtdeme, the tttat Coutt has convicted 8: sentenced the appettant as afarementiened and thereby mmmitted Eltegattty. As pet case at prosecutten, urafsrtunate éeceesed Jaswarztt g3: was; (0. residing with the appeiiamt at vmage Pendi, petice statien Janakput. On t ”t .82‘2QQ5 appeitant kiltect hie Wife by axe and censeeieij the dead eed; andet‘ eand tn the Nata. Being asked he made tetee explanatten taut tathet of the appeltant searched the dead batty 0‘? seceaeect and tedged dehati merg can 12.02.2OG6 wide ExPfi G. ‘egietered metg was tecercied vide ExtPliQA. Finaiiy FIR was teccrded \iide EXP/11 and EXP/iiA. indeetigating é. eaiicet K iet‘t fer scene at cceurrence, aitet eummening the witnesses dead body o deceased wee exhumed fmm the sand and inqueet over dead bedy 9i deeeaeed wae prepeted vide Ema/2. Seat map wee ptepared vicie EXFI’ia 9atwari prepated epet may: vide ExPr’é 8ieed stained and plain send, etiawi, maia and hawai ehappal were recevered item the spat ‘v'ide EXP/5 Stood stained and piain eoii was tecevered rem the epet. Bead body oi deeeased was sent t0? autopsy "ze Cemmunity .ieaith Center, Janakpur vide EXP/'5’. Dr. Rajeev Kumar Ramah {PWN} cenducted autopsy wide ..x.P/? and feund bedy into ten pieces. Seed: was hemicidai in nature. On 14.02%?)5 appeiiant was taken inte custody. He made dieslesure malem €¥i G Mn reseveted at the instance 0t the appeitant wide r'mar/5. n n1 wetnee 1‘, 0t xe- tangi undenA/ear, T-shtrt and axe \iide EXAPH. same were deceased wem seized vide EXP/4.4. Seized artic!es were sent far chamica! examination Vida EXPH 5. 5. Statements st the witnesses were recorded under Section i6“: of the Code of Crimingl Procedure, 1W3 (far short the Code“). After campietian a“? in‘regrrgatien, charge sheet was filed befere the Court 0f Judrciaé Magistrate 15* Ciass, Manendragarh, who in tum commiiieci the case i0 i‘ne Court 0i Sessions, Surguja (Ambikapur), iearned isi Additionsi Sessicas Judge received the case en transfer for triai. a in order to prove the guilt of the accused/appeiiant, etosecution has examined ass many as 8 witnesses. Statement 0f the accused/aepeiiant was tecorded under Section 313 of the Cede where he denied‘the circumstances appearing against him and irmocehee end feise impiieation is eiaimed. t. After providing opportunity of hearing to the part es, teamed ist Additionai Sessions Judge, oenvicted & . sentenced the appeiient es aforementioned 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the triai Court. 9. Learned counsei tor the appetiant vehementty argued that conviction is based on ctrc‘umstantiat evidence. White dealing with the question of cenvictien based on citcumstantiai evidence, the Supteme Court in the matter of Kusnme Ankema Ree Vs. $tete ef AP. has heid that in case of conviction based on circumstantiai evidence. prosecutien is reeuired J.to satisfy A1. d.the §reiiewing § circumstances: the circumstances from which the concluaien of guiit i$ to be drawn should be fully established The circumstanses concerned ‘must’ 9r ‘shauld’ and no’: ‘mgy be‘ established; the facts $0 established should be consistent only with the hypothesis of the guilt sf the accused, that is t9 say, ‘ihey shsulcl not be explainable cm any oiher hypothesis except that the accused is guilty; the circumstances should be of a conciusive nature and tendency; iii. iv. they sheuld exciude every possibie hypothesis except the one to he proved; and there must be a chain of evidence so complete as not to leave any reasonable ground tor the conclusion consistent with the innocence oi the eecused and must show that in all human probability the act must have been done by the amused. tO.Learned counsel further submits that in the present case prosecution has utteriy faiieci to prove the complete chain of circumstances to maintain the conviction of the appellant He also submits that dead body oi deceased has not been recovered at the instance of appeliant and artistes seized have not been identified as articies of appetlant and deceased Conviction is not based cn iast seen theory end this is a case of no evidence. . 0n the other hand, learned Panei itawyer tor the tate opposed the petition and submits that dead body of deceased has been recovered at the instance of the appeliant. Deceased was residing with the appeliant and appeiiant has not offered true expianatton. inter-aha, appeliant offered faise explanation that she had gone to any other viitage. These are sufficient circumstances for conviction of the appeliant. 12in order to appreciate the arguments advanced on behaif of the parties, me have examined the evidence avaiiable on record. 13in the present case, homicidat death of deceased daswanti Bat by chopping into ten parts has not been substantialiy disputed on hehatf of the appeliant, even otherwise same is also established by the evidence Dr. Rajeev Kumar Raman (PW/7.) and autepsy repart ExPW the? deaih of ceased Jaswanti Bai was homicida§ in na’mre. de MAS mgewds c0mpi§c€ty of the appaliant in cr§me in question is cancemed, pmsecuiicvn ha3 tried to pmve the foiicwmg circumstanceg; Deceased was resiciing with the agapeiiant Gr; the date of incident. ii. Being asked appellant has affereci faise expiana’tian ihat she has gone 0 any other viiiage. iii. Dead body of deceased was faund hidden in sand into ten pces. Shawt of the appeiiant was found near the place of incident. ti. Appellant was under obligation to search his wife but he has net searched his wife and net lodged any report. taAs per evidenc of Bhajan {P/i), father of the appeliant, Samayiai e W (PW/2), Semliya (PW/3}, Krishnapal Singh (PW/4) and Fulmatia (PW/6} deceased Jaswanti Bai was residing with appellant. On the daie ei incident she was not present in the house oi the appeiiant aithough apeeilant was eresent in the house. Being asked he effered iaise expianation that sh had gone ie Bijuri. Bhajan {PW/i), father of the e deceased and some other viiiagere searched the deceased at patera isrest and dead body of deceased was found in sand then merg wee lodged. in their crossexamination they have specifioeily admitted that appeilent has not made any statement to any petson including poiioe. Surjan Singh (PW/8), investigating officer has specificaiiy admitted i‘ para 16 of hiscross-examination that dead body of deceased has not. been recovered on the basis of confessional statement oi the appeiiant‘ even as oer meig intimation EXP/10 dead body was firstly seen by Bhaian {PW/i}, father of the appeliant, then he has iodged merg t intimation on 12.02.2006 at about 6:35 om. inquest has been prepared on 13.62.2606, disciosure statement of the aopeiiant has been recorded on 14.62.2006 at 2:3G om \tide E><.P!t. i a lie i t ie iv 'Aa 3‘. ‘ mm the present case, ii §s noi disputed that chopped bedy of deceaggd has been recovered from Naia under ihe sand but eniy an the easie 0f such recevery liability for commiesien a? murder canne‘t be fasten upcm appenant 0r any etha person without any connecting evidence. In ihe preeem't case, dead body of deceased hae net been {ecovered at the instance of the appeilant, incriminaiing articles have not been recovered trom the appellant, witnesses have not deposed against the eppeiiant and prosecutien has not proved any chain of Circumstance againet the appeiiant sufficient for conviction Qt the appellant. tithihiie convicting the appeiiant ccurt below has not censtdered the aforesaid materiai aspects ef the matter and thereby committed itlegaiity. We are unable to uphotd such conviction and sentence impoeed open the appellant. teConeequentiy, the appeal deeetves to be allowed and ls hereby allowed. Conviction and sentences of appellant under Sections 392 and 231 of the indian Penal Code are hereby eet aside. He be set at liberty and he released forthwith. if not required in any other case. Sdl- c " i . T.P.Sharma,’ a. r \\?r Judge ‘ . l ll a Vilay