‘ HIGH COURT OF CHHATTISGARH, BILASPU Crimina! AMaI No.311 of 2066 APPELLANT: (In Jan) Ramadhar S/o Fatte Slngh aged 30 years R/o Village Barampur Ponce Statn Khadgawan D‘strict Koriya (C.G.) Versus RESPONDENT: State of Chhattisgarh through Police Station Khadgawan, District Koriya (C.G.) {Criminai appeal under Section 374 (2) of CrtP.C.} x Present: ' Mrs Hamida Siddiqui Counsel forthe appellant Mrs Madhunisha Smgh Panel Lawyer forthe State/respondent DiviSion 'Qnch: -> A ‘ Hon’ble Mr. T;P. Sh‘arma and Hon’ble Mr ar, JJ oRAL JUDGMENT (8-2-201 1 ) T.P. harma, J: - S 1. Chailenige in this appeai is to the judgment of conviction & orderof sentence dated.21—3-2006 passed by the Additional Sessions 'Judge,’ Manendragarh in Sessions Trial No 6/2005 whereby & whereunder learned Additional Sessmns Judge after holding the appellant guilty for commissmn of culpable homiCIde amounting to murder criminal house trespass With intent to commit offence punishable With death and offence of robbery, conVIcted the appellant under Sections 449, 302 89,392 of the IPC and sentenced him to undergo Rl for ten years & pay fine-of Rs.500/—, in default of payment of dne to further undergo Rl for five onths; to undergo imprisonment for life & pay fine of Rs,1,000/—, in default of payment of fine to further undergo Rl for one year; and tog, i undergo RI for ten years & pay fine of Rs.500/-, in default of payment of dne to further undergo RI for five months, respectively. . Convictiontis impugned on the ground that without any iota of eVidence, the trial Court has convicted & sentenced the appellant and thereby ' committed illegality LN @ R io . R.L. Jhanw " m ; 3. As perlcase of the prosecution, in the intervening night of 24‘“ & 25 October, 2004, Hirmania @ Bhagmania Bai (sin'ce deceased) was present; in her house, she was murdered by unknown person and one pair’of Jankiet & Rs 1 000/— have been stolen from her house Husband of the deceased namely Bechan Smgh (PW 1) was not present In his house, [he was Informed about the Incrdent then he went to the poiice station and lodged FIR tVIde Ex P—1 and merg Vlde Ex P-2 The,. Investigating Officer left for the scene of occurrence and after i i summoning the Witnesses prepared inquest over the dead body of the deceased Vlde Ex P 3 Spot map was prepared Vide Ex P 4 Dead body wasi sent for autopsy to Government Hospitai Khadgawan Dr S H , Shende (PW-8) conducted autopsy vrde Ex.P-1OA and found following injui'iés' (1) Incrsed wound of 9 c m x 2 5 c m (2) Bklckie caVIty and jaw were found cut (3) Tongue was .also cut t Injury was ante mortem and mode of death was shock Blood stained and} plain sorl were recovered from the spot vrde Ex P 1O During the course of Investigation the accused was taken into custody, he made , discloser statement of pair of anklet Rs 1 OOOI- & bloodstained shirt Vide EXP-6,. Pair of anklet & Rs.180/— were seized from the appellant Vlde Ex.P—7‘. Bloodstained shirt was seized from the house of Dev Singh at the instance of the appellant vide EXP—8. Rs.300/— were seized from Shiv Narayan Sahu at the instance of the appellant vide Ex.P-9. Bloodstained axe was seized from the house of the deceased. Shirt & axe were examined by the doctor vide Exs.P-12A & P-13A and the“ doctor‘opined that blood like stains were found on shirt and axe. Sealed ( clothes of the deceased were seized vide EXP-14. Seized articles were sent for chemical examination vide Ex.P-16 and presence of blood was confirmed on shirt of the appellant by chemical examiner, but same has not been exhibited by the Court. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, chargesheet was filed before the Court of Judicial Magistrate First Class, Manendragarh who committed the case to the Court of Sessions, Ambikapur from wherei learned Additional Sessions Judge received the case on transfer for trial. \l \g ii, m ' , .. X ‘@ g ‘ 5‘; In order to prove the gwlt of the accused the prosecution has examined ’ ' as many as eight Witnesses The accused was examined under Section y " i ‘ I 313 of the CrPC In which he denied the Circumstances appearing against _ him pleaded Innocence and false Implication In the cnme In question ‘76.. After! affordmg opportunity» of heanng to the parties learned Additional I _.SeSSions Judge ' conVIcted & sentenced . he appellant gas , 7. . ZWe g have heard learned consel or the parties perused the udment u f Jg _ aforementioned a , V l LirhpUgned and record of the tria . a l :8; tLjearned counsel for the appellant vehemently argued that conVIction of g 7 the appellant is based on circumstantial eVIdence ln case of conVIction 1V I I' based on Circumstantial eVIdence the prosecution is required to satisfy the followmgtests - 'V ' ‘ ghe Circumstances from which an inference of guilt is sought to bev drawn mustbe cogently and firmly established ‘ ‘ i j y a / those Circumstances should of a definite tendency unerringly ’f ‘ painting towards the guilt of the accused ’ I; l ‘ i ;;(,..,,v.t_ se?h m”maas“ the Circumstances taken cumulatively should form a Chain s ompletetha‘t there is no escape from the conclusion thatwlthihQl human probability the crime was committed by the accused an none else and ‘ 7 4. the Circumstantial eVIdence in order to sustain C0nViction must ft t, han that of the guilt of the accused and such eVIdence should no con5istent With his innocence ' 9 Learned counsel for the appellant further argued that in the present cas v the prosecution has collected eVIdence and has tried to prove th I _ followmg facts - ' a (1)3Earlier the appellant has committed theft of property from th house of the deceased ' ‘ ' (2) On the baSIs of discloser statement of the appellant one pair anklet and some curtency notes have been recovered from him 3)Anklet was identified by husband of the deceased Bechan Sin PW-1) as his Wife s ankl l Court V : o ; c l : ' i d ' V e e e; of; H ( g ( et ‘ ' / (4) The appellant has not offered any explanation lthat how h’ was n possessuon o such ankles 5)Bloodstalned shlrt has been recovered at the Instance o th appellant and presence of blood was confirmed on the same b the FSL In Its repor owever the prosecution has not proved the aforesard fact Even othen/vrse these crrcumstances are not sufFcrent for drawrng Inference that only the appellant has committed the offence and except the appellanz no other person has committed th offce. ‘ i l l . l l t 10 On the Eother han learned State counsel vehemently opposed the * appeal and submltted that the prosecutron has proved the Circumstances sufticreht‘for drawrng Inference that only the appellant has committed the I t offence and except the appellant no person has committed the offence 1 and same§Is sufFCIent for excluding Innocence of the appellant I ’ . 11 ln order to appreCIate the arguments advanced on behalf of the parties . ~ t,‘ I gt t Q l we have examined the eVIdence adduced on behalf of the prosecution \ i 12 ln the present case homICIdal death of the deceased as a result of smgle ‘ k fatal Injury found over Vital part of body has not been substantially n I 1 disputed on behalf of the appellant othenNIse also It Is established by r ‘ \ the eVIdence of Dr S H Shende (PW-8) and autopsy report Ex P 10A that death of Hlrmanla @ Bhagmanla Bal was homICIdal In nature k: 13 As regards complICIty of the appellant In the crime In question conVIctIon Is substantially based on Circumstantial eVIdence ln order to conVIct an l 1 m- A“. M accused on the baSIs of Clrpumstantlal eVIdence as held by the Supreme I‘ Court In the matter of Kusuma Ankama Rao v State of A P In case of r f, i to conVIctIon satisfy the based followmg on Circumstantial Circumstances eVIdence the prosecution Is required . ) ‘ Il‘ ‘ (I) the Circumstances from which the concluSIon of guilt Is to be drawn . ‘ should be fully established The Circumstances concerned must’ ‘ 1 ‘ ‘ or should and not may be established J a - I (il) the ‘facts so established should be consistent only with the é hypothesis of the guilt of the accused that is to say, they should i not be explalnable on any other hypotheSIs except that the i If ; accusedls guilty, ' ‘ e ,v I ‘1 -R ‘ 2008 AIR scw 4669 e i f t ( f e y t H s e en d h (iii)the circumstances should be of a conclusive natureand tendency; (iv)they should exclude every possible hypothesis except the one to be proved and _ (v) there must be a chain of eVIdence so complete as not to leave any reasonable ground for the concIuSIon con5lstent With the Innocence of the accused and must show that In all human probabllltythe actmusthave been done bythe accused ~ - ~ 14 ln the present case as argued above the prosecutlon has examined Shantl Bal (PW-5) — younger Slster of deceased, who has deposed that at the time of Dashera 'festival she went to the house of deceased Hirmania who requested her to stay on which she told that she’will not ‘ stay where upon the deceased told her that earlier the appellant has committed theft from her house and the appellant used to tell her that she told him ‘thief’, therefore, he Will cut her ie he Will kill her As per her evid§nce thisdiscussion took place probably in the month of August. 5: I» f 15 As per eVIdence of Bechan Singh (PW-1) — husband of the deceased on the fateful night he was not present in his house he was informed by other persons on which he came to his house where he saw the injured dead body of his wife Hirmania, he also searched his house, Rst1;OOO,/ & one pair of anklet were found missing, he went to the police station and lodged FIR (Ex.P-1) V& merg (Ex.P—2). ln para 5 of his cross- examlnation, he has admitted that the anklet was shown to him by the police inspector in the house of the appellant. His wife has purchased the anklet from Chirmiri market 16 As per eVIdence of Pawan Singh (PW 2) the appellant has made , discloser statement of anklet and currency notes Vide Ex P 6 and same 7 were recovered at the instance of the appellant Vide Ex P 7 Rs 300/- have been recovered from another person Sheo Narayan (PW 3) has deposed that police has seized Rs.300/— from him. Factum of discloser statement and recovery has also been corroborated by the evidence of Mahipai Singhv(Pw—6). 17.S.NV. Tripathi (PW-7) — Investigating Officer has deposed, that he has interrogated the appellant who made discloser statement of Rs 1 000/— A and one pair of anklet which was recorded as Ex P 6 Rs 180I- and one ‘ ‘ pair of anklet of ten tola were seized from the appellant He has also deposed that Rs.300/— have been seized from Sheo Narayan at the ‘n \ \ ;:’ V A n \ 6 @ instance of the appellant and he has also seized bloodstained shirt at the instance of the appellant. 18.The triall Court has arrived at finding relating to presence of blo'od stained shirt of the appellant on the basis of report of FSL which has been received by the Court on 9-3-2006 before examination 'of the accused, butthe aforesaid facts have not been asked to the appellant in his examination under Section 313 of the CrPC. Other evidence relating to presence of blood is not of conclusive nature. In absence of any question put to the appellant relating to presence of blood on shirt of the,“ l i appellant, as held in the case of Sharad Birdhichand Sarda v-. State of Maharashtraz this circumstance bannot be taken into consideration r against the appellant. at 1‘ 19. Evidence ,of Shan_ti Bai (PW-5) relating to previous incident of theft by the t appellant is of no use in athe present case. As per evidence of the prosecutt‘on witnesses, one pair of anklet has been recovered at. the instance of the appellant on the basis of his discloser statement and he . has explained relating to Rs.1 ,OOO/-. Rs.180/— have been recovered from the appellant. 20.As regards recovery of Rs.300/- at the instance of the appellant fromi‘: Sheo Narayan (PW-3), Sheo Narayan (PW-3) has specitioally deposed ‘ that the police has seized his money, inter alia, not the money of the deceased. " 21.Factum of recovery of pair of anklet at the instance of the appellant from his possession remains for consideration. Mere recovery of anklet-or any article by itself is. not incriminating evidence unless it is proved that same has been stolen from house of the deceased or that the appellant is not owner of the said article, inter alia,vthe complainant is ownerof, l. l such article. Although the prosecution has not conducted any- identification parade of such article, but Bechan Singh (PW-1) — husband ' ofthe deceased, has deposed in para 5 of his cross—examination he has ’ identified the anklet in the house of the appellant when it was shown‘by l . 1 the police inspector. This evidence is not admissible in evidence for identification of the article. Even otherwise, as per case-of'the prosecution, for’commission of robbery the appellant has committed murder and committed robbery of one pair of anklet of ten tola & ' \ .2AIR 1984 sc 1622 / / . 7 @ Rs.1,000/— from the house of the deceased. But as per inquest lreport EXP-3, silver chain of ten toia was found over the b'ody of the deCeased which was easily avaiiabie to the appeliant for commission of robbery/1‘ heft, but he has not taken the said article which clearly goes against case of the prosecution. 22.ln the present case, the prosecution has not proved the fact that pair of anklet recovered at the instance of the appellant has been stolen or robbed by the appellant from the house of the deceased. Presence of blood upon shirt of the appellant cannot be taken into consideration in the light of dictum of the SUpreme Court in the matter of Sharad Blrdhlchand (supra) The prosecution has not proved any other fact to prove commussuon of offence by the appellant i a. s ‘é 23 in these Circumstances Virtually, this Is case of no eVIdence and while i“ i L I - conVIctIng the appellant the trial Court has not conSIdered the aforesaid aspects and the fact that the prosecution has not proved any circumstance against the appellant sufFCient for his conViction. ,.ii‘, ii i‘ 24. For the foregoing reasons, the appeal is allowed. Cenviction & sentences of the appellant under Sections 449, 302 & 392 of the IPC are, y . hereby set aside and the appellant is acquitted for the said charges. Hef ' _ be sat liberty forthwith, if not required iWse. gt Sd/- R.L. Jhanwar Judge ' w a i l l l i i i i l , t