@ WW,W,W m m§ygzgt$gg3gi m WW (W) WW WW him J No.105912001 a Bai, W/o Phoolchand, Age {l5 yearé, R/o Gram Dudhm‘ya, —- Baikunthpur, Dismct Koriya mmm Criminal Awe APPELLANT Hirond1 about ‘V Thana (QG‘) RESPONDENT ~ APPELLANT S/o Ramchamn, Age about 3O /o Gram Dudlmiya, Thana ~ hpur, District Koxiya (C.G.) RESPONDENT Chattisgarh, through Police I Baikunthpur, District Koriya CRIMINAL gPEALs ulg 3'34 g2) OF Tam conE 6F CRIMINAL PROCEDURE D.B .: HON’BLE SH L.C BHADOO, J, &_ ON’BLE BHR! SU IL KUMAR INHA J. L.C. Bhadoo, J:- Shri Abhay Tiwari , C Bai (Wife of the deceased). W m h R t ' , f RI H o £13 WW,W,W W 200 Wm (W) mm'm WWW ’ mwm 2 mmiffg‘am.r‘ $w‘mm Shri‘Akhjl Mishra, Panel Lawyer for the State in both the I Criminal Appeals. Heard. Since both these 'appe&s are arising out of same S.T. ‘ No.267/2001, they are being; disposed of by this. common a u i ’ judgment. The accused/appellants have prefened these appeals £ questioning the legality and ewness of the judgment dated 04.10.2001 passed in S.T. N .267/2001 by the learned Firsts Additional Sessions Judge, hpur, Korea (C.G.) whemby, the learned Additional Se sions Judge after holding the accused/appellants guilty o the onence punishable under Sections 302j34 and 201 of the IPC, sentenced each of the accused/appellants to under o impn'sonment for life and one year rigorous imprisonment. However, the third accused — Bahaj was acquitted. The case of the cution in brief is that the accused/appellant r — Hiron ia Bai is the Wife, whexeas, ngh is the son-in-law of the deceased —,Phoolchand and Bai used to reside together in , accused/appellant — Basant fe — Manmati (daughter of the of Phoolchand, wrapped in a i accused/appellant -Basant deceased —- Phoolchand. accusedlappellnnt — Hirond village -— Dhudhaniya, wh was residing along with his b 7 ‘\ deceased). On 26.5.2001, H,i / n C B t p e T i e i s y WW,W,W due to multiple memes of ribs and stab injmy on the abdomen. He prepared pos11;ort6m report (Ex.-P/22-A). The 1 istgreti under Ex.P/ 23~A. After compleu'on‘ of the investigation, charge sheet was Eed against the thlee accuse persons 1'11 the Court of Judicial Magisu‘ate First Class, Filst Information Report Was hpur, District — Koxea, who in e Sessions Judge, Sarguja, from tuln committed the’case to where learned Additional Ses ions Judge received the case on transfer for trial, "I‘he prosecuu'on in or to establish charge against the accused persons examined __1 wime'sses. The statements of the accused persons were record d under Section 313 of the Code of Criminal Procedure, in hich, they denied the material appearing against them and tated that they are innocent and have been falsely implicated ’ the crime. After hearing the c learned Additional Sessions accused persons as aforemen tioned. We have heard Shri Abhay Tiwari, Counsel for the appellant — Hirondia Bai, SI 1t. Shubha Shrivastava, Counsel for the appellant — Basant and Shri Akhil Mishra, Panel Lawyer for the State. After hearing learned :ounsel for the parties, we have perused the record. el vfor the respective parties, ge convicted and sentenced the g B ' t d o J s d m Hi 200 W m (13W) m 111%m WW ulna? § 13‘2?W Z! a? aim a1??? WW,W,W m m nunu.u...."u“......n.......................:....“i 200 Wm (W) mWi;Wtfm-gn %31Tatm1%?r In this case, there is no ocular or dixect evidence to connect the accused/appellants with the crime in question and convicu'on rests on the circwnstantial evidcnce. As per the settled law, in order to rest conviction of an accused based on the circumstantial evidence, ‘ the prosecuu'on is mquired to establish the following points in View of the decision of the Apex Court rendered in the ma smte‘ow.3. r ' Ltter Dhananjny Chuucdec —Vs- 4‘ 2 sec 222, which is quoted “In a case bas t on circumstantial evidence, the \. circumstances nnm which the conclusion of guilt is to be” i rawn‘have not only to be fully established bu also that all the circumstances s‘o established hould be of a conclusive natuxe and consistent only with the hypothesis of the guilt of the ccused. Those cixcumstances should not be c pable of being explained by any other hypothes s except the guilt of the accused and the ch‘ of the evidence must be so complete as’no to' leave any reasonable gmund for the belief nsistent with the innocence of the accused. I needs no reminder that legally established c' umstances and not merely indignation of e court can form the basis of conviction and the more serious the crime, the‘ greater should be the care taken to scrutinize the evidnce k mmmmn ai e l proof." ~ e. 9 W3? 3am, m, @3 mmm (p‘ WW Ts€1W %ai1%mwlé¥r the prosecuu'on has uied to In the 'pmsent case, e accused/appenants on the establish the , crime against basis of following cimumstanc s : 1, Accused — Basan made exua judicial confession before PW-l —’ Rag unath and PW-4 — Mandhari. 2. Deceased — Phool ingh remained missing non: his house since 19.5. 001; his body was recovered on 26/5/2001. Aocu W ed] appellant - Hirondia Bai did not disclose this fa ‘ Accused — Himnc gave memorandq she got recovereq from her house q while in police cq Ex.P/ 9, in puisua spear and Bamb‘ Ex.P'/ 10. First Circumstance So far as this circm Raghunath has stated that N He was informed by Dhansai Thereafter, he along with F there, saw the body and gave taken out of the Nata, Body ‘\\to the police. Body was \\ Lct to anybody. lia Bai While in police custody l. r1 (EXP/5), in puxsuance of that a blanket and gn'nding stone Elder Ex.-P/6. Accused — Basant stody gave memorandum under nce of that, he got recovexed one )o club n‘om his house. under nstance is concerned, PW-l - 3 is the Sarpanch of the Village. about the body lying in the Nala. ajbal, Ramsingh, Shivbal went Dehati Merg Intimation (Ex.P/ 1) \7‘330,000. mm a1 200 3mm (new!) I « WW,W,W Wm (W) 4*, asaimm Ident$ca1ion Memo (Ex.Pl4) was prepared. In para 10 of his evidence, he has stated that cuseti— Basant has not made any extra judicial confession fore him. He stated that Basant disclosed to all the person that he threw the body of Phoolchand He disclosed same Where the Police was investigating the matter On nquiry by the Police, he stated ‘ that grinding stone was use for attackmg on the chest of f the above ev1dence of this hoolchand. Therefore, m v P 1 witness that accused/app k L t m1 Basant made extra judicial, coxnfession in presence of the olice‘is hit by Sections 25 6r. 26 of the Evidence Act and the e is not admissible in evidence. 3 of his evidence has stated that accused - Basant made extra judicial confession before him that he along with Balraj and Himndia Bai threw the body of Phoolchand in a drains cross-examination, this'witness has stated that at that time, ,lice was at a distance of 15 ft. Police was investigating hum the atening them. He stated that Mandhari (PW-4) in p and continuously for 3 days; persons in the village, after the Police persons also assa ted the villagers. Therefore, on account of police fear, ace sed - Basant made the said statement; he did not disclos anything voluntarily. in View of the above also, the evidence of this witness regmding extxa sible in evidence. Therefore, the judicial confession is not ad ‘v- r- \1907 —3o,000. \_\ L c e e s I o e 's @ m 1n 200 m mmm 8 WWdfgétm $31'Fcmm “W( &1ding of the trial Court regaxding extra judicial confession cannot be sustained. Second Circumstano As far as thi missing mm his houx was Iecovered on 26.5.2001 in the Nala, but Himndia Bai did not disclose this fact to anybody,':this is a very weak type of cimnlnstance. Merely on this evidence, Hirondia Bai cannot be connqcted with the crane in question. Momover, Manmati (PW- 7-daughtcr of the deceased) has'categorically stated that his father used to practice Witchcraft. He used to remain outside the house for 10- 15 ays. When the deceased used to remain outside the house fo 10- 15 days in connection with his work of witchv’craft, it is n t expected that Himndia Bai would have suspected the death f her husband and that she deliberately did not disclose 's fact to anybody. Therefoxe, this circumstance is of no use to connect the accused: Hirondia Bai with the cn'me in que tion. Third Circumstance So far as this c' cumstance that accused — Himndia Bai gave memorandum ( x.—P/5), in, pursuance of that, she got ~ xecovered one b Basant gave memo WW,W§,W Wm (WW) circumstance that the deceased was e since 19.5.2001 is concerned, his body t and grinding stone and accused — dnm (Ex-P] 9), in pursuance of that, he WW, mm, W mm in 200 mm (W) 3amna§aa§w 9 ‘ WWW nmmm WW WW éwffawm Shyna concerned, these are 1 has been mentioned blood, but them is no blood and that too Therefore, on the basi s’of these recoveries, accused] appellants — Hirondia Bai and Ba sant cannot be connected with the crime in question. Accordingly, the hnding of the trial Court connecting the accused pemons with the crime in question 4 based 9n xecovery of e articles cannot be sustained. Virtually, there is no evidence available on record to connect the accused/ ppellants with the crime in question. In the result, th appeals succeed. The conviction and sentence imposed upo the accused] appellants under Sections 302/34 and 201 ofth IPC are set aside. It is stated tha accused — Basant is on bail, therefoxe, his bail bonds are d to be in detention sin e 29/5/2001. She is in detention since efore, she be set at liberty forthwith if arged. Accused - Hirondia Bai is said more than 6 years, 0: he common items found in the house. It that the said articles were stained With FSL report that the blood was of human of the blood group of the deceased. r h i not required in any o er caser ~ ”J Sdl- Sdl-‘ é L.C.BHADOO Judge sunil Kumar Judge