A-p^ HIGH COURT OF CHHATTISGARH, BILASPUR 5- ^3-T'/ CORAM: Hon'ble Shri Raieev Gupta. C.J, & Hon'bleShri SuniLKumar Sinha. J. Criminal ApReaLNo^ 601 of 1993 •» Faguram Vs. The State of Madhya Pradesh (Now State ofChhattisgarh) JUDGMENT For consideration Sd/- SunUKuniar Sinha ^ Judge I HON'BLE SHRI JUSTICE RAJEEVMPTA J ^L^T^ Sd/- ChiefJustice Post for Judgment : ^/07/2010 Sd/- Sunil Kumar Sinha Judge IF'! h ...sy^^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 601 of 1993 Faguram son of Dhaniram Rawat, aged 30 years, resident of village Vicharpur, P.S. Pandariya, District Bilaspur, MP. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) ADpearance: Mr. Goutam Khetrapal, Advocate for the appellant. .Mr. Kishore Bhaduri, Additionat Advocate General, for the State. JUDGMENT (fj .07.2010) Following judgment of the Court was delivered by Sunit Kumar Sinha, J. '*. (1) Appellant Faguram stands convicted by the Fourth Additional Sessions Judge, Bilaspur (Link.Court Mungeli), in Sessions Trial No. 67/90 on 12 June, 1993. He has been held guilty for commisSion of offences punishable u/ss 302, 201 & 392/397 IPC andsentenced to undergo imprisonment of life, R.l. for 7 years & R.l. for 7 years respectively with a direction tcyrun the sentences concurrently. (2) The facts,briefly stated, are asunder:- On 4.12.89 deceased Bhagela had gone to purchase she- goats. He was carrying Rs.560/-. When he did not return, his son Criminal Appeal No. 601 of 1993 Tilairam (PW-1) started his search. He received information thatthe deceased was in the company of the appellant in village Vicharpur. On 11.12.89, he went to village Vicharpur andthe dead body of the deceased was recovered from bushes. A merg intimation (Ex.P/28) was lodged. In the post-mortem, it revealed that it was a homicidal death. During thecourse ofinvestigation, on 17.12.89, the appellant was taken into custody and his memorandum statement u/s 27 of the Evidence Act was recorded and cash Rs.490/-, one lathi, some cloths and one pair of plastic shoes were seized at his instance. The shoeswere identified as theshoes of the deceased by his son. (3) Admittedly, there were no eye-witnesses and the c^se of the prosecution was based on the circumstantial evidence. Following were the circumstances, on which, the Sessions Judge relied and convicted the appellant:- (i) The appellant stated to Kriparam (PW-3) that he had seen the deceased in village Vicharpur; (ii) The appellant gave discovery statement, on which, the danda, shoes of the deceased and cash Rs.490/- were seized at his instance & (iii) The plastic shoes were duly identified by the son of the deceased Tilairam (PW-1). (4) Mr. Goutam Khetrapal, learned counsel appearing on behalf 6f the appeffant, argued that the above circumstances were not sufficient to hold that the appell^rit was the author of crime. The circumstances were not conclu'sive and were capable of-being explained. (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the SessionsCourt. Criminal Apueal No. 601 of 1993 (6) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) In case based on circumstantial evidence, the circumstances should be fully established and all the drcumstances should be of a conclusive nature, consistent only with the guilt of the accused. The circumstances so established should oot be capable of being explained by any other way except the guilt of the accused and thechain of the circumstances must be complete as not to leave any reasonable ground for the belief consistent with theinnocence of the accused. (8) So far as first circumstance is coneerned, Kriparam (PW-3) deposed that in Vicharpur the appellant met them and stated that he had met the deceased whohad gone onwards. How the above fact would be relevant for the purpose of holding him guilty. It may happen that the incident may have taken place after departure of the deceased from the company of the appellant. This circumstance o.nly established that the deceased was alive till he reached village Vicharpur and he had met with the appellant.It was argued that this may be taken as circumstance of last seen together. This argum&nt cannot be accepted because no witness had "seen" the deceased in the company of the appellant but the evidence of Kriparam was based on the information simplicitor, given to - him by the appellant himself. ^ . s^Jfc- (9), The other circumstance is the memorandum statement (Ex.-P/13) of the appellant which was recorded on 17.12.89. On thesaid memorandum, Rs.490/-, one /a / and some cloths belonging to the -•.v_- '.. -..., .'•, '' i^peHantwere seized by memo Ex.-P/15. Seizure of Rs.490/- was not at A CriminalAopeal No. 601 of 1993 all incriminating because such amount may be found in possession of the villagers. As faras seizure of lathi is concemed, though blood stains were found on the said article as per Forensic Science Laboratory report (Ex.- P/20) but in Serologist report, the origin and the group ofthe blood stains could not be identified on account of their disintegratiorj. Therefore, the seizure of lathi was also not anincriminating circumstance against the appellant. (10) A pair of plastic shoes, alleging to be that of deceased, were also seized vide memo Ex.-P/14 at the instance of the appellant. The shoes were in torn condition and were stitched at many places. In the year 1989, the plastic shoes, would hardly be of Rs.10-15/-. Why the appellant will take out the shoes of the deceased which were of no value, and hide it in a nala. The seizure of the shoes, at the instance of the appellant, therefore, appears to be doubtful. The stioes are said to be identified by the son ofthe deceased namely Tilairam (PW-1). The identification memo shows that 5 pairs of shoes were also mixed in the identification. Tilairam (PW-1) deposed that the seized ghoes were kept in the police station and thereafter the Executive Magistrate took them to his office. The shoes of his father were in torn condition, whereas, the other shoos were new and old^hoes. He could identify the shoes of his father because they were torn shoes. We furi:her note that neither in the merg intimation nor in the / police case diary statement (Ex.-D/1) this witness has stated about the shoes of his father. He has also not stated that his father was wearing the shoes and it was missing from the dead body. He has been called upon to explain this omission, but he could not explain it. For the foregoing .4. Criminal Appeal No. 601 of 1993 reasons, we doubt on the recovery and identification ofthe shoes held to be proved against the appeltant. (11) For the foregoing reasons, we find that the prosecution could not establish the guilt of the appellant beyond all reasonable doubts and the judgment and finding re&orded by the Sessions Court cannot be sustained. (12) In the result, the appeal isallowed. The conviction and sentences awarded to the appellant areset-aside. He is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be set at Ijberty, forthwith, if not required in any other case. Sd/- ChiefJustice Sd/- SunilKumarSinha Judge