C. J. P. R./1-9) rf- *1 A-/ ^•^ ^•A:.-'''- CF0000057856 ;A '' .^ 's •l' ,No. •^^ i'- 'v' Naiae / Father s name -r "\ l.'—E5pi^-3-T?w ^B'.-?-^ --; .- ^ i'y ftl: \ ^* ftAiS^^ .3^3\^a^ .^i^^—s^Tt^s^-5?^TY^^;=^—Sj-ri7- T7iT ?-,<--4 ^~\ •}j v\{~'^''^~] / Seotenced to -^YT^yT^y ^gTyqi <^ :| Under Seetion ^v-'i7!', -f ^'r-ii. c's ^T^^T _^'^ 'l&', -,.^ /-,. ^WW~(S,\^ • G ). ^...t •3>&^j^'\ti l') by;^ c:___ _.,_ _^_' , >*i-t7T^^'y\^^ •i-A'^p?°n1!1^2; li^-^-'-iUa^ l.3 ^ Tt is explained to the prisoner that if he states he wishes to be represented by a .legal pfactitioaer the appsllate Court will not prusid witli the ca-;e fjr ws-i diys uateii rhs legal practitioner appears earlier. If the legal practitioner does not appear within seven days he may not heard at a!f. iftbe prisoner states that he does not wish to be repre- seated by lega! practitioner the court may proceed at.oace with the csse and will not be obliged to give a heariog to any legal practitioner who should appear. J. ^^t)ate of Application for copy ofJudgement s- Ji •St^1; <-"! ^,3 <-2'1 Date on which copy received 3 Date On which Appeal sent Uzll^lA^ \n\f;^ 4 Whether the prisoaer wishes to be represented er Aot. s-.- r No. Coafinea in [^-^c|^^ • Name >\>i < ^i»;_-sTt__^:i_^_J^i ^ r\ • - Jail atit^<-['->i-S.^_. 'J -P-S|. f2 ^ ^^!lp!s^^ Forwarded to the , , ^ o r. -^ • , ^. 'STi^-l>^Ft:.'^-°>-ii;>;'t; ^t-tti.^ -'••»-^ c-'"t(''~'Ttc5-^[—;3:^.c-^[p-)^'^• W gether with a copy of judgemeat or order passed ia tb& case fbr favaur 6f iwaBsmission to the proper Appellate court. ^h Date cf Date of Memo' of al to the AppeIIate court XI-HC-22 •s-s? ^{piRp?, s^frOTs, 1N?irey .ly.:&...{£2Us. an^l^l 1STW 311^1 ^)^t^l ^fs^ 3IRW?'R[TqT'Hl^T 41'lliri'fl-i tIPRTf ^ ft^t ^1^R3R ^? sifen aii^i r!:?:t!E.:itSa!iSS ieNr. Mrs. Kiran Jain,counsel:forthe ^ppetiant. Mr,, G.K. Beriwai, Deputy Advt>cate Generai with Mr. A!ok Bakshi, •Govt. Advocate forthe State/responde(it~ Orai judgment. Criminai Appeal No.1626/1994J to the murder of Balmukund arisingj Criminal Appeai No.710/200S.filed b^ murder of Ratan arising out of the $essions Triai No.47/93 and Crimina Appeai No.729/2005 fited by the sam of by this common judgment, as ttie! filed by accused Amar Sai pertaining out of the Sessions Trial No.49/93, the same accused pertaining to the accused pertaining to the murder of P.hulbaso Bai arising out of the Sessi<j>ns Triat No.48/93 are being disposed ridence in all these three cases is simiiar and all the three murders 6f B^lmukurid, Phuibaso Bai & Ratan were committed at ihe same time, at on® iaimukund, alleged to have been comtnitted by accused/appellant Amar Sai. 3y these appeals, accused/apjpeliant Amar Sai has questioned the legality of the judgment of conviction 4nd order of sentence dated 24-9-1994 passed in Sessjons Tria! No.49/93 p^rtaining to the murder of Balmukund, !so ihe judgment of conviction anc) t'iudament of conviction and order of Sessions TriaiJMo.48/93 pertaining to Additipn^i Sessions Judge, Ambikapu place, at the residence of deceased order of sentence dated 29-9-1994 passed'in Sessions Trial No.47/93.pei|taining to the murder of Ratan, and the sentence dated 28-9-1994 passed in '»"<! |the murder.of Phulbaso Bai by the 2' i', wherebv ieamed Additiona! Sessions Judge after holding.the accused/aripeilant guiity for the commission of [•qT^ifigit s 1 XI.HC-22 -+- f ^& ^-g'^raiw, SII^IT*! t^ee'snt^ ^i^fi^ "^^ Baa'a—ia ^^g^?g;S£ ^E:J;(S;..;tli3 -^ an^f'^Rirar ^ftg onence "uhcter "Swtion 302 of ~iM I.P.C. sentenced~ him to undergo imprisonment forlife jn each ofthese^sionstriai. The case of the prosecution, i' ^pTi^i^t'S *ff*i<nf ^ f^^ ^•^.K ^isriiaitsn^i ,th n brief, is that on 20"' January, 1992, Sudhu Das gave a merg intimation jnSPolice Station: Batauli that on that day •on the information given by Kotwar B^kharam to the effect that one person is lying dead in the courtyard courtyard, he went upstairs of the hou & Balmukund, there were iniuries on , he_ went to the house of almukund and saw that the dead i^ody of Ratan Korwa was lying in ttie fee and saw the bodies of Phulbaso Bai |the parietai region, eye brows & face, a sharo edged weapon. The Station Hoiise Officer rec4>rded the mera intimation Ex.P-1. He the ini took up the investigation and left fo the scene of occurrence, where hs prepared the Panchnama of the d^ad body of Balmukund Ex.P-2, the j Panchnama of the dead body of Rat^n Ex.P-2, and the Panchnama of the dead body of Phulbaso Bai Ex.P-2; ^fter giving notice to the Panchas. He j also took into possession one quflt sfained with blood, plain soii and biood stained soil from ali the places of occiirrence. Requisitions were sent to the j . ' 1 ' Primary Health Centre, Batauli for coi|iducting post-mortem on the bodies of Baimukund, Phulbaso Bai & Ratar^. Dr. Vijay Kumar Mishra (PW-6) •conducted post-mortem on the bodie^ of Balmukund, Phulbaso Bai & Ratan and prepared the post-mortem report ^if al! the three bodies. The site pian of the piace of occurrence was alsc^ prepared. Durlng the course of investigation, accused Amar. Sai, jwhile in.the Police custody, gave' information regarding the place wher^ he conceaied the axe.the weapon of 1 offsnce, and in pursuance of that, aee^used Amar Sal got recovered the axe. The blood'stained articles were sent to the Forensic Science Laboratory, Sagar for examination, from where th4 report was received in which the axe, [^t^ <p^^ - 1 :i'ls>-l!agss XI-HC-22 sn^T'^r f?:ii??3n^i 9tl^i^ -W^ \. •- \; ^q -^nqRR. "g^RT'IS, 'f'i^IRISI' "C'1 21 aii^t TBiigT T"ftg 4>i<<ii"t'!il-) iwi-if'? 'fe^A tfsnere ^T 3]P!PT S[lt?I j Dhoti, Banian, quilt and blood stain^d soii were found to be stalned with biood. ! After completion of investi^ation, separate charge she.ets in connection with each murder were fll4d in the Court of Judiciat Magistrate, 1 Ctass, Ambikapur, who in tum comn^itted the case to the Sessions Judge, Ambikapur, frpm where, the 2" A^iditional Sessions Judge, Ambikapur, received the case for trial. I - Th.e prosecution in. order to ^stablish charge against the accused examined.as many as 16 witness^s in each case. Learned Additional Sessions Judge a!so recorded the sDatemeot of the accused under Seciion 313 of the Code of the Criminai F3|rocedure, in which he either pleaded innocence or dented the prosecutioit evidence and further stated that the >rosecution witnesses are liar, he has|been implicated In a faise case. Learned Additlonal Sessions Uudge after hearing the arguments of Additiona! Public Prosecutor and cdunse! for the accused, convicted and sentenced the accused in each of th^ sesstons triais as mentioned in para 2 of thfe iudament. We have heard. Mrs. Kiran J ?in, leamed counsei on behaif of the ccused/appeilant in ail the three at»peals and Mr. G.K. Beriwal, !eamed -.A! behalf of the State/respondent, rs. Kiran Jain, learned coui ok Bakshi, iearned.Govt. Advocate on sel for the accused/appeliant did not ispute th^ fact of homicidai nature o^the death of Balmukund, Phulbaso Bal & Ratan. Apart from that, from the e^idence of Dr. V.K. Mishra (PW-6) who conducted the post-mortem on the b4dies of ali the three deceased persons and-fr^m the evidence of Sudhu Das,! Devkaran fii Bokharam It is established .that the death of Balmui(ynd, Phuibasb Bai & Ratan was homicidal in natu.re. [lil^^gq . :SI-HC-22 ^•^•BiraRpi, ergtws. f«i5ii<Hli< sn^i^ii RTWST^Ti 5CTH;WB?1 sil^l^RllwgfN. ^ these three murders is concerned, iea| argued that whole case reste on ti circumstances namely, (1) the deceai the accused before their death; (2) tl house of Balmukunci. after the commi^ these three murders based on thess accompanying the deceased persons ^Pfeqh tIFraf-q fezt •^fSRSTi: ^T 3if;g!i sn^f the accused/appellant ih committins I'ned counsel for the accused/appeliant ne circumst'antial evidence i.e. three ped persons werelast seen alive with accused was absconding from the |sion ofthe crime; and (3) the weapon of offence, the axe, stained with b!.oo<( was. recovered at the instance of the accused. The prosecution has not b^en able to connect the appeltant with circumstances, be.cause there is no evidence on record that any of the p!|osecytion witnesses saw the accused on the way from the house of Derang 1 to the house of Balmukund, further, th^re is no evidence that the prosecution ivitnesses saw accused Amar Sai in the house of Balmukund in the fateful niaht where the dead bodies were rojind. She aiso araued that in the first i instance the fact of giving informatioi j informatlon is also not proved and and recovery of axe Jeading to that Ifurther that there is no-evidence of 1 Serologist to the effect that the bloc^d, which was found on the axe, the weapon of offence, was human blood. On the other hand, Mr. G.Kl General with Mr. Atok Bakshi, leafr judgments ofthetrial Court, It is admitted positidn that w!1ole case rests on the circumstantiai evidence, as there is no direct and oci] 'order to convict the accused based ori ned Govt. Advocate supported the ilar evidence In ait the three cases. !n the circumstantial evidence, the Apex Court in the, matter of Dhananjoy Ch^tterjee vs. State of W.B. reported in (1994) 2 9CC 220 has held that: | - [4'B^Rgit -33 'aTpiRTq, "g^tWts, feTRIgt 311^1 qi! f?;iJ?;S!Ti?I wqh?^f??T W':SS»'W^S: ': '^^•'i^^s^^^ sqi^I'SBITW^fttl <ti<i!i*i'!{l-f ^MvS 4 'fs'et <Fat!;it ^; a'fiaii sii^i "in a case .based on tircumstantia! eyidence, the cireumstances from whic?i the eonclusion of guilt is to be drawn have not onl^ to be ful!y established but also that all the cireymstences so estabiished shouid be of a conclusive natur^ and consistent onlywith the hypothesis of the guillof the accus6d. Those cireumstances should |not be capable of being explained by any other ^ypothesis except the gujlt of the accused and the chain of the evidence must be so complete as not to leav^ any reasonable ground for the belief consistent ^ith the innocence of the accused. it needs |no reminder that legaily estabiished circumstanc4s and not merely indignation of the court can form th^ basis of conviction and the more serious the crime care taken to scrutinize the greater should be the the evidence lest suspicion takes the ptace of proof."j Now, we shali proceed to ex^mine the evjdence adduced by the prosecution in order tp establish' prosecutioh.has adduced evidence tcj p;harge against .the accused. .The p.rove the following eireumstances in to connect the accused with the •three murders a.' that, ihe accused was last ^een in the company of the deceased persons when they were ali'«|e; b. that, theaccused was absclonding from the house of Balmukund after commission ofthe crimt c. that, the weapon of offenjse, the axe, was recovered on the informatlon of the accused diven under Section 27 of the Evidenee As far as the theory of last seer| is concerned, law is well settled. The matter of Bodhraj ^I Jammu ^ Kashmir reported in(2002)i "the theory of last seen] SCC 45 has he!d thafc comes into piay where the •trm9-gapTSeWBerTtne-pojra6nime-\ivneri-'EDe-accusei^-^^ "I^T U; .i:''i.l--MtL--. ^^•Bira^pi, ^nwre,•isRirey sn^i^i fN3?3<i^!?I ^TT?a' 311^1 ^RiTW:'HittT qirafepN imaf •? 1^(zt wn?R -^ t~ ^a'PaHan^i seen last aiive and when ths is so smai and the deceased werel deceased is found deacj any person olher than i|ie accused being the author of the crime become^" impossible. It would be hazardous to come to g conciusion of guilt in cases where there is no other bositive evidence to conciude that the accused and ihe deceased were last seen tosether." n the matter of Subhash Chahd vs. State of Rajasthan reported in :rkrv' tww 702, the Apex Court ha "To. constitute evidenc^ of !ast seen together, the evidence must definitelV permit an inference being drawn that the victim ^nd the accused were seen ; together at a point of tirfie in close proximity with the time and date of commi^sion of crime." Again, in the matter of State of Karnataka vs. M.V. Mahesh reported 353,-the Apex Court |ias held that: "Merely being seen last (ogetheris not enough. What has to be established done to death of which aware as also proximatsj convicting an accused based on the required to ascertain from the iegal )etween the point of time when the heid that: in a case of this nature is definite evidence to iniBicate that Beena had been ^he respondent is or must be to tne time of being last seeri together." Therefore, as per the above la|iw laid down by theApex Court, before |iast seen to.gether theory, the Court is clinching evidence that the time-gap Ueceased and the accused were seen the deceased must be so ctose and the guilt of the accused can safely be (ning of any third person in between the iast together alive and the death of] proximate that an inference .regardin^ drawn and there is no possibility of co( last seen together and the death of th|e deceased. There'must be unerringly clinching legai evidence that should p^int only towards the invo!vement of the '•^s* [•^^fi^ ; j XI-HC-22 ^:>' ^g ''iipn^ra, '^aftpTS, t^iray an^r^i fetisi'S^t *t<i«h'Hfg'tI SiI^tTCTWB^I 7!- ••»iiftiii V.KKS accused in commission of murder. F:prther, it is unsafe to convict a person based on the iast seen iheory unl^ss theJast seen coupled with other circumstances is indicator of the fact cnme. aecused aloni his son.went for to his house and requested him to listening to the Bhajan, accused Amaij his wife Phuibaso Bai and Khamar +l<li?<41-< -WRff •? 'fs^t ^tdK' ^; sif^n 3iit?r that the accused is the author of the Now, based on this principle, if ^ie scrutinize the evidence avaitabie on \g to whose hij)use the deceased persons and the ithe purpose of treatment, has clearty stated in hls evidence that'deceaseiS Balmukund, his wife Phuibaso Bai, iccused Amar Sai, his son and one ^nother person namely.Khamar, came enchant the reiigious Bhajan. After Sai, son of the accused, Balmukund, left for their houses. Similar is the evidence of Khamarthat hewaswith tjie deceased persons and the accused was at.the residenceof Derang. In p^ra 6 ofthe cross-examination, he has stated that he along with deceased Palmukund, Anandi and elder son of Amar Sai returned to hls house and blmukund ieftfor his house, thereaftei when he was Informed by fhe Kotwail Next day morning, he came to know taken place in Tongipara. At the time he along with Balmukund and Basant he went to the scene of occurrence. This witness has not eyen stated that ^mar Sai accompanied them. Witness Chanda has also stated that he went tja the house of Derang, as he was not keeping weii. At the house of Deran^, Navratri programme'was. going on. ^bout the fact that some murder has |of dance, at the residence of Derang, ^vere present, accused Amar Sai aiso came there and the uncle of Amar Sai |vras saying that they have come there for taking treatment for Amar Sai. Oti^er witness Balmukund has stated that his wife was'not keeping well, therefcjre, he alongwith his wife went to the hpuse of Derang where dance ahd|song was organized, thereafter he i_._-^?* _j___-__^:, •,-_ '_, - [Tf^ ^ks!4 XI-HC-22 ^sr ^[piRTa, 's^sn?. feroy sn^i^i 'feti?;.®!!^! 'aniR?-<lf%g K' ^atiis sn^i'g^nw^ritg returned to his house and the next Salmykund, his wlfe Phulbaso Bai & ^fflfe4t^ '^Tft^f -^ •^T^-^f^SR ^sriigqaii^i jday morning he came to know that Ratan are murdered. .Whether Amar iai was at the residence or not, he Itad no information. The' evidence of tokharam is to.the effect that accusec| Amar Sai was residing with his uncie laimukund since last two days and momina ofthe date of inddent in whicH While applying the above prins] order to convict the accused in the d e a the accused was a^sconding since thethree personswere murdered. jiple laid down by the Apex Court in {rime in question, if we look into the jecution, it is established that on the prsvious evening of the date of incid^it i.e. evening of 19 January, 1992, the accused and.the deceased persojis went to the house of Derang and ieft the house of Derang after ^/atehing the dance and listening the ihajan. There is no iegal evidence 0(1 record to estabtish that the accused iccompanied the deceased persons t^> the house Of Balmykund and as per record, the distance between Derang'^ house and the house of Balmukund, where the dead bodies werefound, is|about 1 % kms. There is no evidence to the effect that anybody saw the accjjsed in the company of the deceased persons on the way to the house of th^ deceased or in the house where the murders were committed or'in the neaijby vicinity in the fateful night when the incidenttook place. | Therefore, based onthe above ^vidence when there is no evidence to the effect that the accused was seen ^/ith the deceased persons on the way when they were coming back to the hjouse of Balmukund and also that the iccused was seen in-the house.or in ttje nearby vicinity in the fateful night, in such a situation based'on the abovfe evidence, it is'difficult to draw an inference based on fhe iast seen theo|y that the accused was the author of the ghastly murders. In order to conitect the accused with the murders on _^^_ [^^rt la 3-HC-22 ^^ ^IWict*!, '^ftffH?, 'B?TR?3? S^qil ft-ti'* ss^t %nN?^H<^' sn^CTTRnwaf?? .^ ml* . ui« ^i4^<ft^ 'i^Rc^ ^ i^t ^?sH '^siPtpTan^i j the basis of las{ seen theory, as hasj been held by the Apex Court, time between when the accused and the d^ceased were seen iast together alive antj the death must be so close and ^roximate that inferenGe regarding the juilt of the accused can be drawn ancj there is no possibility of coming any third person in between the. last s?en together and the death of the deceased. We are of the consider^d opinion that merely because the accused was residing with Bai'mukund] since last 2-3 days and on the. fatefu! evening the accused was with the d^ceased persons at the rssidence of Derang which was at a distanee of 1^4 kms, from the place of occurrence, based only on this evidence, the ac^used cannot be connected with the murders without corroboration of thi^ evidence from any clinching iegal evidence which points towards fhe iinvolvement of the accused in the commission ofmurders. It is true'that the accused was jound missing from the morning of the date of incident, from the residence jof Baimukund, where the crime was committed. But.merely on this ground, looking to the facts ai circumstances of the case, the acclised cannot be connected with the heinous crime, as there is no evidenjse on record that the accused came along with the deceased perSons to th^ house of Balmukund after leaving the. residence of Derang. Merely bec^us^ of the absence of the accused from the place. of occurrence, no infer^nce can be drawn regarding his involvement in the crime. The accused was arrested from his house on 24-1- 1992. Therefore, possibilitycannot b^ left for his house after taking treatment) ruled out that the accused must have at the hands of Derang. .1: In the matter of Akhilesh Haja|n vs. State of Bihar reported in 19! iCC (^ri) 883, appeltant Akhiiesh Haj^m was charged vyith the murder of his own mother, sister, wife & daughter, jcharge against him was that he after -^a._.^_.^ „ L._'._ [Titt^firt XI-HC-22 ^-g •^]^]ct<4, •^gtwrs, sn^i^T fB^waii^T ^[wgTig :^^::-fl^.: sn^i^aTwgfer committing the murders absconded Irom his house, ancl^the evidence was that he was not present.at house ^nd was seen going towards Viiiage: Tumba which was oniy one mile av|?ay from Village: Dehlabad where the occurrence took place. The Apex Co^rt held that from the evidence it cannot be jnferred that fhe appeilant had a^sconded after the occurrence as the appeiiant was found in the viliage it^lf from where he was taken by some one ofthe witnessesto the house and VII Sjmilarly, in the present cas^ |e on 24-1-1992. If he h.ad any ialmukund cannot be taken as a cirt the crime in question, because in the ^^<?l4t-ri *il^<vll* ^ 'f^st if^i^K ^i-srfsgti 3i^[ detained. , the accused was arrested from his intention to disappear or abscond after committing the crime, he could have teasily disappeared from his villageand remained absconding and he shodld not have remained at his house. Therefore, the ground that the accjjsed disappeared from the house of umstance to connect the accused with irst instance, there is no iegal evidence that Amar Sai went to the house of paimukund from the house of Derang, there is no evidence that in the fatefjjl night the deceased was seen in the house of Batmukund or in the vicijtity of Balmukund's house, and after committing the crime in question,] occurrence. Moreover, as per the prosei he absconded from the place of ution case, the accused is the reai nephew of deceased Balmukund wht> said to have brought the accused to his hpuse for treatment and the pros^cution has not been able to show any motive behind committing the three niurders by the accused. It is true that it is difficult to know the motive of an acjsused person, but where the case rests on circumstantial eviden'ce, motlve p lays a vitai roie. As has. been held by the Apex Court in the matter of Surejsh Chandra Bahri vs. State of Bihar . / reported' iri AIR 1S94 SC 2420, sorrjetimes motive piays an importani role [•cil-s^Rg^ B XI-HC-22 x ^/ ^Ef ^nqRR, ^itWS. ^"IRTgt sn^i'qii ;-il?ti dilj 'g?RR;^ire(! sn^t-RaiWHftti •^Tife^ItiFf?if'? fe^t Xfa^T!: i? 3!{5<n an^i and becomes a compeljing foree to] commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something, which prompts ^ person to form an opinlon or intention to do certain iltegal act or even a t.eg^l act but with.illegal means with a vlew to achieve that intention. !n a case )n?here.there is clear proof of motive foc the commissjon of the crime it afforps added support.to the findlng of the Court that the accused was guilty for the offence charge with. But the absence of proof of motive does not i|ender the evidence bearing on the guilt of'the accused rionetheless untrustw<trthy.or unreliable because most often it is only the perpetrator of the cilime alone who knows as to what circumstances prompted him to a fertain course of action leading to the commissiQn ofthe crime. As far as recovery of the a^e at .the instance of the accused Es concerned, even if it is accepted thatjthe axe was recovered at the instance of the accused, such axes are norm^lly found in every house in the vil!age side. In .order to connect the accuse<j) with the crime, based on the recovery of the axe, it was necessary that thejprosecution ought to have got the axe examined by the Serologist and the 3 and proved that the ax'e which was r^ was stained with human blood, that t< lerologist's report must have'been filed povered at the instance of the accused jio the biood was of the blood group of the deceased persons. Only the rep^rt of the Forensic Science Laboratory has been filed in which the Laboratoryj has given the opinionthat the axe was stained with blood, whether it was hluman blood or other blood it has not been mentioned. Therefore; without ihe Serologist's report to the effect that the biood, which was found on the axje, was of the same blood group ofthe de^eased persons, merely on the S^asis of the recovery of the axe, the. [^^git Xl-HC-22 <Hi^i c?'.i ft'=ns; •sffi^ gmRT:aft?[ ^^:^?ggii3l aoms ?5? ••-'WW^, •?-c(RpI3, ai^r-FRi1WTfte ^NcPfrT •WTCS •?fS'Zt'i^SR i; 3Tfs<ra sir^i • iccused cannotbe connected with fie murder of Balmukund, Phulbaso Bai Ratan. Therefore, in vi'ew of the t there is PQ through which an ihfererice of guilt murder 6f Balmukund, Phulbaso Bai ^oregoing disCussion, we are of the legal clinching circumstantial evidence i)f the accused connecting hjm with the & Ratancan be drawn. tn view of the foregojng discijission, the judgments of conviction and orders of sentence passed by the ttjial Court in all the ihree sessions triats mentioned in the second paragraph <i>f thisjudgment cannot be sustained, as legal clinching circumstantiai evidence urder of Batmukund, Phulbaso Bai & the conviction is not based on anyj connecting