3N THE HIGH COURT OF GEATTISGA‘RH AT BELWUR. cmaman zinPEAL No. 735 / 2302. Mohan Singh Netam gon o£ Quatraa Netam by Caste Semi, aged about 20 years, residant on? Village Deccbnger, P. S. Farasgaon, Matt. )3 ast ar ‘ VE RSI $. State of Chhatti sga& , Through P. 8. Kanrfiag aon, 13:1. stt. B ast ar, C. G. cmmmAL APPEAL U/s 374(2) OF Er. P. C. i973, Bein .rievedb the ‘ud emaat smtéace an“; caniction 6ft. 13. 12. 2001 passed by the Thir& Addl. Session JudqgBastgir in S,T,No-, 335/206 lfppellent prefers in stent apgaeal on the following a’nonqst other gmunds:_ AP?ELL§€T. (IN JAIL) . . v i @ HIGH COURT OF JUDICATURE AT BILA$PUR (CHHATTIEGARH) wwwmN 3EN§H) CRIMINAL AWEAL Nc.335 $F 2G92 Mohan Sinqh Nefam . Versus v 5mm of Chhaffisgarh TJE$MENT FOR CONSIDERATI§N K/ l Sdl- L.C.BHADOO Judge M 10.20% HGN’BLE MR. JUSTICE V‘K. $HRIVA$?AVA § «JQV Sd/? V.K. Shrivatava Judge PO$T FOR JUDéAAENT ON O€?OBER £9G5 Sdl- L.C.BHADO Judge 3 §;. 102005 L O HI6H CGURT O? JUDICATURE AT BILA5PUR (CHHATTI5éARH) bwasian Bench": Hon'ble Shri L.C;~%had¢o and Hon’ble Shri V‘KR Shrivasmva, iJ, CRIhiINAL APPEAL No,335 OF ZGOZ Mchhn Singh Nemm Varsus 5+a+e cf Chhdfisgarh Pgesenf: Miss Sangeém Mishm, Advoca‘re: For ‘fha appeéiam. Shri Akhi! Mishm with Shri Ravindm Agrawai, Pane! Lawyer’s: Far The STaw/resnonden‘r. . JUDGMENT (Daliversd on ggl &‘Oci‘0ber, 2905) Thz feuowinq judgmenf ef fha Cgur-r was delivered by Jusfica L.£, Bhadeoi- 1. This appeal is directed agains? The judgmem dcn'ed 13*“ December 2am passed by me 3rd Addwomi Sessions Judge, gasm‘ m» Jagdaipur- m Sessians Triui No.335/2001 whereby The {earned 3” Addifivm! Sassians Judge affer hoiding the accused/appeliani' guih‘y far The mmmissicn cf The affence una'er Secfion 302 cf fha IP11, aen‘renced him m underga impriscnmen‘f for We. 2. The prosecu‘l'ion case, in brief, is ‘rha‘r on 8-4‘2QD1 Phoo! Singh Kormm} sarmnch cf 6mm Panchaya'r Kumharpura gave a reper? Ta fhe Palice Sfm'ion Kondagaon fhaf one Qasam- Tiwari has £afcrmad Mm +hm" ‘Hw’e dead body of some lady is iying in ‘i'he bed-river of river “Namngixand ‘i‘he head of ihe dead body has been undernem'h The @ R) sand. The Police regis’rered The merg infimafion (Ex-PA) The Inves'l‘iga'l'ing Officer reached +0 'Hne scene 01: occurrence. Affer gMng noTice To 1'he Panchas. Panchanama of ‘rhe dead body (Ex—W19) was prepared. The Invesfiga‘ring Officer Took info passessiorw one pair of Ladies ‘Chappni', broken pieces of bangies, biood smine’d soii as waii as plain sci! from fhe phce of occurrznce under Ex.—P/11. Whiie in ‘rhe Poiice cusmdy, '¥’he occuszo/appeiionf gave o memorandum (Ex-PIE) abouT The piece of occurrénce and in pursuance of T‘na‘r fhe accused Wok The ‘Invasfigwting Officer to “the piece of occurrence ano Tho men‘xomndum (Ex-W13) in This reggrd was prepared. The Alnvesfigming Officer got cio‘rhes of The deceased idenTifiea‘ Tram The moTher and faTher of The deceased under Ex.-P/1§(A). The EnvesTigoT5n9 Officer prepared T’ne séTe plan Ex.—P/19. The posTmorTem of The dead body was conducTed by The doeTor £n-charge, Primary HeaH’h CenTre, Kondagaon and he prepared The posTmorTem reporT Ex.-P/29. AfTer compTeTion of The invesTigoTion, charge sheeT was filed againsf The accused/appeHanT for The commission of murder of Geek: 3oi in The CourT of Judicioi MogisfraTe, i“ Cioss’ Konciogoon who in Turn commiTTed The case for Trio? To The $essions Judge from where The learned 3rd AddiTionul Sessions Judge, BasTar aT jogdclpur received The case on Transfer. 3. The prosecuTion in order To prove The offence ogainsT The occused/appelianf examined 17 wiTnesses. On The ofher hand] The sTaTemenT of The accused was recorded under SecTion 313 of The Cr.P.C. in which he denied The prosecu‘i'ion evidence and sTo-i’ed ThuT he i l is innocenT and he has been falsely implicoTeoi in The crime. Learned L AddiTionol Sessions Judge offer hearing The argumenTs of learned AddiTionol Public ProsecuTor and counsel for The accused, convicTed and senTenced The accused in The manner menTioned Sn The earlier ‘$t‘ parT of This ‘judqmenT. 4. We have heard Miss $angee‘m ’Mishm, learned counsel for fhe accused/cppeiion+ and 5hri Akhii Mishm wi'fh Shri Ravindm Agrawai, §earned Pane€ Lawyers for fine STam/respondent 5. A? fhe oufse'l', iear-ned counsei for 1'he accused/appellam' diti nc'f dispu‘i'e fhe fac? fna‘r The dea‘l'h of Eeem Ba? was homiéidai in namre. PW-B Dr, Smt 5, Nagvanshi, Primary HeaHh Cenfra, Makdi, has shied +‘ha+ she conducfed‘ gosfmorfem on The dead body of Geei'a Qui an 9-4-2961 and in he." opin50n, We namra of deaTh y‘ms homicidai "‘&f , €. Nowh coming ‘i'o fine invoivemenf of ihe accuse&/appeiian+ in ccmmming murder of ”ween Bai, ”rhe 2x15: judiciai wnfession muae b; The accu3z& has righ‘Hy been disbeheved by 1'31: fr§al Cour? a5 fhe confession is said +0 have been madz in The presencg of the pnlice! The accused/appellan? has been mainEy convic‘red on ‘rhe basis of we fad ‘Hqa'i' The deceased was seen wifh fhe accused jus‘t befere her dea‘i'h. Therefore; The whole case resfs on The circums'l’an‘riaf ' evidence and "there is no ocular evidence in i’his‘ case. In arder Te comic? fhe accused on 'i'he basis of circumsmnfiei evieence, es per $he sewed £aw iaid down by #he Han’bie Apex Cour? in The ma‘r'rei‘ of NEsAR AHMED V$. STATE OF QIHAR repor‘red in AIR 20m Supreme Cour? 24m Le. in a case based on circums'ranfini evidence, before The Ccur‘!‘ can record ccnvici'ion, if mus? saiisfy frsehc fhei“ circums'rences from which an inference of guiH' couid be drawn have been esmbiished by unimeeechabie evidence iea’ by The prosecu‘iion and Thai ail +he circumsmnces pu'r fogefher are no? cniy cf a canciusive ncd'ure .bu‘i’ aiso comple‘i'e fhe chain so fuiiy as 1'9 unerr‘ingiy pain? f0 ihe guii‘i’ of accused and are no? capabie of any expionaiion which is noi- consis'ren? wi'i'h fhe hypothesis of ‘i'he guii'r of 1'he accused. 7. In comic-ring +he accused on The basis of las'i' seen} in The ma'rier- of Bodhraj aiias Bodha and others vs. Siam of Jammu & Kashmir repented in (2092) 8 SCC 45 fhe Hon'bie Anex Cour‘r has held fhai’: » N; g: AL 4 Q‘g “The ks? 5am thaar‘y comes info phy where The 1'ime gap befween 141a pain? sf fima when fke accused and The deceased were seen ins? dive fogefher and when The deceaseé is founa' dead is 59 smali, fhm‘ possibiliiy of any person o‘Pner fhcn The accused being 'fhe aufhor' cf fhe crime becomes impassibie; The Hon'bie Apex Cour-1r fur?her heid The? éT wouid be hazardous Te come T6 a conclusion of guiH‘ in casee where there is m a'i'her/ posifive evidence 1'0 condude The? fhe accused and fhe neeceased were ins? seen Toge'rher.“ e Similarly in The ma‘H‘er' of Subhash Chcnd v. Sn‘re of Rajas‘i’han reported in (20%) 1 56C ?02 The Hon‘bie Apex Cour? has heid fhm: £ “Les? eeen foge‘l'her mus? be new“ abou‘i’ fhe dgfe and ‘igime of fine incident Mereiy on The basis of has? seen, Yhe occueed persons cannof be heid gum.” . 0n “the basis of ihe above principle if we examine ihe prosecui‘ion evidence in This case, moiniy in fhis regard mere are 2 wimesses produced by fhe prosecufion. PW~12 Sangeefa has sfm'ed i'hai' an 4%" March 2001 she wen? f0 The morkef of viiioge Rodhno one in the markei she me? wi’rh ”aee‘m. She asked her i'na‘r ie‘i us go for wearing bangiee. Affer' wearing fhe bangies, fhey a‘l-e some snacks in The marker and fhereaffer Geek: informed her fhaf she is going 1o Fqrqsgqon in «order i'o aber‘i’ The chiid which she was carrying. She also informed her The? she wiii be going aiong wi‘i'h Mohm and “thereafter she rammed ?o her hcuse. In para-5 of i‘he cross- exammwrion, she hos coi'egoricaliy s‘i'a‘i'ed fho‘i she had no? seen Manon. She‘hos' given evidence oniy on 'rhe basis of ihe sfo‘renien‘i mode by 6mm before her. She had no? seen Geek: and Mohcm going ‘i'ogefher, Therefore, on +he basis of fhe evidence of +his witness i‘r connoi' be said Yho'i' she sow ihe accused end deceased Toge‘iher. Moreover, she hos smfed fho? 'rhe dofe was 4*“ March 2001 wher s The dead body of Gee‘ro was found in ‘i'he bed river of river Norongi on 5-4-2Q01‘ Therefore, in View of The above fact the §vidence of Sangee‘i'a is of no use. 9. Nex'r evidence is ef PW-l’é Harishr who has smwd ‘rhm aT The Time sf ‘rhe incidenf he was working as driver of Up Sarpcmch Beikunwar- Prad‘nun. In ‘rhe evening; he came from Kaneagaon 1'6 Farasgaon and he was smnding “there far going To Chowk Radhna. He knows Eeem um +he accused bo‘i-h anti he saw fhem sfanding near Emma +raiiey, ni' Yha‘r *ime a iuxury coacH bus came and Geem and the accused boTh "* bearded fhe bu: which wen? *owar'da Jagdalpur Thereaffer he wem o his nouse and hex? tiny he wen? 1'0 Rmpur for repmrmg The Jeep sHe refurped affer' 20-25 days and he came xo know abou‘r The incident 10.In view 0f The !aw Mid down by The Hon'bie Apex Court as mentioned abave, The evidence 9f This wiTness is aiso 51‘ ne essisTance To The prosecui'ion. He has noT 5Ta‘fed anywhere The dafe when he saw The accused and GeeTq TogeTher as; The deed bady of 5eeTn was found in The bed river on 8-4-2001. Mareover, he has sTaTed ThuT (Seem anti The accused were sTanding near Benana Troliey, The bus came There and boTh of Them boarded The bus. No inference can be drawn frcm The faci- ThaT mereiy sTanding near The bus s'mnd and hoarding The hue TogeTher, ThaT The deceased had gone wiTh The accused, as genemiiy The bus is meanT for aii The passengers who used To Traveiby The bus. He has noT sTaTed in ciear Terms ThaT deceased 6-eeTa and The accused were Taiking wiTh each oTher and The accused Took GeeTa along wiTh him. Moreover, iT is noT dear from his evidence ThaT, ThaT was The Time jusT before The deaTh of 5eeTa. in The crass-examinahcn, he has sTaTed ThaT he has noT disciosed This facT To anyone ThaT he saw The accused and The deceased TogeTher There. Oniy on The basis of This evidenee The accused connoT be connecTed wiTh The murder of Eve'eTa Bai wiThouT TurTher‘ corroboraTion by any iegai circumsTanTiai evidence. 1i. Conneg‘Hng ’Hw amused wi’fh fhe crimg on fhe bwis cf {#31 $een ‘rheor'y mus? be so Thai" ‘rn'ere shouéd no? be possibiii‘i’y of mee‘i’ing of :Phird parser: befween The ’rimelwhen 1‘he accused and The decaaseé were ins? seenrfogefher- and commissian 5f crime. The above evidance 6f The prOEecuTion does no? Sfand up To The 1331' iaid down by ‘rhe Hon'b‘e Apex. Caur‘r c'md fhere is no ofher evidence which mnnac1's fha accused wi‘i'h ‘i'he murder; af Geek Eai. Accordingiy, we are cf The considered opinion 1'ha1' 'rhe finding of me 1‘r‘iai Cour? is no? based nn V '5 any lega! end ciinching evidence, as such same came? be susfaéned. lain The resuH, The ripped} is wowed. The convicfien and semence pqsSed qéainsf “the accused are $e1' qs§de. He i$ acqui‘H’ed 6f “the charge under Sad-ion 362 of fhe IP41. He be 52111:? iibery forfhwifh \‘3\ i éf no? required in any o‘rher case. ‘1’ Sdl- Sdl- i V.K. Shrivatava L.C.BHADOO Judge Judge 40-2065 Barve yQMLk-m-zOiE 3g