sai ^ HIGH COURT OF CHHATTISGARJL BILA^PUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. Criminal-Appeal No. 120 of 1994 Buddhuram . Vs. The State of M.P. (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Suail Kuniar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA _} ff\^ Sd/- ChiefJustice Pbst for Judgment J./^ l^- yjar/2oii / -«». Sd/- Sunil Kumar Sinha Judge •(.'"^ "^. ^-•tf- as8& l HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal Np^ 120 of 1994 APPELLANT RESPONDENT Buddhuram son of Shankerial Dhobi, aged 39 years, resident of village Kapan, PS Janjgir, District Bilaspur, M.P. (Now Chhattisgarh) Versus The State of M.P. (Now State of Chhattisgarh) APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Appearance : Mr. Arun Kochar 85 Mr. Satish Chandra Verma, Advocates for fhe appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT ( 1.2.2011) Following judgment of the Court was delivered by Sunil Rymar Sinha, J: (1( This appeal is directed against the judgment dated 28th of January, 1994^passed in Sessions Trial No. 433/91 by the Third Additionat Judge to the Court of Sessions Judge, Bilaspur. By the impugned judgment, the^ppellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life and R.I. for 5 years with further direction to run the sentences ; ooncurrently. - '.l.-'^.' .^' ^t. '.^' "% i:^' Cruninal Appeal No. 120 of 1994 (2) The facts, briefly stated, are as under:- Deceased- Sone @ Hamarayan was resident of village- Kapan. In the night of 9.6.91 his dead body was found on the railway-track passing near the village. The raerg intimation (Ex.P/13) was lodged by his brother Sam.aylal (PW-2). In the merg intimation, it was stated that the deceased consumed Uquor on 9.6.91. Thereafter he did not return to his house. When.search was made, his dead body was found on the railway-track. It was shown in the merg intimation that it was an accidental death. The Investigating Officer reached to the place of occurrence, gave notices (Ex.- P/14 SE P/15) to the Panchas and prepared inquest (Ex.-P/S) on the body of the deceased. The dead body of the deceased was sent for post-mortem to Primary Health Center, Akaltara, where the post-mortem examination was conducted by Dr. M. Bhagat (PW-6). He noticed many external injuries on the body of the deceased. He found injuries caused by bicycle-chain on the right and leff scapula and right shoulder. He also noticed lacerated wound on the left knee. On intemal exaxnination, he found that there were depressed fractures over frontal and parietal bones. He opined that cause of death was coma due to head injury and it was homicidal in nature. The post-mortem report is Ex.-P/S. After about 2 months, the appellant was taken into custody. on 12.8.91 and his memorandum statement (Ex.-P/9) was recorded u/s 27 ofthe Evidence Act and an adze (basuZa) was seized at the instance of the ./_ apffeQant vide seizure memo Ex.-P/lO. Later on, statements of Lalkunwar (PW^-3 - mother of the deceased), Daoua (PW-5) . and Gyanik Das (PW-7) etc. were recorded. The prosecution came with the case that prior to the incident a quarrel has taken place between the son of the appellant and the : deceased.:The appellant, his son and many other persons c eame to the house of the deceased and asked about the ^ Criminal Aooeal No. 120 of 1994 deceased. The deceased was notin the house. According to mother- Lalkunwar (PW-3), they were armed with weapons and were searching the deceased. After sometime, the deceased retumed to the house, the mother told all this to him, on which, the deceased said to his mother that he has not quarreled with the son of the appellant and saying that he is going to the house of the appellant for telling all this, the deceased left his house at about 8-8.30 p.m. When he did not return for a long.time, a search was made and his dead body was found on the railway-track. The further case of the prosecution is that at the relevant time, Daoua (PW-5) and Gyanik Das (PW-7) had seen the appellant running away from the place where the dead body was found. (3) Following are the circumstances, on which, the prosecution relied:- (i) On account of alleged quarrel between the deceased and the son of th.e appellant, the appeUant and his associates, armed wifh deadly weapons, came to the house ofthe deceased; (ii) It was told that the deceased was not in his house, even then they made a search in the house; (iii) The deceased, after hetalkedWith the mother, left his house saying that he is going to the house of the appellant; When he did not retum, a search was made and his dead body was found on the railway-track; Daoua (PW-5) and Gyanik Das (PW-7) had seen the ••*»- appellant running away from the place where the dead body was found; 6s (vi) A blpod stained azde (basula] was seized at the instance of the appellant. (iv) (V)' t.-'-v;, \^ £'""%>.. ':-~"N l? Criminal Aooeal No. 120 of 1994 f°).. (4) The learned Sessions Judge held ttiat the circumstance No. (v) was not proved because the above witnesses denied and cu-cumstance No. (vi) was of no use as the origin and group of the blood stains found on basula could not be ascertained on account of their disintegradon. Tlowever holding the other circumstances proved, it was held by the Sessions Judge that the relations between the parties were inimical and the deceased left his house saying that he is going to the house of the appellant and he did not return back, therefore, the appellant was liable for punishment for the murder of the deceased. (5) Mr. Arun Kochar and Mr Satish Chandra Verma, leamed counsel appearing on behalf of the appellant, argued that none of the circumstances, referred to above, were proved by the prosecutioh. They further argued fhat even if fhe above circumstances are held to be proved, they may raise strong suspicion, but they cannot form the basis of conviction of the appellant. (6) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and sup^orted the judgment passed by the Sessions Court. '?»- '.„•~~s^' (7) We have heard tKe learned counsel for the parties at length arid have also perused the records of the sessions case. (8) Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a Criminal Apceal No. 120 of 1994 1»; case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and te.ndency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. Thisis what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt. (9) So far as circumstances (i) to (iv) are concerned, they have been held to be proved on the testimony of Lalkunwar (PW-3 - mother of the deceased). Lalkunwar (PW-3) deposed that the appellant and his associates had visited their house in the night prior to fhe incident. They were searching the deceased. They had met with his son Radhelal, thereafter they went to the house of deceased- Hamarayan who was residing separately. She called the' deCeased and told aU this, on which, the deceased left her house saying that tife is going to the house of the appellant to tell that he had not quarreled with ^s son. Samaylal (PW-2) is younger br.other of. the deceased. He also deposed in similar fashion and said that the deceased had left their house saying that he is going to the: house of-the appellant. He was also present at that time in >'-^ »« Criminal Aoueal No. 120 of 1994 their house. His mother- Lalkunwar (PW-3) was also present there. We find that after the dead body was found, the merg intimation (Ex.-P/13) was lodged by Samaylal (PW-2). Samaylal did not disclose such story in the merg intimation. He simply deposed that the dead body of his brother (deceased) was found on a railway-track. Even he mentioned the cause of death as accidental. The omissions of such important facts in the above first hand inforniation (Ex.-P/lS), was fatal to the prosecution. If, in fact, the appellant would have visited the house of the deceased, or he was searching the deceased with deadly weapon, those facts would have been mentioned in the said report (Ex.- P/13) lodged by Samaylal (PW-2). Samaylal categorically deposed that he was also preserit in the house when the deceased made conversation with his mother that he is going to the house of the appeUant. But nothing like that is mentioned in the merg intimation (Ex.-P/13), based on which, the F.I.R. was lodged. Therefore, the entire story relating to circumstances (i) to (iv) becomes highly suspicious. The learned Sessions Judge, in our view, erred in law in holding that the above circumstances i.e. circumstances (i) to (iv) were proved by the prosecution. (10) We ^iyther note that even otherwise also none of these circunistances were so inBigminating which could have forra the bAsis ofconviction ofthe appellant. The above circumstances were not fully established. They were not of conclusive nature and ^~^..."\ liiKi i.n;i vatti Criminal Appeal No. 120 of 1994 tendency and they do not point only towards the guilt of the appellant. (11) For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above circunistantial evidence and the judgment of conviction deserves to be set-aside. (12) Accordingly, we allow this appeal and set-aside the conviction and sentences awarded to the appellant u/ss 302 8s 201 IPC. The appellant is acquitted of the charges framed against him. It is stated that tbe appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- _ CfaiefJustice Sd/- Sunil Kumar Sinha Judge -*>>. •.'-v: