^n^r^r'f^iNT TfsiT ^R^T'»)^1<^ V. ® d-^[ "4i^l^<4, ^Tti^'tcS, fs|<7!)|-y^< —...^.A ^lNdl 'sh^lcb -^ 200) 3^?T tCTSE (^?^^r) '^iT^R ^c[ <3?l^[ CriminaljAepeal No.419/2001 APPBLLANT Ramldayal, aged about 27 years, s/o Dha|ranipal, r/o viU^e Rakya, P.S. & Tali^il Baikunthpur, Distt. Korea (C.G) RESPONDBNT (c.q Sta CRIMINAL APPBAL u/al Aopearaace: Smt. Renu Kochar, ccj Smt, Anju Ahuja, De^uty D.B.: HON»BLBSHtU L.C. BHADOO. J, 85 L.C. Bhadoo, J:- appeUa|at (1) The accused fhe legaUty & correctaess sentence dated 21.4.20011 Judge, Baikunthpur, ia learaed Addl, Sessions gmlly for commission of I.P.C., sentenced him to c^l^f<*l4l JTO^ '^,'fe^ ifa^R ^^fOT^i^?T .) Versus of Chhattisgarh 374(21 OF THE CODE OF CMMINAL PROCBDURB •unsel for fhe appellaiit. Govt. Advocate for fhe State HON*BLB SH^I SUNIL KUMAR SINHA. J. OfeAL JUDGMENT (20.08.2007) has preferred fhis appeal chaUengmg of judgment of conviction aad order of passed by the First Additional Sessions feession Trial No. 154/2000 whereby the JiJLdge after holding the accused appellaat |the offence pmiishable u/s 302 & 201 ^ndergo imprisonnient for life aad R.I. for Jijidgc as XI-HC—78 3^q- ^l'qi^^, ^Tll-M^^, fs|01^< Nl*4dl *Nlcb ..C^.:.Ai.:...^..0:. •^ 2QQ\ 3^t?r XF^F d4^<^) s^f^ f^iicft TPH •STT^T 5t)^icr? ^^TW^f^T ^STl^T tihjis yeen one year respectively whereas the charges u/ss 147, 148, 3021 leanied Addl. Sessions Judg^, Budhraoi, Paras, Daulatram, Jelc punishable under section 147J section 201 read wifh sectionl Prasad and Sitaram have also u/s 201, 302 I.P.C. (2|| The case of fhe prosecutiojn the momiag of 21.1.2000 alongwifh witoaess Bhagwaa D^ brmging goat ineat froxn fhe res accused Raai Dayal (present ap^je] aad others were present. Jugadjh started quarreluig aiid fhey ia^ haads. On askiag by Naau, wife ofJugadhir about the iacid^i house Suhkni Bai, wife ofJugad^ij enquire froia Rajaraai. Rajaran^ Chhunni and one aaofher coiiuin have kept fhe body of deceased Rosnaiacha Saolia was lodge<{ whereby fhe nussiag report was] report, fhe enquiry was started ftte whereabouts of Jugadhir. q <^(^?<r<4l ^nH^f ^f^^ iF^^K IfT 3TfiR-3?niRT accused appeUant was acquitted of 149 & 201/149 I.P.C. However, the acquitted tiie other co-accused ^vaalal & Shivbhajan of the offence 148, 302 read with section 149 & 149. Similarly, fhe accused Radhika acquitted ofthe charges offence :adltur, ^mftir |n, m brief, is fhat at about 9 a.m. ia lugadhir Paadey (siace deceased) is had gone to viUage Rakaiya for (idence of Chhaua Rajwar where the jeUaiit), Budhram, Rajaram, Chhunni piir, Ram Dayal, Chhunni & Rajarain lulged ia fhe marpit with lathi aad raa away aiid mfonned fhe ^nt, When Jugadhir did not retura to ^iir went to viUage Rakaiya ia order to replied fhat Budhrain^ Rain Dayal, ^nitted raurder of Jugadhir aad fhey ^oinewhere else, The niissiag report by Bhagwaa Das on 24.1.2000 jentered as Ex.P.llC. Based on fhis py fhe Police Baikunfhpiir to search |uring fhe iavestigation, the accused Bh^gwao^das idbir XI-HC—78 ^cxT ^jl^l^, ^Tll^Ko, fcf^K-l^ ^FR?IT 9b*il<3h CA;A:.:..; ••^ 200^ 3ii^r ^-gF (^f^^y) ^n^T^T'f^w 'cTSH 3T1^T"5FRW ^; ^^TW^rf^T 37i^[ were taken iato custody aad we^ Raia Dayal @ Naahu gave committmg fhe murder ofJugadp but as fhe body stuck with fhej fhe body was tied wifh fhe hel] canyiag goods by fhe viUager^ ffarown ia the Gej taak. Notice| aad ia fheir presence, the iave^ aad fhe body was searched sailors with fhe help of harrows^ with fhe two heavy stones weighp offheSika Ex.P.25 was prepare^ persons. The club was recover^ gave ineiaoraaduin Ex.P.15 i.e. fhe weapon ofoffence and tih|< The clothes of fhe accused along wifh a Danda and fhe under Ex.P.20, clothes of Shivt accused appeUaat was seized with blood was seized ia front seized at fhe uistaace of fhe was prepared on fhe body of postmortem examination to where Dr. Ashish Karaa D. K.Chikanjury conducted fhLej <^i^i<n<i1ri 'RTH^f '^\fe[^ ipsi^K '^3ff?FT3?T^T t*e taterrogated, on which fhe accused memoraadum Ex.P.16 fhat after igadjhir, fhe body was fhrown in fhe river, ibushes ia fhe river, fherefore, again of 'Sika' (net of fhe rope raeaat for wifh heayy stones aad has been Ex. P.12 was given to fhe witnesses ^tigation Officer reached to fhe Taak aj|id taken out from fhe taak by fhe It was found fhat fhe body was tied reig4mg 30 Kgs., each, The seizure memo at fhe iastance of fhe ofher accused ^d aad fhe accused Rain Dayal also reg^rdiag place where he kept fhe knife kaife was recovered under Ex.P. 17. DaiUat Ram were seized under Ex.P,19 clollhes of the accused Paras were seized ^hajan iinder Ex.P.21, clofhes of fhe u|nder Ex.P,23, fhe head hair staiaed ^f the house of Baldeo, one club was acc|used Jeevaalal. The iaquest Ex.P. 13 [deceased. The body was sent for Conlinunity Healfh Center, Baikunfhpur, I.W.8) aad aaofher Doctor Dr. postmortem and they noticed 3 XI-HC—78 T^[ "4)-q|0-q, ^T{1'y41<0, fcl^Wy ^^ ' ^li^i ?ET'f^li^ ^T'^^T^fe L-. e^-A- ^l^dS ^bNlcib' WI, 3?i^?T '^ll^ (lid'H^<^) I^iW^^'^I^T ^i^?^N ^OT^Jf '^^'fe^t ^fa^R ^^fOT^I^l injuries ou fhe forehead, aa i|icised wound on fhe fi*ont of fhe head aad two iajuries on fhe left sicj e of fhe forehead, one lacerated wound on the nioufh, one lacerated ^ouud on fhe right padetal area iii size of 2" x W x W which was obli|q[uely placed, a long iacised wound over ab^lonien exposiag viscera anj deeply mjurmg to lever aad ^ deafh was shock resultiag froj to abdoinuial iajuiy aad fhej prepared the postoaiortein rep^ sent for cheinical examiaatioj Sagar, froin where the report found on fhe knife as also on! After couipletion of the iavestij d iatestmes ia size of 13" x 8" aad tomach. He opiaed that fhe cause of ai multiple iacised wounds mamly due deafh was homicidal ia nature. They >rt vide Ex.P.9. The seized articles were a to fhe Porensic Science Laboratory, 5x,P.47-A was received. The blood was |the shirt aad fuU paiit of fhe accused. ^ation, charge sheet was fUed agafcast 7 fhe offences punishable u/ss aad 201 read with section accused persons including fh|e present appUcaat for comiaission of 147, 148, 302 read with section 149 149 I.P.C., in the court of C.J.M., BaUkunfhpur, who in tura cc^ininitted fhe case to Sessions Judge, Sarguja, froin where fhe lean|ied Addl. Sessions Judge received the case on traiisfer for tdal. (3) The prosecution ia ord4r to estabUsh ffaie charges agamst the accused persons examined accused persons were recordecj accused denied fhe charges| 6 witaesses. The stateinent of fhe u/s 313 Cr.P.C. , iawhich each ofthe framed agaiast hini aad fhey also examined two defence witaeslses naaiely Gambhir Sai (D.W.2) aiid XI-HC—78 '• ' •sgi^T ^rr "^i^ ^^i ^j^T'^^^' ^—»w ~3^Sf ^|^|0q, ^'M'|fi, fc!<7'»l-M^< __ .....,.....^.:..^.:.. •WTW -^q^ -••"--•-----^"'•••••/•"••""-"••"•^200 a^i^T ^i^ (4C<?1<^^) ^ 'i^TW^^^l^^T Rajkumar Chauhan (D.W. 1)| cnmiaal case pendiag agaicjst offence u/s 394, 354, 307, 4^( crime register were produc^d sl^owiag fhat fhe accused wa{s cases. Sesslion (4) The leamed Addl. fhe parties, acquitted aU fh^ levelleved agamst fhem, appeUant u/s 302 & 201 IPCj (5) We have heaid SmtJ Sint.Anju Ahuja, Deputy Gov^: n0 flle alfeo (6) Smt. Renu Kochar, fhat ia fhis case, fhere is been convicted inerely on mstance of fhe accused as knife at his iastaace. She at fhe mstaace of fhe accuseld same set of evidence; fhe ofh^i (7) On the ofher hand, judgment of fhe trial Court. (8) We have scrutinized evidence available on fhe ^pifeNhi 'RTR^f '^^f^si' <M^I< ^^RrH^n^r both are the police personnel regardmg fhe deceased for coinnussion of fhe .0, 380 & 458 I.P.C. Even the copies of vide Ex.D-lA, D-2A, D-3A & D-4A iavolved m certain number of crimiaal Judge, after hearing fhe coiuisel for ofher accused persons of fhe charges hojwever, convicted fhe present accused |as aforesaid. Re^iu Kochar, counsel for fhe appeUaat aad I:, Advocate for fhe Sate. le^raed coiinsel for fhe appeUant argued ocular evidence aad fhe accused has basis of recoveiy of fhe body at fhe fhe recovery ofweapon ofoffence Le., fijirfher argued fhat even these recoveries have not been estabUshed aad on the i^r accused persons have been acquitted. leamed State Counsel supported fhe |the judginent of fhe tdal Court aad tris|l court record. In fhis case, there is no XI-HC—78 T^^TRT^T, ^TQyKS, fs)^l^^< -^, HMv\i **<!<* .^^.-;. ••^ 200\ 3TT^?T ^^ (1iQ2^S^T) ^^y\ RTii.<=h TT^T ^^ sh^jch ^TTW^ftn'3TT^r ocular evidence aad fhe accuse^ on the recovery of dead body aa| witiaesses have turaed hostile. fliat on the occasion of Chhert^ cftl^i<yt^Tr1 ^l<-f<yll* '^^f^'St ipsl^K ^stfnTTa^T appeUaat has been convicted based ti fhe kntfe. In fhis case, most of fhe P.W,1 Rajaram, has simply stated festival, goat meet was prepared at the residence of Naachhaua whejre he alongwith Bhaiya Ram , Devlal, Maabharu were present aad tltie accused persons were not fhere. P.W.3 Cougress Ram has also body of a person was taken nobody had disclosed fhatwhc body was taken out froia fhe a stone tied wifh fhe body. Nol led hostile aad he has stated fhat it froin fhe Gej taak. On the site, fhe body is lying. He saw fliat the which was a male body. There was ly disclosed at fhe site fhat whose body was fhis. P.W.4 Kadain I^unwar has also turaed hostile. He has stated fhat he does not kao^ about fhe quarrel or dispute. P.W.5 Maabharu Raia has also turaed hostUe. He has stated fhat deceased Jugadhir never came to the viU|age Rakaiya, P.W.6 Bhaiyaram has also tumed hostile. He has statjed fhat he saw no body ia fhe vitlage Rukaiya. P.W.7 Devlal has also| does not know Jugadhir. turaed hostile. He has stated fhat he (9) The prosecution has tde^ accused based on fhe following 4 (i) That fhe dead bod^ instaace of fhe accl GejTank. to estabMsh fhe criine agaiast fhe ircumstaiitial evidence. of Jugadhir was recovered at fhe iised appeUaat Ram Dayal froin fhe XI-HC—78 3^€T^IAjl^, ^»Ti1'yjl<S, fsf(y'»I<-1ll,< >ft> <3TI^T ?FT f^rli.<^ TT^T'S^T 5h+li<^ ^Wvi\ *Nlch t^L^. A/t<^ ._ _„ . ^................^.4.:..........4.v..4...............^ ^O'l 3^?r ^^F (^f^^) ^'Wi^R <M^a 3TT^T (ii) That fhe weapon o^ shirt staiaed wifU recovered at his ias1 (10) As per ffae settted law, m based on fhe circiunstaatial estabUsh fhe foUowiag poiats Court rendered ia fhe matter t>rder to rest conviction of aa accused evijdence, fhe prosecution is required to jia view of the decision of fhe Apex Ohctnaniau Chcstteriee -Vs- State pf W.B.2, which is quoted below: "In a case based circum.staaces fron4 drawn have not oxite all fhe circuinstadces conclusive naturel hypofhesis of th^ circunistaaces shoildd by any ofher hypotpies aad fhe chain of not to leave anyl consistent with fhe reniinder fhat legal^y inerely indignation conviction aiid fhe should be the carel suspicion takes fhej (11) Now we shaU proceed to] ascertam as to whefher fhe pr^ fhe coinpUcity of fhe accused Jugadhir based on fhe circuinst^ntial ' (1994) 2 SCC 222 chl^I<n4lrf 'RFI^f ^f,f^1[St <Fa1<^K '^'3^TR3?T^T offence Le., Knife aad full paat aiid the blood of fhe accused were ance. on circumstaatial evidence, the which the conclusion of guUt is to be ^ to be fully estabUshed but also fhat so estabUshed should be of a aad consistent only with the guilt of fhe accused, Those not be capable of beiag explamed •tpiesis except the guUt of fhe accused evidence inust be so coinplete as reasonable ground for the belief linnocence ofthe accused. It needs no estabMshed circunistances aad not lof fhe court can form fhe basis of Iniore serious fhe criine, the greater Itaken to scrutiaize fhe evidence lest jplace ofproof." tlie scnitiaize the evidence ia order to d>secution has been able to estabUsh in. the conmussion of fhe inurder of evideuce. XI-HC—78 '© ~3:SS( ^i-qi^^, ^>Tf|y<|<o, fs|<rl>iy^< ^T^T ^T f<'li<=h TT8?T 'STT^T $h^ict) (:. i{Wv\\ *^|eb CA.;A-Jil<5 "^ 200^ 3^?r ira^ (ll^?l<s<<^) ^^R ^rf^r 3?r^r <=M^(<n^1'i +ii*i<yif 'fif,f^^1 <p3i^i< '^'3TRR3T[^T •4 (12) As far as the recovery of ti|ie body ofJugadhir at fhe instaace of fhe accused is conceraed, fh^ (P.W.15), Sub Inspector, has st^ted fhat whUe ia poUce custody fhe accused gave memorandum (E^ A perusal of fhis ineiaoraaduin fhurab impression of fhe accu^ decision of fhe Apex Court Investigating Officer, D.P. Mishra, t.P.16) on 29.1.2000 at about 1 p.m. ^hows that fhere are no signatures or |ed on fhe nieinoraaduni, As per the fhe matter of Jackaran Singh^ Affoellcmt -vs' State of Pw^^b2 fhe absence of fhe s^natares or fhumb impression of the accu|sed on the memoraadum statement renders such stateinent unrellable aad ia Para 8 fhe court fhe Supreme Court held fhat fhe ^bsence of the signatures or fhumb impression of aa accused on ftjie disclosure statement recorded u/ s 27 of fhe Evidence Act detractsl or his fhuinb impression memoraadum becomes suspic| Jaltm Siagh has been examiae€| materiaUy from the authenticity aad reUability offhe disclosure stat^ment Therefore, on the basis offhe above decision offhe apex Cou^t, siace fhe signature ofthe accused is not fhere on Uie disclosure nieiaoraaduin(Ex,P.16), fh.erefojre, the reUabiUty of fhis disclosure ous. One of fhe witaesses P.W.ll regardiag fhis disclosure inenio aad Shiv Lal has not been examme<|l. Jalim Smgh is none-else thaa the nephew of fhe deceased. How jhe went to fhe place is not disclosed aad fhis witaess is a witaess t) aU fhe recoveries from most of fhe persons. He is a resident of ^illage Jagdishpur. How fhis wito.ess 2AIR1995S.C.2345 XI-HC—78 3^cT ^WW^, t$Tft'MI|(S, [s|<yl>l^^< _.......;<A::.^;... Nl^dl *^leb --•-•••••— •••••••l-1"-^---""--^ 200 1 W^ ^[^K (^f^<^T) ^^ ^T f^Tii.<=ti 'cT^TT -3:TT^T 9t)+li<=h ,^.. ^^TW^rf^T^TI^T Daulfctram of Jugadtlir (all fhrbwn atid fhetn noljiody reached to fhe conceraed place i|s has stated fhat fhe accused accused persons Budhraoi, committed the murder aad stated fhat fhe body was stuck wifh fhe bushes, fherefore), Prasad, Sitaraoi, Jeevaiilal, took tyiag wifh fhe some ofher stick Gej tank, thereafter he took ftirown. The other witaesses, hostile aiid have stated fhat and from where fhe body was Officer D.RMishra has also ineinoranduia Ex.P.16 aad Gej Taiik aad after searchiag by body could be detected. In discoveiy of facts pursuaat to was prepared, only aa inquest E^ been mentioned that fhe body w^ by fhe accused. (13) From fhe facts emergm| prosecution has utterly failed Ex,P.16, accused exhibited fhe as to its existence at a particul^r said fhat as per fhe evidence of <=hN(<rt<fll Hl^<;ll* '^\'fe(^ <P»i<^i< '^3tRW3?T^T not disclosed by fhis witaess. He 4isclosed fhat he along-wifh ofher l^.tram, Radhika Sitarain, Sliivbhajaa of fhein have been acquitted) in the river, However, the body e|, he along wifh co-accused Radhika l^ut fhe body froni ffaie river and after stone, fhey fhrew fhe saoie ia tlie to fhe place where fhe body was |as nientioned earUer, have turaed poiated out fhat at what place ijecovered. P.W.15, fhe Investigating stated fhat fhe accused gave tiie accused took fhem to the |sailors wifh fhe help of harrows, fhe case, no seizure ineiao regardiag iofonnation given by fh.e accused :.P. 13 was prepared. It has no where ^s recovered froxn fhe place disclosed ia fhe evidence on record, fhe 1:0 estabUsh fhat by ineinoraadunx Iknowledge or fhe niental awareness place aad ffaerefore, it caanot be fhe prosecution the accused had tlie fher^after thih ftfie XI-HC—78 10 ~3^ ^WW^, ^Tfty^l^, fst<y!>|^^ 'W^IT ^FRN? •••-— ••"•-••••••*••••/...................^ ^OO^ W^?T XT5RF (^f^<^T) ^ ^n^T ^r f^'iich ^STT 3TT^T $t)^i<^ ^^TW^fipr 3ff^r kaowledge about fhe place frc such, for fhe foregoiag reasons fhat fhe accused have fhe ka< dead body of Jugadhir was reco Therefore fhe findiag of ftie fhe iastance of fhe accused raeiaoraaduin of co-accused R^ on 27.3.2000 by the 1.0. ^XL which object was produced. As Ipie prosecution has failed to establish jiwledge about fhe place from where ^ered aad saine was iaforoied by Tiim. trial| Court fhat fhe body was recovered at cannot be sustamed. Even fhe ^dhika Prasad was recorded (Ex,P.14) fhrowiag of fhe body m fhe taak. regardlng (14) As far as the recoveiy ol iastaace of fhe accused is Ex.P.15 said to have been givei not bear the signature of the has been held by fhe Apex C< (suprd^ fhat on account of impression fhis docunient d^ reUaace caii be placed. In fhis after attackiag the deceased Paras, Shivbhajaa, Daulatram, taak aad fhe kaife was fhro\| recovered fhe sauie. In seiziirej fhat fhe kntfe was seized on Dayal. It has no where been iu|< 17 fhat froni where fhe accuset the 1.0., to get the kntfe reco^ <n<fl'i ^i*i<nt '?,'fe(st 'tf^f^R '^'^ifOT^TT^T fhe kntfe, weapon of offence, at tlie jonceraed, fhere is a memoraadum by the accused, fhe same also does Lccused aad on fhe saoie principle it >urt ia fhe inatter of Jackaran Singh >sence of fhe signatures or fhumb >es not iuspire confidence aad no document, it has been mentioned fhat ^ifti katfe, he along wifh Jeevanlal, Bodhrain fhrown fhe body ia fhe Gej m ia fhe said taak aad he can get nienio Ex.P. 17 it has been nientioned )eiag produced by fhe accused Ram mtioned ia fhese ineinos Ex,P. 15 & P- brought fhe knife aad where he took ;red. Even though fhe 1.0., P.W. 15 11 XI-HC—78 3^5T -A||^|0<q, ^Tfl^<l<o, ts)01-y^< *41*4dl *^leb .^.:A:. W^ 200 3:?T^r?FTl^:?N ^^T ^W ^T?N' G» 33?T^9T'q^RF? (^1^<^) I^TTW^T3?TT^[ tll D.P.Mishra has stated fhat produced the kaife, he has picked up the knife and han( where fhe koife was recoverel the accused and fliereailer i3> reeovered froin fhaf place i; evidence, such recoveiy accused wifh fhe crim.e ia is also doubtFul at ffcte iastaac ffce accused took hiTn near fhe river aad 4ot stated fhat froia where the accused led over to hirn. Unless fhe place froni ia fhe j5rst iastaace was disclosed by )ursuaat to that disclosure, fhe object estabUshed aad proved wifh cogent caa|iot be raade basis for connectfcng the qujestion. Therefore, recoveiy of this kmfe of fhe accused. (15) Now comiag to the] fhe clofhes of the accused, fh|< fhe blood was huniaii blood deceased, fherefore, wifhout difficult to coniiect fhe accusc no ofher evidence to conuect as fhe prosecution has uttej estabUsh that aiiybody saw canyiag fhe body. As such fhe accused for fhe comTnissil for coixmiitting fhe also causiag disappearance froia fhe legal punishinenl sustamed. ®b^fd4l'1^?W^f ^fe^ <fa^l< ifr 37RP? 3?i^T Iquestion fhat fhe blood was found on ^re is no Serologist report to show fhat ^nd that too of the blood group of the |such cogent aad clear evidence, it is jd with the crmie ia question. There is |Jie accused wifh fhe criiae ia question ^ly failed to produce aay evidence to flie accused attacking fhe deceased or jthe findiag of fhe torial Court convictiag ofthe offence u/s 302 ofthe I.P.C., murder of Jugadhir as 4»f evidence fhereof ia order to escape u/s 201 of the I.P.Q, cannot be .SS10U ^^^ XI-HC—7.8 12 ^ T^r^TFn^r, ?$Tf1y^<sy fsf<?I>iy^< ^l^dl sb^lch ^- f^f0 - '^ 200 [ 3?T^ Xf5[^ ( 4^I^<^T) 3T^T ?FT f^'lich Tf^iT 37T^T $t)^l<=b :v. Rao ^r^,,. "<^M/' 1:' ^^TTW^rf^T ^n^r (16) In fbe result, fhe appe^l sentence imposed upon fiie ac]< I.P.C. are set aside. He is acquj. fhat fhe accused is ia fherefore, he be set at Uberty succeeds aad tlie conviction aiid lcused appeUaat u/s 302 8& 201 of j^tted of fhe said charges. It is stated since 30.01.2000 tiU today, fc|rthwifh, if not required ia aay other detetition case^__ Sd/- L.C. Bhadoo Judge F<n<flTi *ii*i<?if ^F f^l<Q ^^K "^'STfm^TT^T Sd/- Sunil Kumar Sinha Judge