ti. ^ m THE HIOH COURT OF JUDICATURE AT BILASFU-R(CH,pATTISGAJRHl CRIMIBALAPPEAI.iTO. 1 ^^^ /2002 SISD@_S®C120E.M4t2U^JH^CC)Dg_03t_Cm @ftL^RQCEDUgg 1971 ^>J Jft i2-^ -^^"^•:-:'.2. ^o'"^^^-~"~'^^w" bvsht'^ ".....-••••""" ':.....•••••••••""" ^ ^^. ^oP.^" VE^U RESPONDENT &6 ^ J^ Omiprafeaaii ¥erm.a^ s/o Dirfoiadaa Verma^ 26 yeara fjfo Ohumka^ P.>8, Ghuixika^ Diatrict Sajnandgaoa (C,.Q,) Jagatram ^ ^o Ram.prasad Safau, ag^d 32' yeara., rjfo Village 8^Ifei3?s:ari, P.S. Dongai'garh, Diatrict Rajnandgaon (C.G<} State of ClAattiagarh, tteou.^1 S.H.O.,P.8. Supela, Distdot Diirg (Clilxatti^garSx) __.A_^ r HI©H_,COU?TOF JUbICATURE CHHATTES&ARH ; BILASPUR CRIMINAL N0.1276 OF 2002 JUD6MENT FOR CONSIbERATION Sd/- JU &&E % (^ /04/2003 HGN'BLE THE CHIEF JUSTICE ^ C?<-<^^€^ ^ Sd/- Chief Justice r Postitfor: ^ /04/2C03 'y Sd/- L.C, Bhadoo Judge '-s. ^ HI©HCOURT OF JUDICATURE CHHATTCS©ARH; BILASPUR &IVISION BENCH; HON'BLE SHRI SC.H.N. KUMN@A. CJ HON'BLE SHRZ L.C. BH^DOO, J CRIMIN^L APPEAL N0.1276 OF 2002 (1) Omprakash Verma (2) Jagatrarn Versus State of Chhattisgarh Present: Shri Aiok Bakshi, counse! for the appellant. AAiss S. Singhai, Dy. ©ovt.Advocate, for the State/respondent. JU DGME NT (Dellvered on of ApriS, 2003) The following judgment of the Court delivered by L,C, J:" Accused/appelbnts Omprakash Verma and Jagatram have preferred this criminaE appeal being aggrieved by the judgment of conyiction and sentence dated 22/11/2002 passed by the iearned Seventh Additional Sessions Judge (Fast Track Court), Durg by which the learned Additiona! Sessions Judge after holding the above accused persons guilty of the offence under Section 302 read with Sectlon 34 of the Indian Penal Code convicted each of them under the said Sections and sentenced to undergo imprisonment for life and to pay f'sne of fts.l,000/Ba in defauit of payment of fine to further undergo simpie imprispnment for six months, ~ ^) ^ (2) The reievant facts for the disposai of this criminal appeal are that Mandas Verma - brother of Dirbin &as (since deceased) gave an intimation (ExP/12) to the Poiice Station, Supela/district Durg that they are three brothers and they are residing in separate houses and the famliies of al! the three brothers are residing in their viilage Dumka, dsstrict ftajnandgaon, His brother namely Dirbin t)as was worksng GS Senior Technician in the B.SP<* Yesterday his brother after his duty came to the residence in the afternoon and after taking his meat he went for rest and in the evening at about 6.30 his brother met his son namely Tikeshwar and in the evening at about 730 when he came back from his work he saw that the light was on in the residence of his brother. ThereGfter after taking his dinner at about 8»8.30 in the night he went for sleep» Today on 31/10/2000 in the early morning at about 5.45 when he woke up from the sleep the !lght of the house of his brother was on, but the house was not locked from outside. On this, he thought that his brother might not have gone on duty in the first shift/ He called him from the backside of the house but there was no response. Therefore, he came from the front side of the house and pushed the door which was lying open and when he iooked inside the room he found that the TV and th©fan were on and the light was also on, H©switched off the TV and the fan, On his taking turn back he saw that his brother's body was lying on the floor near the gate, He again put on the Eight and saw that his brother's body was iying on the floor drenched with btood and there were injuries on the face caused by sharp weapon^ When he saw him from the near he was already dead, Therefore. H©has come aiong with his son Tikeshwar and AAJlQ'uram for giving information. This Merg intimation was taken on record and on the basis of this intirnation FIR (ExP/13) was registered by the Station House Officer Ajlt Yadav/ who took up the investigation. buring the jnvestigation the statement of r ^) ^, witness Surendra Sahu was got recorded under Section 164 of the Code of Criminal Procedure, The Panchanama (Ex.P-2) of the dead body was prepared after giving the notice (Ex,P/l) to the witness, The simple sosl and the biood stained soil were recovered from the spot vide Ex.P/3 and vid©ExP/4 oid siipper (Chappaf) of the deceased, one safety pin and one Kanthi Mala were taken into possession, One iron hammer which was iying under the body of the deceased was aiso recovered vi.de ExP/5. The post mortem (ExP/15) of the dead body of the deceased was prepared by Dr. S.P. Kesharwani after post mortem. Accused Omprakash arrested and during the pollce custody he gave the memorandum (ExP/5) under Section 27 of the Evidence Act and at the instance of the accused one dagger, one full sieeves shirt of yeitow colour, one full pant of blue cobur/ a!! stdned with b!ood and one scooter bearing registratlon no. MP-24Y/4737 were recovered vid€seizure memo ExP/6. One post card was a!so taken into possession vide ExP/7. One letter (Ex.P/10) which was hand written by the accused Omprakash addressed to the Station House Officer, Police Station was aiso taken into possession vide sejzure memo ExP/11 and after completion of the investigation the chaiian was filed against accused Oirsprakash and Ja9atram under section 302 read with Section 34 of the Indian PenGl Code. (3) The iearned Seventh Additlonal Sessions Judge being satisfied with the record of the file framed the charge against accused appeiiants Omprakash and Jagatram under Section 302 and in the aiternatlve 302 read with Sectlon 302 read with Section 34 of the Indian Penal Code which the accused persons denied. (4) The prosecution in order to proye the offence against the accused appeiiants examined in all eighteen witnesses at the triai, The statements of the accused persons were recorded under Section 313 of b' ^ the Code of Criminat Procedure. The accused persons simply denied the statements of the witnesses and other mGterial appearing against them, saying that they are innocent. (5) After hearing the arguments of the learned Public Prosecutor and the counsel for the accused, the learned Additional Sessions Judge convicted the accused appeiiants as nfientioned above. (6) We have heard Shri Aiok Bakshi, learned counsel appearing for the accused/appeiiants and Miss Sharmila Singhd, learned t)y. Sovt* Advocate, appearing for the State/respondent. (7) As far as the question of homicidal death of deceased Dirbin Das is concemed, the same has not been disputed by the learned counsel appearing for the accused/Gppeiiants. Moreover, br. SP. Kesharwani (PW-9) has stated that he conducted the post mortem on the dead body of the deceased and in all he found thirty injuries on his body which were incised, cut and stab wounds and the deceased died on account of the Internal and externai excessive bleeding through the injuries* His post mortem report is Ex.P/15 and the nature of the death was homicidai. Therefore, the death of Dirbin Das was homiddai. (8) There is no eyewitness in this case. The whole prosecution case rests on the fotiowing circumstances: (a) Accused Omprakash made extra Judiciai confession before PW-5 Surendra Sahu, (b) The weapon of offence the dagger, blood stained cbthes, fuli sieeves shirt and full pant of the accused and the scooter of the accused Omprakash were recovered @ at the instance of the accused in pursuance of the information given by him under Section 27 of the Indian Evidence Act. (c) The recovery of the letter (Ex.P/10) which is said to be written by accused Omprakash to the Station House Officer, Supeia Poiice Station admitting the rnurder of his father birbin Das, (9) It ss settied law that, In a case based on circumstantsal evidence, before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence !ed by the prosecution and that al! the circumstances put together are not on!y of a conclusive nature but aiso complete the chain sp fully as to unerringly point only to the guiit of the accused and are not capabie of any explanation which is not conslstent with the hypothesis of the guiit of the accused. (10) Now it is on the basis of these principies that we shaii examlne the clrcumstantial evidersce relied upon by the prosecution to see whether the circumstGntial evidence avdlable in this case has stood up to the standard of proving the offence against the accused appetiants GS per the settled law, (11) As far as the question of extra Judicial confession before witness PVV-5 Surendra Sahu is concerned, this witness has turned hostile to the prosecution and specsfically said that accused Omprakash had not confessed the crime of committing the murder of his father before him. He has further said that the statement under Section 161 lf.. as aiso under Section 164 of the Code of Criminal Procedure were rnade by him on account of the fear created by the Poiice, He has gone to the extent of saying that before making aii these statements he along with Omprakash accused were in the Poiice custody even though formaEly they were not arrested- In view of this statement no reliance can be placed on the statement of this witness Surendra Sahu, However, the learned trial Court placed re!iance on the statements of this witness hoiding that it is not proved that this person was in poiice custody rnore than ten days before making the statement and appending his signatures on the recoverles memos. This witness has partlcularly said that everything was done under the pressure of the police wid nowhere in his statement anything has come which connects the accused appeltants in the murder pf the deceased. (12) Now coming to the recoyery of Khukhari, btood stained ciothes of the accused and aiso the ietter (ExP/10) which is said to be written by the accused to the Station House Officer, Poiice StatiorE confessing that he has committed the heinous crime. A^uch retiance has been placed by the trial Court on this po.rt of the circumstantiat evidence^ (13) As far as the recovery of the blood stained ciothes and the dagger at the instance of the accused Omprakash is concerned, PVt/ro5 Surendra Sahu has said in his statement that no recover-y was effected in his presence, nor the poiice enquired from the accused in his presence. He stated that the memorandum (ExP/5) and the recovery memo (Ex.P/6) bear his signature but he simpiy signed where ever the police said, No recoyery WGS made in his presence, Sirnibriy, this witness has said that the letter (ExP/10) bears his signature and recovery memo of this ietter (ExP/11) also bears his signature, but this ietter was not^ taken into possession in his presence. He has said that even the pofice had taken him to.the pbce in the handcuffs where his statement under Section 164 of the Code of Criminal Procedure was recorded, PW-3 Tikeshwar Prasad has that he had rsot seen the accused Omprakash in the fatefu! night going to the yilbge, Another witness of the recovery is PW-12 Sheshnarayan Singh, Learned counsel appearing for the accused persons has assdled the genuineness of this witness and argued that he is the pollce witness and in other cases also the police has used him. Moreover, this witness is resident of Supeia and not of Dumka vilige .from where the recoverles were sald to have been made. Because he Is the pollce witness, therefore, the police obtasned hss signatures In the Police StatEon, Supeb itself and he had not gone to viSbge Dumka. We have perused the evidence of this witness and to the above extent the arguments of the learned' counsel for the accused persons are not without force, In the exarninatjon-in-chief he has said that the accused gave the inforrnation (ExP/5) in his presence and the Items were recovered through ExP/6. But In the cross examination he has admitted that apart from this case in other one more case he Is a Poiice witness, He cannot teil the name of that case. He stated that it is wrong to say that he Is a witness of 7 to 8 cases. In the afternoon a Constabie of Supela Poiice Station called him and therefore he went to the Police Station, HEs brother is aiso in the Police so he knows the police peopie. Further in the cross examinatlon he has said that how much time was taken in making the recoveries at Dun^ka he does not know* At what time they started from the PoElce Station he does not know. He does not remember that how much time he remasned In the Poljce Station. He signed on 2-3 papers on that day, He cannot te!i that from burg to which side and which direction they went to reach Dumka* He went to village bumka for the first time, therefore, he cannot teli <® \/'- that from which side they entered Dumka viitage. He does not know the neighbours of accused Omprakash, He cannot tei! that who eise were residing in the house of the accused. He did not go to the residence of Omprakash. What was th©number of the scooter he did not know and the scooter was of which make he does not know* He does not know whether the scooter was seized or not. Up to what time they stayed in Dumka he does not remember, At what time they reached back at Supeb he cannot teil but the Sun had aiready set by that time, He is a Vice President of Congress Committee; therefore, he often goes to the Police Station, In eartier case under Section 302 and in onothe.r Narcotic h@ becarne the witness. He does not remember that in both the for which fact he was the witness* The above repiy and the fact that he was earSier a Poiice witness in some cases make this witness and the recovery frorn the spot in his presence doubtfui. But why the poiice have not made a loca! witness from where these recoveries were made is not explained, Why this person from Supeia taken and more partlculariy in vlew of the statement, his presence at the time of the recovery of the articles is doubtfui. Therefore, looking to th©statements of both the witnesses namely Surendra Sahu and Sheshnarayan Singh the recovery cannot be considered as proved, Moreover, it Is said that the dagger by which the Injuries were caused on the body of the deceased and the clothes of the accused were stained with btood and the same were sent for chemicai examination, but there is no report on record by which it can be said that these articies were stained with human blood and the bbod group of the bbod found on the clothes of the accused, the b!ood of the deceased and the b!ood found on the dagger was same, Vyithout this, the recovery of these iterns cannot be connected with the murder of the deceased by the accused Qppellants* Th@ iearned Additionai Sessions Judge also relied upon the^ [ ^- T- statement of Dr\ Kesharwanl (PW-9) that the injuries on the body of the couid be caused by dagger which was shown to him and which was said to have been recovered at the instance of the accused. Therefore, according to the iearned Additional Sessions Judge, this circumstance also shows that the injury was caused by the accused by this dagger. As mentioned above, even if it can b©said that the injuries on the body of the deceased can be caused by such type of dagger that itse'if is not sufficient to prove that the inJuries were caused by the deceased by this dagger because no report of the serologist or FSL is before the Court so as to connect thls dagger with the injuries of the deceased without which it cannot be considered that the Injuries were by this dagger on!y and that too by the accused because such type of daggers are aydlable in the market. Moreover, such type of injuries can be caused by any sharp edged weapon i,e, dagger or knife, Therefore, based on the statement of the doctor the accused cannot be connected with the crime committed, (14) Now, coming to the tetter (ExP/10) written by accused Omprakash to the Station House Officer, SupeEa Police Station acimitting the heinous crime cornmitted by him, First of ali, on the recovery of thls letter oniy one witness Surendra Sahu (PW-5) hos been produced, As mentioned above he has denied the recovery of this letter in his presence. The tetter is on a simple paper and the recovery of the same by the accused has also been denied, In the iight of the investigGtion made by the Investigating Officer in this case as aiso the recoveries discussed in the previous part of this Judgment, it cannot be believed that any accused wiii write such a tetter to the Station House Offlcer of the PoEice Station admitting the guilt of the crime. More partjcularjy, fooking to the facts of this case it becomes rnore doubtful that any recovery was made in presence of PW-5 Surendra Sahu, $s 10 Moreover, if we look at the contents of the ietter after writing ten things about the bad habits of his father just after tenth point he has written that now it is known that this heinous thing has taken place. Even though I have not done this heinous thing with my own hands, butl haye got it done through someone else. But the end of the person who was responsible formental disturbance of the famiiy rnembers has come and now everybody wi!! remdn with peace* If we Sook at this, which is most vital part of this letter, he has not said that he himself has committed the crime, V^hereas the police case is that he committed the murder of his father along with co-accused Jagatram and the weapon of offence, th©dagger/by which the injuries are said to have been caused has recovered at the instance of this accused shows that he himself has committed the murder, not the other person. He has a!$o not written in the Setter through whom he has got executed this heinous crime, Since there is no other evidence and even the prosecution has not been able to connect the accused through the weapon of offence, therefore mereiy based on this ietter in which he has not confessed in so many words that he has committed the murder, the prosecution story cannot be considered to be reiiable* Rather, to this extent this letter Is contrary to the prosecution case by which the prosecution has tried to prove that the accused Omprakash aiong with accused Jagatram themselves had committed the murder of the deceased, whereas in the ietter accused Omprakash has said that he himself has not committed the murder. Therefore, based only on this ietter the prosecution case cannot be considered as proved. As far as the other accused Jagatram is concerned, there is no iota of evidence against him that how he was responsible and connected with this heinous crime. Even though it has come on record that Jagatram is the friend of the accused but without 11 any evidence, mereiy because of friendship it cannot be considered that Jagatram has committed the heinous crime, •(15) In the resuit, we find not oniy that none of the circumstances has established beyond reasonable doubt but also that aii the circumstances, even taken together, do not iead on!y to the hypothesis of the guiit of the appeEiants.and are not inconsistent with the theory of their innocence. (16) In view of the above, the judgment hoEding the accused persons guilty of the offence under Section 302 read with Section 34 of the Indian Penai Code cannot be sustained. In view of the reasons in the previous part of this judgment, the judgment of the tria! Court Is not based on sound principles as settled by the Apex Court with regard to the circumstGntiai evidence for proving the offence. (17) In the resuft, the appgal^of the oppellants is aJiowed* The judgment of conyiction dated 22/^/2002 hoiding guilt/ of the accused persons Es set aside. The appeibnts are acquitted of the charges under Section 302 read with Section 34 of the Indian Penal Code and they be set at iiberty forthwith if not required In any other case, Sd/- ChiefJustice Sd/- L.C.Bhadoo Judge Brajesh^