.^. :^:-;—'1-'^ CF0000061306 teion Bench (CrfminaO XI THB: HIGH CGURT OF JUDIGATURt' AT JABALPUR ©rxmxnal Appeal' KoiIC ^ OP 1997 OiIMtNAKASTSAL UNDER SE'CnON374(2? OF' TI'IS CODS!' OP CRlKZ:m^.7FROGSDmI,"19'73--—- ~:-'———-"— .^. cs: IPPSLL^NT.SS ~^^ S^C^./.O ^ Sl \\\^ ^.^^ '"^' WM^ttwm»Ww*%ff6^^ >"W"<1 "wtwMa AJvo^ele ^^ Ko.A.8. Versus Re.sp'oxide.nt t ^:». l^. Ramesh-. son of ©iyaraA.G^^& aged a5x>ut 25 years^'. ©ccuDat.feon-Culti^iation R/^> Pitechua/ Police.. station Kes al,. M'stt. Bas-bar( ) 2o ^-I-tehesh' _ , "-"i- ^ son of Siyaram G'^^^ ~ ' • aged about 29 years^' O'ccupation-CaItxvation^ R/o Piteohua^ Police ^feation; KesKfoal, Dis'fc-b. Bast;ar( ) ^; State of^; €hya Pradesh./ .' ^Through '-Hbuse 'Sfatian •Officer Police ^station Keslilsal, jDis-fct Ba.star(MF} /-v^ 7.7Trr ^m-r ^..^x- 7-^ •^. HI^H COURT OF JU&ICATURE AT BILASPUR. CHHATTISeARH rbIVISION BENCH) 1 Criminal ADpea! No.1691 of 1997 Ramesh <& another - Versus M State of Madhya Pradesh (now Chhattisgarh) <-; f JUD^MENT FOR CONSIDERATION Sd/- J;U D<?E 1^-2-2006 HON'BLE MPl. JUSTICE bHIRENbRAJVLISHM Sd/- Dhirendrai Mishra Judge POST FOR JUDeMENT ON 20th FEBRUARY. 200^ ^d/-. L.C. tehadoo J^idge HI^H COURT OF CHHATTIS6ARH. BILASPUR Crsmjnal A00@aE No.1691 of 1997 Ramesh <& another - Versus " State of Modhya Pradesh (no^/ Chhattisgarh) ^'r, ^ Present: " Miss Sangeeta Mishro, Advocate : Mr. M.P.5. Bhatia, A Mr. Akhii Mishra, Panel Laivyers : For the appeilants, For the respondent. . DIVISION BENCH: .. HON'BLE MR. L.C. BHAbOO ANE> HON'BLE MR. DHIRENDRA MISHRA. JJ. JU&^MENT (Delivered on 20th February, 2006) Follomn^ jud^ment of fhe Courf ^as delivered by L.C. Bhada^. J^ 1. Accused/appeilants Ramesh <& Mahesh have preferre^! this appeai under Section 374 (2) of the Cr.P.C. questioning the iegality & correctness of judgment of conviction and order of sentence dated 2nd July, 1997 passed by le&rned AdditionGJ Sessions Judge, Kanker, District Bast| Sessions Triai No.419/96 ^hereby leorned Addif Sessions Judge Qfter hoiding the accused/appellants ^uiity for commission of offence under Sections 302/34 <& 3i52 of the Indian Pena! Code sentenced each of accused/appeiiant to undergo imprisonment for Eife an< for s'even years and to pay a fine of Rs.2,000/w/in de of pQyment of fine to further undergo R.I. for four m! respectiveiy. However, co-accused Natthuial waf$ acqu r in ionat the R.I. fauit ^nths Itted /r of ail the charges and the present accused/appeiiants a!so Gcquitted of the charge under Section 120aBB Indian Penal Code. off .1996 were the 2, The prosecution case/ in brief, is that on 20.4. Nadaram (PW-1)/ husband of Panikin Bai (since decejased) gave a merg intimation (Ex.P-11) in the Police Chowki Vishrampuri to the effect that on 19.4.1996 he wcjnt to plough the agriculturai ficld, vi/hen he returncd froi}n the fieid his w'ife Panikin Bai informed him that Ramesh had given Rs.lOO/- to her and asked to supply five pailee| rice, therefore, she ieft the house taking five pailee ric^ in a basket for suppiying the same to Kamesh &ada. When his wife did not return till evening, a search ^as made b|y him to trace Panikin Bai but her whereabouts could nbt be traced out. He a!so wen't to the house of Ramesh' <jac|a but he ^as informed that Panikin Bai has not come there. In the night afso he tried to find out Panikin Bai, but her " vi/hereabouts couid not be known. Today E.e. on 20.4.1996, in the morning when he ivas going to find out the ^hereabouts of his i^ife/ on the i^ay Sukhlai, Mangal & Usairam met him and informed that PQnikin Bai is iying dead on Sargipa! road. He went there and saw that his vi/ife was tying dead, blood was oozing out from the left ear, som@ injuries i^ere present OEI the head, rope was also there on the head and basket i^ith rice & poiiee wcre alsio lying there. On rec^iving this merg intimation, the same was foryi/arded to the Police Station Keshkaal and entered in the Roz?iamchasanha at No.17/96. The Investigating Officer ieft for the scene of occurrence and Gfter giving notice (Ex.P~13) to the Panchas prepared the Panchnama (Ex.P-14) of the dead body of Panikin Bai. Site pian (Ex.P-15) was prepared by Arjun Singh, Assistant S'ub-Inspector, Dead body of Panikin Bai ^ L^- ^^B' was sent forpostmortcm examination to thePrimary Health Centre; Vishrampuri under Ex.PwlA/ ^hcre Dr|. &.R. Dhaneiiya (PW-4) conducted the postmortem and prepared the postmortem report Ex.P-l. During police custody accused Ramesh gave memorandum (Ex.P-16) and in pursuance of that one o!d Jute bag, one Jntoct jute bag, onc old shirt and one pink colour petticoatw/ere tak^n Jnto possession under Ex.P-8. At the instance of afccused Ramesh basket, biood stained soil & plain soil ^er|e a!so token into possession from the piace of occurrence Ex.P-17. The blood stained soil ^as aiso takel possession from the kitchen gorden of the house of'a under into ccused Ramesh under Ex.P-18. One iron axe, one shirt, one t|ube of cycie and one oid pink colour shirt were also tak^n Into possession at the instance of accused Ramesh under); Ex.P- 19. One cycic i^as taken into possession under Ex.P-2(p frorn &hosurGm. Ornaments aiong with one otd bag ^cre taken into possession from accused Mahesh Kumar under E^.P-21. Thereafter, the offence against the accused perso^s ras registered under Ex.P-12 i.e, F.I.R. Blood stained |soi! & ornaments were sent for chemica! cxomination to Fohensic Science Laboratory, Raipur from where repo?rat Ex.P"$7 ^as received. 3. After completion of lnv€Sti9ation, charge sheet wa^ filed against the accused Ramesh, Mohesh & Natthul^i for commission of offence punishabte under Sections 3(^2/34, 392 &'120-B of the Indian Pena! Code in the Coi^rt of learned Judicia! Ma9istrat@ 1ST Class, Kanker, who i|i turn committed the case to the learned Sessions j[ydge, Jagdalpur from ^here iearned Additiona! Sessions ^udge, Konker rcceived the case on transfer for trial. ^ vv 4, Learned Additional Sessions Judge after going throu^h the record and hearing counsel far the pcxrties framed the charges against the accusect persons for the ^bove mentioned offences. Accused per^ons abjured the guilt. The prosecution in order to estabiish the charge against the accused persons examined 13 ^itne^ses. Statements of accused persons were also recorded by the learned Additlonal Sessions Judge under Scction 313 of the Cr.P.C. in which they denied the material evidcnce Gppearirag against them and pieaded innocence. 5. Learned Additiona! Sessions Judge ofter hearing the ,! arguments of Additionoi Public Prosecutor and coun^ci for the accused persons, convicted and sentenced the accsused/ appeliants herein in the manner as mentioned in Parja-1 of this judgment, ho^/ever, they were acquitted of the charge under Section 120-B of the I.P.C. Accused Natthulal y/as acquitted of all the charges. 6. We have heard Miss Sangeeta Mishra, learned couns|ei for thc accused/appeliants & Mr. M.P.5. Bhatia & MrJAkhit Mishra, Panei .Lawyers for the State/respondent. 7. Homicidal death of deceased Panikin 3ai i^ not in di^ 8. As far as the question of involvement of Gccused/app^SiQnts in committing the murder of Panikin Bai and lootj^ig the ornarpents of Panikin Bai is concerned, there is no (direct evidence in this case and the whoie case rests 4n the circumstantiai evidence. In order to base the convicltion of pute. an accused on the circurnstantioi evidence, the settlfed \aw is that ^the circum^tance^ fram which the canciu^an of guf7t /s' ta be drawn have not only ta be futly estai^iished bi/t a/^a thaf a// the c^rcumstances co estabisshed ^h^uid be ^ v^' c?f s canclusive nature and consistent an!y ^ltl^ the hypathesis af the gullt af thc accused, ^hase clrcumstance^ ^hauld nat be capabfe af being expiain^d by any ather hypathesls except the gullt of the accu^^d and the chaln of the evldence must be sa complete a^ ^at ta leave any reasonabh graund far thc beiief con^^ten^ wlth the Innacence af the accu^ecf. It neede no remlnde^ legaliy e^tabilshed circumstances and not r^erefy /Hd/gnaf/an af the court can farm the bas^ af €anv\ictsan and the more serious the crlme, the greater shautd ^c the care taken to ^cn/t/n/ze the evldence fest suspidan that take^ the place afpraaf^ Th@ prosecution has tried to est^btish the charges against the accused persons on the fo! owing c!rcumstanc€S:» a. That/ the ornaments of deceased Panikin jBai as weil as the axe i.e. weapon of offence/ oriie oid & one new jutc bag, one pink coiour shirt and one petticoat were rccovered frorn the accused Ramesh A Mahesh; b. That, the blood stained soi! was taken into possession bythe Investigatlng Officer Arjun Singh from the kitchcn garden of accused Ramesh; and c. That, deceased Panikin Bai was last seen aiive entering the house of accused Ramesh. 9.No^, yi/e ^hall proceed to examine & scrutinize the circumstantial evidence adduced by the prosecution in order to connect the accused/appeltants i^lth the crimc in question. The ornamentsofthe deceased sald tohave been taken into possession by the Investigating Officer from ^ t ''X: th©accused Mahesh under Ex.P-21 and one iron axe, blood stained shirt of tericot, one cycle tube and one old |shirt i^ere taken into possession frorn the accused Ramesh dsnder Ex.P-19. Fakir (PW-13) is said to be a witnes|s of rnemorandurn Ex.P-16, seizure memo Ex.P-19, Ex.P-20 d Ex.P"22A/ but this witness has turned hostile and he has not supported the prosecution case. This witness has stated In his evidence that accused Ramesh has never askeld the deceQsed to suppty rice, no information was given by the accused Ramesh and no recovery WGS made in his presence. The other witness of recovery memo has not been examined, therefore, only the Investigating Officer Arjun Singh (PW-10) is remained. The Investigating Officer (PVV- 10) has stated that in pursuance of th©information given by the accused Ramesh he recovered Q bag, petticoat, axe, & tube and same was reduced in Vi/riting under Ex.P-16. He has further stated that on 22»4.1996 one axe, tericot shirt, one cycie tube & one pink coEour shirt stained (^ith bio.od were taken into possession under Ex.P-19 on bein9 produced by the accused Ramesh. 10. In the first instance, one recovery ^itness namely FakEr produced as PW-13 has turned ho^tiics and other witness hac not been examined and he has stated that the recovered articies i.e. axe <& bag are normally found in the viilages. Moreover, PW-5 Sagram has stated that csxe <& tube was taken into posscssion from th©accused M^hesh and gold & silver' ornaments were ta?<en into possess on at the instance of accused Ramesh. Thus, the evidence of this witness is totaily contrary to the record, because Q!s per seizure memo Ex.P-21 ornaments i^ere recovered fro In the accused Mahesh and axe <& other Qrticies were recoverred at the Instance of accused Ramesh under Ex.Pawl9. Therefore, -<• IS ^ the evidence of this witness makes the evidenc^ of Investsgating Officer Arjun Singh (PW-10) untrustwor^thy. In the cross-examinGtion PW-S has ^tated that he d4 not knaw what articles were seized, but the bag, whichj wa^ taken into possession, is normaEly found 'in every houge of the viltage. As far as the recovery' of ornament|s is concerned/ as per seizure memo (Ex.P-21) the ornarr^ent^ were recovered frcm accused Mahesh, whereas there is no memorandum given by accused Mahesh, therefore, 'foip the foregoing reasons the recovery of articles as ^veli as axe, bags & shirt becomes doubtfut and same does not in^'pire the confidence of the Court. Apart from that even tho.ugh these articles yyere sent for chemical examination to the Forensic Science Laboratory, Raipur and as per FSL report on the axe, bag and shirt human btood was found but no serologist's report has been produced bythe prosecution to show that the biood found on these articles was of the same biood group GS of the deceased Panikin Bai. Therefore, in absence of such report accused persons cannot be connected with the recovery of axe,bag & shirt, Even the ornaraents vi/hich wer©said to have been taken into possession from the accused Mahesh have not been produced in the Court and even not identified by Nadaram (PW-i), husband of deceased Panikin Bai and JuniyG Bai (PW-3), daughter of deceased that the ornoments us/hich were taken into possession from the accused AAahesh are of the deceased Ponikin Bai. Therefore, there is no substantive evidence to that effect that the ornaments, i^hich were recovered from the accused Mahessh, are of Panikin Bai. Identification memo of ornaments (Ex.P-9) has been fiEed and proved by the prosecution, but Nadaram (PW-1) <& Juniya Bai (PW-3) have not stated in their ^ evidence that they had identifled the^e articies befo|r€the ^- iiiifflli' x ^- ^cwelers under identification memo Ex.Pm9. Even PW-8 Banshilai Soni before vi/hom the ornaments said to' have been identified by Nadoram & Jhuniya Bai in his cross- examinatjon has stated that the poiice peopie coiie|d him and thereofter he had written the identification ^emo, same ijya^ wrltten as the potice peopie told hir^i and identification ^as conducted near the potice chowk ornaments in question ^ere mixed with the ornaments ^ere brought by thc poiice, He performed the proc . The Iwhich Iss of identification as per the directi.on of the police. Ther^fore/ from the above evidenice even this identification mem^ does not inspire the confidence, as the ornaments mixed the ornaments in question ^ere brought by the police, was prepored as per direction of potice and that too i^ith Inemo ncar the poiice chowki and this witness has not stated tha^" the articles i^hich were to be identified were produced b^fore him in a seaied condition. Therefore, no confidence c^n be reposed on such idcntification memo and as s"uch| the prosecution has not been abie to estabEish the recove^y of ornaments as i^eil other articies because no legai admissibie evidence in that connection has been produced by the prosecution and a^ such, cn the ba^is of recovery as w^llas identification of the ornaments/ the accused/appelijants cannot be connected with the crime in question and finding of the triai court to that effect is not based on the ega! admis'sibfe evidence, therefore, s-amc cannot be sustaihed. 11. As far as recovery of biood from the kitchen garde^s of the accused Ramesh is concerned, there is no serotog report to the effect that the blood, ivhich was found in kitchen garden of the accused Ramesh, i^as the human b and that too of tjie blood group of deceased Panikin st's bhe ood ai. sy This circumstance also does not connect the Ramesh wi'th the crimc in question. aclcu^ed 12. As far as the fact of last seen ative of deceased Planikin Bai in the house of accused Rarnesh is concerned/ as p^r the !aw taid down by the Hon'ble Apex Court in the matt^?"^ of Bodhraj alias Bodha a?id othcrs Vs, State of Jaititti|y a?id Kashmir reported In (2002) 8 SCC 45, Subhash Chon^i Vs. scc seen fram n the seen Stat@ of Rajasthan reported in (2002) 1 SCC 702 & ^tate of Karnataka Vs. M.V. Mah@sh reported Jn (2003) 353 ^before convlcting an accu^ed based an the h^1\ fogether theary, the Court /^ re^ulred to a^certQ^H\ the iegal clinching evfdence that fhe time-gap bet^e^ palnt af f/me when the decea^ed and the accused wen ia^t tagether aiive and the death of decea^ed must ^e sa clase and proximate that an inference regardlng the\guilt of accused can be dra^n and there /s' na pas^lblil^y af coming any third per^on In between the Sa^t ^een together and cleath af the deceased. There must be unemngiy clinchlng legal eyfdence that should point to^ards the fnvolvement af the accu^ed m commls^ion of murder. Further, /t /5f un^afe ta convict a persan based on thc ia^t •seen theory unle^^ the la^t S€€H caupied w Ith other clrcumstances Is mdicator of the fact that the accused ^ the authar af the crlme^ 13. Based on the above principle, if we look into the evidersce of ?W-i Nadaram, who has stated that on the fateful day his wlfe informed him that she is going to deliver the rice at the residence of accused Ramesh and i4/hen she did not return he went to the house of Ramesh, but neither his irvife nor Ramesh wa^ avaitable in the house and on the next day his wife was found deod on the Sorgipal road. PV¥M3 ^ff^ Jhuniya Bai, daughter of deceased aiso stated tha^ her mother left the housc by soying that she is going to the house of Ramesh for deiivering the rice. PW"°5 Sagalrram has stated that on Friday he saw Ponikin Bai entering the house of Ramesh carrying rice and in the cross-examination this yi/itness has stated that the dead body of Panikiti'BQJ ^as found one ki!ometer away from the hou^e of ac<|used Ramcsh. As per the evidence of PW-1 Nadaram whe^ his wife did not return he went to the house of RamesKi but neither Ramesh nor PanEkisi Bai -wa^ present there[ and thereafter the body of Panikin Bai WQ.S found nex^ day morning at the distance of one kiionfieter from the hou|3e of accused Ramesh. As such, there rs nothing on recor|d to connect the accused/appeliants with the crime in que as the body of deceased ivas found n^xt day morning too one kifometer away from the house of accused Ran^ Moreover, as per the evidence of Nadaram, in the ev^ning he ipvent to the accused Ramesh's house, but neither Ra^esh nor Panikin Bai was present in the house and therefore, ^hat happened thereafter there is no legai clin^hing evidence which indicates that th@ accused persons wer^ the authors of the crirpe in question. The la^t seen theor^ week type of evidencc and unless same is corroborat^d by some other materiai evidence no inference con be d regarding involvement of the accused in crime in ques^io.n, que^t 14. In vie^ of the above,the prosecution has not been connect the occused/QppeIEants w/ith the crime in bosed on the tests loid down by the Hon'ble Apex Cour resting the conviction based on the circumstontial evid and therefore, the finding of the trial Court convictin^ accused/appellants for •cominission of offence ^tion that esh. is a ra^n abjle to icn I- for ence 3 the icr u|nd ? L ys" ..^, r' Sections 302/34 <& 392 of the Indian Penal Code cannot be sustaineciand same is iiabie to be dismissed. 15. In the result, the Gppeai succeeds and sarne is ailowed. ^ppelionts' Ramesh <& Mahesh are acquitted of the charges of Sections 302/34 & 392 of the Indian Penat Code and conviction & sentence imposed upon them are hereby set aside. Appellants Ramesh & Mahesh be set at liberty forth^ith, if not required in any other casc. Sd/-. L.C. Bhadoo Judge Roshan/- Sd/- Dhirendra Mishra Judge •-->'