a .a^c^ ciy^ HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Sunil Kumar Sinha &. Hon'ble Shri Radhe ShyanLSha-nna^J J Criminal Appeal No. 146 of 1995 Mansha Ram Vs. . The State of Madhya Pradesh (Now State of Chhattisgarh) ^ 1»»? JUDGMENT Eor_con.sid£raiion_ Sd/- SunU Kumar Sinha HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA -I e^asr\a-^_ Sd/- R.S. Sharma Post for Ju^ -j_/M /^»n /^rt^L^L Sd/- Ju^e /08/2011 ^,..^.^^li-&.^ ^ HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shyani Sharma, J J APPELLANT RESPONDENT Criminal Appeal No. 146 of 1995 Mansha Ram, aged about 32 years, S/o Shri Kheluram Mehar, R/o Village Dagori, Police Station Hirri, District Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 19731 Appearance: Ms. Minu Banerjee, Advocate for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (10.08.2011) Following judgment of the Court was delivered by Sunil Kunnar Sinha, J. (1) This appeal is directed against the judgment dated 30th of December, 1994 passed in Session Trial No. 396/93 by the Fifth Additional Session Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/ss 302 8s 201 IPC and sentenced to undergo imprisonment for life and R.I. for 2 years with a direction to run the sentences concurrently. Criminal Appeal No. 146 of 1995 (2) The facts, briefly stated, are as under:- Deceased- Kirtan Bai was a deserted lady. She was residing with her father- Tiharu (PW-2) since last 2 years. On 25.8.93 at about 8.00 a.m. Tiharu (PW-2) and deceased- Kirtan Bai had gone to the field of the appelldnt for agricultural work. There, wife of the appellant quarreled with the deceased making allegation that the deceased had illicit relations with her husband (appellant). After the quarrel, the deceased and her father returned to their house. At about 5.00 p.m., the deceased was sent by her father to their field, situated towards railway station, for blocking the water flow. Thereafter, Kirtan Bai did not return to the house. On 27.8.93 the missing report was lodged in police station which was reduced into writing in Rojnamchasana No. 9§0 (Ex.-P/8-C). On 28.8.93 the police party came to the village and Mansha Ram was taken into custody and his memorandum statement (Ex.-P/4) u/s 27 of the Evidence Act was recorded, who told that the dead body of the deceased has been thrown in the well. On such discovery, the dead body of the deceased was taken out from the well and a. panchnama (Ex.-P/S) was prepared. It was found that 3 big stones were tied with the body by a loongi. After giving notice (Ex.-P/l) to the panchas, the formal inquest (Ex.-P/5) was also prepared and the dead body was sent for post- mortem. The post-mortem examination was conducted by Dr. C.L. Chandrakar (PW-6) who noticed multiple lacerated wounds on the body of the deceased and opined that the cause of death was injury over skull, and it was homicidal in nature. The post-mortem report is Ex.-P/6. The loongi by which the stones were tied was identified to be that of the accused. The identification memo is Ex.-P/12. 0 (3) Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. o / / u>; Crmjinal Appeal No. 146 of 1995 Following are the circumstances, on which, the Session Judge relied to convict the appellant u/ss 302 8s 201IPC. (a) There was illicit relation between the appellant and the deceased; (b) The wife of the appellant and the deceased had quarreled in the morning in the field of the appellant; (c) The deceased was lastly seen in the company of the appellant; (d) The dead body of the deceased was recovered on the discovery made by the appellant u/s 27 of the Evidence Act & (e) The loongi by which the stones were tied with the body was proved to be that of the appellant. (4) Ms. Minu Banerjee, learned counsel appearing on behalf of the appellant, argued that none of the circumstances were fully established against the appellant; the discovery of the dead body at the instance of the appellant was also not proved; It was also not proved that the loongi by which the stones were tied was that of the appellant; moreover it is a common article which can be that of any other person also. Therefore, the circumstances pressed into motion were not sufficient to hold the appellant guilty ofthe offence punishable u/ss 302 & 201 IPC. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. fU / Criminal Appeal No. 146 of 1995 (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) Adinittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circurastantial 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 tendency. They raust point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circunistantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is 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. (8) Now we shall examine the case in light of the above principles. (9) The first 2 circumstances were not incriminating against the appellant. If the wife of the appellant was having doubt that the deceased had illicit relations with the appellant and a quarrel took place between them in the morning in their field, that would hardly be incriminating against the appellant giving him a reason to commit murder of the deceased. CriminalAppealNo. 146 ofl995 „/ u^ (10) So far as 3rd circumstance of last seen together is concerned, that has been tried to be established on the evidence of Tiharu (PW-2). Tiharu deposed that at about 4-4.30 in the evening the appellant came to their house and asked the deceased to accompany hira to bring wood. On this, the deceased went along with the appellant and thereafter she did not return back to the house and ultimately her dead body was recovered on 28.8.93. The above story given by Tiharu (PW-2) is omission in his first report which he lodged in the police station regarding missing of the deceased on 27.8.93 on which a Rojnamchasana No. 980 (Ex.- P/8-C) was recorded. In the said report, he simply mentioned that on 25.8.93 after returning from the field of the appellant, at about 5.00 p.m. he had sent the deceased to the field situated towards the railway station and thereafter the deceased did not return to the house. That means he did not mention in Rojnamchasana that in the evening the appellant came to their house and took the deceased for bringing wood. Therefore, the evidence relating to last seen, which Tiharu (PW-2) stated before the Court appears to be afterthought and in view of the above omission in Rojnamchasana, the same ought not have been believed by the Session Court. In light of the above evidence, we hold that it was not established that the deceased was taken by the appellant in the evening as deposed by Tiharu (PW-2), and thus, the circumstance oflast seen together was not proved against the appellant. y <1 ~\ Criminal Appeal No. 146 of 1995 (11) So far as discoveiy of the dead body on the memorandum stateraent of the appellant is concemed, the same is also not established on the face of evidence of Akhil Pandey (PW-9). Akhil Pandey is the Head Constable who made investigation on the missing report lodged by father of the deceased. He deposed in Para-2 of his exaraination-in-chief that on 28.8.93 he had gone'to village Dagori for investigation of missing report relating to deceased- Kirtan Bai. He categorically deposed that as soon as he reached to village Dagori, the villagers informed him that the dead body of deceased- Kirtan Bai is lying in a well. When the dead body of the deceased was already seen by the villagers and it was also made known to Head Constable- Akhil Pandey (PW-9) and further investigation commenced thereafter, there is no question of discovery of the dead body on the memorandum statement of the appellant allegedly recorded u/s 27 of the Evidence Act. Therefore, the above circumstances of memorandum and discovery of the dead body at the instance of the appellant also become falsified and inadmissible and the alleged memorandum and recovery cannot be held to be incriminating against the appellant. (12) So far as identification of loongi is concerned, Lakhan (PW-5) deposed that a toongi was seized vide seizure memo Ex.-P/ll and an identification thereofwas conducted by him vide Ex.-P/12. But in the cross-examination, Para-16, he admitted that the identification of loongi was conducted by Head Constable of police /' /\ Criminal Appeal No. 146 of 1995 station, Hirri. The contents of Ex.-P/12 would also show that the identiBcation of loongi was conducted by a police officer who has signed identification memo at place 'B' to 'B'. Besides the above, we find that it was a common loongi which any one can have in the village and that by itself would not be sufficient to hold the appellant guilty ofthe offence punishable u/ss 302 & 201 IPC. (13) In the above facts and circumstances of the case, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. Most of the circumstances were not proved by the prosecution and the solitary circumstance relating to seizure and identification of loongi was capable of being explained. Therefore,the chain of circumstantial evidence was not complete and it was not a case in which it can be safely concluded that it was the appellant and none else who committed the murder of the deceased. (14) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302 SE 201 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge --^. Sd/- R.S. Sharma Judge i.'nlfi