XN THE HIGH GOUKT OP JUDICSIUIS SS BIL^PUR(Chhattlsaarh aPPEBL ONDEB SEG. 374(_2_) CR.P.C. erj.inlnal Appeal Nb. 11f 72001, <A ffipffl-LANT (In custody) RESPONDENT .•••**' g^l ..-•*' _.,•• ^^••"^ I"! ,„ .-•y ^- >.."•••' ...^ r ^ VI ,at» ^ Ruitanani B&i wi£s of Sonarain Marar agsd 29 years resident of LaTOtlpTir Police Stafcion Pithoura Dlstt.Katiasanund (Chhattlsgarh) VERSTJS State of Qihattlsgarh Throitgb; Pollce Statlon Plthoura Distt. Mab asanund. CRIMINM- SPPEAL HNDSR SEG. 374(2) OF THE CO^ OF CRIMINa^ PBOCEDUiaS, 1973. 1J? XI-HC-22 3:n^r^T f^TNisn^r 3)HR;gf5cT *<i*<wrshNrai 3^T •<<l'i|lc|i|, STfly'ld, fs|dlti^< 3ll^r^ach „..€?/•.':-..^'..A.v.e-^ '°°' t)6/2<5&f g,^^....................<.^ ^^ Rre% 3TT^r?RtTwgf?cr &ivision Bench : Hpn^le Shri Justice L.C. Bhadoo. J & Hon'ble Shri Justice V.K. Shrili'cxstava, J 15/09/2006 Shri Suryakont MishrttJ TOifefrr ITOcft'^'felift (f^RSK ^STf^tTSn^T Shri Arun Sao, Addi (Swalre, by. 6ovt. Advocate f Orat judgment dictate Per L.C. Bhadoo. J. This appeal is directei order of sentence 'dated Sessions Judge, Mahasamunc learned Additional 5es accused/appetlant guilt/ for of the IPC, sentenced him to| The case of the prose the afternoon at about 4.1 Chitranjan wos playing. \^ she replied that he has goi^ reply Chitranjom started counsel for the appellant. •s. iondl Public Prosecutor with Shri D.K. r the respondent/State. on Dais. against the judgment of conviction w\d .3/12/2000 passed by 2nd Additional in Sessions Trial No. 142/2000 whereby iions Judge after holdin9 the :ommission of offence under Section 302 undergo imprisonment for life. ution. in brief, is that on 27/02/2000 in )0 p.m. Duryodhan aged 4 years s/o. 'hen Chitranjan returned from Pithoura market, he enquired about Cfuryodhan from his wife Jasobai on which e for playing, but not returned, on this earching for his son Duryodhan, but (•fl^y^) XI-HC-22 sn^T^iT R-ii+a.n^T st>«i<*Hf?(T St>MI<* ^WWl 9iW«h 3ST ^|<||0i|, (!>T(1U'|IS, [s|dltf^< OT^T^ach Wl; 200 {^6% 3TT^r?TcTTgTgfgg' codld whereabouts of Duryodhan of his son Duryodhan,he went Marar.he saw that'Duryodhan mark on his neck and abrasiofiii son Duryodhan, he started came on soene, they saw Chitranjan gave merg intima) Pithoura on which Station information report (Ex.P/3) fdf 302 of the IPC. SHO Police Station after giving notice (Ex.P/4) to of the body of Duryodhan. postmortem examination vide Pithoura, where Dr. Smtj postmortem on the body of report (Ex.P/6). She noticed the neck, below chin in the size| the right cheek in the size of cm near the right eye, abrasio^i •tii'iifci'ifl-f ^mvK ff fs^S <Ri(-di< ^srf^iTgn^r not be traced out. When in search |iear the kitchen garden of one Amrood was lying flat and there wos a ligature on his chest. Seeing the body of his w^aping on which Pitamber ond others tfiat buryodhan has been murdered. rton (Ex.P/2) in the Police Station: ^louse officer registered the first commission of offence under Section Piljioura took up the investigation. He Panchas prepared Panchanama (Ex.P/5) -pie body of Duryodhoni was sent for Ex.P/6-A to Primary Health Centre, Tara Agrawal (PW/4) conducted Du^yodhan and prepared the postmortem ^ibraded ligature mark present around |of 16 c.m. x 1 cm x i- cm., abrasion on •ftcm X 1 i cm., abrasion in the size of 1 on the chest of right side in the size (^^f^) XI-HC-22 sn^r^r f^iT^sn^r giifwgfgcr '•<. *(|t|('[TSh*1|t») 'S^'-Wvf^, wS{»'\<f,,(«jcll*iy STT^T^ach ^ 200 ^^ ^•4. STI^TS^tTWfffN' -^- frojn Taria necK of 2 cm x i cm., a linear She opined that ccujse of deatl^ Ouring investigation metnor-andum (Ex.P/9) qnd in recovered at her instonce The rope was sent to Dr. Ex.P/7-A and Doctor gwe he ligature mark found on the in question. The Investigating of the house of Rukmanibail examination to Forensic from where report (Ex.P/16) was received in which it was o| cut by the sickle sent for the rope. After completition of i^i the Court of Chief Judicial committed the case to the learned Additional Sessions trial. +|i|fcf'i(l-f ^ltldl'fffscfl'lRtWK ^;3if^tTT3:n^r ayrasion in the size of 1 cm on the face. was asphyxia due to stningulation. accused/appellant-Rukmonibai gave ^ursuance of that rope and sickle were 1 her house under Ex.P/.lO, P/ll &P/12. Agrawal (PW/4) for her opinion vide opinion vide Ex.P/7 that the abraded of DuryodhiMi could be caused by rope Officer prepared the site plan (Ex.P/9) The rope and sickle were sent for Laboratory, Raipur, under Ex.P/15 )f Forensic Science Laboratory, Raipur that the rope in question has been to FSL. No blood was found on Sciehce ^ined exarhination i^ivestigation, charge-sheet was filed in pWagistrate, Mflhosamund, who in turn Sessions Judge, Raipur, froin where J^udge received the case on transfer for (<fl^y^) XI-HC-22 an^rqiT f^TTOSn^T sbKitidfer HWWl »>W«t> ?£T"41'i<ld'4, »Tnu'IS,fsldl+iy 311^1 ^ach V^ 200 f^% sn^T^tireRflfStT -TA order The prosecution in accused examined fifteen witnt of the accused was recorded which she denied the evidence and stated that she implicated in the crime. Leamed Additional arguments of Additional Pub| accused, convicted and senten< one of this judgment. We have heard Shri accused/ appellant and 'Shri with Shri b.K. Swalre, Dy. (5ovt.| The fact of hornicida] disputed by learned counsel fov\ the evidence of PW/4, t)r. postmortem on the body of Duryodhan was homicidal in around the neck of the stated that the said ligature question. The doctor has orc^er to establish charge against the i^sses. On the other hand, statement |under Section 313 of the Cr.P,.C., in materiat o^pearing against her in the prosecution is innocent and she has been falsely S^ssions Judge, after hearing the lic Prosecutor and counsel for the i^ed the accused as mentioned in para <*)l<<td41-l HWvK ff f5<S iKl^K. ^sff^TTsn^T Surkyakant Mishra, counsel for the ^lrun Sao Additional Public Prosecutor 1 Advocate for the State. death of Duryodhon has not been the appellont. Apart from that, from <^5mt.) Tara Agrawal, who conducted Du^yodhan, it is clear that the death of n|ature, as she noticed ligature mark decea^ed as mentioned earlier and she has mark is possible by use of rope in sta^ed that the death of buryodhan was (tfl^Etf^) XI-HC-22 S[T^TqiT f^ri^isii^r Shtfit) (rt?cT ^p H[*<(?[Tsb*<|ch 3ST ^||i|ici-i|, S'Tn^'liS, l«fdiy^< 3-11^1 qach WT 200 ^•4. 3n^T5:R[T8R;Erita' - s- o^ homicidal in nature. Therefohe Duryodhan was homicidal in nal As far as involvement question is concerned, there case. Ths whole caserestson) the settled law in order circumstantial evidence, Hon'| Dhananjoy Chatt'erjee Vs. (1994) 2 SCC220 held that:| "In a case based or| circumstances froml is to be dpawn established should consistent only witfli of the accused. be capable of be hypotiiesis except not to leave any consistent with the| needs no remind4r ;, it is established that the death of rure. the accused/appellant in the crime in lis no direct or ocular evidence in this 1^ie circumstantiat evidence and os per 1o convict cn accused based on the Rsle the Apex Court in the matter of \State of West Beryal, reported in wqferi^ wrafir'te^ TRffZTC ^Stf^ITSn^T circumstantial evidence, the which the conclusion of guilt |iave not only to be fully be of a conclusive nature and the hypothesis of the Quilt THose circumstances should not ng explained by any other 1'he guilt of tiie accused and recjsonable ground for the belief innocence of the accused. It that lega!ly established (^ysir) XI-HC-22 aiIcRT^T f^Tffisn^r Shliti flfgtT '< HWPfT fhWfh 3^T •<ll<41cl'4, STfltf'IS, tsldl'My 3T1^TT5ra? W 200 Ri'fe^, sn^r^dTWHf?^ circumstances and the care taken t& »tii<itd<fl-fiitfciT fr' toA <R|+<II< ^ari^iTsn^T ^iot merely indignation of the court can form th4 basis of conviction and the more serious the 4riwe, the greater should be scrutinize the evidence lest ;ii) suspicion takes the^ace of proof." In tne pr.esent case, jirosecution has tried to establish the crime against the accused on |'he basis of following circumstances;- (i) That the ro^e and sickle were recovered at the instance of thfc accused from her house. That accusec| Rukmani Bai wos seen by PW/14 Lomabaj, goin^ and coming back townrds the site where the boc^y of Duryodhan was found. That there w4s animosity between the accused family and the decea^ed family. As far as first circun^stance is concemed, accused/appellant said to haye given memorandu^n (Ex.P/9) to the Investigating Officer regarding rope & sickle and in ^ursuance of that, the said rope & sickle vi;er®recovered at the instan<te of the accused from her house under Exs.P/10, P/ll & P/12. Th^ witnesses namely Tularam (PW/8) & (Shundu (PW/9) have categori^ally stated that the rope & sickle were (tfti^fe^) (iii) K E M rs XI-HC-22 311^Tq?T f^iRisn^r CTt^gfgcr *11*IWI Shllctl 3ST"i|]<lldi|, B>ti1u'i6, [sidiyy Sit^l W«h ^ 200 fcl'b^ 3:n^T??tnwflf?tT --^- recovered at the instance Investigating Officer F^rithvi accused/oppellant while in Pol and in pursuance of that, tli^ instance of the accused froml •sbl'i<Fcl41-( ^l^riTffte^t'^WK i;3lf^T3TI^r of the accused from her house. Dubey (PW/5) has stated -Hiat the ce custody gave memorandum (Ex.P/9) rope & sickle were recovered at the ^er house vide Exs.P/10, P/ll & P/12. Therefore, recovery of rope ^sickle from the house of the accused is established. The question re^naina whether the prosecution has been able to establish that the s^id rope was used for strcmgukition of Duryodhan by the accused. Agrawa! (PW/4) who condt^cted postinortem on the body of Duryodhan, has stated that il| with the help of this 'rope, evidence that the rope in que^tion was the article which was used for the purpose of strangulation was found on the rope or any In this connection Dr. (Smt.) Tara was possible to strangulate buryodhan but there is no other circumstantial of Duryodhan, as no blood or ouiything piece of the rope, which was recovered at the instance of the accusef, was found at the place of occurrence. So, merely on the basis of r^covery of the rope & sickla, it is not possibie to connect the accuse^d/appellant with the crime in question. As far as 2" circumst4nce is concerned, Lomabai (PW/14) has stated that she saw the accu^ed on the fateful day going towards the p!aceof occurrence by scalir^g the wall near the kitchen garden of (<fl^^f^) n :!N:I r n w XI-HC-22 an^r^r R:(h?3n^T sh*lit) Hf?cT SW'fi 3^T •^ww-'i, OTtlti'is, |s|ini«y 3TT3f?T 43^1 t11«WI sh*<|th V^ 200 f^KS Kansram. She has stated in <t the accused going and comi( Amrood Marar, but she was stated that when there wdS why she scaled down the wol!.j prosecution case, the rope of the accused and this witnej rops & sickle in her hands. 4 murder was committed by th< she threw the body of Duryoc^h Marar, but this witness had Duryodhan from her house t<j Therefore, from this evidenc^ conclusion that the accused body of Duryodhan, rope and evidence of this witnessj accused/appeilant with the <( stron.g that cannot take place be scrutinised with greater that she is closely related mother of the deceased wdis <»ii<irci<fl-iwRff ff fscs <[S](^K ^aif^Tsn^r •tb ^ross examination in para 5 that she saw ^ig back from the kitchen garden of smpty hands. This witness on her own ii straight way to go to her house, then 'But, the fact remains that as per the sickle were recovered from the house ;s had not seen the accused carrying the Is per the case of the prosecution, the accused in her house ond thereafter, lan near the kitchen garden of Amrood lot seen accused carrying the body of the kitchen garden of Amrood Marar. z, it is difficult to reach to a definite ivas seen by this witness carrying the sickle in her hands, cmd merely on the it is difficult to connect the rime in question. Suspicion however, )f proof. Moreover, her evidence has to :are and circumspection for the reason the mother of the deceased as the the daughter of the sister of this (-fl^^M) y XI-HC-22 an^r^T f^iwsn^T »t|iqiHf?d RTtfplT ShNlcb 3ST ^ww^, BlTfltl'IS, (sKII'My OT^?T4?|ct» H7 200 f^s Sn^T ?RITW fl1?cT .'\ evidence ctlime witness from close scrutnity of the cohsidered opinion thaf weak and on merely on this accused/ appellant with the. this witness is corroboratey. connectin9 the accused with th As far as third circumsj and c!ear evidence that ther4 accused and the parents of d^< accused to commit such heinoils by the father of the deceasec| show that there was any the deceased family. In ttie mentioned that Sonaram was is animosity between them, anc| the kitchen garden of Amrood ^ been examined. The back family and deceased family information report. Howeverj Chitranjan (PW/2) who gwe^ informcition report, in para se^en gro(jnd ebl<<F(-l41-f HWvti il fel^ <Rl<<K ^ a-ff^IT 3t1^?T j)f the evidence of this witness, we are the evidence of this witness is very ;, it is very difficult to connect the in question unless the evidence of by other circumstantial evidence ifi crime in question. timce is concerned, there is no cogent was a strong animosity between the iceased Duryodhan so as to force the crime. In the merg intimation given name!y Chitranjan, there is nothing to between the accused family and |first information report, it has been on good terms with them and there one Paramaniuid saw Rukmani Bai near |Aarar, but the said Paramanouid has not of animosity between the accused lias not been disclosed in the first the father of the deceased namely merg intimation and lodged first kn of his evidence has stated that he (<ft^y^) anim|osity nbt XI-HC-22 sn^T^iT f^iNisn^r SbH V^V (^) HTqdT ShNlch 3sr;:<Tpn?pr, otfl^'is, Rifiiyy 37T^?T4acb TR; 200 fdOoS, 3I1^T S^tITW flf?(T - Zti- do\/s was doubting the involvement his son Ouryodhan. 6-7 quarrei between Rukmani, To| theft of one axe and hen, but intimation or in the first infoi that Rukmani Bai and Tolmatl deceased namely Jasobai in the accused persons were no^ used to abuse. At about 13 abused them, but this fact husband of this witness. and it is difficult to connect question based on such a weak For the foregoin9 that even taking -toyther prosecution has not been abl^ the author of crime in committing this crime by clr'cumstances have not stood *he circumstantiai eyidence. ppra reasions qu^st stiiifci'fl-i wHvii f\ fs^Sv <Riwi< ^isrf^TiTsn^r ()f Sonaram in committing the murder of before the incident there was some mati and victim family on account of this fact was not mentioned in the merg 'rftation report. He has further stated abused them. PW/13, mother of the 5 of her evidence has stated that abusing them in their names, but they .00 noon in the day of incident, they not been corroborated by Chitrouijan, ;, it is a very weak type of evidence the accused/appettant with the crime in type of evidence. ;, we are of the considered opinion ba^ed on these three circumstances, the to establish that accused/apy<lbnt was •ion and there is no possibility of on^body else in other words the three up to the test for resting conviction on "pie prosecution has failed to establish hds Therfefore, (ifli;^^) XI-HC-22 3I1^TqiT f^W3:n^?r OTWgl^tT SbWB /^ ••f<:¥3;i «.'*'.' vsv 'W^" $"* 7v~ 3^ •^WM-'A, wl\w\<s., ^v^wy. -^. Sii^t ^iacb irradT gnnw"""""""""" WT 200 fa^s 3t1^T g^ITW trfN' ^v the crime against the accu^ circumstantial evidence. In the result, the appeal conviction and sentencejmpose^l of the IPC are set oside and sH is in detention since 28/02/20( liberty forthwith unless requir^d Sd/- L.G.Bhadoo Judge »t>i<<fa<Tl-itiit(niffte^l'<Fai(<ii< ^srf^iTsn^T led/appellant with clear, cogent caid succeeds and the same is allowed. The upon the appellant under Section 302 le is acquitted of the said charge. She 30. Accordingly, the accused be set at to bejletained in any other case. Sd7/- "" V-K-Shrwastava i Judge (<fl^^^)