- 9Eérgi2§;_§2é§§;_§é&£0_21299;, pp ELLA‘ In Jil aéihuran ali am, , ag’e'cyi abou gricultural; r‘ INAL APPEAL UNDER, SECTmN ’“374’ (2)“;0F, THE‘E‘cofDB CRIMINAJA PROCEDURE AGAINST'T .J’._,‘ '.A1viBIKApUR,.. DISTT‘. URGUJA~UMDE ON DATED 27—7—2001 INSEsssi’Id 335/2ooe. ' D‘GEMENT‘, CbNvc I ON ' _AND,$ENTENCE PmsED BY FIRST A.& § NV. . $ \ IHATTISGARH : B I LAS'PUR A NT a M g R t} A gs giM OF \ H _ : iT XI—HC—78 WWW WWW watwm Divi$ion Bench: ~ Hon'ble Mr. LC. Bhadool Ag.C.J'. and Hon'bie Mr. Sunil Kumar Sinhc C . 8-2-2007 Mr. V.C. O‘H'aiwar, Advoca'e wi'rh Mr. Ganesh Prasad Gupfa, counsei for The appeHanf. Mr. D.K4 6wa¥re, Depu‘ry Govt Advocafe for fhe Sfafe/respondenf. «4 HF? Ora! judgmem dic‘ta‘ted on bar‘s. Per LC. Bhadoo Aa.C.J.: - This appea! is directed againsf fhe judgmen‘r of convicfion and order of sentence dafed 27-7—2001 passed by ihe 1“ AddiTionaI Sessions Judge, Ambikapur in 5essions Trial No.105/2000, whereby learned Addi‘mnal Sessions Judge offer holding fhe accused/appellanf guihy Kfor'vcommission of offence under- Secfion 302 af the I.P.C., senfenced him 1-0 undergo imprisonmen‘l‘ for iife and pay a fine of Rs.1,000/—, in defauif of paymen’r of fine fo fur’rher undergo RI. for six mon'rhs. However, ieorned Trial Cour? i acqui’i‘i‘ed co—accused Hobaisai. The case of fhe prosecui‘ion is 'i‘ha‘i- deceased Jagan Ram was brofher—in—Iaw (Ba‘nnoi) of accused/appellanf Madhu Ram, Kendi Bai (PW—2) is i wife of Jagan kam (since deceased) and sisfer of accused/appeiicm‘i' Modhu Ram. Co-accused Habaisai (acqu ffed) is son of accused/appellant Madhu i Rem. Bofh accused/appellan‘i‘ Mac hu Ram and deceased Jagan Ram had sown \\ ew.“ x P.T.O. )h XI-HC—78 WWW WWW marwm groundnms in fheir‘ fieids adjaz accused Mudhu Ram were sfoien, I been sfoien by his bmfher—in-Eaw Friday, some ah‘ercafion and scuf' night Jagan Ram wenf fo his fie! sleeping in a 51m (J'hala), during n as a resuli' of which he succumb nighf i‘i'self. On Monday morning Bai (PW—2) wen? io i'he field, she saw ihaf her husband Jagan Ram was sfill sieeping, iher'efor‘e, she wen? WWEWW %alri—?—man%2T en‘r To each ofher‘. The groundnufs of 1e was suspecfing Thai his groundnufs have Jagan Ram (since deceased), fher‘efore, on ‘le fook place between fhe fwo. On Sunday i ‘i-o wafch fhe crop of groundnu‘l‘s, he was ghi- he was assaui’red wii-h a spade on head ad 1‘0 The injuries sus‘rained by him in ihe when The wife of Jagan Rom nameiy, Kendi be near Jagan Ram, found him in injured condiTion, There was an injury on The lefT parieTal bone and blood was oozing > informed Bai Kumar who also wen? 1'0 fhe ou? of 'i‘he injury. 5he came and field and saw ihe dead body of G'agan Ram, ihere was an injury on fhe lefi parie‘l'al bone' blood was presenf There. Therefore, he gave m Lakhanpur menfioning fherein accused/appelianf Modhu Ram a ihai' Jagan Ram has s‘l'olen his g 'Madhu has commiTTed The murd above merg iniimafion, the Sfa‘i'io registered The F.I.R. EXP—1. Fe lefT for The scene of occurrence and prepared The sii-e plan Ex.P-3. The InvesTigaTing Office ThereafTer, prepared The inquesT a P.T.O. “MW on The injury and one spade was also lying erg infima‘i‘ion EXP—2 in Police $1'ai-ion: Thai There was a quarrel beTween The deceased, as Madhu was suspecTing undnuTs, Therefore, he has suspicion ThaT r of his faTher Jagan Ram. Based on The n House Officer, Police STaTion: Lakhanpur, zl/ ~ gave noTice EXP-4 To The Panchas and EXP-5 on The body of Jogan Ram. On 25’” XI—HC-78 WW,WW,W WW 513/ 1H 200( WWW WWW mmwm WW(W) WW§WW %3T%1:W%2T January, 2000, fhe Investiga‘ring bioodsfained soil from The place of occurrence as aiso fhe spade, weapon of offence, si'ained wifh biood und faker: info possession under Ex. -7. Accused Madhu Ram whiie in police cus'rody gave memorandum EXP gave memorandum Ex.P-9 on 26-1 2000: in pursuance of fha‘i fhe spade was recovered a‘l‘ The insfance of H alsai under EXP—10. The body of Jagan Ram was sen? To Mini Primary Heaifh Ceni're, Saika (Udaipur) under EXP-11 where Dr. AR. Jayanf (PW-9) :onduc‘red posT-mor‘iem, prepared reporf EX.P-19 and opined f'naf fhe cause of death is infracranial haemorrhage due 'i'o fracfure of skuii' bone whici' is homicidal in naiure. The recovered ar‘iicles were sen? for chemical examina‘ricn fo Forensic Science Labora‘i‘ory, Sager under EXP-16 from where fhe repor-x‘ EXP-17 was received. The recovered ari'icles were also sen‘i EXP—21 was received. Afier comple‘i'ion of invesi‘ gafion, charge sheef was filed in fhe Cour? of Chief Judicial Magisira‘ie, Ambikapur, who in furn commifi‘ed The case i’o the 5essions Judge, Ambikopur, lrom where learned 1" Addiiional Sessions Judge, Ambikapur, received fhe case on 'l'ransfer for fri. The prosecui‘ion in order +0 esi’ablish charge against fhe accused persons examined nine wifnesses. Siai'emen'is of 'i‘he accused persons were recorded under Secfion 313 of The Cr.P.-C. in which They denied i'he maierial x ,‘E! , ,l P.T.O. Officer took info possession plain soil and r EXP—6. Clofhes of fhe deceased were on 26—1—2000 and co-accusecl Habalsai 'ro fhe Serologisf from where The repor‘r al 4 XI-HC-78 HW,W,W . 67,5 aw WW .o.o.....o.o.o.o ‘0 1H 200( mW<W> WWW WWW mmwm WWW§WW éKaqfa‘nW appearing agains'r fhem in fhe pro‘secufion evidence and s‘rafed fhn'r fhey are innocent Learned Addifionai Sessions Judge affer- hearing counsel for- 1‘he respec'rive par‘l‘ies, convicfed anc sen‘renced accused/appeilan'r Madhu Ram as aforemenfioned, however acqui‘H'ed co—accused Habalsai, son of Madhu Ram. Halwar, learned Advoca‘l'e wifh Mr. Ganesh The oppelloni‘ and Mr. D.K. Gwalre: learned direc‘l- or ocular evidence and ‘rhe ground of circums'ran‘rial evidence Kendi Bai (PW-2), wife of Jagan #ho‘r on Friday accused/appellan‘l ground fhal‘ he had sl'olen his groi Jagan Ram has been murdered by counsel fur'rher submiffed That was effecl'ed from ’rhe place of whereas memorandum of accuse: one day offer fhe recovery of Thi use and based on fhai recovery, crime in ques'rion. In fhe circums Bul Kumar (PW-1) & Kendi Boi We have heard Mr. v.6. O Prasad Gup‘m, iearned counsel for Depufy 60w. Advoca'l-e on behalf of The Sfa‘ie/responden‘i: A‘i fhe oufsei', Mr. Offalwar submif'red fhai' in fhis case There is no accused has been convic'i'ed merely on fhe of Bal Kumar (PW-1), son of Jagan Ram & Rom. Their evidence is only To ihe effecf Madhu Ram ossaulied Jaganv Ram on fhe indnui's, fherefore, They had suspicion fhaf Madhu Ram and his son Habalsai. Learned “ecovery of fhe weapon of offence spade occurrence on 25m January, 2000 i‘i‘self, i Madhu Ram was Taken on 26—1—2000 i.e. z ari-icle. Therefore, fhis recovery is of no The accused cannoi' be conneci‘ed wi‘rh 'ihe fances, merely on the basis of suspicion of PW-z), The accused has been convicfed. P.T.O. J; \ * XI—HC-78 3am, ma, . Gy‘a- 'w Wm<tmw0 mm%wm mmmm manam “ n w b H n cu e u On fhe ofher' hand, Mr. Glre suppor'i'ed fhe judgmenf of The frial Court Having heard iear-ned coun for +h parties, we have perused fhe Jdgmenf of 1'he fria] Court The eence and fhe relevan‘r record. it s frue fha‘i in fhis case There i no ocula and direcf evidence. Convict-ion reefs on 1'he circums‘ramiai evidence. As r 'i‘he sefiled iaw, in order To convict an accused based on i'he ircumsi’anfil evidence, fhe Hon'ble Apex Cour‘r in fhe . 51n1’e of W.B. repor‘red in (1994) 2 Merely on *he graund of suspicio hoever sfr-ong if may e 'ne accused cunof be convicted. The prosetion is required to stubhsh The crime againsf fhe accused beyond reasonbie doubt u vtd i s r pe cu ‘s maifer of Dhamnjoy Chaf‘i‘er‘iee 5C6 220 heid fhai': “In a case based on circumsian‘riai evidence, i'he circumstances from hich fhe conciusion of guil'r s to be drawn have not y To be ully esfablished but also Thai all i‘he circums ces so esl'abiished should be of a coclusive nai'ure and consisfen‘l only wi'i‘h fhe hpofhesis of ‘r guilf of 'l-he accused. The circumsiances hou no? be capabie of being explained ’ by any o‘lher hypo‘i' s except ihe guili- of fhe accused ‘» and the chain of ih evidence mUsf be so complete as noi- io ieave any easunable ground for the belief consisfeni' wi'ih The nnocence of The accused. I'i‘ needs no reminder Thaf le aily esfablished circums‘l‘ances and no? merely indignai’i n of fhe cour'l can form The basis of conviction and he more serious the crime, the greater should be he care taken to scrutinize The evidence lest suspiei n takes the place of proof." RTO. wa sel e w i o i f i' n n y h os sl h i HW,WE,%W "RC1 50 mm a1 200' mm<W) WWW mmm WW§WW W‘wwm éawm In The presenf case, leer-nad friai Coum‘ has convic'l'ed fhe accused on The following circumsfances: - 1. The accused was suspec‘r fhuf deceased Jagan Ram had sfoien his groundnufs and in Thai' c nnec'l'ion, on Friday some aifercafion and scuffle aiso fook place be ween fhe accused & fhe deceased, as per fhe evidence of Phulsai -3), fhe accused sfafed 1'ha'r if fhe Panchaya? is nof able fo s fle their dispufe, fhen he wili commi‘i' fhe murder cf Jagan Ram wifh n axe. 2. The bioods'i'ained spade s recavered a'i fhe insfance of The accused. As far as fhe firs‘i Cir-cum fance is concerned, Bal Kumar (PW-1).. son The deceased: has sfa‘red in his e idence fhaf groundnufs were sown by his fa‘iher and ma‘i'ernal uncie Madh Ram in fhe adjoining fields’ his maiernal uncie was suspec‘ring fha'r his gro dnui's have been s'i-oien by Jagan kam (his fafher), in 'rha‘i connec‘iion Mad u Ram had beafen his fafher and Madhu Qam also said fhaf he will conv The Panchayar, bu‘l‘ fhe Panchayaf could nof be held. Thereaffer, Madhu am quarreled wi‘l‘h his fafher in fhe field, his fafher came and disclosed Th 1‘ fac‘i To his mofher. On Sunday morning his broiher Kariman, sister ko‘fiy nu and broiher-in-law Dahruram wen? to ihe field +0 collec‘l' groundnufs, f ey refurned along wi'rh his faiher To Their house Thereafi‘er, his broTheruin-l w and sisTer lefT for Their residence, buT in The evening his faTher again w nT To The garden of groundnuTs. He was sleeping in The J’hala in The night n Monday morning, his nephew Ajjuram & / moTher Kendi Bai wenT To The gard n of groundnuTs, They saw ThaT his faTher i , we ”ii ' W P.T.O. \i ,1 XI—HC—78 ’ / i W a e XI—HC—78 @D 7 RW,W,W Wm a1 200{ Wmmwwr) mam WWW WW§wW mmwm égwm was sfiil sleeping, fhey fried 1-0 wa\<e him up, buf his fa‘rher‘ was dead, fhere were irguries on ear, nose (31 parie‘ml bone, and blood was present He was a'r his residence, 1'her'eafi'er, naming i'o know abom- ?his fact ha a!so wen? To i'he garden of groundnufs and injuries on ‘rhe person of his fa‘i‘her. Therefore, he iodged The repori's xsP-l & P-2 in Police Siafion: Lakhonpur. Kendi Bni (PW-2) has sic ed in her evidence about ihe dispu‘ie befween her husband and broi'h On Friday her husband was bea‘i'en by Madhu and he received injury on end. On Safurday also her husband was beafen by ihe accused. Repeated fhe accused was saying thaf Jagan Ram has sfolen his groundnu‘is, iher fore, he wili convene Panchayai'. Her husband used To remain in Jhaia fhe garden of groundnufs. On Sunday, her husband wen‘i‘ i’o the fieid nd was sleeping in ihe J'hala, nex‘l' day morning Le. Monday she along w her nephew Bhajju wen? To The field for collecTing groundnuTs. She saw Th T her husband was lying in The Jl‘lala, she Tried To wake him up, buT she saw haT her husband was already dead, There were injuries on The parieTai re ion, blood was presenT, Therefore, her grandSOn wenT To The house and informed. She has suspicion ThaT The accused persons have aTTaeked he husband wiTh The axe‘ The above evidence of Th Two wiTnesses (PW—1 d PW-Z) is no-i-hing more Than suspicion and beyond s spicion The prosecuTion has noT been able To bring on record any eir'cumsTan e To connecT The accused wiTh The crime in quesTion. Even Though iT e been sTaTed ThaT The accused was. ThreaTening The deceased and n on Friday he gave beaTing To The P.T.O. s ‘w e . i i e h XI-HC-78 mmm GD 9 W 200/ mmwhw) ! mmm matafEam WWEWW %311C—?m3n%w / WWW deceased and fried 1'0 convene i broughf on record by adducing an) Panchaya‘i' was convened and fhe accused was accwing fhe deceased fhaf he orf was lodged by fhe complainanf in The ven by fhe accused on Friday i.e. ‘rwo days andenf wii‘ness has been examined To show ThaT on Friday any beaTing was given by The accused and 'ThaT was made however strong, merely on ‘rhe basis of held guilfy unless some o'rher sfrong f on record fo indicafe fhai' from fhose rawn Thaf fhe accused was fhe aufhor of he Panchaya? aiso, bu? nofhing has been evidence of independenf wifness fhm‘ any has s‘folen his groundnufs, no rep Police Sfa‘rion regarding bearing 9 before fhe inciden‘i‘, nor any indep known 'i'o fhe villagers. Suspicior circumsfan'l'ial evidence is brough circumstances inference can be d The crime in quesfion. As far as fhe second circur fhe insfance of fhe accused is cc spade in question was of ‘fhe possession on 25—1—2000 from Th place of occurrence iTself, whereas The memorandum based on which The pade said To be recovered was recorded on 26-1-2000 i.e.‘one day offer i' e day of recovery of fhe spade, as such, nno'r be held To be aT The insTance of The ready recovered before The memorandum aT recovery was from open place, as The The deceased. Therefore, on The basis of :d cannoT be connecTed wiTh The crime in nsfance recovery of bloodsfained spade of incarned, i? is admi‘Hed posifion fhm‘ ‘rhe eceased and fhe same was‘laken info fhe said recovery of fhe spade c accused, because fhe spade was a was given by The accused and fh spade was lying near fhe body of recovery of fhe spade, fhe accu5t ques‘i‘ion. bay P.T.O. suspicion The accused cannof be XI—HC—78 EW,WW,W Aq§€3 . H. a 2001 WW(W) Wmfé’aia? wmm mmai%a3n%¥r As far- as fhe evidence o- Phulsai (PW-3) is concerned, fhis wifness has been deciar-ed hosfile, as he has nof suppom‘ed fhe prosecu‘rion case. He has sfafed in his evidence fhaf one day Madhu Ram came f0 his house and said fhm‘ Jagan Ram has sfolen WW§WWA %3T%mm , his groundnufs, iherefore, fhe ma‘ifer be decided in The Panchaya'r, bu‘r The ma‘rfer could nof be decided, therefore, accused Madhu Ram said Thai if ‘ihe maf'i'er' is nof seified in The Panchayai', ihen he wiH commii‘ The murder- o in para 4 of cross-examina‘iion ha: him To any one and fha'i is why E Kendi Bai (PW-2), wife of The dei said ‘ihr‘eai-ening given by The at wifness had no? disclosed This f reliance can be placed on such ani Therefore, The prosecufioi wifh ‘rhe murder of Jagan Ram clinching circumsi'ani‘ial evidence. senTence of accused/appellani' Madhu Ram is noT based on legal evidence, as such same cannoi' be susTained. In The resulT, The appeal of accused/appellanT Madhu Ram @ Madho L Ram succeeds and The same is allowed. He is acquiTTed of charge under ’ SecTion 302 of The I.P.C. ResulT f Jagan Ram wi‘ih an axe. 8m- fhis wiiness ss'ra‘red fha‘r fhis faci- was no? disclosed by ial Kumar (PW-1), son of The deceased and :eased have noT sTaTed anyThing abouT The cused as is sTaTed by This wiTness. This acT To any one in The village, as suchi no evidence. 1 has uTTerly failed To connecT The accused by producing a cogeni, clear, legal and For The foregoing reasons, convic’rion and :nTly, his convicTion and senTence imposed under SecTion 302 of The I.P.C. are seT aside. IT is sTaTed ThaT The accused/ P.T.O.