HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. •ie t S-1»*« Criminal Appeal No.860 of 1 989 Narhar Versus State of Madhya Pradesh (now Chhattisgarh) -—- APPELLANT: RESPONDENT: JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge 3-12-2009 HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- R.L. Jhanwar Judge 3-12-2009 Post for pronouncement of iudament on 3 December, 2009 ^1:;;.^^IS"1§SSI Sd/- T. P. Sharma Judge 3-1Z-2U09 ^ YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 15:18:30 +0530 API^ :N;iitE't!!S Wh HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.860of 1989 Narhar son of Nankuram Lodhi aged 28 years, r/o Deelapahari Tah. & Distt. Rajnandgaon. Versus State of . Madhya Pradesh (now Chhattisgarh) APPELLANT: (In Jail) RESPONDENT: {Criminal appeal under Section 374 (ii) ofthe Code of Criminal Procedure, 1973} Present: Mr. P.K.C. Tiwari, Senior Advocate with Mr. Shashi Bhushan, Advocate for the appellant. Mr. Ravindra Agrawal, Panel Lawyerforthe State/respondent. JUDGMENT (3rd December, 2009) The following judament of the Court was passed bv T.P. Sharma, J: - 1. By this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 the appellant has challenged legality & propriety of th&judgment of conviction & order of sentence dated 27-7-1989 passed by the Additional Sessions Judge, Khairagarh, in Sessions Trial No.26/89, whereby learned Additional Sessions Judge after holding the appellant guilty for commission of the Offence of murder of Shobha, convicted him under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life. / -t^, >. 2. Judgment of conviction & order of sentence is challenged on the ground that without any chain of circumstances sufficient for drawing inference that the appellant has committed the murder of Shobha, the Additional ^£ 9. i:' l%:^S-:'l^g^^^' 1f ~ %<rf1>'^''J^"^ ^F- Sessions Judge, Khairagarh has convicted & sentenced the appellant in the aforesaid manner and thereby committed illegality. 3. Case of the prosecution, in brief, is that Shobha (since deceased) was a person of criminal anteeedents, his father Heera Singh was not happy with him and finally, father of Shobha contacted appellant Narhar & another co-accused Babulal for committing the murder of Shobha on payment of Rs.8,000/-. Appellant Narhar & another co-accused Babulal took Shobha from his house and provided liquor, Shobha consumed liquor in excess quantity and then the accused inflicted injury over the body of Shobha and caused his death. The accused persons removed watch and skin of hands having tattoo marks and after defacing the body of Shobha, they thrown it near the road. Beniram (PW-1), Kotwar of Village Gotia, saw the dead body besides the road. He intimated the police vide Dehati Nalishi Ex.P-25 and on the basis of Ex.P-25, F.1.R. was registered vide Ex. P-26 and merg intimation was also registered vide Ex.P-24. After summoning the witnesses vide Ex.P-2, inquest over the unknown dead body was prepared vide Ex.P-3. The Patwari has prepared spot map vide Ex.P-1. Bloodstained soil & plain soil were recovered vide Ex.P-4. One stone was recovered vide Ex.P-6 from the spot. Four pieces of Bidi and burnt match stick were also recovered from the spot vide Ex. P-8. One empty bottle of liquor was recovered vide Ex.P-9 from 100 steps away from the place of incident. Five pieces of glass were also recovered vide Ex.P-10 from the spot. Dead body was / sent for autopsy to the Assistant Surgeon, Khairagarh vide Ex.P-16 and autopsy was conducfed by Dr. L.C. Madharia (PW-15) vide Ex.P-16A who found following injuries: - (i) incised wound of 3 %" x %" x %" over right parietal region; (ij) one stab wound of 3" x %" x 1 " over forehead; ^K^'. .{..' ,a.t;S..K$ES»i»< S .,i!«.!E;a (iii) one stab wound of 2" x %" x 1" over upper part of left eye causing fracture of internal bone; (iv)five incised wounds near right ear & right cheek; (v) one incised wound over lower rib; (vi) three incised wounds over chin; and (vii)some abrasion, skin of both the hands were scratched (removed). On internal examination, brafn was found ruptured. 4. One piece of Desh Bandhu paper was also recovered from the spot vide Ex.P-7. During the courseof irivestigation, co-accused Babulal was taken into custody. Co-accused Babulal made disclosure statement of rod vide Ex. P-18 and the same was recovered at his instance vide Ex.P- 19. One old cycle and its parts were also seized from Babulal vide Ex.P- 20. Appellant Narharwas also taken into custody on 26-11-88, he made disclosure statement of barber knife & wateh vide Ex. P-22 and barber knife was recovered from the spot at his instance vide Ex. P-23. One Camy wrist watch was recovered at the instance of appellant Narhar from witness Krishna Kumar vide Ex.P-12. One letter was also seized from the wife of deceased namely, Rahmatulla Bai (PW-16) vide Ex.P- 13. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Seized articles were examined by the doctor and finally sent for chemical analysis vide Ex.P-29. Presence of blood over rod & barber knife seized from co-accused Babulal & appetlant Narhar was confirmed videEx.P-31. 5. After completfon of investigation, charge sheet was filed before the Judicial Magistrate First Clas^, Khairagarh who in turn committed the case to the Court of Sessions, Rajnandgaon from where the Additional Sessions Judge, Khairagarh receivedthe case on transferfortrial. 6. In order to prove the guilt of the accused persons, the prosecution has •examined as nriany as seventeen witnesses. Accused persons were B!'":si'i"S''SiiS9:at* examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge acquitted accused Babulal & Heera Singh, and convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 9. Learned counsel for the appellant vehemently argued that the case of the prosecution rests on the circumstantial evidence of last seen, recovery of articles belonging to the deceased at the instance of the appellant and identification of dead body by wife of the deceased Rahmatulla Bai (PW-16), but the prosecution has not adduced credible and clinching evidence to connect the appellant with the crime in question. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the dead body recovered was the dead body of the deceased. Evidence of identification of alleged article wrist watch is also of no use. Learned counsel further argued that conviction can be based upon the circumstantial evidence, but in case of circumstantial evidence the prosecution is required to prove that the circumstances taken cumulatively are forming a chain of evidence so complete thatthere is no escape from the conclusion that in all human probability the crime was committed by the accused and none else, and that the cjrcumstances are sufficient to negate the innocence of the accused and sufficient for drawing inference that only the accused and none else than the accused has committed the offence. Learned counsel also argued that according to the case of the prosecution, two f'.f" ^i. »,^;3,:j,ts=:(ggaiB- a.wii'if'fc'ssias persons were last seen together with the deceased. He placed reliance in the matter of SheoKumar v. State of C.G. in which it has been held by this Court that in case of evidence of last seen together the important and strong factor is an element of identification and in absence of identification-of the fact that only the appellant was seen with the deceased, no conviction could be possible. Learned counsel further placed reliance in the matter of Ranvir Yadav v. State of Bihar^ in which the Apex Court has held thaf the circumstances appsaring against the accused should be put to the accused under Section 313 of the Cr.P.C. for obtaining explanation and in absence of such question, the accused is liable for acquittal. Learned counsel also placed reliance in the matter of Gamparai Hrudayaraju v. State of A.P. in which the Apex Court has held in case of circumstantial evidence, all the incriminating facts and circumstances found to be incompatible with innocence of accused are sufficient for drawing inference of guilt of the accused. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the accused/appellant is the person who has caused homicidal death of deceased Shobha. 11.1n order to appreciate the contentions of the parties, we have examined the evidence available on record. Case of the prosecution rests on (a) the circumstantial evidence of last seen together; (b) discloser statement - of the appellant relating to wateh & barber knife and its recovery; (c) identification of wrist watch re'c&vered at the instance of the appellant that it belongs to the deceased; and (d) identification of dead body by Rahmatulla Bai (PW-16), wife ofthe deceased. 1 2009 (2) C.G.LJ. 483 (DB) 2 20P9AIRSCW3475 3 2009 AIR SCW 3184 tU'41 ^] M ^?; "'••:- !'KW\'!S^WSWS '12.As regards the question of homicidal death of deceased Shobha, the dead body was examined by Dr. L.C. Madharia (PW-15) who has deposed that on 9-9-88 he has conducted autopsy on the dead body of an unknown person vide Ex.P-16A and found the injuries as mentioned in para 3 of this judgment. The injuries found over the dead body were sufficient to cause death and the death was homicidal in nature. Evidence of Dr. L.C. Madharia (PW-15), autopsy repori: Ex.P-16A and inquest Ex.P-3 are sufficient for drawing inference that the cause of death of the person found on 7/8 September, 1988 was as a result of fatal & ante-mortem injuries sufficient for causing death. At the time of autopsy, the dead body was not identified by any person. 13.RahmatuIla Bai (PW-16), wife of deceased Shobha, has deposed in her evidence that before the incident, appellant Narhar & co-accused Babulal came to her house and took her husband Shobha with them, thereafter, Shobha did not return back, they searched for Shobha and after some time they received one letter and she came to know that her husband died. She went to Police Station Khairagarh where she saw the photo of dead body of her husband. In para 15 of her cross-examination, she has deposed that the police has shown the photographs of the dead body, she was not in a position to identify on the basis of photographs offace, but she has identified on the basis of the photographs of hands & legs. Tattoo marks were present on the hands of her husband, but the same . were missing' in the photographs, somebody has removed the tattoo marks by scratehing the skin^^om hands and she has identified the dead body on the basis of photographs of legs. She has alsc deposed that she had compared the photographs of her husband taken from her house with the photographs of the dead body and on the basis of the phOtographs of legs, she had identified that the dead body whose ,. -"'^•Ks-^.J^t^ tf ,..'8"»,,«.y ^ "•^^ :•? •^"^^••^g^^^^ 7 photographs were shown to her was of her husband. She had specifically deposed that if the photographs which she was having in her house were not available, then she would not be in a position to identify only on the basis of the photographs shown to her by the police. 14.Rahmatulla Bai (PW-16) has further deposed that appellant Narhar & one Babulal, the acquitted accused, took her husband. She has deposed in para 12 of her evidence that she has not earlier seen the person who was with appellant Narhar and she has not told the police that Jeevan was present with appellant Narhar. She has also deposed in para 13 of her cross-examination that she is not in a position to say whether accused Babulal waswith Narhar or not. 15.1n the present case, the prosecution has not adduced definite evidence that as to when the deceased went with appellant Narhar & another person and as to when the offence took place. According to the evidence of Rahmatulla Bai (PW-16), appellant Narhar & one another person came to her house and her husband went with those two persons. In case of the deceased last seen alive with more than two persons, in absence of any cogent and clinching evidence it is difficult to hold that the deceased was last seen alive with the accused, before his death. 16.Disclosure statement ofthe appellant has been recorded by M.D. Tiwari (PW-14) vide Ex.P-22 relating to one wrist watch and the wrist watoh has been recovered from Krishna Kumar Verma vide Ex. P-12 at the instance of appellant Narhar. The seized Camy wrist watch was placed for identification. G.P. Chaudhary (PW-10), Executive Magistrate/Nayab Tahsildar, has conducted the identification parade. He has deposed in his evidence thaton 22-12-1988, Camy wrist watch was given to him by ^.S'S^'.iS'sSiH m •i"s^m'-:^^s the police for identification, he mixed the Camy wrist watch with five other wrist watches and out of the total six wrist watches, Camy wrist watch was identified by Rahmatulla Bai (PW-16). He has further deposed that other wrist watches were not of Camy make, they were of HMT, Allwyn, Hanri Sandeez. 17.Rahmatulla Bai (PW-16), wjfe ofthe deceased, has specifically deposed in her evidence that she has identified the watch of her husband Article 'A' in the identification parade. In para 23 of her cross-examination, she has specifically deposed that before identification of watch, the police has shown the watch to her, she saw the watch and after some time she went for identification. The watch which she has identified was different from other watches put for identification and on the basis of different size & shape ofwatehes, she had identified the watch. IS.Except the evidence of Rahmatulla Bai (PW-16), other witnesses have not supported the case of the prosecution. The evidence of Rahmatulla Bai (PW-16), wife of Shobha, reveals that her husband went with appellant Narhar & another person. She had identified the photographs of dead body on the basis of photographs of her husband which she was having, especially on the basis of photographs of leg part of the dead body and photographs of her husband. She has also identified the Camy wrist watch which the police has shown prior to the identification parade and on the basis of such opportunity, she has identified the wrist watch on the basis 6f different size & shape of that watch. 19.Conviction can be based on the circumstantial evidence, but as held in the case of Gamparai (supra), in case of circumstantial evidence, inference of guilt can be drawn if all the incriminating facts and ciFcumstahces found to be incompatible with innocence of accused. n •o ^.^•i, ^^•:.gi^2^^^s ..^J!^ y&-^l!;'20.While dealing with the same question, the Apex Court in the matter of Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh has observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 21. In the matter of Padala Veera Reddy v. State of A.P. and Ors. it was laid down by the Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt ofthe accused; (3)the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none dlse; and (4)the circumstantial evictefice in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not /' 4AIR 1952 SC 343 5AIR1990SC79 11' i'.'f^.'i^gB.: t^ 10 only be consistent with the guilt of the accused but should be inconsistent with his innocence. 22.tn case of circumstantial evidence chain of circumstances should be so connected with each other sufficient for proving the fact that the accused has committed the guilt and except the accused no one has committed the offence. 23.1n the present case, if the evidence of Rahmatulla Bai (PW-16) is relied upon, it may be inferred that her husband went with the appellant & one another person, but it is not possible to infer that her husband was last seen alive with appellant Narhar or with other person. She has identified the photographs of the dead body on the basis of the photographs of leg after comparing the photographs of leg with the photographs which she was having. On the basis of identification of wrist watch and on the basis of the photographs that too photographs of leg, it is difficult to hold that the photographs of the dead person was of the husband of Rahmatulla Bai (PW-16) namely, Shobha. She has identified the wrist watch which has already been shown to her by police and which was of different size & shape and on the basisof different size & shape, she could identify the wrist watch which was shown to her by the Police just before the test identification parade. These statements are not admissible in evidence and even if same are relied upon as gospel truth, they are not sufficient for completion of the chain of circumstances to exclude the possibility of innocence of the accused and to prove the guilt of the accused that / except the accused nobody has committed the offence. 24. The present case is a case of no evidence against the appellant. The trial Court has convicted & sentenced the appellant on the basis of the aforesaid evidence which is not legal evidence. In absence of any legal pl ,//"" ilf . ? ii! : i;.<s^^-^/ :!i!§i'"as:a9?/ 11 evidence against the appellant, conviction & sentence of the appellant is not sustainable under the law. 25.For the foregoing reasons, the appeal is allowed. Conviction & sentence ofthe appellant under Section 302 ofthe I.P.C. are hereby set aside and he is acquitted of the said charge. The appellant shall be set at liberty forthwith unless required to be in custody in connection with any qther^ case. ~——.——>- —— Sd/- T.P. Sharma Judge Sd/" R.L. Jhanwar Judge sy-i.^ l.3 Soma +1