HIGH COURT OF CHHATTISGARH AT BELAgPUR Division Bench: Fion. Shri Dhirendra Mishra & Hon. Shri Manindra Mohan Shrivastava, JJ. Crimina! Appeai No.50? of 1%2 Present: Mrs. Indira Tripathi, counsel for the appellants. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. ORAL JUDGMENT (Delivered on 7““ January, 2010) a The following judgment of the Court was delT'Vered by Dhirendra liiiiehra. J. Thisériminal appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 26‘" March, 1992 passed in S.T.No.189/90, whereby learnedot 5* Additional Sessions Judge, Raigarh, after holding the appellants guilty for the offence punishabie under Section 302/34 and 201/34 of the IPC. sentenced each of them to undergo life imprisonment and Rt for one year. Both the sentenoes x have been directed to run concurrently. Aggeiiants: 1. Sukhanaih. 8/0 Sugriv Teli, aged about 26 years 2. Gautam alias Bhandri, S/o Nilkanth Baba, aged about 30 years, 3. Bhagirathi alias Nanhu, S/o i ,Sugriv Teli, aged about 20 years, 4. Girdhari, S/o Hira Das Baba. aged about 38 years, i A Ail r/Q Rok Bahor, Thana Bag Bahar, District Raigarh Versus Respondent: State of MP. (now Chhattisgarh), Through Station House Officer, Bagbahar. h) Case of the pro3ecution, in brief, i3 ihat one Duia Uraon. resident of Rokbahar. wiih other villagers gave informatiOH in Police Station-Bagbahar that one Jhaker Matwar informed him that dead bedy of a person is floating in Jharmuda tank. Theyealong with Patel. Sarpanch and other villagers went to the tank and found the dead body floating. The dead body wee identified as that of Gabrel. Galorel had left his home after taking his meals on Thursday, however‘ he did not return. Morgue intimation of-Ex.P/1 was recorded on the basis of aforesaid information. After registering the morgue, the police proceeded for the scene of occurrence. lnquest over the ,dead body was prepared in the presence of witnesses vide EXP/8. Bloodstained soil and plain soil were taken into possession on 7.4.1990 vide EXP/2. Sealed packet containing femur bone of deceased Gabrel reoeived-from hospital was taken into possession vide EXP/3. The dead body was sent for autopsy to Community Health Centre. Laitunga, where Dr. S. Upadhyaya (PW—26) conducted postmortem and gave his report vide Ex.P/38. A query was sent by the Investigating Officer vide EXP/37 and the doctor performing autopsy submitted his report on the said query vide EXP/39. After receiving the postmortem report and reply to the query by the doctor. crime was registered on 13.4.1990 against unknown persons. On subsequent investigation, statements of mother of the deceased Shabeena Bat (PW—10) and sister-in-law of the deceased Dilmet (PW-11) were recorded and thereafter, the accused personswere arrested on 254.19%], except Girdhari. who was arrested on 5.8.1991. Two receipt books were taken into possession from Munnalat (PW‘8) vide seizure memo of EXP/10. Articles seized during investigation i.e. plain & bloodstained soil seized on 7.4.1990 and 25.4.1990, and bed-sheet seized on 25.4.1990 were sent for chemical examination to Forensic Science Laboratory, Sagar vide Exs.P/15 & P/16. Report of the FSL is EXP/45, according to which the above articles were found to be stained withbiood. The aforesaid articles were further referred to serologist and chemtcal examiner for confirmation of origin of blood. Report of the serologist is EXP/48, according to which the samples were disintegrated and therefore, origin could not be determined. After compieimg investigation, charge sheét was filed against the acsu‘sgd parsons in the Court of Judicia! Magistrate First Class Dhatmiaigarh who m turn committed the case to the Court of 8e$sions Judge Raigarh and the same was received on transfer for tnai by the learned Additionai Sessmns Judge. Learned trial Ceur’t framed charge under Sections 302 and in the atternative 302/34 and 201/34 of the IPC against all the accused persons, who abjured their guilt. The prosecution in order to establish charges against the accused persons examined 28 witnesses in all. Thereafter, statements of the accused were recorded under Section 313 of Cr.P.C.. in which they denied the .circumstances appearing against them in the prosecution case and pleaded innocence and false implication on account of enmity. Learned trial Court. after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in para-1 of this judgment. Mrs. Indira Tripathi, teamed counsel for the appeilants submits that from the evidence of Dr. S. Upadhy‘aya (PW-26), who conducted postmortem. it is evident that in the postmortem, muddy water was found in the abdomen of the deceased. in crossmexamination. the doctor has categoricaliy opined that if the deceased jumped in the tank from head side and collided with a stone, the injury found on skull could be caused. Referring to the evidence of Shabinabai (PW—10), mother of the deceased, it was argued that head of the deceased was pierced into mud and in these circumstances, it cannot be said that the deceased was thrown into tank after assauit, and possibility of his death being accidentai cannot be ruted out. She further atgties that the entire conviction is based on the evidence of PW-‘iO Shabinabai, mother and PW-tt Dilmet, sister- in—law of the deceased, whoare witnesses of fast seen and except this, thete is no other incriminating circumstance estabiished by the prosecution against the appeliants. Even the version of the ..abgyentwo witnesses that the deceased was called by the . wpellanis in the evening of incident becames doubtful as the abeve faci was disciosed for the first time on 14.4.1990 and she dio not discloae ihis fact when she was earlier interrogated by the poiico immediateiy after the inoidant. it is funher argued ihat there is sufficient evidence availabie on record, which is suggestive of the faci fhat on the date when the offence is alleged to have been committed, the appellants had gone to Shakti for purchasing cattle. 08. On the other hand. learned counsel for the State supported the impugned judgment, 09a ‘ We have heard leafned counsel for the respective parties and perused the material available on record as also the impugned judgment. ‘ a 10. Learned trial Court on the basis of evidence of Dr. Upadhyaya (PW-26), who has proved the postmortem report of the deceased (EXP/38) heid that the deceased sustained two lacerated wounds at the left ear and occipital region; his left and front parietal bones were fractured and he died due to coma as a result of fracture of parietal bones and thus, he was hrst assaulted and thereafter, thrown in the tank. Relying upon the evidence of PW-tO Shabinabai and PW-H Dilmet, it has been’further held that the appetlants took the deceased from his home at 7 pm on the date of incident. murdered him and thrown him in the tank. They have failed to prove that they had gone to Shakti between 5.4.1990 and 14.1990 for purchasing cattle and did not reach Rokbahar till that date. Bloodstained soil was found in the field of $ukhdev, situated a. near the pond and the above place was indicated by appellant Sukhnath. 1t. PW-t Dulararn has proved the morgue intimation of EXP/1, whereby he informed the police about the dead body floating in the tank. Bloodstained soit was seized from the field of Sukhdev situated near Jharm‘t‘ida tank vide EXP/4. Hoshiyarilal (PW-5) and Janakram (PW-=6) are thewitnesses of the aforesaid seizure. Hoshiyarilal has stated that bloodstained soil was seized from near Jharmuda tank in his presence. Similarly, Janakram has also deposed that bloodstained soil was seized in his presence from the tank vide EXP/4. These witnesses do not say that the place from where seizure was made, vide EXP/4, was indicated by appeliant Sukhnath. The trial Court en the basis of evidence 0f investigating Officer K.K. Singh (PW-28) observed that the field of Sukhdev, from where bloodstained soil was seized. was shown by appeiiant Sukhnaih on 25.4.1990, though the witnesses of the seizure have not averred the above fact and no such disciosure statement of aspeliant Sukhnath was recorded during investigation under Section 27 of the Evidence Act. ‘12. PW-10 $habina, mother‘of the deceased, has deposed that her son Gabrei was a student of Class-Vin. whereas the appeiiants were his friend. They used to visit her home. She does not know as to what business they did. However, they used to can her son everyday. At times, they used to come threeto four times in a day. On the date of incident they were present in their home after taking their meals, her both daughteruin-laws and son were also present. At that time, allthe accused persons came to’her home and took her son Gabrel and thereafter, Gabrel did not return. On the next day, she enquired from the Patel and other persons of the vicinity about her son. She had also apprised Patel that the appellants had taken her son. Jhakar informed that adead body is floating in the tank, whereupon she went there and found that the dead body was of her son. The head of her son was inside the tank and his legs were upwards. However, she has stated that she does not know about any quarrel between her son and the appellants, and also does not know anything about Hanoman coin. 0 tn cross-examination, she has stated that on the date when her son accompanied the accused persons, he had returned after appearing in the examination around 3 to 4 in the afternoon. The accused persons never beat her son. $he has stated that her statements were recorded three times by the police. Her statement was also recorded on the date when dead body of her son was found'by the pottce. After three days also, her statement was recorded and eight days thereafter, her statement was again recorded. She has further deposed that she had informed to the police at the time of giving statement for the hrst time that on the date of incident, the accused persons called the deceased from 7 ~\~~eeee.eew took him. l " C! PW-11 Dilmet, sister-in-iaw, of tha deceased has also deposed that on Wednesday and Thursday Gabrel returned after appearing in the examinatian, the accused persons were sitting in their courtyard, they enquired about Gabre! and thereaftemthey took him on the pretext of coiiecting nrewoed and thereafter, Gabrei never returned and his dead body was found in the tank. FW~2& K‘K. Singh hae deposed in para-13 that he arrested the accused persons on 25.4.1990. Though he met the accused persons on 7.4.1990. however, he received no information about the incident from the accused persons on 7.4.1990. In para-16 atso, he has recorded the statement of Shabinabai. However, on the basis of statement of Shabinabai, he did not suspeot tnvotvernent of the appeiiants in the offence. in the morgue intimation also, it is not mentioned thatch the date of incident the deceased accompanied the appellants. Crime was registered under Section 302 of IPC on 134.1990 at 20:10 hours against unknown persons and in this report also, the fact that the deoeased was seen alive last time in the company of the appetlant when they took him from his home, is missing. The argument advanced on behalf of the appellants that they were not present tn the piace of incident as they had gone to cattle market, Shakti for purchasing animal, has been disbelieved by the trial Court and it has been obsewed in para-23 of the impugned judgment that, in all probabilities, Girdhari and Sukhnath might have also returned Rokbahar by bus and thereafter, they might have taken Gabrel from his home. Referringao the evidence of Manbodh, Jai Prakash and Noharsai, it has been observed that there is every possibility and it is confirmed that Girdhari and Sukhnath might have reached Rokbahar in the Saturday evening, and the defence and the hostile witnesses have not been able to establish that the accused persons were not present in Rokbahar between $.4.1990~_...and 7.419%. The above circumstance has aiso been considered as an incriminating circumstance for convicting the appetlants PW—t2 Nistar Toppo, has not supported the prosecution case and he has turned hostile. ln cross-examination by the prosecution, he has admitted his statement recorded under Section 164 of Cr.P.C. 1%. t , i It /F . . @ Vide EXP/14A. However, in further cross—examination by ihe defeiice‘ he has deposed tha’i the police had threatened him that if he does not give statement undef Section 164 of Cr.P.C., they shaii aleo make him an accused in this effence. a ‘17. PW—13 Jainath Prasad-Kotwar has deposed that they had gone to i Shakti to purchase Cattle a year before on Thursday with Lahru, Gopichand, Dhaneshwar and Maneshwar. They met Sukhnath and Girdhari at Shakti‘ they stayed at Shakti with Sukhnath and Girdhari in the night of Wednesday and on the next day. they stayed at Gurda.’ in cross-examination, he has stated that Sukhnath stayed with them tilt 11 am on Thursday. 3 18. PW—2O Noharsai has also deposed that they had gone to purchase cattle in‘Shakti market on Wednesday, they started from Shakti on Thursday and inthe Thursday night they stayed at Gurda. ln para- 3 of his cross-examination. he has stated that when they stayed at Gurda in the night. Girdhari and Sukhnath were also there and they were also having three pairs of bullocks. Simitar is the evidence of PW-21 Manbodhl 1Q, On careful scrutiny of the entire evidence of the prosecution witnesses the only evidence, which may be of some'relevance, is that PW—10 Shabinabai and PW—1‘l Dilmet have deposed that on the date of incident the accused persons came to their home and took the deceased with them. However, version of these two witnesses also does not inspire confidence as the lnvestigating Officer has deposed that this fact was not disclosed by Shabina a. when her statement was recorded for the first time on 7.4.1990 when the dead body was found in the tank. The above fact is also missing from the morgue intimation recorded on 7.4.1990 and the FIR, which was recorded on 13.4.1990. There is no other circumstance, which, in any way, remotely connects the appellants with the crime in‘question. 20. lt is settled law that in order to rest conviction based on the circumstantial evidence, the prosecution is required to establish that such evidence satisfy the following tests:— a. the circumstances from which an inference of guilt is sought to \ g~ be drawn, must be cogently and firmly established; ’ ’ X 6%? b. those circumstances shou1d be of a definite tendency unerringiy pointing towards guiit of the accused; c. the circumstancee, 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 th°e accueed and none else; and d. the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of‘any other hypothesis that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Q1. lf we apply the above principles of law laid down for convicting the accused persons on’ the basis of circumstantial evidence. we are of the considered opinion that no complete chain of circumstances, as observed in the foregoing paragraphs, to hold the accused t persons guilty, has been established by the prosecution. ‘22. in the result, the appeal is allowed. Conviction and sentence imposed upon the appellants under Sections 302/34 and 201/34 of the IPC are set aside. They are acquitted of the said charges. They are on bait. therefore, their bail bonds are discharged and they need not surrender. Sdl- numENDRA MIsHRAl ‘ V Sd/- .Ma'nindra Mohan Shrivastava Judge l Judge