;- c"''% . €S%j .- "^^ " -:?tl^' ^ Mffi HIGH COURT OF CHHATT!SGARH AT BiLASPUR DB: Hon'ble Shri Suni! Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. JJ. APPELLANT Respondent APPELLANT ResDO.ndent Criminal Appeal No. 335/1995 Vs. ; Kaval aged 19 years, Son of Budhwari, Resident of Village Kothar, Police Station Piparia, Tehsil Kawardha, District Rajnandgaon (MP) State of Madhya Pradesh AND Crimina! Appeal No. 336/1995 Vs. Sukhnandan aged 23 years, Son of Budhwari, Resident of Village Kothar, Poiice Station Piparia, Tehsil Kawardha, District Rajnandgaon (MP) Stets of Madhya Pradesh 3 S» fCrimina! Aopeals underSection 374(2) ofthe Cr.P.C.) Present: Shri Alok Bakshi, counsel for the appellants. Shri Ashish Shuk!a, Govt. Advocate for.the State. CP.AL JUDGMENT (11.05.2011) The following judgment of the Gourt was passed by Sunil Kumar Sinha; J Thsse appeals are directed against the judgment dated 2S Octebsr, 1-994 passedin Sessions Trial No.143/93 by the Additiona! Sessions Judge, ». / Khairag/Camp Kawardha. 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'g EKBit!tk:.t 4. After comp'eting investigation, charge sheet was filed in the C-ourt of Judicia! Magistrate, First C-!ass, Kawardha, who in turn, committed the mater to the concerned Sessions Court, from where it was received on transfer by Additional Sessions Judge Khairag/Camp Kawardha, who conducted the tria! and .conyicted and sentenced the appellants as aforsmentioned. 5. Admitted'y, there was "o eyewitness to the incident and the case of the prosecution was based on circumstantial evidence. Fo'iQwing are the circumstances, on which, the learned sessions Judge relied on and convicted and sentenced the appellants for commission of murder of deceased Amber. (a) Since the appel'ants were the successors of the deceased, therefore, they v"ere not happy with the deceased when he was disposing his prQperty^. (b) Before the incident, in the night the appellants were seen near the house of the deceased; and (c) the appe!!ants were seen going towards the place of occurrence, having weapons, at or about the time of the incident. 6. Shri Alok Bakshi, !earned counsel appearing for the appellants argued that the deceased was materna! grand father of the appellants; mother and father of the appe'lants were also aiive; the appel'ants were not naturat succ^ssors of the deceased; therefore, it cannot be said that they had _strong motiye t©cQmmit murder ofthe deceased on account ofthe factthat '. / they would suoceed to the estate -of the deceased. He further argued that even if al! the circumstances are taken at their face value, it was not proved that the appeHants committed murder ofthe deceased. A! /7 ^ 7. On the other hand iearned counsel appearing on behaif of the State opposed these arguments and supported the judgment passed by the sessions Court. 8. We have heard learned counsel for the parties at iength and have a!sQ perused the records ofthe'sessions case. 0 In Dhananiov Chatteriee-Vs.- State of Wesf Benaal. (19941 2 SCC 22 the Supreme Court held "!n a case based on c'rcumstantia! evidence, the circumstances from which the conclusion of guilt is to be drawn have not on!y to be fu!!y established but ateo that alt the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances shou!d not be capable of being expta'ned byany othertiypothesis except the guilt of the accused and the chain of the evidence must be SQ comp!ete as not to leave any reasonable ground for the be'ief cpnsistent with the tnnocence of the accused. It needs no reminder that legally established circumstances and not merely indignatiQn of the Court can form th.e basis of conviction and more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspfcion takes the place of proof." 10. In Bodh Raj aiiasBpdha and others Vs. State of Jammu and Kashmir, AiR 2002 SC 31S4, the Supreme Court laid down that there is no dQublth.at qa'nvteUon can be based soiely on circumstantia! evidence butthe cond'itions precedent bsforStiiConviction could be based on circumstantial evidence, myst be fully estabtished. They are: (1) the circumstances froni-which the conclusion of guilt is to be drawn shoutd be fuily established. The circumstances concemed 'must' or 'shoutd' and not 'may' be established; €N, a ^^.-y ^ (2) iait! (3) the facts so established should be consistent only with t'ne hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guiity; the circumstances should be of a conclusive nature and tendency; (4) they should exchjde every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complste as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human prQbabi!ity the act must have been done by the accused. 11. In Dharindhar Vs. -State of Uttar Pradesh and others and other connected matters.(201Q) 7 SCC 759 the Supreme Court held that it is not always necessary for the pro.secution to establish a definite motive for the CQmmission of the crime. It wil! always be relatable to the facts and circumstances of a given case. It wil! "ot be correct to say as an absolute propQsitiQ" of law, that the existence 6f a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say thst absence of motive essentially results in the acquittal of an accused if he 's otherwise found to be guilty^ In Babu Lodhi V. -State of UP.J1987S 2 SCC 352 it was said that insofar as the adequacy of mQtive is concerned, it is not a matter whicb can be accurate'y weighed on the scale Qia-balance. ' -12. !n the instant case, motive suggested-was that the appellants were the recip'ents of the prQperty^of'the deceased, therefore, they were not happy with the conduct of the deceased while he was seHing his property. It comes in the evidence that the deceased had sold his land, therefore, the appel'ants were unhappy and they were opposing the sale of the property. The appellants were the maternal grand sons of the deceased. It comes in the evidence that daughter (mother of the appellants) and son-in-'aw of the deceased were a!ive. In the !ife time of the daughter and son-in-law of the deceased, the appellants would hardly succeed to the property of the deceased. In the above faets and circumstances of the case, we are of the view that the motive suggested by the prosecutiQn for commission QT murder of the deceased by the appel!ants was not suff'cient and it was hard'y incriminating against the appellants. 13. The next circumstance is that the appellants were seen.near the house "f the deceased. The appellants are the materna! grand sons of the deceased. As we have already stated, earher the appellantswere residing with the deceased in the same house and only since last few months, ^hey were not residing with the deceased. In the abo'/e factual scenario, if the appe!!ants were seen near the house of the deceased, it was hardly an incriminating circumstance to draw inference that the appellants were cu'prits and they actually participated in the commission of murder of the deceased. ,. 14. Another circumstance on which reliance is placed is that one of the witness Santanath (PW-5) has deposed that he had seen the appellants gQing towards the house of the deceased in the Tateful night having axe and kudal! in theis;, hands. In fact Santanath (PW-5), in the cross-examinatiQn , »• / deposed as an eyewitness and stated that he saw that firstiy SukhnandaR ''^. assaulted.the deceased by axe (kudali) and thereafter Kaval also assulted him by kudali. We note that the above facts were "Qt stafed by him in his case diary statement. He was not the eyewitness according to the prQsecutjoR. !nfact he was the witness of the circumstance that hs had ^^ w seen the appe!lants going towards the place of occurrence, however, JR his court evidence, he c'aimed himself to be an eyewitness and made ths above statements. In the above facts and circumstances, we are of the yi6W that he was not s reliabte witnsss and the learned ssssions Judge has erred in re'ying up on his testimop.y, even for the purpose to believe that he had seen the appe!lants going towards the p!ace of incident ha'/ing axe etc. in thsir hsnds. - 15. So far as the seizure of axe at.the instance of appellant Kaval Is concern.ed, the learned ssssions Judge has not relied on thesaid ))0^./^-— circumstance as the said article was/sent to the FSL for examination. '- » 16. O" due appreciation of the entire evidence avaitable on record, we are of the visw that the abQ"e circumstances were not consistent only with the hypothesis of the guilt of the appellants. The circumstances were explainable. They were not of conclusive nature. Further; they do not exc'ude every possible hypothesis except the "ne to be proved by the prosecutiQn beyond a!! reasonable doubts. We are unabie to sustain the convictiQ" ofthe appe!!ants on the above set Qfcircumstantial evidence. 17. For the foregQing ireasons, the appea!s are allowed. The conviction and sentences awarded to the appel'ants under Section 302 of the !PC are set -aside. The appellants are acquitted of the charges framed against them. !t is stated4hat the appe'lants are on bail. Their bail bonds are / .. cancellted and sureties stand dischara.sd. Bini Sd/- Sunil Kumar Sintia Judge Sd/- R.S. Sharma Judge