.J- HIGH COURT OF CHHATTISGARH, BILASPUR ^•T^ CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 943 of 1991 Thakhat & Others Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA J For consideration Sd./- SunilKumarSinha Judge Sd/- Chiet'Justic Post for Judgment : 7/07/201 0, Sd/- Sunii Kumar SiBha Judge °}'Vio HIGH COURTOF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. &, Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 943 of 1991 1. Thakhat, son of Sukalu, Satnami, aged 40 years 2. Lachhu, son of Sukalu Satnami, aged 30 years 3. Kunju alias Chandrika, son of Sukalu Satnami, aged 35 years 4. Umesh, son of Dayalu Satnami,aged 28years 5. Bhagwani, son ' of Madhu Satnami, aged 25 years 6. Preetam, son of Thakhat Satnami, aged 23years All residence of village Kanharpuri, Police Station Tumgaon, District Raipur Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section374(2) ofThe Code of Criminal Procedure, 19731 Appearance: Mrs. Fouzia Mirza, Advocate for the appellants. Mr. Kishore Bhaduri, Additional Advocate General, for the State. JUDGMENT ( 9 .07.2010) ^ / ' . , Following judgment of the Court was delivered by ^ Sunil Kumar Sinha, J. f- (1) Being aggrieved with judgment dated 30.9.91 passed in Sessions Trial No. 159/90 by the Additional Sessions Judge, Mahasamund, the •appellants have preferred this appeal. They have been convicted u/ss ^i? 'klb. Criminal Aroeal No. 943 of 1991 148 & 302/149 of IPC and sentenced to undergo rigorous imprisonment for 3 years and imprisonment for life, with a direction to run the sentences concurrently. (2) The facts, briefly stated, are as under:- 9 In all 13accused persons were prosecuted u/ss 148 & 302 alternatively 302/149 IPC with the allegations that on 22nd of November, 1989, theyformed an unlawful assembly, participated in rioting armed with deadly weapons, and in prosecution of common objectof that assembly committed murder of deceased Bhakhla in Vtttage-Koma. The family of the deceased and the appellants were originally residing in village Kanharpuri which is at a distance of 1-1 V2 miles from village Koma. Earlier, deceased Bhakhla, his elder brother Samaru and two sons Laxminarayan (PW-4) and Mohan (PW-1) were prosecuted for commission of murder of Sukalu i.e. father of accused Thakhat, Lachhu & Narayan. They were in jail for about 4 years and were convicted by the Sessions Court. In appeal, they were acquitted by the High Court. After the acquittal, Bhakhla and his family members had left village-Kanharpuri and were residing in village-Koma. On the date of incident, Bhakhla had gone to his field for agriculture work at about 8.00 a.m. with his buffalo-cart. It was the polling day for parliamentary election. The allegations are that 13 accused persons, armed with deadly weapons like lathis etc., came to village Koma. In the village, they met Cheti Bai (PW-3 - daughter-in-law of the deceased). She was abused by them. They arrogantly asked about the deceased. Cheti Bai told them-that the deceased had gone to the field. Qn this, accused,/persons went towards the field, caught the deceased and 'brutally assaulted him wrttl lathis. When the deceased fell down in his field, the accused persons retyrned to village Kanharpuri through a na/a route and were seen by Batur (PW-15). Thereafter Sadaram (PW-6), Batur (PW-15), Mehatarin Bai (PW-5 -wife of the deceased) and Satrughan (PW-11) came in the field. Theysaw ^' ,••' the deceased in injured condition. They were taking the deceased /- Criminal Auoeal No. 943 of 1991 to his house in buffalo-cart, but the deceased died on the way. The case of the prosecution was that Bhakhla made oral dying declaration before Mehatarin Bai (PW-5), Sadaram (PW-6) and Satrughan (PW-11) and told the names of the assailants. After the report, the post-mortem examination was conducted by Dr. Rakesh Pardal (PW-2), who prepared his report Ex.-P/4. He noticed many external and internal injuries. There was a depressed fracture in skull. There was linear fracture in right temporal region. Right 3rd, 4th, 8 & 9th ribs were fractured. The thoracic cavity was full of blood. There were injuries in throat and wind pipe and blood- mixedsecretion was present there. Right mandible and lowerjaw were also depressed and moved tovyards left side. The face was completely disfigured. Teethwere also broken. Apart from the above many other injuries were also found. During the course of investigation, the accused persons were taken into custody and blood-stained lathis were seized from their possession. The said articles were sent for their chemical examination to Forensic Science Laboratory, Sagar and a report Ex.-P/37 was received. According to the F.S.L, report, blood stains were found on the lathis seized from the possession of accused Thakhatram, Lachhu & Umesh. However no blood stains were found onthe lathis seized from the possession oftheother accused persons. The prosecution could not file the serologist report regarding origin and group ofblood. <- >^ '^? *<*. (3) There was no eye-witness to the incident and the case of the / . . . prosecution was based on circumstantial evidence. The learned Sessions Judge, acquitted 7 accused persons of the.charges framed against them. However, 6 appellants'were convicted as aforementioned. The learned Sessions Judge did not rely on the testimonies of Mehatarin Bai (PW-5), Saelaram (PW-6) and Satrughan (PW-11) that the deceased made oral ij1 H / / -" ^' s^. ''•i.'^SiS •£&"i?^ •ft:"^ CrimiiialAlipealNo. 943 of 1991 dying declaration before them and the circumstance of oral dying declaratkui, in view of the medical evidence, was disbelieved. The following are the circumstances held to be proved by the Sessions Judge for convicting the appellants Tor commission of murder of deceased Bhakhla: (i) The relations between tWo .families were inirr^ical, therefore, there was strong 'motive' with the appellants to commit murder of the deceased; (ii) The appellants met daughter-in-law of the deceased, Cheti Bai (PW-3), in the village and asked about the deceased and when she told they went towards the field of the deceased; (iii) Batur (PW-15) saw Thakhatram & 13 other persons going back towards village Kanharpuri from na/a route and just after this, Bhakhla was found in injured condition in his field by Sadaram (PW-6) & Batur (PW-15) & (iv) Six lathis were seized fromthe possession of the appellants and blood stains were found on threeofthem. j4i^; I !i: : r (4) Mrs. Fouzia Mirza, legrned counset appearing on behalf of the appellants, argued that the Sessions Judge erred in law in holding the appellants guilty ofthe offences punishable u/ss 148 & 302/149 IPC. She argued that even if all the circumstances held to be proved by the Sessions pqUrt are accepted as it is, they do not lead to the conclusion that the appellants had committed murder of the deceased. They may only prove that the appellants were asking about the deCeased and they had gone towards the field of the deceased and nothing more. She argued about discrepancies even inthese circumstances also. L-..1'. A, •;>. '•^ l /; / CriminalAmeaLNo,943_oL199.1 (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supportyd the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and haveatso perused the records ofthe sessions case. (7) In DhananiovChhatteriee -Vs- State of W.B. (1994) 2 SCC 22 the Supreme Court held "In a case based on circumstantial evidence, the circumstances fromwhich the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain ofthe evidence must be so complete as notto leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the courtcan form the basis of conviction and the more se.rious thecrime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." (8) In Bodh Rai alias Bodha and ofhers -vs-State of Jammu and Kashmir. AIR 2002 SC 3164rlbe Apex Court laid dOMvn that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: Criminal Appeal No. 943 of 1991 1) the circumstances from which the conclusion of guiltis to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; 2) the facts so estabtished should be consistent only with the hypothesis ofthe guilt ofthe accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved;and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (9) Almost similar view was taken by the Supreme Court in Stete of Goa -Vs- Sanjay Thakran &anr.. 2007 (4) SBR 321 by taking note of the decision of Bodh Raj (supra). ^•^- (10) Now reverting to the case on hand, we find that the evidence of Cheti Bai (PW-3) only establishes that the appeUants met her in the village and after abusing her, they asked about the deceased and she told that the deceased has gone to his field. She claimed that thereafter the accused persons were going towards their field, but this portion was an omjssjdn in her 161 statement (Ex.-D/1). Therefore, the only circumstance which was established by her evidence was that the appellantsand 2 more accused persons, whom she has also named, met her in the village and they were carrying /a /sand they asked about the deceased from her, Admittedly the field <place of occurrence) is at a long distance frorn the village. Therefore, nothing can be said with certainty as Criminal Appeal No. 943 of 1991 to what happened to the assembly after meeting this witness. Whether the accused persons went towards the field or they dispersed thereafter or some of them went towards the field or none of them went there. (11) Batur (PW-15) deposed that he was working in his field which is at a distance of 2 furlongs from the field of Bhakhla. He heard the noise from the side of Bhakhla's field. He ran t6 the field of Bhakhla and saw that accused Thakhat and 8 other male members and 4 female members total 13 persons were going towards village Kanharpuri through a nala which was near the field of Bhakhla. H.e categorically deposed that among 13 persons, he was only knowing accused Thakhat and restwere not known to him. He was declared hostile by the prosecution and was confronted with his potice case diarystatement (Ex.-P/29). On the cross- examination by the Public Prosecutor, he categorically deposed that he had not mentioned the names of Lachhu, Kunju, Umesh, Bhagwani, Narayari, Preetam, Dayalu, Basant, Kusum, Janki, Jammuna & Bhanmati, as the members of the group he saw, in his case diary statement and he cannot tell the reason as to how the police has written their names as told by him. In Para-9 of his cross-examination by defence, he admitted that after hearing the noise from the field of Bhakhla when he went on the mecfh of his field to see as to what is going on, he could'see nothing as there were grasses of tong height in between their fields. He could not'-see as who assaulted the deceased. In ' appreciation, we find that nothing material was established from the evidence of this witness, as according to him, he could only identify accused Thakhat and even in the cross-examination by the State ' counsel, he.-did not depose the names of other persons which he had Criminal Appeal No. 943 of 1991 taken at the time of case diary statement. In our opinion, this was the material contradiction in the evidence of this witness and his testimony was not at all reliable. (12) Sadaram (PW-6) deposed that "while he was working in his field which was after 4-5 fields from the field of Bhakhla, he heard cries of Bhakhla like 'run-run' 'save-save'. Ori this he saw towards the field of Bhakhla but he could not see any person as long grasses had grown up in between their fields. Then he went to the filed of Bhakhla. He did not see anybody in the field. However, he saw Batur (PW-15) there. He called Batur and asked as to what happened ? Batur stated that 13 personswere running towards village Kanharpuri, he also heard noise, therefore, he came there." Bhakhla was lying in his field. There were many injuries on his body. According to him, Bhakhta was talking and he stated that family members of Thakhat & Lachhu had attacked over him. According to this witness, Bhakhla made oral dying declaration before them when he was lying in field, whereas, this portion is an omission in his case diary statement (Ex.-D/6), in which, he stated that when Bhakhla was taken on buffalo-cart then he stated the names of assailants. We note that for all these reasons and for the reasons that Bhakhla sustained multiple injuries as contained in post-mortem report and Doctor deposed that on receiymg such injuries, he must have died after 5 minutes on the spotitself, the learned Sessipns Judge has disbelieved the circumstance pf oral dying declaration. Therefore, nothing incriminating was established by evidence of PW-6, except that he saw the deceased in injured condition in his field and helped' the family members of the .a ""-^ ,'^',<-':l«i6i ~&. / £ " vt. t ^??-^;3fe, t % . ~V £ '%. '^^ -^as Criminal Appeal No. 943 of 1991 (9 deceased in taking the deceased to their house on the buffalo-cart of the deceased. (13) As far as circumstance of seizure oi lathis are concerned, that also is not incriminating against the appellants. As stated above, no blood stains were found on the lathis seized from the possession of appellants Bhagwani, Kunju and Narayan and there is no serologist report regarding the origin and the group of the blood stains foundon the lathis seized from the possessions of appellants Thakhat, Lachhu & Umesh. In absence of proof of 'origin' and 'group' of the blood stains over the said articles, the said solitary circumstance would hardly connect the appellants with crime in question. (14) On due appreciation ofthe entire evidence led by the prosecution, in our considered view, though the eircumstance of strong 'motive' on account of previous animosity was established against the appellants, but the other circumstances, which were pressed into motion by the prosecution to establish their guilt were explainable and were not of conclusive nature so as to exclude every possible hypothesis except the one to be proved. We also find fhat the prosecution has failed to prove the'complete chain so as not to leave any reasonable ground for the conclusion cQnsistent with the innocence of the accused persons. In our / view, it was nof established by the prosecution by the above circumstarices that in all human probability the offence was committed by the appellants. ("15.) For the foregoing reasons, we find that the prosecution could not establish the.-gdilt pf the appellants beyond all reasonable doubts and the B f Sh»..«, i' W?a'3t, 10 Criminal Appeal No. 943 of 1991 judgment and finding recorded by the Sessions Court cannot be sustained. (16) In the result, the appeal is allowed. The conviction and sentences awarded to the appellants are set-aside. They are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. SdA C^iefJustjc Sd/- Sunii Kumar Sinha Judge vatti