'®'tEai "(SfS.SSi '|;iS;.<f'.(j? "!l:;,i^;i»1" "^ ^ y'' HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: HonWe^hri^ajeev Gupta, C.J. & Hon^le^hri^uniliSumar Sinha, J. Criminal Appeal No. 636 of 2004 ChampcU-am Vs. The State of Chhattisgarh JUDGMENT ~>a^ For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA _c_ Sd/- ChiefJustice Post for Judgment :Zi»/08/2009 Sd/- -j_§-708/2009 HIGH COURT OF CHHATTISGARH.BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 636 of 2004 APPELLANT RESPONDENT Champaram S/o Kashiram Halba, Aged' 27 years, R/o Village- Ranatola, P.S. Mohala, District Rajnandgaon (C.G.) Versus The State of Chhattisgarh Through P.S. - Mohala, District Rajnandgaon (C.G.) (Apoeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Ms. Sofia Khan, Advocate for the appellant. Mr. Ashish Shukla, Government Advocate for the State. JUDGMENT (26 .08.2009) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J. (1) This appeal has been directed against the judgment and order dated 16.4.2004 passed in Sessions Trial No.5/2004 by the Sessions Judge, Rajnandgaon (C.G.), whereby, the appellant has been convicted and sentenced in the following manner with a further direction to run the sentences concurrently:- Conviction Under Section 302 IPC Under Section 201 IPC Sentence Iniprisonnient for life R.I. for 3 years .^r"sfs^,. //-^ "^ I!i ^ ?•';„!(' ""'aAif"' 'i40 CriminaLAEpeal_No,636 of 2004 (2) The facts, briefly stated, are as under:- :^^K-J.^^'i?"^ ..^^^^. "^3 Deceased Umend Bai was the wife of the appellant. She was missing since 11.8.2003. In the night of 16.8.2003, her dead body was seen in the well of one Brijlal. Devendra intimated the appellant. The appellant did not go to see the dead body in the night. In the moming, he went to see the dead body and thereafter a Merg intimation (Ex.-P/25) was lodged by the appellant in police station Mohala at about 9.15 a.m. on the same day. The Investigating Officer reached to the scene of occurrence, ;ave notice (Ex.-P/16) to the Panchas and prepared inquest (Ex.- P/17) on the body of the deceased. It was found during the course of investigation of Merg that the body was tied with a big stone by an old saree. Site plan was prepared under Ex.-P/12 & P/31. The stone, which was found tied with the body (stone of about 10 Kg) and the piece of saree by which the stone was tied, were seized under Ex.-P/lS. Another site plan was prepared under Ex.-P/20. The appellant was taken into custody and his memorandum statement (Ex.-P/ 1) u/s 27 of the Evidence Act was recorded and a Dehatinalishi was recorded under Ex.-P/26, based on which the First Information Report (F.I.R) was registered under EX.-P/27. The dead body of the deceased was sent for its post-mortem to Community Health Centre, Mohala under Ex.-P/21, where the post-mortem examination was conducted by Dr. Hemant Kumar Arya (PW-10), who prepared his report Ex.-P/23. He found that the body was highly decomposed. Therefore, no definite opinion regarding cause of death could be given. Viscera was preserved, and was handed over to the police for chemical examination and expert opinion. The viscera and tibia bone of the deceased were seized in sealed condition by the police under Ex.-P/24. The seized articles, including the viscera and tibia bone, were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/28. A memo (Ex.-P/29) was also written by the Superintendent of Police to the Head of Department of / --t^:-*sslsiiS§, Criminal Aprieal No. 636 of2004 Forensic Science Branch, Medical College, Raipur making certain -queries regarding cause and mode of death but no query report or the opinion of the expert could be filed. After completion of usual investigation, the charge-sheet was filed in the Court of concerned Magistrate, who in turn commiUed the matter to the Court of Session Judge, Rajnandgaon, where the trial was- conducted and the accused/appellant was convicted and sentenced as aforementioned. (3) Admittedly, there are no eye-witnesses in this case and the conviction of the appellant is based on the circunistantial evidence. The circumstances, on which the learned Sessions Judge relied on are as follows:- (i) The relations between husband and wife were not cordial as -the appellant had illicit relations with some other lady of the village and the appellant had a motive to cause death of the deceased; (ii) When the appellant was informed in the night that the dead body of his wife is seen in the well, he did not go to see the dead body in the night itself &. (iii) The wife of the appellant was missing since 11.8.2003, but he did not disclose this fact and he did not make her search. (4) Though the Autopsy Surgeon, Dr. Hemant Kumar Arya (PW- 10) could not give a definite opinion regarding cause and mode of death, but the contents of the inquest (Ex.-P/ 17) would show that the dead body of the deceased was tied with a big stone which was of the weight of 10 Kg. The inquest report was prepared in presence of the Executive Magistrate, M.S. Thakur (PW-12). Criminal Appeal No. 636 of 2004 ^•.-^^M :3.:^?i Bishmadev (PW-5) is also a witness of inquest who deposed that the dead body was tied with a stone by a green cloth and police has seized the stone and the cloth. Therefore, it was clear that the death of the deceased was neither suicidal nor accidental and in the facts and circumstances of the case the Sessions Judge has rightly held that it was a horaicidal death. Even this has not been disputed by the counsel for the appellant during the course of her argument. (5) Ms. Sofia Khan, learned counsel appearing on behalf of the appellant, argued that the conviction based on the above circumstantial evidence cannot be sustained as the circumstances set-forth by the prosecution were neither conclusive nor consistent only with the guilt of the appellant. The circumstances only raise a suspicion and nothing raore which can not take the place of proof. (6) On the Qther hand, Mr. Ashish Shukla, learned Government Advocate appearing on behalf of the State opposed these arguments and supported the judgment and order passed by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Court. (8) For resting the conviction solely based on the circumstantial evidence, the law laid down by the Apex court in the matter of r--—"'^;;'^iif ..^•Tn<!s ,y>°,^.«l®i^ ^ Criminal AppealNo. 636 of2004 Dhananloy Chhatteriee^-Vs- State^ofJff.B, (19941 2 SCC 22 is that "In a case based on circumstantial evidence, the circumstances from which 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 of the eyidence must be so complete as not to 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 court can form the basis of cohviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." >5- (9) In Bodh Raj' alicis Bodha and others -vs- State ofJam.mu and Kcishmir, AIR 2002 SC 3164, the Apex Court laid down 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: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; .df Criminal Auueal No. 636 of2004 2) the facts so established should be consistent only with the 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 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. (10) First Cicumstance: So far as first circumstance is concerned, Sakharam (PW-2) deposed that deceased Umend Bai was his daughter. She was married with the appellant 5 years back. He does not know about the relations between them but whenever her daughter used to come to their village, she used to tell him that the appellant gives beating to her. Earlier a Panchayat had taken place in this regard in which her daughter had stated that the appellant used to call some other lady in the night and on this account, he used to beat her. Subsequent to it, another Panchayat had also taken place. He had not attended the said Panchayat and had sent Dewaram and Tukaram. The appellant stated in the Panchayat that his daughter had gone away, therefore, she is not present. On this, the appellant was advised to search his daughter. Dewaram (PW- 14) deposed that the appellant had illicit relations with some other lady, which was opposed by the deceased and the appellant ""••t: • /? ^fv ^) '•s^^-^'- ''•" •"• Criminal Appeal No. 636 of 2004 and the deceased used to quarrel on fhis account. Tukaram (PW- 15) deposed that on account of assault by the appellant to the deceased, a Panchayat was convened. He had also gone to attend the Panchayat. The deceased was also present in the Panchayat. She stated that the appellant used to beat her as he was havin^ illicit relations with some other lady of the village. Though there is evidence to this effect that the relations between husband and the wife were not cordial and the wife was making allegations that the appellant had illicit relations with some other lady in the village but that by itself would not be an incriminating circumstance against the appellant to presume that on account of such kind of quarrel, he would commit the murder of his wife. (11) Second Circumstance: So far as the second circumstance is concerned, that the appellant did not go to see the dead body in the night, the case of the prosecution is that one Devendra had told all this to the appellant. Devendra has not been examined by the prosecution. It does not come in fhe evidence that at what time Devendra had told the appellant about seeing the dead body of his wife in the well. In the Merg intimation, lodged by the appellant on 17.8.2003 at about 9.15 a.m., it only comes that Devendra had told him in the night. There raay be many explanations for not going to the well to see the dead body in the night itself. It comes in the map (Ex.-P/Sl) that the well is in the fields which was at a distance of about 1/2 Km. from the village and it appears to be in lonely area. If ; ,;;n<SeT5ai» 3^^' I 1 'l, ".: J^ :^. •tte-/ ^/ Criminal ATOeal No. 636 of2004 in fact the appellant was informed in late night and he avoided to go to the well in the night itself, that may not be incriminating against him. We do not feel that the aforesaid conduct of the appellant would be sufficient to connect hira with the conimission of murder of his wife. (12) Third Circumstance: So far as third circumstance is concerned, Brahmaram (PW- 1) deposed that "the deceased had raade complaint to the villagers regarding ill-treata'nent by her husband in the raonth of August, on this, a date of 13th of August was Qxed for Panchayat. On 11th of August, the appellant had disclosed to the villagers that his wife has gone soraewhere. On 13th of August, the appellant was present in the Panchayat but his wife (deceased) was not present. The elder brother of the deceased was also present in the Panchayat. Since the wife of the appellant (deceased) was not present, the Panchayat was adjourned and the appellant was advised to make search of his wife". This goes to show on 11.8.2003 itself, the appellant had disclosed in the village that his wife is missing. Therefore, there is no question that the appellant has not disclosed this fact to the villagers. According to the prosecution itself, he has disclosed about the missing of his wife on 11.8.2003 itself and thereafter he also made the same statement in the village on 13th ofAugust 2003. (13) In appreciation of entire evidence on record, we find that though it was established that the relationship between the Y ^. Criminal Appeal No. 636 of2004 husband and wife were not cordial and there. was coraplaint of beating by the appellant to the deceased and the deceased was missing since 11.8.2003, but all these circumstances were not consistent only with the hypothesis of the guilt of the appellant. We are of the view that the above cir<;umstances, pressed in service by the prosecution were not sufficient to hold that it was the appellant who committed the naurder of the deceased. They do not prove the guilt of the appellant. On the proved circumstances of the case, it cannot be shown that in all human probability the murder of the deceased must have been committed by the appellant. (14) Por the foregoing reasons, the conviction of the appellant based on the above circumstantial evidence cannot be sustained. ^ggSdlStglgS ^;si;^::^:-'/'": (15) Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant are set aside. He is acquitted of the charges framed against him. It is stated that the appellant is in jail since 18.8.2003. He be set at liberty, forthwith, if not required in any other case. Sd/- Cbief Justice Sd/- Sunil Kumar Sinha Judge vatti