.ctig??^, B l^iSia;& j "."II °Vf^^\^ ^•^s' 1"&tv i.B<IJ»;« HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. JJ. Criminal Appeal No. 312/1995 APPELLANT Vs. Respondent Gopi, son of Tulsi Yadav, Aged 22 years, R/'o. Nawagaon, P.S. Pipariya, Chhattisgarh State of Madhya Pradesh ir"Af 'Stei-e "f r'hhaHlc^-girl ^j'^w'tfv ^U3L®wf ^/iii iSui^yaiii^ (Criminal Appeal underSection 374(2) ofthe Cr.P.C.) Present: Shri Abhay Tiwari, counsel for the appellant. Shri Ajit Singh, Panel Lawyer for the State. ORAL JUDGMENT .(15.06.2011) The following judgmerit of the Court was passed by Sunil Kumar Sinha, •i. This appeal is directed against the judgment dated 29' October, 1994 passed in Sessions Trial No.141/93 by the Additiona! Sessions Judge, Khairagarh/Camp K^wardha. By the impugned judgment, the appeliant has been convicted under Sections 302/201 of in.dian Penal Code and sentenced to underg" imprisQnment for life. 2. The fscts, briefly stated, are as under:- The appeliant and two other accused persons namsly Tuisi (father ofth&.appel!ant) ap.d Chain S'ngh (uncie ofthe appellant) were .. / prosecuted Tor th.e offep.ee under .Sections 302/34 and 201 !PC. The Yi altegations against them are that o" 10.04.93, at about 10.30 pm, they committed murdsr of deceased Indira Bai (wife of the appeilant) in their houss 3nd thsr©sfts'r;tookth©dssd bodv to s d'stsncs of sbout /4 km. snd put'it QH f'r^s wlth intsntlQH to csuss dissDpssrsncs Qf 6vidGnc6 Qf murdsr. Ww, 3 (H) The appellant, deceased Indira Bai, Sonbati Bai (PW-8 - mother of acquitted accused persons), Sundaria Bai (PW-6 - wife of accused Chain Singh) and Dongaria Bai (PW-? - wife of accused Tulsi) were residing in a c"mmon house. In the night, the deceased started vomiting as she was in habit "f sleeping after keeping gudka (an intoxicated substance) in her mouth. The appellant (husband of the deceased) scolded her because he was unhappy with this habit of the deceased. The allegations are that on this account, the three accused persons caught ho!d of the deceased and accused C-hain Singh thrown the deceased on ground and pressed her neck by his !eg, due to which shs died. Further aliegations are that thereafter dsad body "f the deceased was take" to a field, where it was put QR fire by the accused persons. Ac^Qrding to the prosecution documents, accysed Chain Singh saw ths ~dead body in the f'e'd on 11.04.93, which was i" a burnt condition. Hs reported the matter to the police on the same day o" which, msro IhtinTistion CEx-P/S^ wss reoordGd. N9 st8tsd in ths msrQ !ntimfltlon that ths dscssssd wss m'sslnQ fromi the mQmInQ. Ths SDDsEEsnt was s9nt for s99TchinQ th& dscsassd in hsr D3r©nts1DJSCQ. whsrs sh9 vyss not found and ultimstGlv hsr desd body wss s©6nIn burrst cQndltion IrE th6 ^l^id. !nv8stiQ8tlna Qfflcsr rssc-hsd ths D'SCS of occurrencs. QSVS nQtics to th9 psnchss and DFSDSFSC! ipQUSst fEx-P/1^ Qn ths dssd bodv of th6 dst0€ta%8d. D©8d bodv of ths dscsss^d wss ssnt for DQSI mortsm IQ Qov6rniTi&nt.^~losDit3!. Kswsrdha. On post nnortsrr1 it rev93lsd thst lt wss not 3 ogsg nf simpte bum. as tl^'doctQf QDinsd thst ths c^uss of dssth wss 3££Dh\/XE5dll6 to StrSHQU 2t!QH 3Hd ths bums wsrs oost nnQrtsm. In fsct. It wss 8n Qpinion of hQmicids! dsath. Ths Post rpQrtem rsoort Is Ex-P./?. Qn fhs 3bov9 .Dost s'Tiortsm rsDort. furth8r EnvsstlQatlQn comrTisrsced and th9 ^ •M house of the accused persons was searched and khatries (bed rQ!!s and bed sheets) were seized from the house of th.e accused persons. It was msntioned in th.e seizure memo th.at kerossne sr"e!I was comi"Q from the khatnss snd soms of ths ciothss IncEudincs ths ssres ssizsd from ths houss of the accused persons. The seizurs memQ was prepared on 12.04.93. Bsssd QH ths sbove InvsstiQstion. first informstiQn r6DQrt (Ex-P/11) wss lodged, i" whsch She appeiiant and two Qther accused persons were shown as authors o? the crime. The prQsecutiQn filed charge sheet against the appellant, his father snd brothsr of his fathsr msking a!isgatiop.s that thsy a" pari:icipated in the commission of murder of the decsassd, v/hich was caused by strspQulatiQH snd thsrssftsr thsv took ths dssd bodv to s distsnt oEscs snd put it on fire. -' - 3. Admittediyi there was no eye yitness to the incident. Learned sessions Judge h.e'd that since th8 relationship between the appsllant and the deceased'wss noS cordlai and ths appeliant sco'dsd ths decsassd on thst nicsht. thsrsfQFS. th8 SQDsilsnt slQns 'wss rssoQp.slbis fQF c-QmmlsslQH Qf rnurdsr of ths dscsassd snd he wss furthsr rssQQnsibis fQr causlnQ dissoossrsp.cs of ths svidsncs of th©rnurdsr by DuttinQ ths desd bodv of ths/ dSC63S6d QH fifS. VA/Ith th.S 8bQV8 fIndlHQS. th9 sssslons Judas oonvlctsd th9/3DDs!!3nt ss sfors mi9rst!ortod. howsvsr. two sccussd Dsrsorts ri3iTE$!v Tulsi ^fathsr of ths SDOslfant) snd Chflln SlrtQh funcls of th6 i«a~ 3QIQ©l!antVwsr9scQultted jof th©charQQS frainsd 3Qalnst th9m, 4. Shn Abhav Tlv^rl, !esrn9d CQITHSOI for th6 ^DDQ' ant 3rQu©dthst th©r9 tA/grg pQ ev9wrtnoB$ to ths 'nc'dsnt' th©oas©of th©DrosGCUtlQH was bassd OP cii'oumstsntiaE svidsnc-s^ snd ths circutnstsnces which ths ofQSSCutlQH h^'s suQQ8st9d for cosTimissiori of ths offsncs by ths aDDs! snt wsrs not si^fficisnt. thBrsfors. convlction bsssd on such svidsnc6 cannQt b6 e'.i :<£Astn*^ 6. On ths othsr hand Isamsd counss! SQQSSF HQ QP. bshslf of ths Ststs oDDC-ssd th9s© arGumsnts and suDDortsd ths ludQment osssod bv th6 <~.s(S%i^^(S P,r^i!rf 6. V^s havs hsard Issmsd counss! for ths Dsrtsss at IsnQth snd hsy© ;^'so p9riis8d ths rscords of ths ssssions csse. 7. For rsstlno ths cQnylctlQn so'slv on ths clrcurnst3ntl3! 6vldsno8. th6 I^yy isiri r|n^vn hv 'l'hg ADSX CCHJrt IH th©HISttSF Qf DhanSHiQV ChsttSflSS" Vs.- State of Wsst Bsnaat,__(l§_94S_2_SS6_22 is that"!?. a csse based on ciroumststnti^I svidsncs. ths clrcumstsncss fron'i whlch ths cQnciuslQn of T' QUilt iS IQ b8 df3WH h3V9 HOt QnlV tQ b9 fuliv estsbllshsd but slso thst s!!ths c'Lrcilmsf3no9£ SQ estsbllshssd shouid b© of 3 conclusivs naturs snd ^Qp%!st8nt on!v wlth ths hVDothssis of ths Quiit of ths sccussd. Thoss -:p-^;tn"'%Asnr;a% ^hr^EiEri nrif h?> nanahl^ Fif h&inn ffkYnlsin^ hv anv nt'hpr ' vrt,~-Ahp%i<s ssvrt^nf' f'h^ HEEiIf rtf fhfs 3r;f^E!<£^d sn^ fh^ r-hai^ Af th^ eavir^fan^^ ]-*';ust bs so corno sts ss not to IBS.VS snv Fsasonab 9 Qround for ths b6 lef consist^nt wl^h ths IHHQCQHCQ of ths sccussd. It nssds HQ rsmlndsr thst •/f^.n-<,.?»- -'v Bstsbil^h^d circunistsnc-ss snd p^ot ni6i'siv lndioriatlon Qf ths Gourt '*><e- ^^ ^rm th6 b^sls Qf CQHVlctlQH ^and mQr©ssrious th6 crims. th$ orsBtsr hOU^d b9 th8 08F8 tak£HIQ scrutinlzs ths svidsncs Isst susolcion tskss ths •,':;,-c. ,-f i-imnf" .• 8. Sodn Raj aiias Bodha and others^VA Stete of Jammu and ^sv Kashmlr, ALR 2002 SC ^1g4, the Apex Court laid down that there is no doubt that conyictjo" can be based so!ely on circumstantial evidence but the conditiQns precedent befofe conviction could be based on circumstantial evidence, must bs fuiiy est&blished. They are: (1) the circumstances frQm which the conclusion of guilt is to be drawn should '-be fuiiy established. The circumstances CQncernsd 'must' or 'should' and not 'may' be estabiished; (2) i.*.l 1w' * (4) Sbi the racts so estabiished shou'd be consistent only with the hypothesis of the guiit of the accused, ihat is to say, they shouia' not be expiainabie on any other hypothesis except that the accused js guilty; ine circumstances shouid be of a conclusiye nature and tendencv; they shouid exciude every possible hypothssis except ths ons to bs Rroved^and there rnust be a chaln of evidence so comDlete as not to leave any reasonable ground for the conclusion consisteni wiih ttie innotfence of the accused and must show fhat Jn a!! human probability the act must haye bssn don$ bv th8 8ccus©d. 9. if we exarnine the case on handin the 'ight of the above principles, we rlnd that the sessions Judse has summarized the cireumstances in para 18 of the judament. The sessions Judge held that the deceased was the wife of the appeiiant and the appsilant was a!so present in the house in the niaht^ where the incident fool< Dlace. It wss further he'd that when the deceased stan&d vorniting on account of taking gudka, the appellant had '•./ scoiaed her and he had not gai^e for the he!p of the deceased. This shows that iheir reietion was noi cc?rd!ai. Sessions Judge also held that it was not a case in which the eiead body was burnt-for some unlavvful gain as the silver ornaments of the usceaseu wss pressnt on the dead body. !t was also held ••/ mfSli m:<'(ffi that the prosecution could not show fhat the deceased was having enmity wreh any other person. Therefore, all these circumstances were sufficient to hoid that it was the appellant who committed the murder of the deceased and a!so tried to disappear the'evidence of murder by putting her dead body on fire. 10. We find it difficult to sustain that on!y on these circumstances, it was esiablished beyond all. reasonable doubts that it was the appellant who committed murder of the deceased. All the circumstances taken into CQnsideratiQp. by the Sessions Judge were not consistent only with the hypQthes's of the guilt of the appe'lant. The circumstances were explainable. We note that 6-7 persons were jointly reslding in the house and all of them were present in.the house in the fatefu! night. In that situation, it was not possible to conclusively hold that the appeilant cornmitted murcjer of the deceased': We further note that none of the drcumstances were of conclusive nature and tendency. Apart from the above, we also "Qte that the finding of the sessions Judge thst the murder tc'Qk p.'ace ins'ds the house of the accused persons was a!so not cQ"c!usive!y pro'/ed. 0"!y on account of seizure of certain dothss frQm ths house of the accussd persons ftom whteh kerosene !ike smel! '."as coming, tt cap.not be said that the offence !ike murder had taken place'". the house ot' the accus^d person.s. Even if we take that the murder was committed in the house and the assailantg decided to disappear the evidence of murder by taking the dead body-to tong distance and putting it o" fire, in "Qrmal .h'eumstance, kerossne wou'd not be poured on ths body in ths house and "i all pQssibiIity It wou'd be tsksn to the place whsre in fact thsy intended to irn ths body. In ths instant cass. dssd body was burnt at a distsnce of % 'U'i y'" Km frQin th9 houss of ths sccussd DersQns. On!v on sccount of seizurs of sbovs ciothss. it csrsHQt bs hs!d thst ths murdsr tQQk olacs in ths houss of ths sccussd Dsrsons. Thsrefors. it cr©stssa doubt thstin fsct. ths ^urdsr wss cc'mrTiittsd In the houss ofths sccussd osrsons. 11 Aftsr QQ!n_Q throucih the sntirs svidsnce svsHsbis QH rscord. ws srs of th& vlsw thst in the fscts and clrc'umstsncss Qf ths c-sss. ths !6srrisd £;6SSlQHS JlidQS Srr6d EH 3W iH CQHyictlnc! the aDosHsnt QH th6 SbQVS S6t of oircLTHstantisi svldsncs. 12. !n ths r9su!t. ths SDQSSI Is slic'vysd. Ths CQnvictlQH snd ssntencs avvarded to th.e appellant under Sections 302 and 201 IPC ars set -aside. Ths aoQslisnt is scQulttsd of ths chsrQSS frsmsd SQsinst hiin. it Is st3tsd that ths SDOsllsnt was tsksn .Int'o custodv on 16.4.93. h8 was throuQhQut Iri i8il tii' 21.09.2004. Hs. thus suffsrsd for sbout 113^ vssrs. Prsssntiv hs Is r on bsii. His bsi! bonds ars cspcsHsd snd surstv stsnds dlschsrasd, Bini Sd/- Suni! Kuaiar Sinha Judge Sdl- R.S. Sltarma Judge •• /