HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON’BLE SHRI RAJEEV GUPTA, C.J. 8:. HON’BLE SHRI SUNIL KUMAR SINI-IA, J. Criminal Appeal No. 1216 of 1994 Jain Singh Vs. State of Madhya Pradesh (Now State of Chhattisgarh) For consideration Sdl— SUNIL KUMAR SINHA’, V \ H Judge ON'BLE SHRI JUSTICE RAJEEV GUPTA Sdl- Chief Jusiice Judge %$* Post for Judgmept : Z/Oik/20l 1 .S‘L’" Sunil. Kumar Sinha '“ ‘ “ Judge vwz HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON’BLE SHRI RAJEEV GUPTA, C.J. 85 ‘ HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal No. 1216 of 1994 Jain Singh son of Jaylal Gond, aged about 24 years, resident of Village Vijaypur, Thana Chhura, District Raipur, M.P. (Now Chhattisgarh) APPELLANT Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE / Appearance : Mr. Wasim Miyan, Advocate for the appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT ( 2 .oz.2o 1 1) Following judgment of the Court was delivered by Sunil Kumar Sinha, J: (1) This appeal is directed against the judgment dated 2nd of July, 1994 passed in Sessions Trial No. 303/93 by the Fourth Additional Sessions Judge, Raipur. By the impugned judgment, ' the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. WW m 2 Criminal Appeal No. 1216 of 1994 The facts, briefly stated, are as under:- Wife of the appellant died on account of illness. His sister-in—law (bhabhl) was also suffering from illness. The appellant had a suspicion that deceased— Meghsingh played witchcraft against his family on account of which his family is facing such incidents. On 13.7.92, the appellant had gone for ploughing the field along with his uncle Sitaram ‘(PW-8). The deceased had also gone to his field. The case of the prosecution is that the appellant left his field saying that he is going to answer call of nature, and thereafter he did not return for a long time. When a search was made by the villagers, they found him near the field. He was wearing a 3 torn baniyan. The villagers asked him as to where he had gone, on which, he replied that he had a quarrel with r l Meghsingh (since deceased) who used to play witchcraft on Vt his family members. When they made a search, they found that the dead body of the deceased was lying in his field. The First Information Report (EX.—P/ 1) was lodged by Tihar Singh (PW—1). He mentioned all this in'the F.I.R. The Investigating Officer reached to the place of occurrence, gave notice (Ex.— P/2) to the Panchas and prepared inquest (EX.-P/3) on the body of the deceased. The dead body of the deceased was sent for post-mortem to PHC, Chhura, District Raipur, where the post—mortem examination was conducted by Dr. K.V. Rao (PW— 1.1). He noticed multiple abrasions on the body of the deceased. There was swelling on the neck and wind pipe was congested. A piece of cloth was poured in the mouth. He opined that the cause of death was asphyxia due to throttling and it was homicidal in nature. The post— mortem report is EX.-P/12. The appellant was taken into custody and his shendo-baniyan was. seized vide seizure memo Ex.—P/4. Blood stained soil and plain soil were seized from the place of occurrence under seizure memo Ex.-P/7. . Site plan (Ex.—P/8) was also prepared. The seized articles 3 Criminal Appeal No. 1216 of 1994 were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Raipur, from where, a report (Ex.—P/21) was received. According to the F.S.L. report, blood stains were not found on the baniyan seized from the possession of the appellant. After completion of usual investigation, the charge- sheet was filed in the Court of Judicial Magistrate, First Class, Raipur, who in turn committed the matter to the Sessions Court, from where it was received on transfer by the Fourth Additional Sessions Judge, Raipur, who conducted the trial and convicted 8s sentenced the appellant as aforementioned. 4m. (3) Admittedly, there are no eye—witnesses to the incident and , the case of the prosecution is based on the circumstantial evidence. The learned Sessions Judge mainly relied on the circumstance of extra-judicial confession made. by the appellant before the Villagers and that the appellant had shown the dead body of the deceased to the villagers. (4) Mr. Wasim Miyan, learned counsel appearing on behalf of the appellant, argued that the evidence of extra-judicial confession is shaky; there are many contradictions in the evidence of the witnesses of extra-judicial confession;' it never comes in the evidence of the witnesses that the appellant clearly confessed before them 'that he had committed murder of deceased— Meghsingh. He also argued that the Sessions Juadge has wrongly held that the dead body of the deceased was found at the instance of‘the appellant. The facts relating to discovery of dead body are , /-//A l \ a \ 4 Criminal Ap§al No. 12 1 6 of 1994 missing in the F.I.R. (Ex.-P/ 1). The dead body was found at an open place. Therefore, the conviction of the appellant on the above sets of circumstantial evidence cannot be sustained. (5) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) Admittedly, there are no eye-Witnesses to the incident and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances’so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt. (8) Firstly, we shall consider about the circumstance of extra- judicial confession. If the evidence about extra-judicial confession i’l 5 Criminal Appeal No. 1216 of 1994 comes from the mouth of witness/witnesses Who appear to be unbiased, .not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tenq to indicate that he may have avmotive for attributing an untruthful statement to the accused, the words spoken to by the Witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the Witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. (9) In case on hand, the alleged extra—judicial confession is said to have been made before Tihar Singh (PW—‘1), Bhagwat Singh Dhruw (PW-3) and Sitaram (PW—8). Tihar Singh (PW-1) deposed that when the appellant did not return, a search was made by the villagers; They found the appellant in the fleld and the forest. They asked as to where he had gone, on which, he remained quite. Then he told that he had a quarrel with a person. He did not tell the name of that person at that time. However, later on he told c that he had a quarrel with Meghsingh. On this reply they asked about Meghsingh. The appellant took them to the field of Meghsingh which was near the forest, where Meghsingh was lying '4 dead. Bhagwat Singh Dhruw (PW-3) and ‘Sitarame (PW-8) also deposed in similar fashion. Tihar Singh (PW~1) is the witness who lodged the F.I.R. (Ex.-P/ 1). He admitted in the cross-examination 6 /@ Criminal Appeal No. 1216 of 1994 that when they found the appellant near the forest and asked all this, he was quite for a long time. He never stated before them that Why the appellant quarreled with the deceased. The appellant had also not stated that he had committed murder of the deceased by pouring Cloth in his mouth. He deposed in Pare-5 of the cross- examination that he had mentioned in the F.I.R. (Ex.-P/ 1) that the appellant took them to the place Where the dead body of the deceased was lying; that means the dead body of the deceased was found by the villagers at the instance of the appellant and if 9 these facts are not there in the F.I.R., he cannot tell the reasons for that. We find that the above facts are omissions in the F.I.R. f 7 He further admitted that he had not told the police that the f appellant had committed murder of the deceased on account of / suspicion that the deceased used to play witchcraft. If these facts are mentioned in the F.I.R. (portion ‘B to B’) they are wrong. The other witness of extra-judicial confession is Bhagwat Singh Dhruw (PW-3). He admitted in the cross—examination that he came to know about the extra—judicial confession made by the appellant before the Villagers in the house of Tihar Singh (PW—1). He clearly admitted that nothing was asked from the appellant before him. that his evidence to confession This shows that relating extra—judicial was hearsay. Sitaram (PW—8) also admitted in the cross— examination that when the appellant was asked, he kept quite for Thereafter he disclosed that he had a long time. only a quarrel with a person. Sitararn (PW—8) very clearly admitted that the appellant did not disclose that.he had a quarrel with deceased— prove guilt of the appellant beyond all reasonable doubts. The learned Sessions Judge fell ’into error while convicting the > 7 (9" Criminal Appeal No. 1216 of 1994 Meghsingh. In appreciation of the entire evidence relating to extra— judicial confession, we find that the evidence of extra-judicial confession was not unambiguous even the words spoken by the witnesses are not clear. The evidence on this point is shakey. Therefore, we are of View that the above circumstance of extra— judicial confession was not proved beyond doubts against the appellant. (10) The other circumstance relied by the Sessions Court is’that the dead body of the deceased was shown by the appellant to the 9 villagers; that is to say that the villagers came to know about the / k dead body at the instance of the appellant. As we have already f stated that these facts are missing in the F.I.R. (Ex.—P/ 1) lodged / by Tihar Slngh (PW— ) Therefore, the ev1dence relatlng to th1s Circumstance appears to be after thought In the F1 R (Ex —P/ 1) 1t comes that when a search was made by the villagers, then only they found the dead body of the deceased in his field. This field was in the outer area of the village from where the forest begins. If the body would have been recovered by the villagers at the instance of the appellant, the above fact would have been mentioned in the F.I.R. (Ex.-P/ 1). Therefore, the above circumstance was also not proved against the appellant. (11) For the foregomg reasons we are unable to sustain the conv1ct10n of the appellant The prosecution has utterly fa11ed to 8 Criminal Appeal No. 12 1 6 of 1994 appellant u/S 302 IPC on the above sets of circumstantial evidence, which were not sufflcient to hold him guilty of the said offence . (12) Therefore, we allow this appeal and set—aside the conviction and sentence awarded to the appellant u/ s 302 IPC. The appellant is acquitted of the charges framed against him. The appellant was taken into custody on 14.7.92. He was released on bail on 18.2.2003 by order dated 9.1.2003. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. b Sd/- l Sdl« l SUNII. KUMAR SINHA .7» Chief Jusu'ce ‘ ¢ .7» Juége Judge 1