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BSM^KIftEBfiBNBISSilNffiBSl' :|^i1 ^i« ^»^ (Cm»& •sme -^^W<- 'C^e /^fvA^^ 6 ^j^-fnimQ_ m^sii^ —<w^^^'^' y.—^^.^j^fi^....-^^^ ^^o^^/^^jes^^j^e ^&yr& .y ^, ^;_ eed to^(^-<M^!^%S^&A^^ ^-^2-L^!L=—_,_-/1___-. «y-. -.. - yj^ ^<——. . ^r. •l.lb*'——ad—anNesc.——.———-•-_.-..- |i|c|sectite3^^-2^--^^^ ..yr7.:: •'':c^v>><-^.-^^ " ' ' '...'" •' -^ ;itis explained to th^ thatjfIiestatesGrwishes to be represeRted b\ a le^a'I yractitioner t^Appelate Co^rt w^^^^ |||e ^legat pr^^^ practiiioner does ^not appcar with ^eyen days;^ heard at all If the prisoner stafes -that h& does net wjshto 'b^represented by lega! pmctitioner the court may proceed at once with tlie case ajid waifiotbeobIigedtogiveaheariDg %;! ^ f^ I^|e'6f^p^^ ^, I])ate^fwhichcopyreceived——-<22^ 3 : Dateonwhich Appeal sent—^€L^2jL^2. —-^-----^^-------_^_______ 4 < ^hether^^ :;No.^J/l££-—_^^ ^ntiaued in-, £-^^<—— —jajl^/t^O^ 3i^-—--.-^^_/f2-___^d--^^^ ^^llltfw^ded to' the'CHIEF JUDICIAL MAGISTRATE' '-£a^^f>^^-————.-^- llto itiitAer with a c<)py of ju<^ement or ord^^^ |^j,JtraaB^ssi®ntotheproperAppilliateC^rt^^>.^>^c^,^a^(^^4^^ . ^ Date efrcceipt in C. J. M.'S Office————1-0 * 0>—Sl=— _--. Date @f receipt of recerd to aGcoinpany——-^-—---.-^--..---_-^-^-..-:—__ Memo^^pealofthcAppeliateCour^————^—^—-———^~^-.--. ,<..J&P^M-S^^>^^__lo^_5'fc=__;, ^rilTtll|l^oithc^^^ ^ ^ -^ ^^'"^sr~flj^^^^^^ ...^B.as.any^^Ta^ iief' ^S^!r~m^^=Wi-^——--~-— ^ '. \-~....'.'.;: .'!;:. . ,•':... ^ .'':.-' •.1; 1 ! i.'S"!^; laAIGj^-yd-f:?^. ' ^,.;- :INte,<»fsreec»pt-in.^^iate;.^^t~^-~--^.-s—^^ ,;i- IS§-1-''•'. -<1;,'::''-:';';'7^-1 -.......' ..1.' - ' •1;." \ ':; -1 : .. - • • .!.;: ''(P^^:':^- ^^" • .:';i il'^-;.i;l<:^?^^-';^ felL'.^;l:.i--^"'::;.' '^.•^ &:;lltel^.',;:^l::'':' ^®M-'^i:.;•::.-•"'•''.:1::, {;l::SSffi%l;;-^i:.-l>.,,..J'^J:^.r^---^ ^ s^ .^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Apueal No. 1166 OF 1992 Noni Bai Versus State of Chhattisgarh h» €: JUDGMENT v < ^' ^. HIGH COURT OF CHHATTISGARH AT BILA8PUR Criminal Appeal No. 1166 OF 1992 Noni Bai Vs. State of Chhattisgarh CORAM: Hon'ble Shri Fakhruddin and Hon'ble Shri V.K. Shrivastava, JJ Appellantby Shri/S.C. Datt, Sr. Advocate as Amicus Curiaewifh Ku. Sofia Khan aad Snit/ Nisha Chatur/edi, Advocates, State by ShriJ,D, Bajpai, Addl. Public Prosecutor/ Gtovt Advocate. AppeUaat is also produced ia custody. J U D G M B N T As per Fakhruddiii, J Heard. 2. The appellaat has preferred fhis appeal agamst the order dated 9-9-1992 passed by fhe 2nd Additional Sessions Judge, Raigarh ia S,T. No, 36/ 1992 whereby she has been convicted for the offence punishable under Section 302 of I,P.C, aad sentenced to life imprisonment on fhe groiind fhat she has kUled her husbaad, She has also been convicted for ofiTence puiiishable uiider SecUon 201 of I,P.C. for givuig false iafonnation aad sentenced to RJ, for one year. Bofh fhe sentences to nin concurrenUv. 3, Briefly stated fhe prosecution story is tiiat P.W, 3 PawUbai is neighbour of fhe accused appeUaat aiid fhe houses of P,W. 7 Sudarshan aad the appeUaiit are adjacent, It is contended tliat on 3-9-1991 when Sudarshaa P.W. 7 woke up ia the mLoraiag, he noticed weepmg. Noticiag fhis, he went towards fhe house ofaccused v. ^ ""y '"1 ^- ^'. -<.. and found fhat slie was weepiag. The Accused by gesture asked liioi to call the Maaager, Mmiager Aiaar Siagh reached on the spot aiid on mquirmg, the appellaiit told fhat two persons had come to her house aad gave a call that fhey waat to stay, AppeUaat and her husbaad opened fhe door and on entry, those persons pushed her husbaiid Nakul iaside the room and one of tlie persons caught hold pf fhe appeUaat, shut her inouth and closed her eyes, They made Nakul sittiag on cot and mquired about the money, Amar Singh lodged tlie report vide Ex. P-18 which was recorded by Inspector Narendra Shanna P.W. 18, Narcndra Sharma P.W. 18 prepared pao.chnama of the dead body ia pres'ence of witaesses. The body was sent for post inortera. Post inortem. was conducted bv Dr, M, L, Thawait P.W. 6 on 4-9-1991. It has also come ia prosecution evidence tiiat Nakul had fevo wives aad fhere was no issue fromi first wife aad he had kept appeUaat as his second wtfe but fhere was no issue froin fhe second wife as weU. 4. Proseciition further alleges fhat Nakul married to fhe appellaat 15-16 years before aad kept her as second wife but fliere is no issue, Smce last 1% year some quarrel used to take place between fhe appeUaat aad her husband Nakiil and the appeUant lodged report agamst Nakul, The accused used to abuse Nafcul, The prosecution further aUeges fhat the accused aad fhe deceased were togefher in fhe house oitd appeUaat has iaflicted injuries aad kiUed him aad so as to screen the offender, she created tiiis false story. The prosecution alleges that it was on 19-12-1991 that on her emorandum one Baaiyaa was seized aad memoraiidum was also ./ -J %.. 1» i- ••< l^ \, recorded about fhe axe, but ftie axe could not be recovered as itwas fhrown ia the pond. After iavestigation, challan. was filed. 5. The appeUaiit abjured fhe guilt aiid contended that she has been falsely unpMcated, 6, During tdal, the prosecution examiaed Khisto P.W. 1, Karlus P.W. 2, Pawlibai P.W. 3, Sonsai P.W. 4, Anand Mishra P.W. 5, Dr. M. L. Thawait P.W. 6, Sudarshan P.W. 7, Rajkumar Patel P.W. 8, Vikram Sayal P.W. 9, Sodhu Das P.W. 10, TUakP.W. 11, Amar Smgh Chauhan P.W. 12, B.K. Singh P.W. 13, Shesh Deo P.W. 14, Bachandas P.W. 15, Ishwar lal P.W. 16, Ravichaad Sai P.W. 17, Akshayvar Siagh P.W. 18 aiid Narendra Sharma P.W. 19, 7. There is no eye-witaesses ia the case aad fhe case rests on circumstaiitial evidence. Leam.ed tnal Judge categorized the circumstaiices ia para 8 of the judginent, which are to the foUowuig eflTect- (i) Deceased Nakul and his wife accused Noni Bai were Uvuig togefher ia fhe saine house. No ofher ineniber of fhe famUy was Uviag there and on fhe date of iacident, bofh were seen Uvmg togetiier, In the early moniing, dead body was found in fhe satne house; (u) Ixnraediately after the iacident, fhe accused toried to make out a false case that two persons entered iato fhe house, One of fheni caught hold of Noni Bai aad aaotiier caught hold of deceased Nakul aiid fhereafter Nakul becaoie unconscious, These two unknown persons kUled Nakul f'sSs^^WWf^ ;^s^^^ ^ < and false report to tiiat effect was lodged by accused Noni Bai. (ui) At fhe iastaace of accused, a blood staiaed Baniyaii of fhe deceased was seized and so far as KuUiadi is concemed, she fhrew it ia the pond; (iv) Before fhe iacident there was a dispute between fhe accused aad her husband Nakul. It wiU be apt to quote the para 8 ofthe judgment:- U8- ^W y<^V"/ ^" 3f^}uf^ 4 uff ^f^ff 7^(f ^Y-^ q7^ ^' ^ ftn^fT^ffn ^:— (l) ^dW 'T^vf Sft^ ^ff^f Vf'ft 3fftf^m 'ff'ft WJ^ V^ ^ f^T'T 4' ^frsf ^rrsf vg^ ^i vT-f^ sivimr E77 4' SffY ^t^ W^?<T -f^ ?g(7r m 3ffv ve^T ^ f^'r (TC^ ^ ^t-Tf ^y 'ffW VSff ^ ^^ v^ s} / ^fs'n g? ^w? ^a^ ^f cfm ^fft ^ £?Y ^' qj^ ^/ (2) V^'fT ^ WT^ Sff^^W) 'f 9? ^07 f/<^V"/ ?'?7^ 37 y9W ^W ^ ^f Sf^Tff cE^vT ^f 4 sfr^ ^rtf ^ v^ "f ^f'ftmf ^f v^^ f^rr ^W^ ^ ^cT^ •T^cT 3?t ^ff^ VWId 'jf^WJ^ ^W ^ vff ^f ^f 3f^KT otlf^t^if ;f ^^ ^T grST ^/ ??ifr WWT ^ ^f f^ff€ 'ff'fi^l/ •? ^f^IW ^f ^f{ (3) Sffif^^fT ^f Pi^lH^ W ^(T^ ^t ^'T ^ ^pft ^ wfiVT'T vp<f i,fl uf?f (T^ snmEf 4' yg^rf ^ ^wf^ WT yy-T €sfft)^,wf ^ <3^ c?7c?7^ ^' ^^ f^mf f4) Wff'ff ^ ^ 'if'fiefi/ 3lty <sW^ Vf^ ^f^ 'f^ef ^' fim^ 9fTf •---^- k ^' v^ '^ 8. Leamed tdal Judge convicted fhe accused appeUant aiid sentenced her as inentioned above. 9. The learned tdal Court found tfaat fhe appeUaiit aad her husbaad were m fhe house m fhe night aiid ia fhe moraing dead bodv of fhe husbaad was found. It has further found that fhe appeUant has not been able to explaia as to how Nakul died aiid the conduct aad behaviour of the appellant was unnatural, Therc is no injur}7 on fhe person aad even no scratch was found on her body to show that fhere was any scuffle wifh fhe straagers. She did not teU P,W. 7 Sudarshan. about fhe fact fh.at tevo persons caaie m. fhe night / aad killed her husbaad, She also did not teU it to P.W. 12 Amar Singh, She only told Ainar Singh fhat two person caiae aad one of fhem caught hold of her aiid made Nakul to sit on fhe cot She did not teU hiai fhat fhose two persons tied her inoufh and eyes aad she became iinconscious, 10. Learaed Sr, Counsel contended fhat the prosecution has not been able to lead aiiv evidence on fhe basis of which it can be said that the accused is guUty, It is stated fhat fhe accused herself has admitted fhat fhe deceased and fhe accused were together io. fhe night. It is on her weepiag m the moramg, P.W. 7 Sudarshaa came aiid she asked by gesture to caU fhe Maaager P.W. 12 Aaiar Siagh. Leamed Sr. Counsel referred to Ex. P-18, fhe First Information Report lodged by P.W. 12 Amar Singh. Amar Siagh P.W. 12 is Maiiager ia SECL, In ttie report it is state-d that m. fhe mommg at 6.00 O'clock P.W. 7 Sudarshaii came to him aad told that wife of akul had told hun ftial in the night at about 8,00 PM two persons ^^•^—^^^^^^s^. ^Ki1 ^ tefe' caine to her house aad kiUed Nakul Prasad. Then he went to house of Naknl Prasad along with Madhusudaa Lohar, Baadhaii Uraon, Sudarshan Laaja aad NakuFs wife told him. weepiag tliat ia fhe night tivo persons came aad knocked fhe door sayiag that they had conie froin Raigarh and when she opened the door, bofhL of tih.em kiUed Nakulby iiiflicting injuries by raeaas of sharp edged weapon. Theil he saw fhe dead body of Nakul. Blood was fhere ne^ar fhe leg of NakuL He fiirther stated in fhe F.I.R. fhat suice he was heart patij^iit, he could not see the dead body coinpletely. 11. Leamed Counsel further contended that the tdal Court has found ia para 28 of fhe judgnient fhat fhe acciised has not been able to give explaaation how Nakul died ia fhe night, He contended that the explaaation is there ia the FIR. She has also given explanation to P,W, 7 Sudarshaa. P,W. 7 Sudarshan has stated in his evidence that nx fhe inonuiig when he woke up, he heard weeping aad saw that Noni Bai was weeping, Wheu he asked as to what happened, she called him by gesture. He furfher stated that first Noni Bai aad then he entered tato the house, there alantem. was lightmg, he shouted as to what happened, Nakul did not reply then he Ufted Uie laatem aiid saw that there were mjuries near fhe navel aiid chest of Nakul. He further stated fhat due to fear, he came out of fhe house aad Noni Bai also came out. Then he asked appeUaat as to what happened, she did not reply and gestiired towards Manager Sahab fhen he called Manager Sahab, Leanied Sr. Counsel submits fhiat fhe appeUaiit submitted explaiiation about fhe deafh of Nakul aad contended fhat there is no evidence at all agamst fhe accused. |^ lPi':WSi8t'"S ?••:?:;»{$i -ft.SiBStiK.e 12, Sliri Datta leamed Sr. Counsel also pointed out fhat fhe prosecution has not plaeed aay material to show fh.at the explanation offered bv fhe accused is false or incorrect, 13, Learaed Sr, Counsel also contended that the deceased has received 8 injuries aad it is not probable fhat a lady has caused such nyunes. 14. Learaed Counsel reUed on the decision ia fhe case ofAherRaia Khima -v- State of Saurashira reported in AIR 1956 SC 217. Para 9 of the judgment is relevant aad quoted below:- ^- (SNow it may be possible to take iwo views of this stafement but there are two important factors in every criminal trial that weigh hedvily infavour ofan accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off'shoot of the same prindple, that when an accused person offers a reasonable explanaiion of his a^nduct, ihen even though he can not prove his assertions, ihey should ordinarily be accepted unless ihe drcumstances indicate that they arefalse. What the appeUani said in ihis case is not impossible; such things do happen and it is understandable that the police, frustrated in their endeavour to find the culprit among ihree other persons, Should make an all out endeavour to make sure ofthefourth. We do not saythat that happened here. But ihat it might have hctppened is obvious, and when the police absent themselves from the witness box and forestall attempts at cross-examination, we find it impossible to hold that a judge acting judiciallyf and bearing in mind the important prindples that we have outlined above can be said to have reached an unrec^sonable or an unfair oondusion when he deduces from these circumstanoes that there is a reasonable probability that the appellanfs stofy is irue and ihat, therefore the confession wajs not voluntary.w 15. Kii. Sofia Khaii, leamed counsel appearing for fhe appellant retied on fhe decision ia the case of State of Kamataka -v- M.V. -^gJwsh reported ia 2003(2) ANJ (SCi-348. She further reUed on the ''.'^- decisiou ia fhe case of Ashish Batham-v- Siate of Madhva Pradesh reported m AIR 2002 SC 3206. Para 6 aad 8 of the judgment in Ashish Batham (supra) are relevaat aad quoted below:- •-< '^ r <(6. The prindples, which shxyuld guide and weigh wiih the Courts administering criminal justice in dealing with a case based on arcumstantial evidencer^ have been sucdnctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this cczse having regard to the tum of events and the manner consideration undertaken, in this case by the courls below, In Hanumant Govind Narcfundkar and another -v- State of Mcuihi/a Pradesh fAIR 1952 SC 34^ it has been held as follows:- SIn dealing with drcumsianiial evidence the rules spedally applicable to such evidence must be bome in mind. In such cases, there is always the danger that conjecture or suspidon may iake the place of legal proof and therefore^ it is right to recall the waming addressed by Baron Alderson to the jury in Reg. -v- Hodge, (1838) 2 Lewin 227) where he said:- The mind was api to iake a pleasure in adapting czrcumstances to one another, and even in straining them a Uttle, if need be, to force them to form parts of one connected whole; and the more ingeniozis the mind of the individual, the raore likely was U, mnsidering such matters, to overreach and mislead itself, to supply some little link ttzat is wanting to take for granted some fact consistent with its previous iheories and necessary to render complete.' It is well to remember thai in cases where the evidence is of a drcumsiantial nature, the drcumstances frojn which the conclusion ofguilt is to be drawn should infirst instance befully established, and all the facts so established should be consistent only with the hypothesis ofthe guilt of the accused. Again, the ciraimstances should be of a conclusive nature and iendency and ihey should be such as to exclude every hypothesis but the one proposed to be proved. In other zuords, there must be a chain of evidence sofar ooinpleie as not to leave any reasonable ground for a oondusion consistent with the innocence of the accused and itmust be such as to show that within all human probability the act must have been done by the aocused. These prindples were needed to be resiated even as late as in the dedsion reported in Sudama Pandeif -v- State ofBihar f2002n SCC 679 and Subhash Chandra -v- State ofRaiasthan X^2002H SCC 702). ^ \ fc 8. Realities or Truih apart, the fundamental cmd basic presumption in the administration of criminal law and jtistice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, oogent, credible or unimpeachable evidence, the question of indicating or punishing an accused does not arise, merely carried away by heinous nature ofihe crime or the gruesome manner in which U was found to have been commiited. Mere suspidon, however, strong or probable it may be is no effective substitute for the legal proof required to substwztiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with crirmnal cases at least should consistently remember that there is a long mental distance between may be true and must be rue and this bdsic and golden r^ule only helps to maintain the vital distinction between the conjectures and sure conclzisions to be arrived at one the touch stone of a dispassionate judidal scrutiny based upon a complete and comprehensive appredation of all features of the case as well as quality and credibility of the evidence brought on record 16. Ku. Nisha Chatarvedi, Leamed Counsel appeariiig for appeUaat reUed on a decision offhis Court ia the case of Puran-v' State ofMR (Now C.G.) reported in 2004(2) CGLJ 105 wherein it has been held tiiat uierely residing together ia a house and iacidence occurring ia fhe night is not sufficient to uicriminate the accused. 17, Leanied State Counselon fhe ofher haad supported the judgment and findtag of ftie trial Court, He subniitted that tiiere was no sign of scufUe on fhe body of the accused appeUan.t, 18. The grievaace projected for aad on behalf of fhe appeUaat that on inere surmises aiid suspicions fhe appeUant has been convicted has great substance aad we fiiid great force ui it. The law regardiag circumstaatial evidence is well setfled tiiat the prosecution m.ust prove aU fhe ctrcuBistaaces connectiag unbroken chaia of links leading to only one inference fhat fhe accused comniitted fhe crmie. If aay ofh.er reasonable hypofhesis of tiie innocence of fhe accused caa ^2' ~'~')~<. 10 v <. ^ be mferred froin the proved circumstaiices, fhe accused would be entitled to fhe benefit 19. The Hon. Apex Court m fhe case of Shaf'dd Birdhichand Sarda vs_Stg^e^f_Maharashira reported in AIR 1 984 SC 1622 has held as under: KThe following condiiions musi be fulfilled before a case against an accu^sed based on circu.mstantiaf evidence can be said to be fully established; (1) the drcumstances from which ihe conclusion ofguiltis to be drawn should be fully established, The circumstanc^s concemed {must or should' and not {may be' established. (2) the facts so established should be oonsisient only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except ihat the accused is guilty. (3) the drcumstanwss should be of a c^ncluswe 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 coinplete as not io leave any reasonable ground for the oonclusion oonsisteni with the innocence ofthe aocased andmust show that in all hurhan probability the act musi have been done by the accused. Case law discussed. A case can be said to be proved only when there is certain and explidt evidence and no person can be convicted on pure moral convicf.ion/9 20. We have gone fhrough fhe statements ofP.W. 7 Sudarshan aad P.W. 12 Ainar Siagh. In tiie present case, fhe conviction of the appellaat has been made only on conjectures, notions aad surmises. 21. Explaaation has been given at fhe.veiy first moment by the appeUant. No evidence ^aiast the accused appeUant has been collected and nofhiag was produced which goes to show fhat fhe stateinent of fhe accused appeUant was false or incorrcct. The & 11 '(3^ 'v-' ^ evidence of Sudarshaa P.W. 7 and Aniar Sio.gh P.W, 12 go to show that fhe explaaation offercdby fhe appeUaat is cousistent. We have also gone fhrough fhe questions and aaswers given under Section 313 of Cr.P.C. The appeUant has been consistent ia her explaaation, The circunistarices and reasons were not even pzit to the appeUaat so that she cozild explam, The observation of the torial Court fh.at she would have been cned and neighbouriag persons would have corae is only a conjecture. Law requires proof. Suspicion howsoever strong cannot taJke place of proof, In the iastanit case, flie learaed tdal Court has adopted a superficial approach, mantfestiy erroneous aad arrived at fiiidiag on notions and surmises without comprehensive appreciation of all relevant aspects of the case ia fheir proper perspectlve. 22. Havuig considered the facts aad circunistances offhe case and material on record, fhe tdal Court erred ia holdrag tih.at fhe appeUant has coinimtted raurder of her husbaad. The finduigs are based on conjectures and surmises. Therefore, fhe appeal is aUowed. The impugned order is set aside; The appeUant is acquitted of the charges. The appellant is directed to be released forthwith, if not warranted in ofiy o&er case. Sd/- Fakhruddin Judge Sd/- V.K. Shrivatava Judge