B^ ^ ^T "^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'bleShriSunilKumarSinha & Hon'ble Shri Prashant Kumar Mishra, J J, APPELLANT RESPONDENT Criminal Appeal No. 163 of 1995 Balram Das aged 26 years, son of Kanhaiya Das, Resident of Village: Mekari, Police Station: Pamgarh, District Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: None for the appellant. Mr. Ashish Shukla, Govt. Advocate and Mr. Qamrul Aziz, Panel Lawyer for the State. ORAL JUDGMENT (09.05.2011) Following judgment of the Court was passed by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 30.11.94 passed in Sessions Trial No. 194/93 by the Additional Sessions Judge, Manendragarh. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. ...r.ai^ife lfc« &,^ ^•tfS' ^^"^ "^ Criminal Appeal No. 163 of 1995 (2) The facts, briefly stated, are as under:- Deceased- Surajdeen was neighbour of the appellant. The appellant fell in love with the daughter of the deceased namely- Visun Kumari (PW-15). Visun Kumari (PW-15) was already married. The allegations are that the appellant was pressurizing the deceased for not sending his daughter- Visun Kumari to her matrimonial house. When Visun Kumari was sent to her matrimonial house, the appellant had gone to the house of the deceased and had made hue and cry. He had threatened to commit suicide and he had also threatened to commit murder of the deceased. Thereafter Visun Kumari was sent to her matrimonial house to Kotma, District Shadol. The appellant had gone to that place also. For his act at Kotma, a report was lodged by father-in-law of Visun Kumari, on which, the appellant was taken into custody. Thereafter the appellant went to some other place. hle was seen in the locality 2 days prior to the incident which took place on 10.6.91. On 10.6.91, the deceased had gone to work in colliery on his bicycle. He did not return in the night. On the next morning, his dead body was found in an abandoned house in nearby locality. Merg intimation (Ex.-P/11) was lodged and the matter was reported through dehatinalishi (Ex.-P/1). Panchnama (Ex.-PM) on the dead body of the deceased was prepared and the dead body was sent for post-mortem to Community Health Center, Manendragarh. The post-mortem examinationwas conducted by Dr. P.K. Niyogi (PW-11) who found multiple serious injuries on the body of the deceased. He noticed that trachea and esophagus both were cut. The Autopsy Surgeon opined that the cause of death was shock due to haemorrhage on account of incised wounds sustained by the deceased. The post- mortem report is Ex.-P/10. Criminal Aoneal No. 163 of 1995 In further investigation, after a very long time, on 21.9.92 the appellant was taken into custody and his memorandum u/s 27 of the Evidence Act (Ex.-P/6) was recorded and iron part of an axe (tangia - kulhadi) was seized at the instance of the appellant. After completion of usual investigation, the charge-sheet was filed in the Court of Additional Chief Judicial Magistrate, Manendragarh, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge, Manendragarh who conducted the trial and convicted & sentenced the appellant as aforementioned. (3) Admittedly, there were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the Sessions Judge convicted the appellant for the said offence:- (A) Since the appellant was in love with the daughter of the deceased and he was saying that the daughter of the deceased should not be sent to her matrimonial house and the deceased sent her against will of the appellant, therefore, he had strong 'motive' to commit murder ofthe deceased; (B) Two days prior to the incident, the appellant was seen in the locality by the prosecution witnesses; (C) The appellant after the date of incident, absconded from the village; (D) Iron part of the tangia was seized on the discovery made through the appellant & V CriminalApDeal No. 163 of 1995 iBij'a'ast' J3F.:t;S3?"3"' (E) The appellant had threatened the deceased to commit his murder and the appellant had also threatened him that he himselfwill commit suicide. (4) Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, supported the judgment passed by the Sessions Court. He argued that the above circumstances were sufficient to hold the appellant guilty of the said offence, therefore, the Sessions Judge was fully justified in convicting the appellant u/s 302 IPC for commission of murder of deceased- Surajdeen. (5) We have heard learned counsel for the State and have also perused the records of the sessions case. fsssaffsw (6) In Dhananiov Chhatteriee -Vs- State of W.B. (1994) 2 SCC 22 the Supreme Court held "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 establrshed 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 evidence 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 conviction and n f}VI Criminal Aupeal No. 163 of 1995 the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." ::s'^r (7) In Bodh Rai alias Bodha and others -vs- State of Jammu and Kashmir. AIR 2002 SC 3164, the Supreme 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; 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 exdude 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 innocenceof the accused and must show that in all human probability the act must have been done by the accused. So far as 'motive' is concerned, it comes in the evidence of Rajkumari (PW-1) that 4-5 months prior to the date of incident, when her sister was being sent to her matrimonial house, the appellant came to their house and said that her sister (Visun Kumari Criminal Appeal No. 163 of 1995 ^.^g^:. - PW-15) should not be sent to her matrimonial house. On this, her father talked to the appellant. Thereafter the appellant went to his house. When they enquired from their sister, she admitted that she was in love with the appellant. She further stated that after one month, the appellant again visited their house. Visun Kumari (PW- 15) also deposed in similar fashion and stated that her father was murdered after 5 months of the said occurrence. She also deposed that when she was sent along with her father-in-law to village Kotma, the appellant had followed them to village Kotma also. In Dharnidhar -Vs- State of Uttar Pradesh and Others. (2010) 7 SCC 759, the Supreme Court held that it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. The Supreme Court referred to the judgment of Babu Lodhi -Vs- State of U.P.. (1987) 2 SCC 352, in which, it took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance. In the instant case, though the above motive was suggested by the prosecution, we find that the said occurrence of threatening ,(f;'' A. .,,siSt^ Criminal Appeal No. 163 of 1995 or opposing the sending of Visun Kumari (PW-15) to her matrimonial house took place 5 months prior to the date of incident and thereafter the appellant was not seen in the village for a very long time. The appellant was residing in the house of his matrimonial grand-father. He was not permanent resident of the village of the deceased. We are of the view that in the facts and circumstance of the case, after such a tong time, the above motive suggested by the prosecution does not appear to be adequate and that alone cannot be taken as an incriminating circumstance against the appellant. tastlSI&iN8 jg|{3iB«iT- (10) The circumstance that the appellant was seen in the village 2 days prior to the date of incident is also not incriminating. It is the case of the prosecution that the appellant was residing along with his matrimonial grand-father in the same locality who was neighbour of the deceased. If the appellant was seen in the locality 2 days prior to the incident, that itself would not be sufficient to draw an inference that he was involved in commission of crime in question. (11) The other circumstance which the Sessions Judge held to be incriminating is that the appellant absconded from the village after the date of the incident. In Thimma -Vs- The State ofMvsore, AIR 1971 SC 1871, the Supreme Court held that though the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conctusive of that fact because even innocent person . '"-".t. ^^•^;is Criminal Appeal No. 163 of 1995 ^. when suspected may be tempted to such conduct to avoid arrest. This was said in context of Section 8 of the Evidence Act. In the present case, the witnesses claimed that they had seen the appellant in the village 2 days prior to the date of incident and thereafter he has absconded. The appellant was not permanently residing in the said village. He resided there for shot spell as it was the house of his maternal grand-father. We are of the view that in light of the above judgment, the Sessions Judge erred in holding the above circumstance as incriminating against the appellant. .•^ss. |B6a (12) The other circumstance which is held incriminating is the discovery statement made by the appellant, on which, the alleged weapon of the offence has been seizfed. We note that according to the prosecution, the incident took place in the intervening night of 10.6.91 & 11.6.91 and the disclosure memo Ex.-P/6 was recorded on 21.9.92 that means almost after about 1 year and 3 months and then iron part of the axe (kulhadi) was seized at the instance of the appellant. We further note that no report relating to blood stains etc. on the said article was filed by the prosecution. We are of the view that in the above facts and circumstances of the case, the seizure of the said weapon at the instance of the discovery made by the appellant after such a long delay was not so incriminating which may connect the appellant with crime in question. (13) On due consideration of the entire evidence, we find that the circumstances set forth by the prosecution were not of definite ... Y Cnminal AuoealNo. 163 ofl995 tendency and unerringly pointing towards guilt of the appellant. It is not a case in which the circumstances were incapable of explanation and the chain of circumstantial evidence was so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none-else. (14) For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. (15) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The -c. appellant is acquitted ofthe charges framed against him. f& sssss Sd/- SunU Kumar Sinha Judge Sd/- Prashant Kumar Mishra Judge vatti