^Sf. ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH : HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI R.N. CHANDRAKAR, JJ Criminal Appeal No. 542 of 1999 JUDGMENT FOR CONSmERATION Sd/- R.N. Chandrakar Judge Hon'Me Shri T.P. Sharma. J 3- p^—^ POST FORJUDGMENT ON 2^-07-2011 Sd./- T.P. Sharma Judge Sd/- JUUUE, 2^-07-2011 ffi3- Appellant (in jaii) Bad Sai Cherwa, son of Birju Chirwa, aged about 35 years, resident of village Kusha P.S. Sonhat, Distt. Koria, M.P (Now CG). Vs. Respondent. The State of M.P. (Now Chhattisgarh) through Police Station Sonhat, Dist. Koria /' ,-•'7 '/ (in jall) HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 542 of 1999 Bad Sai Cherwa, son of Birju Chirwa, aged about 35 years, resident of vitlage Kusha P.S. Sonhat, Distt. Koria, M.P (Now CG). Vs. Respondent. The State of M.P. (Now Chhattisgarh) through Police Station Sonhat, Dist. Koria (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.: Present: Mr. A.K. Prasad, counsel forthe appellant. Mr. Neeraj Mehta, Panel Lawyer for the State. JUDGMENT (Deliveredon2S:7-2011) PerR.N. Chandrakar. J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 29-1-1999 passed by Additjonal Sessions Judge, Baikunthpur in Sessions Trial No.249/98, whereby iearned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicidal death amounting to murder of his wife Jharihoro, convicted the appellant under Section 302 of the iPC and sentenced him to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine to undergo further Rl for one year. Y . % The case of the prosecution, in brief, is that on 19.06.1998 the appellant gave Morgue intimation vide Ex.P/16 at police station, Sonhat stating that on 18-6-1998 at about 12.00 p.m. when the appellant retumed to his house from the field, asked the deceased serve meal. The deceased replied that meal was not prepared and was in drunken condition. Thereafter, some altercation took ptace between them and the appellant assaulted the deceased by a piece of brick, whereupon the deceased without taking food kept steeping for the whole day and left the house at night. The appellant tried to find out the whereabouts of the deceased but failed. On the neKt day, in the morning the appellant went to the maternal house of the deceased at village Badra where his nephew Rajendra (PW/7) came to call him stating that the deceased had died by hanging and the dead body was brought to the house. In the house, Lal Sai (PW/6), the brother of the appellant told him that he was informed by Rewti Bai (PW/3) that the deceased was hanging on a 'Okhra tree' whereupon Lal Sai along with Dular Sai (PW/8) and Rajendar Kumar (PW/7) went to the spot and brought the dead body to house. On the basis of aforesaid information the police registering the morgue Ex.P/16, proceeded to the spot and after summoning the witnesses vide Ex.P/1 prepared inquest over the dead body vide Ex.P/2. Dead body of deceased was sent for autopsy to Primar/ Health Centre, Sonhat vide Ex.P/8 where Doctor N.C. Roy (PW/10) along with Dr. J. Ekka conducted post mortem vide Ex.P/9 and found the following injuries: (1) Big lacerated wound on forehead of 3 %" x %" x % " slze. <- '^ / / (2) Abrasion on left and right elbow, left anterior of chest 4" below nipple, (3) Abrasion on right upper thigh & lower thigh on inner aspect, on right side of cheek 1" outer to right eye. (4) Multiple abrasions on left side of back upto shoulder. (5) Marbeling skin due to various congestion on right upper & lower arm and around the neck. (6) Swelling on lower side of neck. Slight ligature mark on left side ofjaw and front of neck. (7) All injuries are ante-mortem In nature because they are red in colour and edges are deep staining. (8) On dissection of neck brucies of muscle lower side of neck and on front circumference extravasations of blood into the subcutaneous tissue under the ligature mark. The Doctor opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. 4. At the instance of appellant, one light green colour saree of deceased and piece of brick were seized vide Ex.P/3. Spot map was prepared vide Ex.P/15. Nazri naxsha was prepared vide Ex.P/20. 5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). On the basis of Postmortem report Ex.P/9 and query report Ex.P/11, the F.I.R. Ex.P/18 was registered and the appellant was arrested. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Baikunthpur, who in turn committed the case to the Court of Addl. Sessions Judge. Learned Additional Sessions Judge, received the case on transfer, who framed charge under Section 302 Indian Penal Code against the appellant who abjured the guilt. 6. In order to appreciate the guilt of the appellant, prosecution examined as many as 17 witnesses. Accused person was also examined under Section 313 of the Code, where he denied the / ^ circumstances appearing against him and pleaded his false implication and innocence. 7. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 9. Mr. A.K. Prasad, learned counsel appearing for the appellant vehemently argued that there is no eye witness to the incident and conviction is based solely on circumstantial evidence. The circumstantial evidence of last seen together has not been established by the prosecutlon as no witness has stated that the deceased was last seen along with the appellant. As per the evidence of witnesses, appellant was present with the witnesses namely Rajendra Kumar (PW/7) and Dularsai (PW/8). Learned counsel further submits that chain of circumstantia! evidence to connect the appellant with the crime in question has not been proved beyond all reasonable doubt. In absence of aforesaid evidence, conviction of appellant under Section 302 of the IPC is not sustainable under the law. In support of his arguments, he placed his reliance in the matter of Jaswant Gir Vs. State of Punjab reported in (2005) 12 SCC 438 10. Per contra, Mr. Neeraj Mehta, learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that conviction is based on circumstantial evidence and the prosecution has proved its case beyond all shadow of doubts which is sufficient for drawing definite conclusion that none else other than the appellant has committed the offence. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of deceased Jhariharo Bai as a result of strangulation has not been disputed on behalf of the appellant. On the other hand, it is established by the evidence of Dr. N.C. Roy (PW/10) and autopsy report (Ex.P/9) that the death of Jhariharo Bai was homicidal in nature. 13. So Tar as involvement of appellant in the crime in question is concerned, in case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of Changa Reddy vs. State of A.P, reported in AtR 1996 SC 3390, the prosecution is required to adduce evidence and such evidence must satisfy the following tests:- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt ofthe accused and such evidence should not onty be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. On perusal of the record, it is found that the morgue intimation Ex.P/16 was given by the appellant himsetf and there was no evidence against the appellant until the postmortem report was received. The offence under Section 302 of the I.P.C. against the appellant was registered only after receiving the postmortem report Ex.P/9 and the query report thereof Ex.P/11. The case of the prosecution is based on the circumstantial evidence that just one day before the incident there was some altercation between the appellant and deceased due to which the appellant assaulted the deceased by a piece of brick. Thereafter, deceased left the house in the night and her dead body was found hanging on a tree on the next day morning by one Rewti Bai (PW/3), the real sister of the deceased. 15. Rewti Bai (PW/3) stated in her deposition that the appellant had come to her house to search the deceased in the evening prior to death of deceased. She was stated out by the appellant there was some altercation between him and the deceased due to which she had left the house, thereafter, the appellant left for village Badra,the maternal house of the deceased. She further stated that on the next day in the morning when she had gone to answer the call of nature, she found the deceased hanging on a tree and informed her father- in-law, who informed the elder brother of the appellant, Lal Sai (PW/6). 16. Rajkumar (PW/14), real brother of deceased also stated that the appellant had gone to his house at village Badra In.the morning to search his wife steting that due to some altercation between them ''%*.... 7 ^b, 17. 18. she had left the house. After some time, the nephew of appellant came to call him. He further stated that after one hour he went to the house of appellant where nobody was found, thereafter he went to the house of Mohar Sal where he came to know that his sister Jhariharo Bai had committed suicide by hanging. He had seen injuries over the dead body. Rajmatia (PW/12), mother of deceased stated in her deposition that the relation between appellant and deceased was strained for last three years and the appellant used to commit marpeet with the deceased. She was informed by the villagers that her daughter (deceased) was badly beaten in the school ground and took her to the house where she died whereas in para 4 and 5 she stated that the appellant had come to her house to search the deceased where his nephew had come to call him. Thereafter, her son Rajkumar (PW/14) went to search the deceased and later on she received the message of death of her daughter. All the aforesaid three witnesses are near relatives of the deceased and nothing appeared in their statements to show that the appellant had caused death of the deceased whereas it is clear from their deposition that the appellant had gone to search the deceased to their houses and at village Badra the appellant was informed by his nephew Rajendra Kumar (PW/7) that the deceased had died by hanging. So far as the other witnesses namely Lal Sai (PW/6), Rajendra Kumar (PW/7) and Dular Sai (PW/10) are concerned, they turned hostile and have not supported the prosecution story. They have only stated that they were informed by Rewti Bai (PW/3) about < 19. 20. 21 hanging of deceased on a tree in the forest. The other witness Ram Pratap (PW/1) stated that he was present at the time of inquest and had seen injuries over the dead body. He also admitted seizure of brick from the appellant. He turned hostile and denied the seizure of saree from the appellant. Mohar Sai (PW/2) was also the witness of inquest and had admitted to see injuries over the dead body. Sushiia Bai (PW/11) and Sukul Ram (PW/13) also turned hostiie and in their cross-examination by the prosecution they have narrated the difference story. On reappraisal of the entire evidence adduced by the prosecution, it is found that the conviction of the appellant is solely based on the circumstantial evidence of last seen theory but none of the aforesaid witnesses has stated that the deceased was seen at the last time in the company of the appellant or she was followed by the appellant to the forest where her dead body was found hanging on a tree. On the contrary, the merg intimation was lodged by the appellant himself and he was in search of the deceased till the dead body was found hanging in the forest by Rewti Bai(PW/3), the reai sister of the deceased. It is also clear that the appellant fully co-operated the investigation of the case and untii the post mortem report was obtained no body suspected the appeltant for commission of the offence. Thus, from the conduct of the appeilant also it does not appear that he committed the offence. Apart from the above, if the homicidal death of deceased Is admitted to be true, even though no viscera of the deceased was either preserved or sent for chemical examination to the F.S.L. It further ^ . l'—/ reveals from the record of the lower Court that except a piece of brick, no other incriminating article was seized from the possession of the appellant to connect him with the crime in question. 22. For the foregoing reasons and in view of the dictum of Apex Court in the matter of Changa Reddy (Supra) regarding circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In the present case also there is no evidence available on record to show that it was only the appellant who committed murder of his wife by hanging and the evidence adduced on behalf of the prosecution is not sufficient for drawing a definite conclusion of the guilt of the appellant. 23. Considering all the aspects of the matter, we are of the considered opinion that the trial Court omitted to critically evaluate the evidence adduced by the prosecution while convicting the appellant and the impugned judgment deserves to be set aside and is hereby set aside. 24. Consequently, the appeal is allowed, conviction of the appellant under Section 302 ofthe I.P.C. isset aside and he is acquitted ofthe charge and his bail bond shall stand discharged. J-^^^-=^===-.. -—- ~--"~ Raju/vijay Sd/- T.P.S'aarma Judge Sd/- R.N. Chandrakar Judge