“IIHIHMIIIHHIHIHHIIHIIII 794 D aij r g wmon 3ench k nmm a m \ynluu \u It m; wxmlcd in a h h :hc imxc far kcwn b: éprgstvrxtéd or n cslN ‘w—daxcd-m—-~ :—~& —=9«§ A§1$mmr [lmbL ” [I r e}, ordcr paw-d m H}: Lun urcmuwdenl Cc t wy ‘ 1 c’“ ‘ ot ~ Yo; a. M 4 1§ Pu S m a ..( .. 5»_\, ,— IGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH H Criminal Appeal No. 2141 OF 1996 Sukhdev Vs. State of MP. ”JUDGEMENT FOR CONSIDERATION 1 Jud 1 _ x f HoN’BLE SHRI L.c.BHADoo J. x ge I‘ l \ . -\ ; ‘ 1 _ Sdl- ' , L.C.BHADOO x ” Judge W POST FOR JUDGMENT ON l L%FEBRNARY 2006 k // T ‘5; J \ \ Sdi- w l Sd/- 1 Dhirendra Mishraii \iinnmmnmwkr Judge i \ DlVISlON BENCH: HON’BLE SHRI L.C.BHADOO & HON’BLE SHRI DHIRENDRA MISHRA, JJ CRIMINAL APPEAL NO. 21 41 of 1996 Appellant : Sukhdev Vs. State of Madhya Pradesh 2f - Respondent Ms. Sharmila Singhai, learned counse! for the appellant. Shri Akhil Mishra, learned P.L. for the respondent/State. J U D G M E N T (u £22006) Dhlrendra Mishra, J v By this appeal under Section 374(2) ‘of the Code of Criminal Procedure the accused/appellant has challenged the legality and correctness of the judgment of conviction and order of sentence dated 12.08.96 passed in Session Trial No. 54/93 whereby the learned Additional Sessions Judge, Surajpur, District Surguja after holding the accused/appellant guilty for commission of murder of Dhaniram convicted him under Sections 302 & 404 of the lndian PenalCode and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/~, in default of payment of dne to further undergo Sl for two months under Section 302 of the IPC and to undergo Rl for two years and tine of Rs. 100I- in default of payment of fine to further undergo SI for one month under Section 404 of the IPC. m 2. Case of the prosecution is that complainant Bholaram lodged the report (P-4) on 17.09.92 at 13.00 hrs. in police station Pratappur to the effect - that at about 7-8 a.m. Peon of Karsi School namely Birju Penka came to ?"r, his house and informed that a boy has been murdered and placed in the verandah of the Middle School. He along with other villagers went to the said School and saw that dead body of a young man with grievous injuries over his nose and nobody was able to recognize the body. Body was covered withVLungi and from appearance it appeared that he had been murdered with a sharp edged Weapon. On the basis of said information offence under Section 302 of the IPC was registered against the unknown / persons and the police proceeded for the scene of occurrence. After reaching the place of incident inquest was performed on the body of the deceased after notice to the panchas in their presence. Plain soil and blood stained soil was seized from the place of incident vide EXP-2. Blood stained soil from near the head of the deceased in a nearby-grass. blood stained and plain mortar of a nearby wall and a pair of Chappal were seized vide EXP-2 A, blood stained soil was also seized from the nearby P.W.D. Road vide EXP-3. Dead body was sent for post mortem examination to Primary Health Centre, P'ratappur vide _Ex.P-15. Dr. A.K.Khare P.W.-14 conducted the post mortem over the body of deceased Dhaniram and submitted his report EXP-16. Doctor who performed autopsy found incised wounds on the right side and left side of the neck, bone deep, incised wound of lower most part of the neck near- external notch bone deep, incised wound below notch and over the upper lips up to the depth of mouth, bone as also tongue were chopped. Left carotid nobs, thyroid hobs were also found swollen. 0n internal examination right and left lungs were found congested, trachea was found tilled with blood, both the chambers of heart were empty, semi-digested food was found in the stomach. All the injuries were anti mortem in nature and cause of death was respiratory failure and excessive bleeding from the above injuries. Death was homicidal in nature and the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature. During invatigation the present appellant and co-aocused Timal, Slo. Bengwa Kodaku and Lodhri, Slo. Purushottam Vishwakarma were taken into custody. On the basis of memorandum of the appellant recorded on 24.09.92 blood stained Dhoti, Bengali Kurta and blood stained waist were seized vlde P-8. On the memorandum P-9 of co-accused Timal recorded on 24.09.92/a plastic bag and two notes of hundred denomination were seized vide EXP-10. 0n memorandum dated 24.0932 of co-accused Lodhri P-11 blood stained axe and one note of hundred denomination were seized vide EXP-12. An old bicycle was seized from Ramesh Kumar on 24.09.92 vid‘e‘P-13, sealed packet containing hood stained underwear and Lungi of the deceased were seized vide Pl1 4. Blood stained shirt of co-accused Lodhri was seized vide P-1 O. Blood stained undenrvear and shirt of accused Timal were seized vide P-21. Seized axe was sent for chemical examination to the doctor who submitted his report vide P-17. A \ spot map P-18 was prepared by Halka Patwari. Appellant Sukhdev and co-accused Lodhri were arrested on 25.09.92. Test identitication parade of seized bicycle and clothes of the deceased was conducted vide P-27 by M.K.Pandey, Tahsildar. After recording the statement of the witnesses charge sheet was filed under Sections 302, 392 and 201/34 of the IPC. Against the accused/appellant as also co-accused Timal and Lodhri in the Court Judicial Magistrate First Class, Surajpur who in turn committed the case to the Session Judge, Ambikapur. Learned Additional Sessions Judge, Surajpur received the case on transfer for trial. 3 Leamed trial Court framed the charges under Sections 392,/ 397 and 302 of the IPC against the accused persons. The accused/appellant abjured his guilt. 5. The prosecution in order to establish its case examined twenty two witnesses in ali. Statement of the accusedlappellant was also recorded under Section 313 of the Cr.P.C, in which he denied the circumstances appearing against him and stated that Jaiswais and Rajwars of the village wanted to employ them by paying less wages and since they denied this they have been falsely implicated in the case. 6. After hearing learned Additional Public Prosecutor and counsel for the appellant, the trial Court convicted and sentenced the accusedlappellant as mentioned above. However, accused Timal has been acquitted of the charges leveled against him. «f v, 7. Learned counsel for the accused/appellant submits that there is no eyewitness to the incident and learned Additional Sessions Judge has convicted the appellant on the basis of circumstantial evidence. According to the counsel for the appellant the circumstances relied upon by the prosecution are not of conclusive nature and individual circumstance has not been established by leading cogent evidence but even then the trial Court on the basis of circumstance’that the deceased was last seen alive in the company of the appellant and on the basis of recovery of blood stained clothes of the deceased on his memorandum which were subsequently identitied by the family members of the deceased, has held the appellant guilty for commission of the aforementioned offence which is contrary to law as well as the facts. 8. Homicidal nature of death is not in dispute. a 9. Even otherwise from the statement of P.W.-14 Dr. A. K. Khare who conducted the post mortem examination on the body of the deceased it is clear that four incised injuries — three over the neck andpone over the lower part of the nose, above the upper iips and the death was homicidal in nature. According to the doctor ali the injuries present on the body of the deceased were sufticient to cause death in the ordinary course of nature. It is not the case of the defence that the injuries present over the body of the deceased were the seif infiicted injuries and thus it is held that u¢ t‘, death was homicidal in nature. 10. To establish the involvement of the deceased in commission of the offence, the prosecution has relied upon circumstantial evidence which may be summarized thus : i) few days before the incident deceased Dhaniram had sold his land and had gone to Surajpur in connection with a Court case on a bicycle. However on the way he borrowed the bicycle of Budhan P.W.-9 as his own bicycie was punctured and entrusted his bicycle to Budhan who returned the same to its. owner Arjun. Ram Das P.W.-6 saw the accused Sukhdev with deceased Dhaniram near the house of Durjan when both were standing and at that time also Dhaniram was having a bicycle and on the following day Ram Das learnt that Dhaniram has been murdered. iii) On the following day P.W.-4 Birjuram saw a person sleeping in the verandah of a School who also found there blood whereupon matter was reported to the Principal of the High School. P.W.-10 Kanhai has stated in his evidence that in the morning of the incident he learnt that Dhaniram of village Karsi has been murdered and in the same morning at about 9.00 a.m. the appellant came to him and gave him a note of hundred denomination and demanded in exchange the notes of smaller denomination and just thereafter accused Timal came to his shop and purchased biscuit. 43¢; On interrogation by the police the accused in his memorandum statement disclosed that he had hidden the bicycle in the Baadi of Timal and on the next day he left it in the house of Ramesh. He has also stated that he concealed Dhoti, Kurta and waist of deceased Dhaniram in the Baadi of Mohan and on the basis of his statement clothes of the deceased have been seized vide P-a. Similarly on the basis of memorandum of co-accused Timal two hundred rupees and a bed sheet were seized vide P—10. vi) Ramesh Pity-12 has stated in his evidence that accused/appellant Sukhdeo’ had given the bicycle for repairs and the same bicycle was seized by the Police vide P42. Cloths of the deceased seized during investigation were duly identified by Budhan and Nandkeshwar and on the basis of these circumstances the Trial , Court has held that the involvement of accused/appellant Sukhdeo in committing the murder of Dhaniram is established. However, the appellant has been acquitted of the charge of loot. It has been held that after causing death of the deceased the appellant took his bicycle and other articies and offence so committed is punishable under section 404 of the IPC and convicted him as such. However. co-accused Timal has been acquitted of all the charges. 11. As far as the circumstance that the deceased sold the land and was possessing money is concerned, since the Court below has found nor evidence to convict the appellant under sections 397 or 392 of the IPC and has acqurtted the appellant of the above charge therefore the above Circumstance relied upon by the prosecution is of no relevance To establish the circumstance of last seen together the prosecution has relied upon the evidence of Laxman PW-5 who has stated that he was a cycle shop owner in village Masga and the deceaSed Dhaniram *cf Navadih a l( 5‘ came to his shop at about 4 O’ clock as he was going to Surajpur on bicycle and at that time he war wearing Lungi and Kurta and was proceeding towards Pratappur. Ramdas PW-6 has stated in his evidence that at about 6 pm. when he was going towards his house, he saw appeiiant Sukhdeo with Dhaniram while they were standing near the house of- Durjan and at that time Dhaniram was having a bicycle and on the foliowing day when the Poiice came to the viiiage he learnt that Dhaniram had been murdered by someone in Karsi School which is 4-5 kms away from his house. From the evidence of these witnesses the only circumstance that is established is that the deceased and the appellant were standing on the road and talking together and the deceased was having a bicycle. However, dead body of the deceased was found in Karsi School which is 4-5 kms away ii'om village Masga. 12. it is settied law that the evidence of deceased being last seen alive with the appellant is a relevant circumstance only when the time gap between the last seen and recovery of dead body is so small that the possibility of other persons being the author of crime becomes impossible. ln the instant case the time when the deceased and the appellant were spotted together was 6 p.m. near the house of Durjan and the dead body was recovered on the following day at about 7-7.30’gjm from a school which is 4-5 kms away, therefore, according to our considered opinion the circumstance of last seen is not a circumstance on the basis of which inference about the guilt could be drawn against the accusedlappellant. For convicting the accused on the basis of circumstantial evidence the following tests must be satisfied; i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and hnnly established; Amt @ those circumstances should be of a definite tendency unerringly pointing towards guiit ofthe accused. iii) the circumstances, taken cumulativeiy, shouid form a chain so compiete that there is no escape from the conciusion that L. within ali human probabiiity the crime was committed by the accused and none else; and the circumstantiai evidence in order to sustain conviction must be compiete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 13. The other circumstance relied upon by the trial Court for holding the appellant guilty is that on the basis of memorandum of the appellant blood stained Dhoti was seized vide seizure memo P~8 by Shivratni vide P-27. However, the articles seized on the memorandum of the accused are the common household articles and in the absence of any incriminating evidence regarding blood stains present over the cloths of the deceased, the seizure of the above articles on the memorandum of the appellant cannot be considered as the circumstance to connect the appellant with the commission ofthe offence in question. The other circumstance relied upon by the trial Court for holding the appellant guilty is that a used white Dhoti with old stains, yellow Bengali kurta and torn vest having blood like stains were seized from the acousedlappellant vide Ex.P-8 in the presence of \M'tnesses Sukhlal (P.W.17) and Muthuram (P.W.11). Memorandum of P-7 and seizure in pursuance thereof has been duly proved by Muthuram (P.W.11). The seized articles were correctly identified by Shivratni Bai (PW. 20) in test identification parade conducted by Naib Tehsildar N.K.Pandey (P.W.22). Learned counsel for the State @9 vehemently argued that the trial Court was justified in placing reliance in the seizure of clothing of the deceased at the instance of the appellant as the recovery of the articles belonging to the deceased from the possession of the appellant was made soon after the incident which remained unexplained by the appellant and therefore, presumption under illustration ‘A' of Section 114 of the Indian Evidence Act will be attracted and therefore, irresistible conclusion would be that the appellant and none else has committed the offence. Reliance is placed on the decision of the Supreme Court in the matters of Ronny @ Ronald James Aiwaris etc. Vs. State of Maharashtra (AIR 1998 S.C. 1251), A.Deivendran and R. Pandian and another Vs. State of Tamil Nadu (AIR 1998 5.6. 2821), Lachhaman Ram etc. Vs. State of Orissa (AIR 1985 5.6.486), Saniay alias Kaka State of (N.C.T.) Delhi. Nawabuddin alias Nawab Vs. State of'Delhi and Vinod Kumar Vs. State of (N.C.T.} Delhi (AIR 2001 S.c. 979. 14. The incident is of intervening night of 16/17.09.1992. Memorandum of the accused Ex.P—7 was recorded on 24.09.92 and in pursuance of that l memorandum‘seizure of the articles allegedly belonging to the deceased was made at the instance of the accused on 24.09.92 at about 13.00 hours. Test identification of the articles was conducted by the Tehsildar on 21 .1092 in the presence of Nandkishore (P.W.8) and Shivratni (P.W. 20). P.W. 8 Nandkishore has not stated anything in his evidence regarding identitication of the clothing of the deceased whereas 'Shivratni Bai (P.W.20) has stated in her evidence that she had identified the clothing of the deceased before the Tehsildar, Pratappur and hadxput her thumb impression over the identification memo. However, in paragraph—2 of her evidence she had admitted the suggestion put by the counsel for the defence that police personnel were present at the time of identification and 10 "w »v it is correct to say that in fact the police personnel told her that clothing so seized belonged to the deceased. in these circumstances, seizure of the clothing of the deceased at the instance of the appehant has not been estabtished by the prosecution and as such this circumstance can not be considered for holding the appeilant guilty for the offence alleged against him by'drawing presumption under illustration ‘A’ of Section 114 of th indian Evidence Act. The other circumstance reiied by the prosecution is the evidence of Ramesh Kumar PW—12 who has stated therein that the appellant left his bicycle in his shop for being repaired and said that he would take it afterwards and that very cycle was seized by the Police vide P-13 from the custody of Ramesh Kumar which was duiy identified by PW—9 Budhan who has stated therein that he had given the seized bicycle to Dhaniram on the date of incident while he was going to Surajpur to attend the Court and on the basis of the above evidence-the trial Court has arrived at the conclusion that after causing death of deceased the appellant took the bicycle and concealed the same in the Baddi of Timan and thereafter shifted it to Ramesh. Seizure of the bicycle is from Ramesh (P.W.12). There is no evidence on record to show that alleged seizure has been made on the basis of information given by the appellant on his memorandum. The investigating officer P.K.Rawte who has recorded memorandum of the appellant P—7 has not been examined. P.W. 21 M.S.Chouhan, A.S.l. has proved the signature of P.K.Rawte over EXP-7. However, he has not stated that bicycle seized from Ramesh Kumar was seized on the basis of memorandum of the appellants Owner of the bicycle Budhan @ Jhaula has not given any description of the bicycle in his statement nor there is any evidence on record to show that the deceased was holding the bicycle seized from Ramesh Kumar at the time 15‘ e II when he was seen with the deceased. Thus on the basis of the statement of the witness from whom the bicycte was seized, the appellant cannot be convicted forthe aforesaid offence. 16. in the ght of the aforesaid discussion the Iaw is settled that circumstances relied by the prosecution to connect'the appellant with commission of the offence should be established by cogent and reliable evidence. The circumstances of the present case do not point towards the guilt of the accused. Suspicion howsoever grave it is cannot take the place of proof. ln'this case the prosecution has failed to establish the involvement of the appellant in committing the crime in question and the hndings of the Court below are based on improper appreciation of evidence on record and the same cannot be upheld. Accordingly impugned judgment of conviction and sentence passed by the trial Court ‘ is set aside and the appeal stands allowed. Appellant is acquitted of all the charges leveled against him. He be set at liberty 'rf not required in any other case. Sd/- i «g; Sd/- a l i Dhirendra Mishra '1 its , L.C.BHAD00 l i Judge #i l Judge “‘74 l l l l fl .. .. li l