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HI6H COURT OF CHHATTIS&ARH : BILASPUR (bivision Bench) CORAM: Hon'ble Shri Fakhruddin, Hon'ble Shri Vijay Kumar Shrivastava, JJ. Appellant: CRIMINAL APPEAL N0.1404 of 1996 Jayram/ S/o Sitaram R/o Village Chitalanka PS Dantewada bist-Dointewada (C6) Vs Respondent: State of Chhattisgarh PRESENT: Shri AvinQsh Mishra, counsel for the appeilant. Shri UNS beo, Additional Public Prosecutor, Shri Akhil Mishra <& Shri Cft Sahu, Panel lawyers for the State, JUDGMENT (Dated Ist May 2006) Per Hon'ble Shri VK Shrivastava, J. This appeal is directed against the judgment of conviction and order of sentence dated 09.05.1996 passed in Sessions trial No.296/93 by First Additional Sessions Judge, Bastar at Jagadalpur, whereby the appellant was held guilty for committ-ing the offence of murder, and was convicted under Section 302 IPC and has been seritenced to undergo imprisonment for life. 2) Deceased Beni Das was a peon in the High School, Dantewada. On 01.01.1992, at 10 am the deceased went on his duty, — ,f but did not return back in the evening, a search was made by his younger brother up to 9 pm to know his whereabouts/but the attempt remained a futile exercise, On the next day, his son Mahant Das Bairagi lodged FER and merg intimation after identifying the dead body of Beni Das which was lying on the bcxnk of river Dankine. Investigating Officer went on the spot, after inquest, prepared inquest report. The dead body of Beni Das was sent for postmortem. Blood stained earth, control earth were collected and seized as also one underwear, a pair of chappal and one closed enyelop found on the spot was also collected and seized< Spot mcip was prepared* Dr SK Dhagamwar conducted autopsy, who describin9 all the injuries found on the body of the deceased, gave his report. He was of the opinion that the cause of death was due to haemorrhage and shock and nature of the death was homicidal. Witnesses were examined under Section 161 of the Cr.P.C. One Kurta, one woolen sweater and one 6agr\ (Sharp weapon) had been seized from the appeliant. On identification, the sweater was identified by wife of the deceased and according to identification, it belonged to the deceased. The seized weapon was sent for examination to the Medical Officer, who on examination, opined that injuries found and the body of the deceased may be caused by that weapon. All the articles seized were sent to the Forensic Science Laboratory. Chemical Ex.aminer on examination found presence of blood on stained earth, Kurta and underrwear. After completion of the inyesti9ation, challan was taid in the Court of ?0' ^ < Judicial Ma9istrate First Class, Dantewada, who committed the case to the Court of Sessions for trial, 3) Charge under Section 302 of the IPC was framed against the appellant ond the same was read oyer and explained to him, who absurd the guilt. His defence was that he has been fatsely implicated in the case. 4) The case of the prosecution against the appellant was based on circumstantial evidence, Learned trial Court held that wife of the oippellant apprised daughter of the deceased that appellant had kitled a person and showed her a sweater. The sweater recovered from the appellant was identified by the wife of the decea^d. Leamed trial Court also raised presumptions that appellant might have killed the deceased for some monetary gain and the presence of blood stains on kurta of the appelbnt might have been caused as a result of injuries caused by him to the deceased, dnd relying on these circumstances held the appellant guilty for committing offence of murder and accordin9ly convicted and sentenced. 5) For convicting a person under circumstantial evidence, the IGW is settled, and in order to convict a person on the basis of circumstantial evidence the prosecution has to prove the offence as per the settled principles laid down by the Hon'ble Apex Court in the case of Nasar Ahmed Vs. State of Bihar reported m AIR 2001 Supreme Cwirt 2416 i<e., in a case based on circumstantial evidence, before the Court can record conyiction, it must satisfy itself 1+iat ^. circumstances from whjch aui inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstcmces put together are not only of a conclusive nature but also complete the chain so fully as to unerringiy point only to the guilt of the accused and are not capable of any e^planation; which is not consistent with the hypothesis of the guilt of the accused, 6) The appellant did not challenge the injuries found on the body of deceased and nature of death; even otherwise, from the evidence of Dr SK Dhagamwar (PW-8) and his autopsy report (Ex.P/11) proved by him, it is established that following injury was found on the body of the deceased and his death was the result of haemorrhage and shock and nature of death was homicidal. Sharp cut wound throat 12cm x 8cm Rhomboid in shape up to -the depth of muscle layer over the vertebral column. 7) The first circumstance relied on by the prosecution was that the wife of appellant, on the next day apprised daughter of the deceased that her husband had killed a person and also showed her G sweoter. Wife of the oppellant was not examined by the prosecution. Jaimani, to whom wife of the appellant gave information, was also not examined by the prosecution. Therefore, in absence of both these witnesses, it can not be held proved that appellant's wife told Jaimani (daughter of the deceased) that her husband kilted a person and also showed a sweater. / 'J. 8) Second circumstance was recovery of woolen sweater of r' G-. ^ -rtie deceased. Although from evidence of Mehtar Das Bairagi (PW-3) it is proved that from the house of appellant, one kurta, one sweater ahd one Gaqri (sharp weapon) had been seized vide seizure memo (Ex.P/5). From the eyidence of TP Dwivedi (PW-2), the sweater was identified by wife of the deceased as the sweater of her deceased husband. The sweater identified by wife of the deceased was the same which was recovered from the appellant; to connect the same the investigating Officer or any other witnesses have not been examined. That apart, there is no evidence to establish that on the date of incident deceased was wearing the sweater which was identified by his wife. 9) Third circumstance was the recovery of kurta of the appellant which was stained with blood. Although, according to the evidence of Mehtar Das Bairagi (PW-3) one kurta was seized from the appellant and report (ExP/10) establishes that blood stains were found on the kurta, but that report does not unveils that it was stained with human blood. That apart, there is no evidence to connect that the same kurta had been sent to FSL, which was recovered and seized from cxppellant and there is no eyidence to establish that the said kurta was wore by the appellant on the date of incident. 10) No other circumstance has been relied on by the prosecution and from the aforesaid discussion it is clear that leamed trial Court grossly erred to appreciate the evidence and neither the V1 6 ^ ffi circumstances relied on were proved nor they form a chain so fully as to unerringly point only to the guilt of the appellant. Even holding that there is no evidence that accused has killed the deceased during the night of 01.01.1993, yet proceeded that under Section 114 of the Evidence Act, the presumption can be drawn that for monetary gain, appellant killed the deceased. Only on surmises and conjuncture, the trial Court held the appellant guitty for committing offence of murder of the deceased Benidas. :j^ rv' padmci 11) In the result, the cxppeal succeeds conviction and sentence under Section 302 of the IPC passed by 1+ie trial Court is set aside and the appellant is acquitted of the charge. It is directed that appellant be set at liberty forthwith if not required to be detained for any other reason. Sd/- Fakhruddin Judge Sd/- V.K. Shrivatava Judge