HIGH COURT OF CHHATTISGARH BILASPUR Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. e CORAM: Criminal ApLeal No. 337 of 1994 Surjabai Vs. The State of Madhya Prades (Now State of Chhattisgarh) @J JUDGMENT For considoration Sd/— Sunil Kumar Sinha Judge / /\ r M, HON’BLE SHRI JUSTICE RAJEEV GUPTA Sdl‘ ¥ Cmd 3“5“ce gk / ,./ Post for Judgment :/0/03/2011 Sd/- Sunil Kumar Sinha Judge ,L ,” h \ " fl HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Ra'eev Gu ta C.J. & Hon’ble Shri Sunil Kumar Sinha, J. 9 Criminal Agpeal No. 337 of 1994 APPELLANT Surjabai, aged 37 years, Wife of i Nathuram Sahu, by Occupation Agriculturist, Resident of Village Bhainsbod, O.P. Dadhi, Police Station Nawagarh, District Durg, MP: (Now Chhattisgarh) I Versus H.“ REéPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh), (Criminal Aggeal under Section 374 (2} of The code of Criminal ‘ Procedure,_1 973) Appearance: Mr. Ashok Patil, Advocate for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (10.03.201 1) Following judgment of the Court was delivered by suhii Kumar Sinha, J. (1) This appeal is directed against the judgment gated 18‘“ of March, 1994 passed in Sessions Trial No. 152/90 by the Sixth Additional Sessions Judge Durg, Camp Bemetara. By the impugned judgment, the appellanthas been convicted u/ss 302 & 316 IPC and sentenced to tundergo imprisonment for‘iife and R.l. for 5 years with fine sentences of Rs.100/— under each count, with a further direction 'to run the sentences concurrently. 8 2+ Criminal Apgeal No. 337 of 1994 (2) The facts, briefly stated, are as under:- Appellant— Surjabai was the flrst‘wife of Nathuram (PW—7). She was issueless. The couple, therefore, decided that Nathuram should marry Kamlabai so that a child is begotten.°Nathuram therefore performed second marriage (chudi-marriage) with deceased- Kamlabai. Kamlabai was handicap. Kamlabai had a son from her first husband. Kamlabai, her son and Nathuram (PW-7) and his first wife (accused -appellant herein) started living in village l Bhawarda. After sometime son of Kamlabai returned back to his maternal uncle. Later 9n, Nathuram and his first wife were residing :‘tn‘ village Bhainsbod and Kamlabai was residing in village 1 Bhawarda. Both the villages are at distance of 2 Kms. The 1 allegations are that on 4.9.89, Surjabai came to. village Bhawarda. She stayed in the house of deceased- Kamlabai and in the night, committed murder of the deceased by strangulation. At about 1.00 a.m. on 5.9.89, she met Paklu (PW-13) and said that Kamlabai is not feeling well. Paklu was residing in a different portion of the same house.'When he came there, he saw that Kamlabai has died. The matter was reported to the police and a merg intimation (Ex.- P/1) was lodged. The InvestigationVOfticer reached to the place of occurrence, gave notice (Ex.-P/7) to the Panchas and prepared inquest (Ex.—Pl8) on the body of the deceased. The dead body of the deceased was sent for post—mortem to Government Hospital Nawagarh vide requisition Ex.-Pl11. The post-mortem examination was conducted by a team to 2 Doctors, including Dr. Suresh Chandra Mishra (PW-15). They found varioussinjuries on the neck and other parts of the body. The Autopsy Surgeons opined that the cause of death was asphyxia due to throttling and it was homicidal in nature. The post-mortem report is Ex.-P/18. Various articles were seized during the course of investigation. The pieces of nails of the accused were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide memo Ex.-Pl12, from where, a report (Ex.—P/13) was z received. According to the F.S.L. report, blood stains were not found on the nails of the accused. a .cn i ‘ 3’ Criminal A eal No. 337 of 1994 After completion of usual investigation, the charge-sheet was fled in the Court of Judicial Magistrate First Class Bemetara who rn turn committed the matter to the concerned Sessrons Court from where rt was received on transfer by the Sixth Addrtronal§essrons :Judge, Durg, Camp Bemetara, who conducted the trral and iconvicted & sentenced the appellant as aforementioned. i ‘ i (3) iAdmittedly,'there are no eye—witnesses to the incident and the case of thé prosecution is based on circumstantial evidence. Following are the l circumstances, on which, th’e learned Sessions Judge has held the appeilant guilty of the aforesaid offences:— of Nathuram, i (i) s The deceased was second wife ‘ therefore the appellant (nrst wife i saut) was having grudge 1 against the deceased l (ii) Nathuram suspected that the death must have been caused by appellant— Surjabar, (iii) The appellant came to village Bhawarda from village Bhainsbod on 4.9.89 and she had an opportunity to commit murder of the deceased; (iv) The appellant had received an abrasion on the right cheek which was found in her medical examination by Dr. A.K. Tripathi (PW—1 1) (4) Mr. Ashok Patil, learned counsel appearing; on behalf of the appellant, argued that the above circumstances were not proved by the prosecution; even if they are held to be proved, they may raise suspicion, ' but it cannot be held beyond reasonable doubts that the appellant has committed murder of the deceased. (5) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments, and supported the judgment passed by the Sessions Court. $2 4 Criminal Appeal No. 337 of 1994 (6) We have heard the Iearned counsel for the parties at length and have also perused the records of the sessions case. v (7) i In Hanumant —Vs- State of M.P., AIR 1952 SC 343 the“ Supreme Court: held that “In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt Rte, be drawn should in‘ the hrst instance be fully established and all ‘ the facts so established should be consistent only with the hypothesis of the g‘uiltéof the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude l every? hypothesis but the one proposed to be proved. ln other words, therejmust be a chain of evidence so far complete as not to leave any reaSOnable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." (8) Thereafter in many decisions including the decisions of Dhananjoy Chhattetjee —Vs- State of W.B, (1994) 2 SCC 22 and Bodh Rai alias s‘u Bodha and others —vs- State of Jammu and Kashmir, AIR 2002 SC 3164, the Supreme Court held, and it is almost well settled, that the circumstantial evidence, in order to sustain the conviction, must satisfy the following conditions: ’ J (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; _ (ii) those circumstances should be of a detinite tendency unerringly pointing towards the guilt of the accused; Criminal A eal No. 337 of 1994 (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within ail human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. (9):; Now we shall examine the credibility of the prosecution case in light o the above principles laid down‘by the Supreme Court. t . (10) 1 V " There is no dispute that the dead body of the deceased was found n her house on 5 9 89 There is also no dispute that the deceased died homrmdal death and the cause of death was asphyxra on account of throttling. The question arises as to how the appellant can be assomated with the homicidal death of the deceased ? The case of the prosecution is that at the time of incident, the deceased was separately residing in village Bhawarda in a portion of ancestral house of her husband- Nathuram and Paklu (PW-13) was also residing in a different portion of the said house. lt is also an admitted position that Nathuram and his first wife (accused) were residing separately in village Bhainsbod. The distance between‘both the villages is 2 Kms. The prosecution came with the case that on 4.9.89, the appellant came to the house of the deceased and stayed there in the night. After examining the entire evidence on record, we find that there is no evidence at all tohold that the appellant visited the house of the deceased on 4.9.89 and she stayed in her house in the night of 4.9.89. ln‘t‘his regard, the husband of the deceased namely Nathuram has been examined as PW—7. He has completely turned hostile. The other witness on the point was Paklu (PW-13). The case of the prosecution was that the appellant had informed Paklu in the night i f I ’ 4«, Criminal Appeal No. 337 of 1994 that the deceased was not feeling well. This has not been substantiated by the evidence of Paklu (PW-13). Paklu has been declared hostile. Paklu‘ has not said about presence of the appellant in the house of the G deceased on 4.9.89. In appreciation of the entire evidence on record, we nnd that it has not at all established the appellant was also present in the house of the deceased in the fateful night. (11) lAbout the circumstance that the husband suspected that his first , wife ‘may have committed murder of the deceased, we find that the husband has never deposed like that. Moreover, that will not be a circumstance for holding the appellant guilty of the said offence. (12) iAbout injury found on the person of the appellant, Dr. A.K. Tripathi (PW-11) deposed that he had examined the appellant on 6.9.89 at 9.20 a.m. and had found an abrasion of 1 inch on the right cheek of the appellant. He opined that the said injury was caused within 12 to 14 hours from the time of the examination. Looking to the duration of the above injury we can not connect the same with crime in question which took place in the night of 4.9.89. G (13) In the above facts and circumstances of the case": we find that none of the circumstances were cogently and firmly established. They were not of definite tendency pointing towards the guilt of the appellant. Even we take the above circumstances as proved, a conclusion cannot be drawn that in all human probabilityithe crime was committed by the appellant and none else. The learned Sessions Judge has not considered the l above aspect argLhas awarded the conviction and sentences on l \ / a Criminal Appeal No. 337 of 1994 conjecture and surmises. We are of the firm view tha’t it was not safe to convict the appellant on the above set of circumstantial evidence. (14) For the foregoing reasons, we allow this appeal and set-aside the conviction and sentences awarded to the appellant. The appellant is i acqwtted of the charges framed u/ss 302 & 316 IPC. It is stated that the appellant is on baii. Her bail bonds are cancelled and surety stands discharged. Sd/- w ’ Sd/- Chief Justice ' rSunil Kumar Sinha Judge i i 7 ¢ l vatti