\ ‘ ‘ APPEAL VOF PRISONER Division Bench ( Crimin: ? ‘J --3-"n$- E -%(&-nnunnnunu I‘allle "wk. . .. .. 5 "Juan"...-.-............... m _ .._ ... ... u...- _ Fathef’s name£zvw§wyq4“,:§¢;5..&¥:é.w.§=..m‘2“,..{xéayVéAn%V€%...~$\.%5‘§ Residence”.g\.\.$w.‘....;z\.v&.<.tw¢s.qn Age Sentenced to ,g_(.&.§\;.$(i§.cm.&ww {iw‘d‘wxV :‘VY V 5; 4;“ 3:&.i..¥.§:5.‘.f;\w..;§.mwgj :.. by 32%. {vVik-Vyrvgy-‘uf3 Under section 4 ‘£§"j/i,&\“&5¥{.¥‘ ‘ Ki “§ It is explainea to the prisoner that‘if he states or wishes to be represented by legal practitioner the Appellate Cour: will not prOCeed with the base for seven days unless the legal practitioner appears . If the legal practitioner dOes not appear within seven ‘ftys he may not heard at all . If the prisoner states that he dees not Wish to be, repre— Vsented by legal mactitioner the court may proceed at once with the case and will not be obliged to give a hearing to any legal practitioner who should appear . i Date of Application for fopy of Judgement Date on which copy rece‘rved sgKtv’kaig ........... K: Date on which Appeal sent .. ..§.l}..R(§;${ ... .L i Whether the prisoner Wishes to be represented or net — §Es / No r “Gee Now. Name .H.‘.(i.M.§§..§.‘.r5%,:,W£h} 7 NOLQQV lbw-ts Dated...z..-............i . i. i99§........lf1 lstfklhnnfw" Forwarded to the ’MAGIST-WE 31. the jg?) Confined in . Jail .. Ty H l anztigw.WMWWG‘. Lit W‘y! J togather which a copy of'judgement or‘order passed in the case for —5“i favour at (~§$.§‘ of trans- ‘g‘isslon it“ “l t0 lo the\ProY\per totem” Appellate s57 i’L“ @N’ Court. Sup r'nétgndent ” i 'rxJ / i Kw >\” P3 '3 at» ‘ 37.?) a; lgy§dbl§fg WJaQz-(agggl n $11 ‘7 Date of receipt in... office .. Date of receipt record to accompany the / T Memo of’Appeal to the Appellate court .Da ’ Forwarded to‘the‘ A i ‘ . .R T'nk ‘ . nu... .. . Date Jof receipt in Appellate Court E ”xrwv v q‘ I k§ g % ' . Ea;v t d . . f.’ XI—HC—22 wwww xv.- }4 Divis§on Bench: - ‘ Hon’ble Mr. LC. Bhadoo and 1 Hon’ble iVlr. V.K. $hrivastava, J‘; 25-9-2006 $hri Akhil Mishra, Advocate for the appeHant. Lawyer for the State/respondent. Ora! Jwgment dictated on h-. Dais. ‘V‘ . PER LL‘. BHADOO, J. This appea! is directed against the judgment of conviction and order of sen‘tence date‘d 2nd December, accused/appeilant guiity for commission of 201 of‘the I.P.C,, sentenced him to undergo fine of Rs.1,000/-, in defauit of payment of imprisonment for iife & to pay a ‘ fine to further undergo R.I. for cne year; and to undergo RJ, for 2 years, respectively. Both the sentences directed to run concurrently. Case of the prosecution, i1 brief, was that one giri child nameiy Niiu, was missing‘since 17—2—95, therefore, Ram of Niiu in the Police Station Sihava on 18-2-95, same was entered in the Rojnamcha Sana vide EX,—P/1 5-C. A merg intimation (Ex-PMS) was lodged by Head Constable Changulal on 19-2-95 on the information given by Mahesh Kumar that on”‘l8—2-95, in the evening, at about 8-9 p.m., PW-T Shri Gadarai and PW-8 J§nmejai informed him that today they went for grazing of the cattle, at about 11 am. they saw that in the agricultural field of Lachinder green coiour frock of a girl was lying which was (cite den) eshi, 1995 paseed by the Additional Sessions r Judge, Dhamteri, in Sessions T'ial No.235/95 whereby learned Additionai Sessions Jude after holding the ‘ offence under Sections 302 and r stained with. blood and one head was also lying near the bush of Baboot, on ' W 5m was. Chanda, Parie’ . daughter of Ram Kumar (PW-2) Kumar iodged a missing report Radhe KauShik and Lakhanlal Soni went to the piace and saw that green ‘ cobur frock 0f some gm was |y ng and the head was also lying near the Babool bush. On seeing the frock and the head, Lakhanhl (PW-’13), i grandfather of Nilu identified the frock and the head to be of Niiu, who was ; missing since 17-2-95. Lakhaniai started weeping. Receiving this merg intimation, the investigating Officer ieft for piace Qf‘occurrence, after giving notice Ex.-P/11 to the Panchas, prepared inquest i ' - report (Ex.—P/12) of the head of 'iu. The site pian (Ex.~P/13) of the house of the accused and Ex.-P/14 of th place of occurrence where frock and the hedd were found, were prepar . Dehati Nalishi (EX-PMS) was given by CS. Netam and based on that F.i.R. (Ex.-P/17) was registered. Seized head, green colour frock, two pieces of bone and hairs were sent for examination to the Primary Hea th Centre, Belargaon where after medicai examination, Dr. 3K. Nag (PW- 4) gave a report (Ex—W22) on 21-2-95, he opined that cause of death c nnot be given, head and two pieces of separated bone preserved for expert opinion and it be sent to the Medicolegal Department, Medic l College, Raipur. Dr. DC. Jain (PW-1 7), Professor and HoD, Forensic i edicines, Medical Coilege, Raipur, further examined the head & bones and he gave the reports Ex.—Pf24 and Ex.-P/25. ‘ On 21-3-95, he opined that hea of the deceased was chopped by sharp cutting weapon like chopper, sw rd, knife etc, cause of death was syncope and death was homicidal in natu . The duration of death was between 5-10 days. He also opined that he ex mined roasted pieeies of lungs with trachea, heart and a part of liver and sam were identified to be of human being. On 2&2-95, memorandum (Ex.-Pi2) f the accused was recorded. On 23-2-95, some hairs stained with blood and one sealed packet were taken into v possessionvunder Ex.—P/5 from the place of occurrence. On 24-2-95, a ' waded) N e r XI—HC—zz EW,WI§,W @ 'Wm mm a 200 m mma%a WW§WW ,—Dg__ . am%mm a XI-HC-22 mm mm WW WW§NW a7mm U mmmw #3,‘ Search was made in the house of the accused, the following articles were taken into possession under Ex.-Pi6:— l i (1) one wooden Peta (2) one bush shirt, (3) one iron knife, (4) one sickle, . (5) one axe stained with blood, (6) one white polythene hag stained with blood, (7) one another axe, ‘ (5) one piece of Sari, (9) one baniyan, ' ‘ On 20-2-95, plain soil, blood stained soil, one green readymade frook and pieces of bone were taken into possession from the place of occurrence under Ex.-P/4. One poiythene b g black colour containing black roasted piece of heart, which was roaste in the fire, a hollow gourd of pumpkin in which ”/2 kg of rice and 4 coins an a polythene containing 5 pieces of lemon were taken into possession under Ex.~P/7. On 26-2—95, plain soil and blood stained soil were taken into poss ssion from the place of occurrence under ‘Ex.-P/8. Under Ex.-P/9 pieces of nail of the accused were taken into possession. The recovered articl s were sent for chemical examination to the Forensic Science Laboratory, Raipur, from where report Ex.-P/21 was received. (t After completion of the in estigation, charge sheet was filed in the Court of Judicial Magistrate, 15‘ C ass, Dhamtari, who in turn committed the case to the Sessions Judge, Raip‘ r, from where learned Additional Sessions Judge received the case on transf rfor trial. l \ or (diew) The prosecution in order t‘b establish the charge against the accused ‘ examined 23 witnesses. Learnec Sessions Judge recorded the statement of i the accused under Section 313 of the CLP‘C. in which either he pleaded i innocence or denied material appearing against him in the prosecution evidence and stated that he is ir nocent and has been implicated in a false case. Learned Additional Sessians Judge after hearing the arguments of counsel for the accused and Additional Public Prosecutor, convicted and sentenced him as mentioned in earlier part of this judgment. Mishra, learned counsel for the accused/ apnellant, appointed by the High Court Legal Aid Corifmittee and Shri U.K.S. Chandel, Panef Lawyer for the St ate/respondent. We have heard Shri Akhi At the outset, learned c nsel for the appellant submitted that the prosecution has not been able to bring on record any evidence which connects the accused with the m rder of Nilu. Gn the other hand, le med counsel for the state/respondent supported the judgment of the tri l Court. Having heard learned cou sel for the parties, we have examined the record of the triai Court and thej dgment of the trial Court. lt is admitted fact that in this case thereis no dire or ocular evidence regarding involvement of the accused/appellant in the c lme in question. The whole case rests on the circumstantial evidence and s per the settled law in order to convict an accused based on the circumsta tial evidence, the Won'ble Apex Court in the matter of Dhananjoy Chatterjee s. State of W.B. reported in (1994) 2 SCC 220 held that: M, o XI-HC-22 mw,m,m OW mm Wm m 200 W mam mm WW‘EH Wm‘mw “Lira WW§WW > wanm a XI—HC—22 WW§WW wwmn a on circumstantia! evidence, the “in a" case basec circumstances from which the conclusion of guilt is to only to be fully established but aiso be drawn have not that ail the eircumstances so established should be of a conclusive natLre 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 7( ‘ chain of the evidence must be so § complete as not leave any reasonable ground for the belief Consis ent with the innocence of the accused. lt needs o reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the gr ater‘ should be the care taken to scrutinize the avid 'nce lest suspicion takes the place of proof.“ ln a case baSed on the circumstantial evidence if the prosecution establishes a motive of the ac used behind the crime, same is of vital i importance. ln this case, fath r of the deceased Ram Kumar has been examined as PW-2. in his evid ce, he has not stated anything against the accused, rather he has stated that Nathuram was residing in the lndira Aawas, Ghatula all alone. Noth ng happened between him and Nathuram. Similarly, mother of the deceas d and wife of Ram Kumar, namely Deepti has been examined as PW-3. e has also not stated anything against the accused that he was having any grudge or animosity against the parents of the deceased. (its alas) e t t h XI—HC—22 WM mm w’mw mmmw “.g ’_ WWEWW éawm The prosecution has tried to establish the crime against the accused/appellant on the basis 01' following tircumstances:— As far as first circumstance is concerned, it is true that the axe, sickle, iron knife, wooden Pata were ‘ n into possession from the house of the accused under Ex.-P/6 on 24- the house of every person in th P/21), blood was found on the ooden Pata, knife & sickie and naiistof the accused were found stained wit blood, but there is no report that the blood which was found on these articls was human blood and same was of the blood group of the deceased, thout which it is difficult to connect the accused with the murder of the dceased based on above recoveries. d As far as recovery of roas ed piece of flesh li-ffe heart under Ex.-P/7 is concerned, same was sent for amination to the Primary Health Centre, Belargaon from where it was se tto the Medical College, Raipur, same was examined by Dr, D.C. Jain, (PW 17), Professor & HoD of the Department of Ex .g.__u:e 7-: Us: .:'. ’ ¢ .. ..." -: .- -‘at. _ 5, but such articles are normally found in viilage side. As per the F.S.L‘ report (Ex; t e 2 i x K i i (1) axe, iron knife, sic<le and ane wooden Pata were recovered and same were found stained with blood, l (2) in polythene bag'black roasted piece of heart, which wae roasted on tire, Was seized from the house of the accused u . under Ex.-P/7, (3) green frock of the deceased and head along with hair of the t deceased were seiz:ed from the piece of“occurrence under Ex.~ P74, (4) the accused gave memorandum Ext-P/Z. y XI—HC—22 WW§WW ‘G mmww ~1~— %a¥%nm P/25 that roasted pieees of lung with trachea, heart and a part of liver were identified to be of human being. E ut in the first instance‘ there is nothing on riecord which estabiiehes that the said pieces were of the body of the 3eceased. Merely, based on this circumstance only which is a very weak liype of evidence it is very difficult to record a finding that the said pieces of iungs, trachea, heart and a part liver was of the body of the deceased, as there is no other evidence put orward by the prosecution in order to establish that the accused was in ny manner seen with the deceased or the accused was'seen by anybody nearby the place, of occurrence i.e. the agrickultural field‘where the frock a d head of the deceased were found. As far as'recovery of glee frock of the deceased and piece of head from the place of occurrence is c ncerned, based on this recovery also, the prosecution has not been able t connect the accused with the crime in question for the reason that neit er these articles were recovered at the instance of the accused nor the is any evidence to show the presence of the accused nearby the place of r currence from where these articles were recovered, or any foot marks or y circumstance has been established by the prosecution regarding the p esence of the accused at the place of occurrence. Therefore, merely the basis of above recoveries, unless same connect with the presence f the accused, it cannot be made basis for connecting the accused with the urder of the deceased. As far as memorandum .-P/2 is concernedyit is also of no help to the prosecution for the reason tha this memorandum‘g'was recorded on 26-2- 95 Whereas, regarding piece of h and frock of the deceased were already known to the villagers on 19-2-95 based on that merg intimation and Dehati Nalishi were also recorded. The items were taken into possession on 20- "” ,nO o ‘ c n n E ed s ,_gv—— significance or importance can be . éKWW .a attached to the memorandum EX.-P/2 that at the instance of the accused these frock and piece of head of the deceased were recovered or place of occurrence was known to the villagers. as such‘ based on memorandum Ex.—P/2, : i crime in question. i ‘ Fo‘r the foregoing reasons, we are of the considered opinion that the [grosecution has not been able to establish involvement of the accused/ ‘ appellant in the crime in question by the prosecution has not stood i in the above juijgment for connecii in other Words, the prosecution clinching legal circumstantial evide and the circumstantial evidence adduced up to the test laid down by the Apex Court ng the accused with the crime in question has not been able to bring on record nce through which an irresistible inference can be drawn that the accused W2 s only person who was author of the crime in question and there is no possibi lity of any other person to commit the said crime. Therefore, finding of the t'ial Court cannot be sustained and same is liable to be set aside. ln the result, the appe al of the accused/appellant succeeds. Conviction and sentences imposed upon the accused/appellant under ‘Sections 302 and 201 of the l.P.(3. are set aside and he is acquitted of the said charge. The accused/appella nt be set at liberty forthwith, if not required ‘ in any other case. Sdl- L.C.BHADOO Judge he accused cannot be connected with the n a Sd/- WK Shrivatava Judge (Vita W)