^ t.HC—78 ^ ^TT^r ^T f<^[ch 'cT^IT'STI^T 5FTTW ^ TC^" ^INI^, ^Tfi<111<o, Isl^l^y CL-y^-po- •^Zl/'Loo': -qmw ^WR ••••"""•""•"""••"•""" ^ 200 3n^?r ^ra^ ((lc<^<yr) ^Rnw^feT 3>n^r APPELLANTS (in Jail) 1. 2. Mai yea| Fat|ma, W/o Bashir Khan, aged about 40 yea^ RESPONDENT .Boti Disi St^ '•Sta' (Crifninal Appeal under Division Sench : Hon'bte Shrl L.C. Shadoo_& yon'bIeShriSunjlKumarSJnha, Shri Rajneesh Shrivastava Shaiiendra Dubey, counsel for app Shri Anoop l^azumdar, cour Smt. Anju Ahuja, Dy. Govt. Heard. Oraijudgment dictated cn d L.C. Shadoo. J • By this appea! under Se< <Procedure the appeijants have qu cbl^id^-1 TTmc;Tf ^f.fe^ Tf^R5R ^^iRm^n^r nu, S/o Tijau Lodhi, aged aboyt 40 resident of Khairi, Thana Chuikhadan, Rajnandgaon (Chhattisgarh). ersus- of „ Chhattlsgarh, Through Pojice sn Chulkhadan, Distt. Rajnandgaon. Section 374(2) ofthe Cr.P.C.) IJJ Advocate appears cn behaif of Shri ^I!antNo.1 IVIannu. |se! for appeliant Np.2 Fatima Bi. Idvocate for the State/respondent. 'JS. 4:ion 374(2) of the Code of Criminal ^stioned thejegalifr^ and correctness of IC—78 ^TT^T ^T (^'lJch TT8Tf 'STT^T 5t)+iicn e. d-C^[ '^1<410<M, ^Tfl^'I^, is|^l^^< WTPff d»*<|cb "^ 200 3TR(9T XR^? (^clf^^) ^wi^R ^a 3TT^?T the judgment of convlction and orc by the Specia! Judge, Rajnandgaoi and whereunder learned Spech appellants guilty for commisslon oi of the Indlan Penal Code, sente Imprisonment for life & to pay fjne fine to further undergo R.l. for one to pay fine of Rs.10,000/'-,.in d^tai RJ. for one year and to unctergc Rs.5,000/-, in defauit of payment c respectlvely. 2) Case.of the prosecutlon, i deceased Ashok had iiiicit relatlon appellant Fatima Bi. Therefore, ground and Fatlma Sl Manc threatened her that she.wlil comml day Ashok (since deceased) took deceased nameiy, jVlangtln Bai le' going on and ieft the keys of her boy (Ashok) did not return to the the vjllagers. Accused/appelSant IV He absconded froni the viiiage s against the father of the deceasec not known, search was made by Vikram Das l,n the house of accus^ cM€it<n<iiiTnTI^f '?,fec3t <f^t^l< ^^iRpT^n^T ler of sentence dated 26-6-2002 passed ^ in Sessions Trial No.124/2001 whereby !•! Judge after 'holding the accused/ l.offence under Sectlons 364, 302 & 201 hced each of the accused to underao |of Rs.10,000/-, In defauit of payment of (year, to undergo ImprSsonment for life & |ilt of payment of flne to further undergo KR.I. for three years & to pay flne of ff flne to further undergo RJ- six months, |i brief, Is that IVIangtln Bal, mother of i^ wlth Baslr Khan husband of accused/ t)oth the iadies used to quarrel on that jtln to leave the village. Once Fatima Bi the murder of her chi!d, Thereafter one the cows to the fleld. The mother of the ft for the site v/hete the relief work v/as |iouse in the neighbourhood. When the l^ouse, search was made in the vlilage by }annu had not participatedJn.ihat search. jnce Friday and he had ^^t'animosjty When the whereabouts of' Ashok were Netram, Sarpanch Manohar & Kotwar td IVIannu. The dead body of Ashok was 'HC—78 •S^ss r^|<4|^, ^Tfl^i'Ko, (<<0i'y^< Hl^dl ^bNlch "•^ 200 ^n^r^ h^ 'TOT 'STT^T $h^J<+ ^r c: 3TT^?T XT5R? ( 4cl^lfl<<i?T) '^RTrW^rf^T <3T1^T found in the kothi of house of Mi whereabouts . of Ashok was not tt lodged by Savant, father of the (Ex.P/1) was lodged by Savant Station Chuikhadan. Dehatl merd Savant on the sarne day i.e. 18-2-( of Ashok was fou'nd on 18-2-2001 Officer after giving notlce (Ex'.^ (Ex.P/4) on the body of Ashok. Tahsildar under Ex.P/6. Slte p!an i.e. In the kothi of house of Mannu ^ on 21-2-2001. One tea shirt & Ex.P/8. Accused IVIannu gavej investigating Officer on 21-2-20011 Ashok was concealed. Ex.P/1 O ^1 Fatima Bi regarding the piace wh| Blood stained & plain soii was seil Ex.P/11. The body of deceased Government Hospitai, Chuikhad^ conducted postmortem. He opinel due compression of neck and chesl innu v^rapped with ciothes. When^r |aceabie, missing report (Ex.P/12) was deceased on 15-2-2001. Dehatl Nalishi <tn 18-2-2001 at 19.15 hours in Po!ice inti'mation (Ex.P/2) was also given by >001 at about 19.00 hours. When body |n the house of Mannu, tne investlgatlng P) to the Panchas, ^repared inquest —~ (AJ<^ 3) After compietion of Investig^ of Addjtjonal Cbief Judidai i^agist| ' the case to the Court of Speda! Juc <=bHf<y1<iil W^ff ^f^fe^ <Pfl^rl< ^^tRPT^TT^T ^aste certlflcate I^ad obtalned frorn the lEx.P/7) where body of Ashok was found t/as prepared by the Snvestigating Officsr |ia!f pant of Ashok were seized under memorandum under ExP/9 to the iregardjng the piace where the body of |?as memorandum given by.co-accused i^re the body of Ashok was conceaied. :ed from the place of occurrence under Vv^'s sent for postmortem.examinatlon to |n where Dr. Ashok Khsre (RAJ-20) that the cause of .death was asphyxla Postmortem ceport is Ex.P/13. lion, charge sheet was fiied in the Court fate, Khairagarh, who in turn committed |ge< SC/ST Act, Rajnandgaon. l^y^,, [C—78 3^cT ^I-MI^, ^TflyKo, (c«y'>l-yy ^wv{\ wrra? •"^ 200 3TT^T ??T fqilcn 'cTSH 3TT^T sft+iicft ^- •^" S^ -q^? ( llc<^<^ ) ^wi^TC ^a 3TT^T 4) In order to establish the prosecutlon examined 20 witnest were recorded under Sectlon 311 which they denied material apj^earing evldence and pleaded ignorance. 4harge against the accused persons, the ses. Statements of the accused persons 3 of the Code of Criminal Procedure in against them In the prosecution 5) Learned Specia! Judg| respectjve parties, convicted arjd aforementioned. 6) We have heard learned cjounsel for the parties and perused the record. 7) Learned counsel for the death of Ashok. Noreover, Dr. ^ 19-2-2001 he was working as Hospitai, Chuikhadan. On that brought for postmortem examlnati! of the deceased was rotatinci a cracking sound from survical bon( the middie of neck in ths size of injury in the slze of 2" x 3" x 4" abrasion in the slze of 1" x 1/6" on the right side of face in the slze was present on both sides of ne , fractured; 3rd & 4th ribs of right sl fractured. Neck and Vi/Indpipe w cbl^i<rt^^ TTPC^if ^\fe^ <r»i^i< ^3TfiTH3TI^T after hearing counse! for the sentenced the accused persons as apjpei c^y lants have not dlsputed the homicidai |shok Khare (PW-?0) has stated that on IBIock IViedJca! Officer at Govemment ^y, the body of Ashok, S/o-.Savant.-was ^n. On postmortem, he found that neck jid body was putrefied..' There was a |.. There was an injury of bJackcoiour In |1" x,%" on the right side and the other t>n the ieft: sid6 of neck. There was an |he !ower side ofright knee. Abrasion on 1/4" x 1/6". On dissection, ciotted biood •^k. Hyold bone and thyroid bone were je and 3rd, 4th & 5th ribs of lefts side v/ere r^re reddish. Food pipe was reddish In rXI-HC—78 <s-^ •^WW^, W^\W{<c, ^v>>W^{ ^TT^T ^T ^(ch TT^T 3TF^?T »»+ijq) ^ L. •qiwir ^n^........................................................^ ^^ 3TT^?T ^(V ((ic<^<^) ^«iiW<if^a ^TI^T CQiour. Hyoid bone was broken v 4th survicsi vertebra. Ugaments mortem in nature and caused by was asphvxia, as a resuit of 001 survlca! vertebra. The death w Ex.P/13. In view of the medics estabiished that the death of Ash( ^rtjcaijy. There was a fracture In the 3 & ^yerQ fractured. Aii the injuries wers ante |hard & blunt object The cause of death fipression of neck & chest and injury to •^s 5-7 days o!d. Postmortem report is evidence and postmortem report, it is Ikwas homicidalin nature. 8) As far as complicity bf question is concerned; there is n| order to connect the accused p| whoie case rests on the circunt convlction based on the circi Dhananjoy Chatterjee Vs. Stat< the Apex Court heid that : "!n a case basl the circumstanct gullt Is to be estabilshed but| so estabiished and consistent gujit of the a| should not be^\ any other hyp^ accused and th< so complete a^ ground for ti^s innocence of remlnder that l^c and not mereil <=M<4f<yl<ilt ^d<A* ^fe^t '^HC5R ^3TRP:T37T^T the accused/appeilants In the crime in ^.djrect or ocuiar evldence jn thls case in ^rsons with the crime in question. The Istantiat evidence. In order to rest the' Imstantial evldence, in the mafter of •ofW.B. reported in (1994) 2 SCC 220 sc| cn circumstantial evidence, ^s from which the conclusion of 'awn have not on!y to be fuliy also that ai! th@ circumstances houid be of a conoluslve nature ?nly with the hypothesls of the ^cused. Those cjrcumstances ^apabie of being expiained by thesis except the guiit of the chain ofthe evidence rhust.be not to leave any reasonable beiief consistent wjth the the accused. !t needs no ]ai!y established drcumstances Indignation o? the court can ^ 181 w [-HC—78 T^ 3:c^T ::5TRTT^T, yiTfi'(-l<l<o, fst^il^iy ^W^l 9b^|ch ••^ 200 371^T ^T f^'lioh '^T8TT 37T^?T 9n*li<sb k' 3nit?r x^r^ (yc<[^<ysT) ^WW< tll form the basi^ serious the criiine care taken to| suspjcion takes| 9) Having heard learned coi| the evidence and the ludament df establish the involvement ofthe^ based on the fqiiowing circumsta(ices 1. Dead body of house o? bf'Ashok was found in the kothi i^ccused iVlannu. 2. Accussd M missing of d] 3. Therewas fe the accused the deceasefci 10) First circumstance : At body of Ashok was recovered ur| Officer who prepared the Inque^t B.L. Dhruv, Additional Superinte| prepared sife plan Ex.P/7, which recorded statements given by Ex.P/S & Ex.P/10, respectivejl memorandurn & what informati^ Ex.P/9 and by accused Fatima the site p!an (Ex.P/7) was prepar^d as pointed out by them. Theref| heip in order to estabilsh that th| cr)i^f<n<fli *ii*i<riT'^,r6^l ^^K ^3'^itRpT 3n^[ of convlction and the more ^ the greater shouid be the scrutinize the evidence iest the piace of proof." nsei for the parties, we have scrutinized trial Court. The prosecution has tried to ccused persons with the crime in question annu wss abscondlng •slnca sceased Ashok. strained relationship betv/een Fatima Bi and the mother of 5 far as this circufnstance is concemed, der Ex.P/4 i,e. inquest. The investigating, report has not been examlned. PW-19 |ident of Poiice, has slmpiy stated that he bears his signature. He has stated that he cused Mannu & accused Fatima Bi under ^. Sut he has not stated that what )H was glven by accused yannu under Si under Ex.P/10. He has not stated that ^d at the instance of the accused persons Dre, the evldence of this witness is of no 9 slte g^[ where the bodv of Ashok was 4 ^^m-^^ '3^ ^ww^, ^>T{i^4i<s, tsi^i-y^ •^<^ MINdl **41cb •^ 200 31T^?T XHTO ( <ic<Fy<<^ ) 31T^T ?FT ^[ch ^T^T 'STI^T sh^icb '^TTW^rf^T 3TT^T found, was pointed out by the accu| the body. Even he has not stated t^ tbe body was located.There is n^ regarding the seizure and discoverl/ an iota of evidence on record that Mannu, whether that house was lcji presence of the independent witne^ seized from Mannu or from any oth|c key. 11) Even PW-1 Savant, fatheil evidence, has categorically stated residing at Nagpur since long and| onty. Very often they come to used to return to Nagpur. PW-4 house of Mannu was made by the in his house. But, in cross-exant evidence is given in examination-in^ heard in the village. Apart from and his statement under Section 1611 12) PW-5 Netram, in para-3 of report Police came in the village. but nothing was found in her housej no search was made. In para 5 of c| son of Mannu used to reside in N^igpur chi^f<n<i1rt ^i^<A '^,f^1^ <Fai^i< ^'3JftPT ^TT^T >ed persons that at that place they kept lat from which place and at which point evidence of any Investigating Officer of body from the place. There is not \^hen search was made in the house of cked, whether the lock was opened in ses & whether the key of that lock was ^r person to whom he handed over the of the deceased, in para-4 of his t|iat Mannu and his family members are [they are earning their livelihood there their|village and after seeing their field, they lyianiram has stated that search of the Ffolice and the body of Ashok was found exanhination, he has stated that whatever •(chief has given on the basis of what he t, this witness is a witness of site plan of the Cr.P.C. was not recorded. th^t his evidence, has stated that after the ~hey searched the house of Fatima Bi, As Mannu was absconding, therefore, toss-examination, he has stated that the and Mannu used to go there for ^ •::s^ '^ s<X[-^C—78 •^' ..--^^ '^ '3-^r ^ww^, ^w\<o, ^^w^ HW<r{{ 9b^l<=h -^ 200 3:[T^5T X[5RR ( 45<?^<i^ ) ^T^r ^pT ^jch ^STT ^TT^T sh^li<+ ^ ^ '^TTWRft^ 37T^T earning his livelihood. PW-5 has al^ in the house of Mannu on 18-2-200t yvas locked and that was not acce^ evidence is of no value in order to was found was in exclusive possessj ^o stated that body of Ashok was found 1, but he has not stated that the house ^sible to anybody else. Therefore, his ^stablish that the place where the body lon ofMannu. stat^d 13) PW-7 Ishwari has also after missing of Ashok the police cs(n sons of Mannu are residing at Nag( Mannu used to go to Nagpur to me^ body of Ashok was found in the hojjse present at the house of Mannu and In view of the evidence of Ishwari, wpien of Mannu no family member of Manrjiu 14) Even PW-8 Mangtin Bai, m^ther cross-examination that on the datt Nagpur and was earning his liveliho|od reside with him in Nagpur. Police though PW-14 Ramgulal, is brothei] examined by the prosecution. He his family members used to reside i(i and he used to visit village. PW-16 al^o stated that they are residing ir they are earning their livelihood ther^ chl^lfd^vl ^l*l<rff ^f\fec3t <F3l<^'< ^ 3fRp=r'sn^r in cross-examination that next day ^me in the village. It is correct that two bur. He does not know as to whether 3{ his sons. It is correct that when the of Mannu on that day nobody was ^resently the wife of Mannu is in village. the search was made in thehouse was present and that was deserted. of the deceased, has stated in of incident Mannu was residing at there. His family members used to ttrought Mannu after the incident. Even of accused Mannu, but he has been l|ias also stated that Mannu along with Nagpur in order to earn his livelihood hmrit Bai, wife of accused Mannu, has i|i Nagpur for the last 18-20 years and id ^—^ T^T ^l^l^, ^-d1^l<o, [s)0l'(-t^< © ^ll^dl sb^lch "^ 200 3TT^?T T?5RF (l^F^^) 371^1 ?RT'f^TN? Tf^Tf 3TR?T $b^llcb '^nw^ftn 3?n^r 15) There is not an iota of evidertce on which deceased Ashok disappe^r disappeared, accused Mannu wa^ evidence, as has been mentioned e| in the'house of Mannu, the house W presence of Panchas after breakingj from anybody to whom Mannu hand| that the place from where the bc|dy accessible to the general public. Th{ the prosecution has not been able the body of Ashok was retrieved w^$ Mannu and that was not acces< memorandums Ex.P/9 & Ex.P/10 st IFatima Bi in order to point out the plc Iretrieved have not been establish( lOfficer, B.L Dhruv (PW-19), has [Moreover, these documents have |reason that the body of Ashok was| |that place was known to everybody. |its importance because that place w| |be said that the place was exclush Ipersons, because on 18-12-2001 D( [father of the deceased so that placejs J12-2001 whereas, the memoranduhns Irecorded on 21-12-2001. Therefore c»)i€if<n<iii'HP^ff ^f.fe^ <Fai^i< ^ 3^Rp=T 3?TT^T ice on record to establish that the day red or during these days when Ashok seen in the village. There is no arlier, that when the search was made as locked and the lock was opened in open the same or after taking the key ?d over the key. There is no evidence of Ashok was retrieved was not srefore, in view of the above evidence, |o establish that the place from where |s exclusively within the possession of >ible to anybody else. Even the lid to have been given by Mannu & ^ce from where the body of Ashok was |d by the prosecution. Investigating |also not proved these documents. |o sanctity in the eye of law for the |already retrieved on 18-12-2001 and IThereafter such memorandum losses as known to everybody, then it cannot <|ely within the knowledge of accused |hati Nalishi & merg were given by the s|s were known to everybody since 18- of these accused persons were there is no clinchinglegal evidence ^\ 10 s^r '^{WW^, ^^\W\<S,, ^<ftW^< ^TPTCT' thNlch •^ 200 3T^?T XRF3F (^f^^T) 3TT^T ^T ^Jch TT^T 3TT^T $b<-ii<=b "^iTW ^Tft^T ^TT^T chl^id^l'1 'RTR^Tf ^f.ft^ ^t^K iT'sffim'sn^T available on record to establish that was retrieved within the exclusive pc npt accessible to anybody else a retrieved was pointed out by the acci leplace from which the body ofAshok ssession of accused Mannu, that was id the place from where body was ised persons. 16) Second circumstance: As as per the evidence of prosecution w| parents of the deceased have statdd family members used to reside in There is no evidence that Mannu Wc |Ashok disappeared or nearby thosje lcannot be said that Mannu was at |Mannu was brought from Nagpur v family members, then how can it b( Iprosecution has failed to establish thi far as this circumstance is concerned, ftnesses as discussed earlier, even the that accused Mannu along with his N^igpur in order to earn their livelihood. seen in the village on the day when )s|e days in the village. Therefore, it tsconding after commission of crime. ^here he was residing along with his held that he was absconding. The circumstance. |17) Third circumstance: As fa |PW-1 Savant, husband of Mangtin |stated that there was any animosity |Bi on account of the fact that his Ihusband of Fatima Bi. PW-4 Manirc that there was a commotion in the vil |Bi and wife of Savant i.e. Mangti [witness has stated that he deposec |fpom the villagers. Therefore, his e' jquarrel between Fatima Bi & Mang as this circumstance is concerned, ^ai & father of the deceased, has not between his wife and accused Fatima ^ife was having relationship with the 3|m, in examination-in-chief, has stated l|age about the quarrel between Fatima Bai, but in cross-examination, this before the Court whatever he heard <|idence to the extent that there was a |n Bai is improvement. Even though —78 11. TS^ •^(Nl<?'><4, ^xfi^Ko, (sl^l^y W^v\\ *t<l<sh "^ 200 3n^?r ^^? (^f^<^T) ^IT^T^ ^rlich TI^T ^n^?T 5b^iq>> /' v~v between accused Fatima Bi &| stated that he disciosed this N poiice case diary statement, the| <sbl^t<rt<i1v1 ^IH<?ff '^,fe(3t <pq^l< '^3tRR3?n^r PW-5 Netram has stated that feince last 2-3 months there was a quarre! Mannu, but In cross-examination, he has ict to Police, if the same is not written in i he cannot assign any reason. This fact is not mentioned in police cas^ diary statement, as such this is an improvement In the Court evlclence. Therefore, there is no cogent and clear evldence to establish that & IVIanatln 3ai to the extent ofts 18) PW-8 Mangtin Bai, moth Bi used to quarre! with her on her husband and she said that again stated that about 8 days her. In paria 7, she has stated threatening given by Fatima S record. Moreover, v/nen threats therewas any animosity between Fatima Bi king the iife of son of Mangtin Bal, er of the deceased, has stated that Fatima ;he ground that she has some relation with she would kill her child. in para 5, she has sefore the Incident Fatima 8i quarreied with that she made a compialnt to police about i, but no such report has been placed on 'ning \^as given by Fatima Bi to Mangtin Bal then why this fact was not merltioned by the father of the deceased in the missing report Ex.P/12 that F| account of her relationship wit!1 has not been mentioned by Sa^ Dehatl Naiishl (Ex.P/1) dated I clinchjng evidence to estab!is| Fatima Bi & SVianQtin Bai. 19) For the foregolng reascj bring on record In circumstantl^ ^tima Bi had grudge against hls v/lfe on the husband of Fatlma Bi. Even this fact /ant, father of the deceased, when he gave 8-2-2001. Therefore, there Is no clear cut i that there vvas any animosity between ns, the prosecutlon has not been abie to evidence to connect the accused persons ^ •^^!-_/1 ^-s^' W^T^T fq^iich Tf^T 3TT^T $t»<-li<=b GOV 3:i^T?!rRI^T, ^TO'M1!^, fs|<»»l<-l^< W^v\[ **<|cb ••"——•—•••••"" •—••"-^ 200 3n^?r 'VI^K ( 4^^<i}ST) 12 '^TTW^f^f 3?1^T with the crime in question. As f^ is no evldence to estabiish deceased. Even search of her no evidence has been brought| crime in question. The prose^ution record legal clinching circumstahtjai persons were the authors of tl^e and sentences imposed upon tl^ kr as accused Fatima Bi is concerned, there phat anybody saw her taking away the ^ouse was made, but nothing Vi/as detected, lon record in order to connect her v/ith the ^ution has aiso not been ab!e to bring on evldence to estabiish that the accused crime in question. Therefore, conviction ^ accused persons cannot be sustained. s4t 20) In the result, the appeai and sentences imposed upon 302 and 201 of the IPC are charges. it is stated that the| 21-2-2001. They be reteased t any other case. Sd/- L.C. Bhadoo Judge cbl^f<rt<fll^H<^ ^fe^ <Pq^l< "^3TRPT3n^T tucceeds and same is ai!owed. Convictlon |he accused persons under Sections 364, aside and they are acquitted of the said accused persons are in detentlon since }orthwlth uniess requlred to be detained in Sd/- Sunil Kumar Sinha Judge