^'. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. JJ Criminal Appeal No. 114/1996 The State of M.P. (Now State of Chhattisgarh) Vs. Mohammad Ali JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA °^ c^^^v&.^_ Sd/- R.S. Sharma Judge Post for Judgment :^7 09/201 1 Sd/- Sunil Kumar Sinha Judge ^"s'^. 1 ^ ^r^ ^^^iy HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma.JJ APPELLANT RESPQNDENT Criminal Appeal No. 114/1996 The State of M.P. (Now State of C.G.), Through Police Station, Rajnandgaon, Distt. - Rajnandgaon (M.P.) (C.G.). Versus Mohammad Ali, S/o Sahab Jan, Cate- Musalman, Aged about 27 years, R/o Husena Chak, Police Station Gorel, Distt. Veshali (Bihar), Present R/o Tyre Shop, in front of Agrawal Transport, E- Road, Rajnandgaon (M.P.) (C.G.). r' (CRIMINAL APPEAL UNDER SECTION 378 OF THE CODE OF CRIMNAL PROCEDURE) Appearance: Mr. Ashish Shukla, Govt. Advocate for the appellanVState. Mr. Vishnu Koshta, Advocate for the respondent. JUDGMENT (2y.09.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Being aggrieved with the judgment of acquittal dated 6th of May, 1995, passed in Session Trial No. 110/1993 by the Session Judge, Rajnandgaon, the State has filed this appeal. (2) By the impugned judgment the respondent has been acquitted of the charges framed under Sections 376 & 302 IPC. ;,:.W-.^-~^,..,.i.^ -:^::.^w Criminal Appeal No. 114/1996 (3) The facts, briefly stated, are as under:- Deceased- Sulochana Thakurwas aged about 10 years. She was studying in IIIrd standard. The case of the prosecution is that on 04.10.1992 at about 7:00 p.m., the deceased was taken by the respondent on his bicycle on the pretext of showing "Durga Pandal". Thereafter, the deceased did not return. The dead body of the deceased was found on 06.10.1992, lying by the side of an outer road. Kotwarin Kanti Bai (P.W.4) saw the dead body and lodged a report vide Ex-P-5. Merge intimation was recorded. First Information report was recorded vide Ex-P-16. Investigating Officer reached to the place of occurrence, gave notice (Ex-P-5) to the Panchas and prepared inquest (Ex-P-6) on the dead body of the deceased. The dead body was sent for post mortem to District Hospital, Rajnandgaon vide requisition Ex-P-10. Post mortem examination was conducted by Dr. M.K. Diwaker (P.W.10). He found following injuries:- 1. Lacerated wound 2 X ^ inch on the right shoulder. 2. Irregular fractures on right parietal and frontal bones. 3. Brain matter was liquefied. 4. Incised wound 2 X ^ X1/4 inch (bone deep) on lefttemporal region. 5. Heart, Genital organs and other organs were healthy but there was no membrane over them. No internal injury was found on any organ of the body. The autopsy surgeon could not give any opinion regarding commission of sexual intercourse. The post mortem report is Ex-P-11 . Various articles including the clothes of the deceased and a shirt alleging to be that of the respondent and found at a distance of 80 yards from the place where the dead body was found, were seized and sent for their chemical examination to the Forensic Science Laboratory. According to FSL report, blood stains were r -"T' b Criminal Appeal No. 114/1996 found on clothes ofthe deceased and on the soil. The shirt was put for identification and it was identified by Ramesh Kumar Thakur (P.W.7), father of the deceased, be that of respondent. Human hairs were found on the shirt alleging to be that of the deceased. (4) There were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances on which the prosecution relied:- i. The respondent committed rape against the deceased and there was a motive to commit murder of the deceased. ii. The deceased was lastly seen in the company of the respondent. iii. On memorandum statement of the respondent, the bicycle was seized from his possession. iv. Human hairs were found on the shirt, which was seized from the place 80 yards away from the dead body. v. The respondent remained absconded after the incident. (5) The learned Session Judge held that none of the circumstances were proved against the respondent, therefore, it was not safe to convict the respondent on the above set of circumstantial evidence . The respondent, therefore, was acquitted ofthe charges framed against him. (6) Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, argued that the Session Judge erred in law in acquitting the respondent; the above circumstances were established and were sufficient to hold the respondent guilty of the said offences. 'i , ^s^^ 1 '?S3)] •%^-^ -^-.^:,..- 4 Criminal Appeal No. 114/1996 (7) On the other hand, Mr. Vishnu Kostha, learned counsel appearing on behalfofthe respondent, opposedthese arguments and supported the judgment passed by the Sessions Court. (8) We have heard the learrred counsel for the parties at length and have also perused the records of the session's case. (9) Admittedly, there is absolutely no evidence to suggest that the deceased was subjected to sexual intercourse, and thereafter her murder was committed. The autopsy surgeon did not opinethat the deceased was subjected to sexual intercourse. The learned Session Judge observed that Semen/human Spermatozoa were neither found on the underwear of the deceased nor in the vagina. No other evidence of rape was there. The Session Judge, therefore, concluded that the above circumstance was not proved against the respondent. (10) About the last seen, three witnesses were produced namely Vinda Bai (P.W.7), mother of the deceased, Mallu (P.W.8) and Kishore Kumar (P.W.11). There were many contradictions in the evidence of these witnesses. Police statement of Vinda Bai (P.W.7) is Ex-D-1. She was disbelieved on account of deviation from her police statement on material particulars. About Mallu (P.W.8) and Kishore Kumar (P.W.11), it was found that 161 statements (Ex-D-2 & Ex-D-3) of Mallu (P.W.8) and Kishore (P.W.11), were recorded on 16.03.1993 i.e. after about 5 Vz months of the incident. On this account, the evidence of the above witnesses were not relied by the Session Court. We find that the deceased was allegedly seen in the company of the respondent on Criminal Appeal No. 114/1996 04.10.1992 and her dead bodywas found on 06.10.1992. This shows that there was a long time gap between the deceased allegedly seen alive with the respondent and the dead body found. The Supreme Court has held in many cases that "The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." Therefore, looking to the time gap, the above evidence of last seen looses its importance. Apart from the above, it comes in the evidence that the respondent was standing near "Durga Statue" and the deceased was playing with the small children near the statue. This was event after the respondent allegedly took the deceased with him. The above evidence breaks-up the theory of last seen. (11) About the identification of the shirt, the Session Judge has held that the shirt was identified by Ramesh Thakur (P.W.6), father of the deceased, whereas he was not a witness of last seen, that is to say that he did not see respondent wearing the same shirt while he was allegedly taking the deceased. Therefore, the Session Judge held that the above Criminal Appeal No. 114/1996 identification was of no use. Itwas held that if the shirt would have been identified by Vinda Bai (P.W.7), Mallu (P.W.8) or Kishore Kumar (P.W.11), who were the witnesses of last seen,then only, it would have been meaningful. ^- (12) Recovery of bicycle at the instance of therespondent was not an incriminat(r»ycircumstance,because it was his own bicycle and he could have possession of the same in ordinary manner. (13) About the last circumstance of absconding of the respondent, we find that in absence of proof of any other incriminating circumstance, the above solitary circumstance was not sufficient to hold the respondent guilt of the offence of rape and murder. In Thimma. Appellant-Vs- The State of Mvsore. Respondent. AIR 1971 SCC 1871, it was held that the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest. (14) In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent Criminal Appeal No. 114/1996 with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the acca^ed. has been established beyond a reasonable doubt. (15) In Budh Sinah and others -Vs.- State of U.P. (2006) 9 SCC 731, the Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. (16) In V.N. Ratheesh -Vs.- State of Kerala. AIR 2006 SC 2667, the Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two ^o, Criminal Appeal No. 114/1996 views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhaawan Sinah and others -Vs.- State of Madhva Pradesh (2002 (2] Supreme 567). It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. (17) In Ramesh Babulal Doshi -Vs- State of Guiarat (1996) 9 SCC 225, the Supreme Court said that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in Criminal Appeal No. 114/1996 view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". (18) We have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Court were perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. (19) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge rahul