Itfea (^ HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON'BLE SHRI SUNIL KUMAR SINHA & HON'BLE SHRIR.N. CHANDRAKAR, JJ. Criminal-ADpeal No. 1^4Qj}f^l994 Beer Singh Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE R.N. CHANDRAKAR ^) ^^- -e o Sd/- , yv,. Cbandralia1" Judge Post forJudgment :/9/01/201 Sd/- Sunil Kumar Sinha Judge ~-^ (S IR1 !!i'!R !I"IX'A ii [ :]| .••«.sir"~y3 f ^ ^' HIGH COURT OF CHHATTISGARH AT B1LASPUR D.B.: HON'BLE SHR1 SUNIL KUMAR SINHA & HON'BLE SHRI R.N. CHANDRAKAR. JJ. APPELLANT Criminal Appeal No. 1540 of 1994 Beer. Singh Son of Ratan Singh Kanwar, aged about 32 years, R/o Village Pakhadraha, Police Station- Gharghoda, District Raigarh, M.P. (Now Chhattisgarh) RESPONDENT Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through the Station House Officer, Police Station Gharghoda, District Raigarh APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE Appearance: Ms. Sharmila Singhai, Advocate for the appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (ig .01.2011) Following judgment of the Court was delivered by Sunil KumarSinha.J: f (1)- This appeal is directed against the judgment dated 25 of October, 1.994 passed in Sessions Trial No. 235/93 by the Second Additional Sessions Judge, Raigarh. By the impugned judgment, the appellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo /"""'••-.. .. - ! •\~ ' • III'(r Criminal Appeal No. 1540 of 1994 imprisonment for life & R.l. for 2 years with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under:- The 2 accused persons namely Beer Singh (appellant herein) and Shyamlal were tried for the offence punsishable u/ss 302 & 201 IPC. The case of the prosecution is that on 27.2.93 at about 12.00 Noon, the accused persons and deceased- Bhujbal went to village Nawapara from village Bhengari for taking their amount of harra eollection. The allegations are that at about 8.30 p.m. near Bhengari school some quarrel took place between the accused persons and the deceased. The deceased did not retum to his house thereafter. After 5 days i.e. on 2.3.93, the dead body of the deceased was found in a well near school building. Merg intimation was lodged and the body was sent for post-mortem. The post-mortem examination was conducted by Dr. B.R. Banjare (PW- 13) who found multiple abrasions and one laceration on the body of the deceased. He opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. The post-mortem report is Ex.-P/12. There is no eye-witness to the incident of commission of murder of the deceased or of throwing of the dead body into the well. The prosecution came with the case that the deceased left his house along with appellanVaccused persons in the day time at about 12.00 Noon and he did not return back and Ghasiram @ Shivkumar (PW-4) saw the appellanyaccused . persons quarreling with the deceased in the night and thereafter the deceased was not seen alive, therefore, the accused persons were.r^sponsible for the death of the deceased. Apart from the • above,. the prosecution also relied on the extra-judicial confession ''-» made by the appellant before Kunjsai (PW-1). (3) The learned Sessions Judge mainly relying on the testimony of Ghasiram (PW-4) held that he had lastly seen the deceased in the oompany of the appellant at about 8.30 p.m. on 27.2.93 and thereafter ,.'\ M" CriminalATOealNo. 1540 of 1994 kfc... the dead body of the deceased was found in the well after 5 days, therefore, the appellant was liable for commission of murder of the deceased. Since there was no evidence against other co-accused, he was acquitted ofthe charges framed against him. (4) Ms. Sharmila Singhai, learned counsel appearing on behalf of the appellant, argued that there is no eye-witness to the incident and the case ofthe prosecution is based on circumstantial evidence. None ofthe above circumstances have been proved against the appellant. The testimony of Ghasiram (PW-4), witness of circumstance of last seenand quarrelling, is highly suspicious. He was declared hostile by the prosecution and even after that nothing incriminating could be brought on record in his evidence. The evidence of extra-judicial confession before Kunjsai (PW-1) is also suspicious. Apart from the above, these witnesses had made late disclosure as their 161 Cr.P.C. statements were recorded on 12.3.93. This further make their evidence unreliable. (5) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused'the records of the sessions case. '*-» (7) Admittedly, there is no direct evidence in thiscase and the case of the prosecutionis based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which theconclusion of guilt is to be drawn haveto be fully established anti all the circumstances Criminal Appeal No. 1540 of 1994 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 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 appellant has been established beyond a reasonable doubt. (8) So far as circumstance of last seen is concerned, that has been held to be proved by the solitary evidence of Ghasiram (PW-4). Ghasiram was declared hostile and the Additional Public Prosecutor (A.P.P.) was allowed to cross-examine him. He was confronted by the A.P.P. with his case diary statement (Ex.-P/3). He de.nied to make statement on material facts while recording of his case diary statement. He had mentioned the names of both the accused persons in his case diary statement (Ex.-P/3), whereas, in the Court evidence, he denied to make anystatement regarding accused- Shyamlal. It is on this account the story relating to last seen with both the accused persons was not believed by the Sesslons Court and Shyamlal was acquitted of the charges framed against him. We nate that the deceased was missing since 27.2.93 and his dead body was found in the well on 2.3.93, whereas 161 statement of ''-» Ghasiram (PW-4) was recorded on 12.3.93. This shows that Ghasiram (PW-4) didnot disclose about seeing the deceased in the company ofthe appellant on 27.2.93 at about 7.8.00 p.m., till 12.3.93. The police party made inquest on the body of the deceased on 2.3.93; investigation was li'" ' KJ "?•... vs ^^K ISSij^ Criminal Acoeal No. 1540 of 1994 going on; dead body was sent for post-mortem examination; therefore, there was ample opportunity with Ghasiram (PW-4) to disclose the above facts to the police which he did not disclose prior to 12.3.93. Even he did not disclose the above facts to.the family members of the deceased prior to the said date. In the above facts and circumstances of the case, we are of the view that it was not safe to rely on the testimony of Ghasiram (PW- 4) who was the solitary witness to the circumstance of quarrel and last seen. (9) So far as circumstance ofextra-judicial confession is concerned, it was said to be made by the appellant before Kunjsai (PW-1). Kunjsai deposed that on the fateful night at about 10.00 p.m. the appellant came to his house and said that he had assaulted a drunker person by chappal near Bhengari school. On his such evidence, he was declared hostile by the prosecution and Additional Public Prosecutor (A.P.P) was allowed to cross-examine him. He categorically stated in his cross-examination by the A.P.P. that he never told the name of deceased- Bhujbal to be the person got assaulted, in police case diary statement (Ex.-P/1). Even after the cross-examination ofthis witness by the A.P.P. nothing material could be brought on record on which it could be held that the appellant made extrajudicial confession before this witness in the night of 27.2.93. Another witness of-'extra-judicial confession, Neelamber (PW-6), also / denied that any such confession was made by the accused persons that ''-». they have left the deceased near Bhengari tank. In fact, it appears that the Sessions Court has also not given much importance to the evidence .of this witness relating to the extra-judicial confession. Apart from the y'";'. . • -' ifi isitaaminitirrniiuwnaa Crimmal Apueal No. 1540 of 1994 above.we find that 161 Cr.P.C. statement of Kunjsai (PW-1) was also recordedon 12.3.93. (10) On a close scrutiny of the entire circumstantial evidence led by the prosecution, we are of the view that none of the circumstances, in fact, were duly established and no incriminating evidence is there against the appellant to hold him guilty for commissidn ofthe aforesaid offence. (11) For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above circumstantial evidence and the judgment of conviction deserves to be set-aside. (12) Accordingly, we allow this appeal and set-aside the conviction and sentences awarded to the appellant u/ss 302 & 201 IPC. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- . R.N. Chandrakar Judge '/atti