ft W HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble ShrLSynilKiLnnar^mha,J. Criminal Appeal No. 91 of 2004 Biran Korwa Vs. The State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA il^ i' :i: Sd/- QuefJiistfce Post for Judgment : ^09/2009 Sd/- SunUKumarSinha Judge (^ Appellant HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shn Sunil Kumar Sinha, J. Crimjnal Appeal No. 91/2004 Biran Korwa S/o Somaru Korwa, Age 48 years, Sakin Gram Chumra, Thana Ramanujganj, District Sarguja (C.G.) Respondent Versus T.he State of Chhattisgarh, Through Aarakshi Kendra Ramanunjganj, District Sarguja (C.G.) (Appeal under Section 374 (2) ofThe Code of Criminal Procedure) Appearance: Mr. Rajesh Kumar Tiwari, Counsel for the appellant. Mr. Sudhir Bajpayee, Dy. Government Advocate for the State. JUDGMENT (g .09.2009) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) Appellant Biran Korwa stands convicted under Section 302 and 201 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- and R.l. for 7 years and to pay fine of Rs.500/-, in default of payment of fine to furi:her undergo additional imprisonment for 3 months by the Additional Sessions Judge (F.T.C), Ramanujganj, Distt. Sarguja, in S.T.No. 262/2001 on 7th ofAugust, 2003 with a further direction to run the ;entences concurrently. 1 ;:1.11 @/ Criminal Appeal No. 91 of 2004 (2) The facts, briefly stated, are as under:- Deceased Rudhli, widow of Bandhu Korwa was the sister-in- law (Bhabhi} of the appellant. She was residing in a separate house in village Chumra and was missing since 10 days. On 27.08.2001, the villagers sent the appellant to lodge a report in the Police Station, but he did not lodge the report. Later on, a dead body in highly decomposed condition was seen in the forest by a villager namely Sukan (PW-7), who reported it to Village Sarpanch Rukmania Devi (PW-1). The Sarpanch wrote an application and sent it to the Police Station by Mohd. Israil (PW-2). On the said application (Ex-P/1), a merg intimation (Ex.P/2) was recorded. The S.H.O. reached to the scene of occurrence, gave notices (Ex.P/5) to the Panchas and prepared Inquest (Ex.P/3) on the remains of the deceased, which were only skeletons. Site plan was prepared under Ex.-P/6. Another site plan was also prepared. The dead body, which was in highly decomposed condition and only skeleton was there, was sent for postmortem to the Government Hospital, Ramanujganj, where the postmortem examination was conducted by Dr.B.R. Sharma (PW-11), who prepared his report Ex.P/15. The Autopsy Surgeon sated that no opinion can be given about the cause, type and time of death, for which, the remains and skeletons were referred to Forensic Science Expert. Later on, an Expert Report (Ex.P/17) was obtained, according to which, the bones were of human in origin, they were belonging to same individual, sex was \ female, age was in between 45-50 years and the cause of death Criminal AppealNo.91 of2004 was fractures present over the skull caused by hard, blunt and heavy objects and if inflicted during life time were sufficient to cause death. In further investigation, a memorandum (Ex.-P/7) of the appellant under Section 27 of the Evidence Act was recorded, on which, one lathi, one bhudki, one key and one lock was seized at the instance ofthe appellant under E);.P/10. (3) The prosecution came with a case that on the date of the incident, the deceased was assaulted by the appellant by lathi in her house and thereafter, her dead body was thrown in the forest by the accused persons, from where, it was recovered on Panchnama, after 10-11 days of the incident and was identified by clothes etc. When the appellant was taken into custody, he gave discovery memorandum, on which, a key was seized at his instance, with which the lock of the house of the deceased was opened. Therefore, the accu'sed persons were liable for punishment. (4) The learned Sessions Judge, convicted the appellant under Sections 302 and 201 of IPC and sentenced him as aforementioned, whereas, the other two co-accused persons were convicted under Section 201/34 IPC and sentenced to undergo R.l. for 7 years and to pay fine of Rs.500/- with default sentences. (5) Mr. Rajesh Kumar Tiwari, learned counsel appearing on behalf of the appellant, has argued that none of the circumstances, set forth against the appellant, were conclusively proved against him, therefore, the conviction based on such circumstances cannot be sustained. x' Criminal Apueal No. 91 of2004 (6) On the other hand, Mr. Sudhir Bajpayee, learned Dy. Government. Adv.ocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) Following are the circumstances, on which, the learned Sessions Judge has awarded the conviction to the appellant: (i) Though the deceased was missing since 10 days, but the appellant did not lodge the report with the Police. (ii) The appellant gave memorandum statement (Ex.-P/7), on which, the above articles including the key of the house of the deceased were seized. (iii) The lock of the house of the deceased was opened by the key produced by the appellant before the Police. (9) In Dhananiov Chhatterjee -Vs- State of W.B, (1994) 2 SCC 22 the Apex Court held that "in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent onjy.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 the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established Ncircumstances and not merely indignation of the court can form the basis Criminal Appeal No. 91 of 2004 of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." --? (10) In Bodh Rai alias Bodha and others -vs- State of Jammu and Kashmir. AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved;and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (11) Now we shall consider the circumstances, held to be proved against the appellant, in light ofthe above decisions ofthe Apex Couri:. (12) First Circumstance: Rukmania (PW-1) was the Village Sarpanch. She deposed that the wife of the appellant came to her to inform that the deceased was missing Criminal Appeal No. 91 of 2004 since last 10 days. After the said information, the dead body was seen in the forest, on which, she gave a written report (Ex.-P/1) to the concerned Police Station. In the report (Ex.P/1), it has been mentioned that on 27.08.2001, when the appellant and his wife met her saying that the deceased was missing since last 10 days, she had sent them to the Police Station, but inspite of going to the Polic? station, they went to the Chowkidar. We do not find this circumstance to be incriminating against the appellant. The appellant and his wife had gone to the Village Sarpanch to make complaint about missing ofthe deceased. Though they were advised to go to the Police Station, but they went to Chowkidar. The report itself shows that they all were making search of the deceased and ultimately Sukan (PW-7) told them regarding a dead body in the forest. It does not come as to when the appellant or his wife exactly noticed that the deceased was missing, because the deceased was residing separately. The appellant is poor, illiterate rustic villager. Even if he did not go to the Police Station to lodge the report, it would hardly be an incriminating circumstance against him. (13) Second Circumstance: The contents of the memorandum statement recorded under Section 27 of the Evidence Act would show that it was recorded on 31.08.2001 at about 6:00 p.m. This was in relation to the discovery of the key of the house of the deceased, which according to the memorandum was kept by the appellant in his own house. We find that in pursuance of the aforesaid memorandum, key of the house of the deceased was /shown to be seized at the instance of the appellant on 30.08.2001 under ••"7 Criminal Appeal No. 91 of 2004 Ex.P/10. We also note that one steel lock was also seized by the Police on-30.08.2001 under Ex.P/11, after removing the same which was put in the house of the deceased. This shows that in fact the lock of the house of the deceased was opened on 30.08.2001 and the above articles including the key were seized by the police through the said seizure memorandums (Ex.P/10 & Ex.P/11) on 30.05.2001 itself. Therefore, the memorandum of the appellant recorded on 31.08.2001 (Ex.-P/7) was of no use to the prosecution, as the discovery of the articles which were shown in the memorandum, were already seized by the Police one day prior to the recording of the memorandum statement. In view of the above, this circumstance is not proved against the appellant. (14) Third Circumstance Panchnama (Ex.P/4) shows that on 30.08.2001, after the inquest, remains of the deceased were brought to her house and the house was opened by the Police with the key, which was made available by the appellant. If the key was handed over to the Police on the discovery made on the memorandum of the appellant on 31.08.2001, as stated above, how the house was opened on 30.08.2001 on production of the key by the appellant. This creates doubt on this document and particularly on the fact that the appellant made the key available to the Poliee for opening the house of the deceased. Therefore, we do not find this circumstance to be proved against the appellant. (15) In appreciation of the entire evidence on record, we find that the circumstances set forth by the prosecution were not sufficient to prove the \, guilt of the appellant. r;:iii!'Ui r Criminal Appeal No. 91 of 2004 (16) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/ss 302 & 201 IPC are set aside. The appellant is acquitted of the charges famed against him. It is stated that the appellant is in jail since 01.09.2001. He be set at liberty forthwith if not required in any other case. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge shyna