HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 1928 of 1996 Dhaniram Vs. State of Madhya Pradesh (Now Chhattisgarh) JUDGMENT For consideration _.L Sdl- SUN1L KUMAR SEE-IA {fli- Judge s" HON’BLE SHRI JUSTICE RAJEEV GUPTA W- C (1w Sd/— i MW“ Chief Justice i Post for Judgment :2-‘f/01/2009 Sd/— Sunil Kumar Sinha ' Judge“ HIGH COURT OF C-HHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1928 of 1996 APPELLANT Dhaniram S/o Gotani Kenwat, aged about 55 years, R/o Village Rampur Dhodhi, P.S.- Seepat, District— Bilaspur (M.P.) (Now Chhattisgarh) Versus RESPONDENT State of‘ Madhya Pradesh (Now Chhattisgarh), Through P.S.- Seepat, District Bilaspur (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Sameer Singh, Counsel for the appellant. Mr. U.N.S. Deo, Govt. Advocate, for the State. JUDGMENT. (2r.o1.2oo9) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. Appellant Dhaniram stands convicted u/s 302 IPC for commission of murder of deceased Nanku Patel and sentenced to undergo imprisonment for Iife by the Sixth Additional Sessions Judge, Bilaspur in Sessions Trial No. 120/96 on 30‘“ September, 1996. m (2) Appellant Dhaniram used to quarrel with his wife, TijiyarBai, on account of her alleged illicit relations with deceased Nanku Patel. The allegations are that on 27.12.95,when the deceased had gone for defecation in the fields, the appellant also went toWards the fields, with a Tabbal in his hands, and murdered the/deceased‘by causing multiple incised wounds. After commission of murder, he kept the Tabbal in the paddy-straw behind his house and went to the police station and lodged (1) 2 Criminal Appeal No. 1928 of 1996 the First Information Report (Ex.-P/13). The further case of the prosecution is that while the appellant was going to the police station, he met with his son Saniram (PW-5) and made extra judicial confession to him. After receiving such information, the Investigating Ofncer reached to the scene of occurrence, prepared inquest (Ex.-P/7) on the body of the deceased Nanku Patel and sent the dead body for its post-mortem. The post-mortem examination was conducted by Dr. G. Venkatesh (PW-3), who prepared his report Ex.-P/9. The Autopsy Surgeon found as many as 9 incised wounds on various parts of the body of the deceased. On internal examination, he found that all the chambers of heart were empty and blood vessels of right side of the neck were cut. He opined that the cause of death was injuries to skull bone, neck, back and shock & haemorrhage. In further investigation, after taking the appeiiant into custody his memorandum (Ex.-P/1) u/s 27 of the Evidence Act was recorded and a Tabba/ was seized at his instance under Ex.-P/2. One Dhoti of the appellant was also seized under Ex.-P/5. Blood stained soil, plain soil, Loongi & one brass-bucket were seized~from the place of occurrence under Ex.-P/4. Tabbal was sent for its examination to the concerned Doctor and a report Ex.-P/10-A was obtained. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.-P/17 was obtained. According to the F.S.L. report, blood stains were found on various articies including Tabbal & Dhoti. The said articles were sent for determination of origin and group test of the blood to Calcutta but the report could not be produced. (3) (4) After completion of the usual investigation, the charge-sheet was tiled in the Court of Judicial Magistrate First Class, Bilaspur, who in turn, committed the matter to the Court of concerned Sessions Judge, from where, it was received on transfer by the Sixth Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the accused/appeliant as aforementioned/ u i\ \ hyf 3 Criminal Appeal N0. 1928 of 1996 (5) Admittedly, there are no eye witnesses in this case and the conviction of the appellant is based upon the circumstantial evidence. The circumstances on which the Sessions Court relied are as follows: (i) The appellant was seen going towards that side Where the deceased had gone earlier and he was carrying a Tabbal in his hands; (ii) The appellant made extra judicial confession before his son; (iii) ‘ Blood stained Tabbal was seized from the possession - of the appellant on his memorandum u/s 27 of the Evidence Act; (iv) Dhoti was seized from the possession of the appellant on which blood like substance were found & (v) Blood was found on Tabbal & Dhoti seized from the possession of the appellant. (6) Learne counsel for the appellant argued that none of the circumstances have been established by the prosecution in this case and the learned Sessions Judge erred in law in holding that the above circumstances were proved against the appellant. (7) On the other hand, learned counsel for the State opposed these arguments. ln addition to the above circumstances, he argued that the appellant himself went to the police station and lodged the First Information Report, which contains the details about commission of murder of the deceased by him. (8) We have heard the- learned counsel for the parties at length and ‘ have also perused the records of the sessions case. (9) So far as argument regarding confessional First Information Report is concerned, the Apex Court held in the matter of Aghn06 Nagesia—Vs- State of Bihar, AIR 1966 SC 119 that-“The first information report recorded under S. 154, Criminal P.C. as such is not substantive evidence,-but may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him d For proving the first circumstance, the prosecution has examined Rukmin Bai (PW-4). She deposed that she'had seen the deceased going for defecation having a bucket in his hands. She had also gone for defecation. When she was returning, she saw that appellant Dhaniram was coming from the side of his house. He went towards that side where deceased Nanku had gone. This witness has Very specifically stated in last line of her examination-in-chief that at that time, she had not seen the appellant holding anything in his hands. lt is on this evidence, she was geCIared hostile by the Public Prosecutor and was cross examined. But in the cross—examination also, she denied that she had seen the appellant aking Tabba/ in his hands. She very specifically denied that she had not given such statements to the police as has been mentioned in Ex.—P/12. We fail to understand as to how the learned Sessions Judge held this circumstance as proved. According to our considered view,on the face of Court evidence of PW-4, the above circumstance was not proved by the prosecution. 4 Criminal Appeal No. 1928 of 1996 as evidence of his conduct under S. 8 of the Evidence Act. If the information is non-confessional, it is admissibie against the accused as an admission under S. 21 of the Evidence Act and is relevant. But a confessionai first information report by the accused to a police ofhcer cannot be used against him in view of S. 25 of the Evidence Act.” The Apex Court also reliedon the decisions rendered in the matter of Faddi — Vs- State of Madhva Pradesh, AIR 1964 SC 1850; Nisar Ali —Vs- State of U.P., AIR 195i SC 366 & Dal Sinqh —Vs- Kinq Emperor; AIR 1917 PC 25. (10) In view of the above, the arguments of learned counsel for the State about the confessional First Information Report to be read against the appellant cannot be sustained. (11) Now we shall consider about the circumstantial evidence held to be proved against the appellant: (11.1) First Circumstance: Ri t 5 Criminal Appeal No. 1928 of 1996 (11.2) Second Circumstance: About the second circumstance of extra judicial confession, the son of the appeiiant namely- Saniram has been examined as PW-5. He deposed that “his father had told him that he has killed his enemy. This was told to him at about 7.00 a.m., when he met his father near Kolabadi and he asked him as to where he is going ? His father also told him that he is going to God. This witness deposed that on such statements made by his father, he suspected that his father may have killed his mother because they most oftenly used to quarrel. He went to his house and saw that his mother is all right.” No doubt, if the evidence of extra judicial confession is proved beyond all reasonable doubts and it comes from the mouth of a witness who appearsto be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused and the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against him, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if he passes the test, the evidence of extra judicial confession can be accepted and can be the basis of a conviction. In the present case, the words spoken by the appellant to his son are not clear. They are not only ambiguous but are uncertain or unconnected. Whom the appellant has killed ? Who was his enemy ? About whom he is saying that he is‘going to the God ? All these are not clear from the evidence of Saniram (PW-5). After going through the entire evidence of this witness, we afraid to rely on such evidence. PW-5 himself has said that on the above statements made by his father to him, he doubted that his father may have killed his mother. That is to say,that even PW—5 was not sure about the statements made by the appellant, then how it can be pressed into motion for resting a conviction against him. The factum of extra judicial confession is also falsified on the face of the First Information Report, relied by the prosecution in which it is mentioned that the appellant told to the police \ that he had not disclosed all above facts (confessronal part or any other part contained In the F i R ) to anybody else and has come to lodge the / 6 Criminal Appeal No. 1928 of 1996 report. The learned Sessions Judge complete!y lost sight of these facts and has wrongly taken this circumstance as proved against the appellant. (11.3) Third & Fourth Circumstances: Though it is stated in the memorandum dated 27.12.95 Ex.-P/1 that the appeiiant gave information regarding blood stained Tabbal in village Seepat but it comes in the evidence of Shabab Ali (PW—1), a witness of memorandum, that the appellant told all this in the police station. Another witness of memorandum Lakhan Lal, (PW-6) also stated that the appellant gaVe information in the police station regarding Tabbal kept in paddy-straw but when they went to paddy-straw, Tabbal was not there. He very specifically stated that thereafter, the Investigating Officer pressurized the daughter-in-Iaw of the appellant, then, she brought out the Tabbal and blood stained cloth from a different portion of the paddy- straw and then those articles were seized by the police. This goes to show that the seizures, in fact, were not affected at the instance of the accused/appellant and the articles were seized on production by the daughter-in-law of the appellant. After going through the entire evidence relating to memorandum and seizure, we find that the evide’nCe is shakey and it has not been established that the said articles were seized at the instance of the appellant or from the exclusive possession of the appellant. Moreover, in absence of origin and group test of the blood stains found over seized articles, the seizure by itself would not make incriminating circumstance against the accused/appellant. We, therefore, hold that the above circumstances were not proved against him. (11.4) Fifth Circumstance: So far as this circumstance is concerned, F.S.L. report (Ex.-P/17) would show that the blood was found on Tabbal & Dhofi said to be seized from the possession of the appellant. Though we have disbelieved the seizure Qf these articles at the instance or from the possession of the appellant (supra), yet this circumstance alone is not going to connect the appellant from crime in question. The prosecution could not establish as to what was the origin of the blood and what was its grouping. In absence 7 Criminal Appeal No. 1928 of 1996 of proof of origin and grouping, mereiy presence of blood on the above articles (Tabbal & Dhotl) would not by its connect the appellant from crime in question. The prosecution ought to have established that the blood found on these articles were blood of the same group thattof the deceased, which is lacking in this case. (12) For resting the conviction solely based on the circumstantial evidence, the law laid down by the Apex court in the matter of Dhananjoy Chhatterjee -Vs- State of W.B, (1994) 2 SCC 22 is 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 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 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. lt needs no 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 greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." (1 3) ln’ 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; they should exclude ,yevery, possible hypothesis except the one to be proved; and 8 Criminal Apgeal No, 1928 of 1996 @ 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. (14) Almost similar view was again taken by the Apex Court in the matter of State of Goa —vs- Saniay Thakran & anr.‘ (Noam SBR 321. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case (supra). (15) For the foregoing reasons, we find that the prosecution has not proved its case beyond all reasonable doubts. lt has not truly established the circumstances setforth so as to draw a conclusion of guilt against the appellant. (16) ln the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside. He is acquitted of the charges framed against him. The appellant was in jail during the trial i.e. from 28.12.95 till 30.9.96. However, his sentence was suspended-and he was released on bail on 8.9.2000 but he was re—arrested on 24.10.2008 and he is in custody since the said date. Therefore, he be set at liberty, forthwith, if not required in any other case. ‘Mwwwmw 7 Sd/- . SUNmKUMARQEiA; w; a Judge_ g \aggf JV ‘./,~_———-, ’ 7 \ Sdl— l” Chief Justice vatii ‘ ‘