^n^r ^r^^ ^^\ 37R?T 5h*41ch ^ '<-• T^T ^Mi0<M, t$-cnyli<o, (st<yiii'yy TO^T ^^.....6^"^-^a-^^..S......^ 20fl^ 3ff^?r'q^ra? (4<<[^<i^) '^<nw^rf?n ^n^r APPELLANT: (In Jail) ct)i^F<n<ftTi 'RTR^ff ^fest <f^i<^i< '^3^RpT3^?r RESPONDENT: ^ersus- Jivan Satnamj, S/o Dhanau Satnamj, aged 28 years, R/o Datan. P.S. Kasdol, District Raipur (CG) State of Chhattisgarh, Through P.S. Kasdol, District Raipur (CG). (Criminal Appeal un<(er Section 374 (2) ofthe Cr.P.C.) Division Bench: - Hon'ble Shri L.C. Bhadoo & Hon'ble Shri Sunil Kumar Sirlha. 25-10-2007:- Shri Rewa Shankar Pat^l, counsel forthe appellant. Shri Akhil Mishra, Panel|Lawyerfor the State/respondent. Oraljudgmentdictated oh Dais. L.C. Bhadoo. J. This appeal is directed afc of sentence dated 29-8-20021 Judge, Baloda Bazar, in S.T| learned Additional Sessions guilty for commission of offeA commjtting the murder of imprisonment for tife & to pay a| fine to further undergo R.l. for 6|months Jpdge |ainst the judgment of conviction and order passed by the 2nd Additional Sessions No.494/2001 whereby and whereunder after holding theaccused/appellant ^ce under Section 302 of the I.P.C. for fpemchand, sentenced him to undergo jfine of Rs.1,000/-, in default of payment of ^T^T^T ^jcb ^T^T <3TI^?T 5b+lich ^: ^ '5^ ^WW^, ^Tfl^'Ko, ic(01^^< Nl^dl *^|cb ^ 200 3Ti^i?T mra? (<i^fic«<?y) '^Trw^f^f 3?n^r Case of the prosecution, Dehati Nalishi Ex.P/4 in the Pol| effect that today at about 2 p.m. sitting at the tailoring shop ofone] Lal opened the door of his house) clothes were stained with blood. his house & he was saying Hemchand with a sword. For village holding sword in his Thereafter Bhoklu father of house of Jivan. He asked Jivan | he did not send Hemchand out He also gave Dehati merg intin) recorded merg jntimation Ex.P/^ report Ex.P/3 was registered. The investigating ofRcer 1< notice Ex.P/1 to the Panchas Hemchand. While in the police 4 Ex.P/8, in pursuance of that he | blood under Ex.P/9. One swordl the accused under Ex.P/10. Sit^ Clothes of Hemchand sent by th^ stained and plain soil was seiz^ Ex.P/15. Seized artides were seit under Ex.P/16 from where repo^t Hemchand was sent for postmoltem <=t)|^foi<flT1 ^M<V1? ^f^fe^ <F51<^K '^3TRPT3?n^[ |n brief, is that Bahoor Singh Miri gave l|ce Station Kasdol on 11-7-2001 to the Pivan Lal was at his residence. He was IShiv Kumar. At that time, accused Jivan He was holding sword in his hand. His He threw the body of Hemchand out of that he has committed the murder of so(ne time the accu^d was roaming in the h^nd. After some time he ran away. Heirlchand said that Hemchand entered the |to send Hemchand out of his house but <>f his house and committed his murder. ijiation Ex.P/5, based on that the police on the basis of which first information ^ft for scene of occurrence, after giving pl-epared inquest Ex.P/2 on the body of tustody, the accused gave memorandum |got recovered one tumbler stained witti land white colour shirt were seized form plan Ex.P/12 was prepared by the l.0. PHC were seized under Ex.P/13. Blood ^d from the place of occurrence under ^t to Forensic Science Laboratory, Raipur Ex.P/21 was received. The body of examination to the Primary Health XI-HC—78 ^TT^I^ W\^ 1cT8TT 311^1 5h4llch &. ^ '3^ ^WW^, ^-^[WW, ^<ftW^{ 'RTq^lT *Nlcb "^ 200 W^ V^K (^^^f) '?^fTW ^rf^Tf ^RP^T Centre, Kasdol where Dr. postmortem. He opined that haemorrhage. Death was hom|cidal report Ex.P/17. Weapon of doctor for examination under tumbter and sword gave opinion| under Ex.P/18 ]f.K. Sharma (PW-16) conducted the of death is syncope due to excessive njcidal in nature. Heprepared postmortem sword and tumbler were sent to the Qx.P/18-A, the doctor after examination of caluse offfence After completion of the ii Court of Judicial Magisfrate, 1' case to the Sessions Judge Sessions Judge received the calse tbat The prosecution in orcfe accused examined 17 witnesse^ under Section 313 Cr.P.C. in him in the prosecution evidenc^ and has been falsely implicate<( returned to his house he saw call his wife opened the door. was sitting on the cot. He then he said that he is hungry, was consumed by Hemchand, complete the work for which h^ cot. In front of him he remov^d tolerate, thereafter what he did| Teej Bai in his defence but ^h< accused. CM^(<n<i1Ti ^i^i<?ff if,1^cst <P»I<^I< '^^tRw^n^r ivestigation, charge sheet was filed in the Class, Raipur, who in turn committed the Raipur from where learned Additional on transfer for trial. orcfer to establish the charge against the Statement of the accused was recorded wfiich he denied material appearing against In the last, he stated that he is innocent in ttie crime. On the fateful day when he door of the house was closed. On his |He saw that Hemchand (since deceased) enqi|iired from hjm as to why he is sitting there, fherefore, he gave him food. After the food |ie asked him to go but he said that he will has come. He made his wife to lie on the Sari of his wife, therefore, he could not |he cannot tell. He examined his wjfe Smt. }he has not supported the version of the 3?n^r ^T'f^iN? ^T^T -STT^T ^FRT^F 3:5:q'^rraT^r, ^•cfi^<KS, (s|<r'>iy^< ^INdl tb^lcb "^ 200 3^T -q^F (4^I^<t}5T) '^HW^f^T^T^T Sessictns Learned Additional for the respective parties con^ aforesaid. Judge after hearing learned counsel icted and sentenced the accused as We have heard Shri RewalShankar and Shri Akhil Mishra, Panel Law^ disd>uted Shri Patel has not Moreover, Dr. Y.K. Sharma (PW-|1 working as Assistant Surgeon in| that day he conducted autopsy o< 3 lacerated wounds,8 incisedl Frontal bone of the head was br^ blood was present in the brain^ Clotted blood was present in the| cut. Sando baniyan of blue col<j deceased was smeared wth syncope and haemorrhage. Deafh Ex.P/17. In view of the above death of Hemchand was homicidi As far as complicity of concerned, in this case there is case rests on the circumstantial to convict an accused based on Apex Court in the matter of Dh^inanjoy reported in (1994) 2 SCC 220 hel4that: cbi^fd^1Ti 'Rrn^f ^t\'f^t <r?i^« '^3TRTH3?TT^T Patel, counsel for the appellant er for the State/respondent. homicidal death of Hemchand. 16) has stated that on 12-7-2001 he was the Government Hospital, Kasdol. On the body of the deceased. There were wounds and one penetrating wound. ^ken. Membrane was ruptured. Clotted Upper part of the left lung was cut. wind pipe. Membrane of sternum was }w which was found on the body of the and mud. Cause of death was was homicidal in nature. His report is Inedical evidence, it is established that in nature. blood trte accused in the crime in question is io ocular or direct evidence. The whole •vidence. As per the settled law in order the circumstantial evidence, the Hon'ble Chatterjee Vs. State of W.B. ^^^ f<Tii<=b 'cT^T 37R?T $t)+l|ch TS^T ^INI^^, ^Tfl^ll<o, fst<^l^^< ^INdl sh^l* W^ 200 3TI^?r TQR^F (''I^f^S^T) ^^TW^?f^[ ^TT^T "In a case based o| <=bl^f<rt<i1Tl ^l^<?ll ^fe^ <P>1^|< '^3TRW3?1^T n drcumstantial evidence, the circumstances from whjjsh tiie condusion of guilt is to be drawn have not only to|be fully established but also that all the circumstances |so established should be of a conclusive nature and cjsnsistent only witti the hypothesis of the guilt of the accu^ed. Those drcumstances should not be capable of ifreing explajned by any other hypothesis except the ^uilt of the accused and Uie chain of the evidence must b4 reasonable ground forl In the present case, the pr4secution againstthe accused based on the|following > That deceased Hemchand accused Jivan was seen so complete as not to leave any the belief consistent with the innocence of the accMsed. It needs no reminder that legally established c|rcumstances and not merely jndignation of the court|can form the basis of conviction and the more serious th^ care taken to scrutinizel the place of proof." i^ crime, the greater should be the |the evidence lest suspicion takes has tried to establish the crime circumstance:- was in the house of accused Jjvan; rowing the dead body of Hemchand on the road from his house; tl|ie accused was seen holding sword and clothes were stained with ftlood at the time of the incident. Even though sword has accused under Ex.P/10, but the p| been sajd to be recovered from ttie osecution has utterly failed to prove that XI-HC—78 3:S^' ^iWW^i, t$xf1^11<S, fs|01^^< 'WCRT 5b*41cb ^ 200 3n^?r I^^F (4^f^<{^) ^TT^T ?FT Ri^ich 'cT^TT ^T^?[ »)^i<sb '^RTTW;Rf^T 3?TcST cbi^{<n<i1Ti ^i^<A ^fe^ <Pn<^« '^'3^Rm37i^r thbre because in the first instance, the place from where th< Manharan Lal Shrivas (PW-7) been recovered has turned prosecution case. On the contrjary in the Police Station and sw^ obtained his signatures on the sword. Therefore, in view of become doubtful. '^ is no memorandum regarding Fccovcry accused produced sword. Moreover, |in whose presence sword is said to have Ihostile and he has not supported the •^ry, he has stated that he saw the accused (>rd was lying on the table. The police ()apers saying that they are recovering this the above, recovery of the sword has RA/-1 Khorbahra, brothc fateful day jn the afternoon he| has kept Hemchand in his hoi(se, to the house of Jivan. His fatHer Jivan not to quarrel, but even| that time there was rain. Evenl the accused along wth Gharjaram jmprovement and same cannotj |r of the deceased, has stated that on the [heard commotion in e village that Jivan ), therefore, he along wth Nathuva went Bhoklu followed them. They requested |then Jivan did not release Hemchand, at though this witness has stated that he saw attacking the deceased but this is be believed. has stafled that RA/-2 Sukhiram he returned after ploughing his| was standing in front of his hot of Hemchand on the road front here and there holding swordj house. on the fateful day at about 1-2 p.m. agricultural field. After consuming meal he ise. He saw that Jivan Lal threw the body his house. Thereafter he started roaming in his hand. Seeing this he entered his 75^ T<11^10<4, ^Tfl^^l^, Rf(»))|^^< ^IINdl ^WcR' ^ 200 3n^?r TI^F (4C<^<^) ^T^T^T Rt'lJcb ^ff ^TT^T 9RRT '^nw^f?n ^TT^T housel of Jivan RA/-3 Bhoklu, father of the |it a distance of 100 ft. from the hou^e baptivated his son Hemchand in hh Khorbahra went in front of the |njustice has been done to him by |nside of the house that they are eati |open the door, thereafter he went t<| lavailabte at his house. When he r< |and Ghanaram were attacking improvement. He has further IHemchand in front of the house of [again stated that his son l-1emcha( |enquiry, Hemchand said that they [open the door. delceased, "^ tt|e stlated he returned aftertakjng bath he sa\ opened. Clothes of Jivan were st? sword in his hand. Jivan was tyi| Rai (PW-6) has turned hostile. In defence has not been able to disct Hemchandwas in the house of Jiv4 throwing the body of Hemchand jr| house. He also saw that he w^' cr»i^f<n<fl'l'HTR^Jf ^* f^st <py!^l< ^3tRPT3TT^T 1, has stated that his house is of the accused. The accused had house. He along with Nathuva and He asked ^wan as to what lemchand? Then Jivan replied from ig and drinldng. He requested him to village Kotwar, but Kotwar was not 'turned, he saw that Jivan, Banshlal deceased. This part is again that they threw the body of livan. On questj&n by the Court, he id was in the house of Jivan. On re eating and drinking. He did not RA/-4 Santosh Kumar has al^o stated that on the fateful day when that door of the house of Jivan was ined with blood. Jivan was holding ig the Jeg of Hemchand with towel. Seeing thjs he became frightened ai^d entered his house. Virendra Kumar ross-examination of these witnesses, edit their evidence to the extent that i,even on their request Jjvan did not open the door, thereafter PW-2 ^ukhiram saw that the accused was front of the house on road from his holding sword in his hand. This circumstance is corroborated by the statement of the accused hjmself, 1 ^ll^cpl^ '^—FS/59— 8/20<':~ —30,000. XI-HC—78 'S^Sf ^(|-q|<^<q, ^>Tfi^'|<o, fs|<?'»l<-l^< *<l^dl 9h^l<3b 'W^ 200 8 31T^?T 'CRRR ( 4^flc<<^) ^TT^T ??T f^^Jcb 'cT^T'Sn^T 5h^J<=h ^<WI^R <if^a ^^ <=bMf<rt<flTl ^H<A* ^f^st <F3|<^|< ^3TRpT3?n^T who has stated that when he r^turned from the field, door of the house was closed, on his call his w|e opened the door, then he saw that Hemchand was sitting on the cot| he is hungry, therefore, food was] to go, then he said that he will c^ ttiereafter he started removing s^ He enquired from him, then he said that provided to him, thereafter he asked him )mptete the work for which he has come, |ri of his wife which could not be tolerated by him and he attacked him. Therefore, presence of Hemchand in the house of the accused has been|admitted by the accused himself. PW-2 Sukhiram has deposed that he | dead body of the deceased out 4 seen by this witness in the hanc| was stained wfth blood. ThereN fact that the accused was auth4 |saw that the accused was throwing the \f his house on ttie road, even sword was of the accused, even his sando baniyan ^re, above drcumstances establishes the \r of the crime in question, as body was thrown by the accused, which ^as been admitted by him & he has not steted thatanybody else assautt^d the deceased. On the contrary, he has stated that when the deceased \4as removing sari of his wfe, he could not tolerate that and he cannot |ell whatever has been done by him. Therefore, from the above c|rcumstantial evidence, only jrresistible conclusion can be drawn that ftie accused was author of the crime in question. There is no possjbili^j question. of anybody else committing the crime in Learned counsel for the ^ccused/appetlant argued that the act of the deceased could not be toler^ted by the accused, therefore, in a fit of removing sari of his wife, the accused attacked the deceased. Therefc|re, offence against the accused does not travel beyond Sectjon 304 Part-llj of the IPC. —78 37T^T ^T f<rli<sb ^^T -S^T sti^tict> Bawe 'S^ ^W^, ^Tfl^ll(o, (s«<I>l'(-l^< ^l^ldl th^lch ^ 200 3H^?T XR^ (4^^<^) '^RfTW^H^T^T But, this argument of lear^ed devoid of merit. There is nothjnlg Hemchand tried to commit rape| accused. In the first instance,! prosecution witnesses or to the i< father ofthe deceased the door. He has further stated deceased with the accused, everk that, in order to establish that th4 or commit rape on the wife of thej Teej Bai (DW-1), but unfortun^ accused. She has stated that house. She had gone to the fiel4 has statec^that they requested para-4 she has categorically statejd that Hemchand act on her or compelled her to accused that in fact, he commilted trying to outrage the modesty or For the foregoing reason^ the appeal being devoid of merit dismissed, Sd/- L.C. Bhadoo Judge <=hl^fd^1T1 'RTR^f '^,'ft^t <P»l^l< '^stRm^n^T counsel for the accused/appellant is on record which suggests that in fact, or outrage modesty of the wife of the |this defence has not been put to the ^vestigating officer. On the contrary, the the accused to open <hat what injustice has been done by the then door was not opened. Apart from deceased tried to outrage the modesty jaccused, the accused examined his wife [itely she has also not supported the 4ne year back there was nobody in the Hemchand has no relation with her. In had not committed any flo anything. Therefore, defence of the the crime when the deceased was cjommit rape on his wife, is not tenable. ] we are of the considered opinion that |s liable to be dismissed and it is hereby Sd/- Sunil Kumar Sinha Judge