IGH COURT OF CHHATTISGARH AT BjLASPUR DIVISIONBENGH: CORAM: HON'BLE MR;T.P.SHARMA& HQN'BLEMR-R.L.JHANWAR.JJ CnminM ARSeat No-732 of 1989 ShivKumar Versus The State of Ma.dhya Pradesh (Now Chhattisgarh) CriminalA!iReaINo.733crf'398S Bhukham ©Gupteshwar Vereus TheState of Madhva Pradssh (NowChhattisaa.rh') JUDGMENT FOR CONSIDEftATIO Sdf- T.P.Sharma Judge Hon'bleMr.R.L.Jhanwar.J, Sd/- R.L. Jhanwar Judge ^ s Efl H~ BrtffOlffi If il 1 Postfor on: 8N2C Sd/- T. P. Sharma Judge : ?-3^^i^^. ;:^li?^^^^' i^'i!" M HIGH COURT OF CHHATTISQARH AT DiVISION BENCN: Coram: Hon'bje Mr.T.P.SHARMA & Hon'bie M'.R.L.JHANWAR, JJ, RESPONDENT Criminal ADDeai No.732 of 1 Shiv Kumar son of Kishan Prasad Dande. «gsd sb-out 30 yosrs, fQsid^nt of Dokrigh'a, . Para, P.S.JagdaiDur. district Ssstsr. versus The Slate of Madhva Pradesh (Now APPELLANT >aINo.733of1 ihukham @ Gupteshwar, S/o Shri Lokristh Psndey, sycd sbout 20 y^dfs, R/o Village Dongaghat, Poiice Station ilrfCi^'USiJpUi , UriiTi.U^i. >-»<5^t«ii The State of Madhva Pradesh (Now Chhattisgarh) rA.PPEALS UNDER SECTiON 374i'2) OF THE CODE OF CRiMINAL PROCEDURE, 1973) Present: ! Ms Nirupama Bajpai. counsel for the appetlant in Criminai Appea.l M-, 7t1"'QSQ . t'4U.f^£.{iSW. . • • Mr.V.R.S.Parihar. counsei for the appeiiant in Criminal Appea! M^ T'a'a.'IQ.S.Q } W, , s^.^ff f t^-U'^r. Mr.Ashish Shukla, Govemment Advocate for the State/respondent. (De'ivered on 8"' Aprii, 2010) The iudarafent ofthe Courtwas deiivered bvT.P.Sharma, J.'- Crimioai Appeal No. 732/1989 fited by appetIant-Shiv Kumar & Criminal Appeal No,733/1989 filed by appallant-Bhukham @ Gupteshwar are arising out of the judgpient of'conviction & order of sentence datsd 8.7.89 passed by the Second Additional Sessions Judge, Bastar; Jagdalpur, in Sessions Tria.1 No.345/86, /thersfore, they are being disposed of by this common judgment. •J.: 1 . "I KVV % 2 Tha aforesaid criminal appaajs a.re d'rected against the judgment of convtetion & order of sentence dated 8.7,89 passed by the Second Additionai Sessions Jucfge, Basto.r, Jagdalour, in Sessions Tria! No.345/86. wherebv & whereunder lesrned Second Add.itiona! Sess'ons Jydge after holding appetiants guilty for commission of culoable homteid& amountina to murder of P GuDteshwar Rao in sharing common intention convjcted under Section 302/34 of the Indian Code and sentsnced them to underao imorisonment for tife. 3. Convjction js ifnpugned on the ground that without thers belng any lota. of clinching and credibie evldence sufficient for conviction of the a.Dpe!lante. the Court below has convicted and sentenced the aDDeliants as aforementioned andtherebv committed illeaaiitv. 4. Case of the arosecution. in bnef, is that two vears Drior to the incident. deceased P, Gupteshwar Rao 'nas taken one cycle from the shop of appeliant Shjv Kumar in rent which was lost, then at the instance of Ra.mkumar (PW-3), Shiv Kumar Pandey a.greed to take cost of cycie in the monthiy installment of Rs.25/-. On account of such dispute, appeliant Shjv Kumar aiong with his fried cc-sccussd Shukhsm ^- OuDtsshwsr st sbout 23 Octobsr. 1985 nssr vlllsQ0 Aa.sna, Donqacihat Pa.ra assa.ulted p. Giioteshwar Rao bv axe and caused his dsa.th and a.fter leaving cycle of appeliant Shiy Kumar bearina cyete No. Shiv 6 and axe nea.r the Diacs of incldent wiih broken handle fled from the sDot. Dead body was firstly seen by one Kameshwar a.nd he informed the same to Kotwar Chandroram (PW-1) who also v/ent to the spot and then went to the police station and todged the F.1.R. vjda Ex.P/1 and merg intimation vide Ex.P/15, Investigating ofRcer proceeded for the scene of occurrence and after summoning the wjtnessss vide E.x.P'2. inquest of unknown dead body was prepared vlde Ex.P/3. One axe stained blood with broken handle and hairs in the axe found were seized from the sDot vide Ex.P/4. Broken handle of axe. bioodsSa.ined & DisJn soil v/ere seized Trom the soot vide Ex.P/5. One Hero cycle bearing No, Shiv 8 was seized from the spot vide Ex.P/6. One broken nlece of wood and 'nairs of tha deceased were seized vide Ex.P/7. Dead body ofthe decea.sed was sent for autopsy to Maharani Hospitel, Jagdalpur vide Ex.P''SA. Dr.KB.Sharma (PW-SJ'eonducted autopsy of dead body of unknown person vide.Ex.P/8 and found foltowing injunes:- i) l.nclsed wound on the riaht slde of head of9" x 5" x cavltv il) Deprsss commuted fracture of righttemporal bone; iji) Rupture of brain membrain and laceration of brain; /~r ^Rw^ '"'"tsasa^ Mode ofdsath was shock, .Artjcles were examined by the cfoctoi reiatjng to presence ofblood vide ExP/9. Sealed ctothes of the deceased afterautopSy were seized vide Ex.P/19. Forensic expert preparsd spot mapvide Ex.P/2Qfc Patwari also prepared spot map vide Ex.P/21. Seized artictes were sehffor chemical examjnation inc!uding hairs found in the axe and recovery from the head of the deceased vide Ex.P/22. Presenc.e of btood was confirmed over axe, hg.ndle of ax@ and halrs vide Ex.P/23. Hairs were examined by the expert 5. Statements of the witnessss were recordsd under Section 161 of the Code of Crimina! Procedure; 1973 (in short 'Code') and after CQmpletion of jnvestigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who in turn committed the case to the Court ofSessions, Jagdalpur, from where Isarned Second Adclitional Sessions Judge, Bastar, JagdalRur, received thecase on transfer for triai —»— 6. |n ordsr to prove ihe guilt ofthe accused/appellants, the prosecutipn has axamined as many as 11 witnesses. Statements of the accused/appetlants were recorcied under Section 313 of the Code where they denied the ciroumstances appearing against them and pteaded jnnocence and false imDilcation in the crimein auestion. 7. After affording an opportunity of hearing to the parties, learned Second Additiona! Sessibns Judge, Bastar, Jagclaiapur has convicted and sentenced the s.ccused/a.ppellants as aforementioned, 'Sc^ •'.J^. 8. We have heard Ms Nirupama Bajpai& Mr.V.R.S.Parihar, counset for the appetiants and Mr.Ashish Shukia, Govt.Advocate for the State/respondent, oerusedthe judgment impugned as aiso record of thetrial Court. 9. Leamed counsel for the appeilants ve'nementiy argued that jn the present case, conviction of the appellants is based on th®cireumstantia! evidence. In order to convict the accused on the basis of circumstahtial evidenc®,the prosecytion is requlredjto adduce evidenee and such evidence must satisfc the foitowingtests:-; , (1V tha circumstances fr<5m whreh an inferance ofguiit is sought to be drawn, must becogenttyand firmly estabtished; (2) those|cinsumstancesshould of a definite tendencyunerri towards the guilt of'the accused; | (3) the ciireumstances taken cumulatively should from complete that there is no escape from the conclu'sion that wjthin ai ngly polnting a chain so human probability the crimg was committed by the accused and none else: and (4) the cireumstantlal evidence jn order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of fhe guilt of the accused and such evidence shouid notonly be consistent wlth the aui!t of ths accused but should be iriconsistent wjth his inhocence. • Learned counsel furthersubmte that in case of ciroumstantiatevidence, motive for commission of offence is wtal'role. In the Dresentcase. there is no motive for the commission of offence. The alteged circumstances shown by the prosecution are not sufficient to connect the chain of circumstances for arriving at a finding that oniy the appeltents are the persons who have committed the offence and none eise has committed the offence. Learnsd contsnded that suspicion, however strong it mav be, cannottaks.the placeof legal prooT and the prosecution is required to stand on its own tegs, 10 On the other hand, iearned State counsel supported the judgment impugned a.nd araued that conviction is based on circumstantial evidence. The prosieci.rtion has adduced sufflcient evidence to prove the chain of cireumstances sufficient for dra'wpg inference tha.t the sppeliants are the persons who have committed culpabte homicide amounting to muraer of p.GupteshwarRaoand exceptthem, noheeise has committed theoffence, 11.1n order to appreciate ths argument advanced on behalf of the parties, we have sxamined the evidenee adduced on behaff of the prosscution. In the present cass, 'nomicidal death as a resuit ofante-mortam fatai injuries of deceased P.Gupteshwar Rao has not been substantiajly disputed on behatf Qf the appeliants, on the other hand aiso establlshed by the evidence of Dr.K B Sharma (PW-5) and autopsy report Ex.P/8 which reveals that cause of death was ante-mortem fatal injuries and death was homicida! in naturs, 12.As regards the eomplicity of the appeilants in the crime in questioh. convtction /-.....' . '. ':;.:.."... .' .. . '' • • ' : : is based on the foltowing cireumstantia! evidence, (i) Dead body of deceSsed P.Qupteshwar Rao was found in jraured condition: '^ (ii) One cycie bearinq No, Shiv 6 was found near thedeact (iii) A.ppellant Shiv Kumar was having grudged against deceased P.Gupteshwar Rao relatina to payment of cost of cycle: and body; <u (iv) The present appellants have not offered any explanation that how the cycie beionging to appeilant Shiv Kumar was found near the piace of incident. As per the evidence of Hructay Nath Panigrahi (PW-2), injured dead body was found near the piace of incjdent. One broken axe, broken handie of axe and cycia were ateo found near.the placs of Incident which-were seizsd vide :XS,P/4 to P/7. 13.As regards the questlon of motive, Ramkumar (PW-3) has deposed in his evjdencse that two years Rrior to the incident , deceased P.Gypteshwar Rao had taken cycle from appellant Shiv Kumar on rent which was lost, then he agreed to pay Rs.25/- par month instalimant of tha cost of cyde. Nagmani (PW-4), wife of deceased P.Gupteshwar Rao, has deposed in his evidencethat prior to the date of recovery of dead body, her husband had gone to offics for his salary, but he did not come back and aft* 5 days she came t6 know that dead body was found near Dongaghat, then she went to poiice station where clgthes found on the dead body of the deceased were shown to her andshe identified the ciothes as ctothes of her husband which he was bearing when he went to his house. She has also deposed that appel!ant Shiv Kumar came to her and asked about her husband !n her detaii cross-examination, she has admitted that appellant Shiv Kumar used to threat her husband. 14.As reggrds t'ne question of cycle, Koyatu Ram @ Ramdayal (PW-6) anc! Umashankar Das (PW-7) have deposed in their evidence that probably on the date of jncident, appeitant Shiv Kumar gave one cycte to appellant Gupteshwar Bhuneshwar Panda (PW-9) has deposed in his evidenco that on being asked, appellant Gupteshwar has admitted that he hg.s committed thg murder under compuision. Sub Inspector B.N.Tiwari (PW-11) has deposed the details of investigatlon. 15.!f the evldence adduced on behaff of the prosecution is consiciered in its face value, then even jf is difficult to hoid that dead body found near viliage Aasna / ; • : : ' ' •' : : • ..- Dongrighat Parsi was the dead body of deceased PGupteshwar Rao. The prosecution has not conducted anv'identification of the articleS viz., clothes of the deceased; The prosecution has not coliected any evidence to connect the cycie found near the ptace of incideht with any of theaccusect. The prosecution hgs also not Goliectedany other chain of circumstances or the evtdsrice to cQnnect the appellqnts in the crime in question, inter atia, as per evidence of 'tMagi'nahi (PW-4), wife of the daceased, the deceased was paying installmsnt ~. ^ ' .:\ ,'< 6 to appellantShiv Kumar regulariy. Even Bhuneshwar Panda (PW-9), brother of appellant Gupteshwar has not deposed anything to show that appeHant Gupteshwar has made e.xtra judicial confession relating to murder of P.GupteshwarRao. 16.1n the present case, the proseGution ha.s not proved the fa.ct that P.Gupteshwar Rao has been murdered, The prosecution has also failed to_adduce evidence to connectthe appellants in the crime in question. 17.1f theeyidence ledbythe proseeution 1s a.dmitted i.n Its face vaiue, then even any positive inference of commission of offence against the appetlants or any person wouid be possible. 18.1n case of conviction based on ciroumstantia! evidence, as held by the ApeK Court 1" the matter of C. Changa Reddy V. State of A.P. , the prosecution is reauired to adduce evidence and such evidence must satisiy the foilowing tests:- (1) the Gircumstances from whlch an inference of guiit is sought to be drawn, must be cogently and firmly established; (2) those circumstances shouW ofa definite tendency unerringly pointing towards the guilt ofthg accused; (3) the ciroumstances taken cumulatively should from a chain so compiete that there is no escape from the conclusion that withiri aii human probability the crime was committed by the accused and none else; and . (4) the cireumstantial evidence in order to sustain conviction must be complete and incapable of exptanation of any other hypothesis than that of the guilt of the accused and such evid&nce shouid not ohly be consistent with the guilt of the accused but should be inconsistent with his innocence. 19.1n the present case.the prosecution has not proved any ingredients. In the absence of any evidence, convjction & sentence of the appellants are not sustainabie under the law. v - 20.White convicting & sentencing the appeltants, the Court be!ow has not considered the evidence adduced on behalf of the prosecution and its evidentiary vaiue and thereby committed grave illegslity. ^ ^1K'¥3S6,SC 3390 :• (1996) 10 SCC 193 llil''':'!! !1. For the foregoing reasoi''si we are of the considered view tnat conviGtlon & sentence of the appoltante underSection302j'34 ofthe Indian Pena! Code are notsustajnabie under the law. >2.in the resutt, the appeals are allowed, ConviGtion & sentence of tHe appetlants underSectJon 302/34 of ftielndian Penal Code are hereby set aside. They be set at tiberty at once. Sd/— T.P.Sharma Judge Sd/- R.L. Jhanwar Judg^ ^l: 1