.J.1> R 11/94/2000 an APPEAL OF PRISONER Wm M .. . . Name QWQVLY... Fathersname {gw WQ~EW W xmmm %\W.‘1«e§x Residence .Q W Agw“ gw .. Ag m arc?” Sentenced to%wa&lw —%v, W i5 “gr0n .cww $0? 201 9w 4‘ r%’ It ls explamed to the pnsoner that 1f he states or wxshes to be represented by legal practmoner the Appellate (oun w111 not proceed wuh the base for seven aays unless the legal practmoner appears If the legal practltloner does not appear w1th1n seven Aays he may not heard at all If the p’r1soner states that he does not w1sh to be repre- sented by legal practltloner the court may proceed at once wnh the case and W111 not be obihged to glve a hearlng to any legal practmoner who should appear l ’Date of Application for copy of Judgement Date on wh1ch copy recelved \b iwvQtmmx/JxmqwWW WW 3, Under sectron 2 3 Date on which Appeal sen’t \xv \a; 4 Whether the pnsoner Wtshes to be represented 05M Yes / No No.... “L‘qgksg NameKWAaxx “swat; mt” Confined in .. _‘ \ Ja" m xxxceg‘ D No $7” i :l..A5§m§.‘A.h. ‘ n Dated25 \\“\ ”199$. . w togather Forwarded whlch to theeQ-bH—EE—IUDICIAL a copy of Judgement or MAW order passed umwe QEMQ ?or dw§ favour mggm\'ézm* o ans- m'sslon to the proper Appellate Court. ’JW‘W H l WW‘MW‘ &V&' \ \\ m o BVLW‘X" w« : Date of receipt in... Date of receipt record to accompany the Memo of Appeal to the Appellate court No Forwarded to the t Date of receipt‘in Appellate Court we ‘ W ,yém 89w) J 7'. . M H£<3<H sGUR? 5F CHHATT§$G§§H AT B3LA3P£JR Qriminai Appeai Ne. 2&6; of €§§5 Jagdigh Haigaa u ‘ V$. Respondent: Siate 0f Mac§hya Prmwh »J M JUDGMEN‘F FDR CQN$IDERAT¥QN V Sdl- f Dhirendra Mishrg Judge HDN’BLE §HRI LCBHADaQ J m sul- - L.C. Bhadoo Judge i 9§Vié3i2mj$ 6 ?§$T FGR JUDGMENT 7 GE MgRCH / §V!$§QN $ENSH: HGN’ELE SHE? L.S.BH§1EGQ 42 8a HGN’BLE SHR! mHiRENDRA MISHRA, JJ {SRIMéNAL AP?EAL NQ. gmxl §F §$8G AppeHan‘i : Jagdish Hwba Vs. Respmmem Siam 9f Madhya Prwegh ‘ u ‘ Miss Nirupama Bajpai, :eamed counsei far the appeEant. Shri M.P.S.Bhatia, learned Panel Lawyerfor the respondent/State. § JUEQMEN? (a9 433.2%:5} Dhireridra Méshmi J This is the prisoner’s appeai under $ection 374(2) of the Code of 4‘ Criminai Procedure ihrough Superiniendeni, Cenirai Jail, Raipur against ihe impugned judgment dated 09.09.1§% passed in S.T.No. 127/Q4 by the i Addiiionai Sessians Judge, Rajnandgaon Whei’eby the iearned i Additionai Sessicns Judge ai‘ter hoiding the accwed/appeliani guilty of causing hamicidai deaih of Dashru Haiba canvicied him under Section 302 of the indian Penal Cede and semtenced him to uhdei‘ge imprisonment for iife and pay a fine of \_ Re.100;’-, in default of payment of fine to further undergo imprisonment for one month. The accueed/eppellant has also been convicted under Seclion 201 of the IPC and sentenced to undergo three years’ R.l. with a fine of Rs.100/—, in default ihei'eof to further undergo one month imprisonment. Ekotn the sentenced were dtrected to runconcurrentiy. q 4. Case of the prosecution, in nutsheil, is that Anendrem (PWnt) lodged First information Report in Police Station —— Ambagarh Chowki, Rajnandgaon on 09‘0219Q4 at abOut 16.30 hours mentioning therein that a day before thereto Deshru Hai'oa —- son of his ’étd’er father, who resided with him went with appeiiant Jagdishram to viliage Kodizob to watch Ramieelaet about 900 ,o.m., howevea’, his brother Jagdish returned atone in the morning and on being asked g‘ooot Dashru he stated that he returned tron! the midway and did not go to x E'i ‘ A D wii‘ne3s Ramleela. Pankin Bai —- his paternai aunt, had gone fer harvesting Iakdi in ihe fieid and returned weeping and hform¢d +hat 30meone 5as assaLi§“‘ d Jnshm over hi: head am he is lymg dead m Eehara whereupon he aloeg With Kmwar Gate: berlram Mahas Bamshxml Mahar Charan Haiba and e‘kers went am saw ma? Dashru wam iymg dead They fcund profuse bieedmg a5 a rewi? 9f .ne mjmy mer has yorehead. They also found mood soaaed Hing; of Jagdishram an the piace of oceui'reme. He suspected tha’i Jagdish hee caiJed Dashru 0n the prei'ext of witmeseihg Leeia arid has m’uidered him, After :‘egie€erihgif‘fe‘effehce 3tati0n Hcuse Gfficer, KP£ Paikra (PW4 4) prcceeded fer ihe seehe 0f cccurrehce and performed inques‘: EXP/3) ovey the dead body Safer du home ‘43 ihe Mtneeees m then pregence Dead had; was sent fer meimarie , ex ration to Primary Heehh Cehi’re Ambegarh {‘howh vtde EXP/11%. Dr. K. . Dheke aF’W-7) cchducted pasimmfem andmsubmi'tted h§s repert a? EXP/1?. in €he postmortem the doctor hoticeo' muihple Iacerated injuriee over the frontal hind, maxittery part of the farce and nozzte benes or heed inguries were present in the upper part of the faee. He e!so found fracture of frontef bone on multipfe nieces and three fractures diffueect in each other He romd oath the maxrlrary bones freon e m the neht aide *here were two freettreo ant: m the left eree there was one fracture. Born eyebeire were depressed m the sockete “/2“ deep net became Irregutar m shape and afi the murres were caused by nerd and etdnt object. The trontel bone of the brain materiei nae- lacera’ted and has come out partialiy from the frontat head. AH the *murres were overrapping. He opined that the cause of death i3 Hook due to ex we bieedtng rmnry to brain and cerebrar hemormage end (Matron stnce death w M to a hours Spot map of Ex P/ét was prepared E5 oodetarned sort end plum so”, btood soaned tungr, pest": contarner of tobacco, bloodsteined eoii under the head of the deceased and plain soil near the dead body were seized from the spot vide Ex.Pf5. in pursuance to the memorandum of the accused (Ex P/F) a bloodstained ciub and bloodstained stone were eereed from he ‘e d of Chatur Haiba at the inetance of the aocused vrde Ex D/I On being omduced oy the accused a white PaJczma (troueei) bearing biood stains was eeized vide EXP/5 from the house of Birbai. Bioodeteined vest of the eccuoed was seized vide EXP/9. The fuii shirt and towei beionging to Birbai Haiba were ,seized fmm the accused. Biood$'tained clothing of the accused, giub and bioodstained stone were sent i0 the doctor for his opimon Whethey the imuw saww over the person of the deceased couid be caused by the abeve weapon ewd Whether the ciothing contain bioodstaine vide EXP/21. The doctor gave hie opirzion vide EXP/“l2 that b100d§ike stains are meeent 0n the abeve articles, heweves', he edvieed for chemica} examination for comfirmation. He furiher advised ihat ihe injuries present over the person of the éeceased couid be caused by the ciub and ihe stone; Similar opinion was ’aieo given by ‘the dearer \viicie Ex§74r3 regarding ihe seized soil and. iungi. The accueed was semi to the doctor with e requeet i0 out the naiie of both the hands; or’ the amused and seat it. The doggor after cutting the naiis of the accused, seaiee‘ item} advised fer ohemicai examination of the same. Spot map of ExP/t5 was got prepared by Lt‘e Haike Petwari. The seated packet containing bioodetained eiothes of deceased Dashru sent by the doctor after postmortem was seized Vicie EXP/1%. The hloodstained iungi seized from the spot and the shirt and towei seizee from the accused were sent for identification to Tehsiidar, Ambagarh Chowki vide EXP/23. Test identification was conducted by the Executive Magistrate, Amhagerh Chowki vide EXP/28 in the presence of witnesses nameiy Anandrem, Meena Bai and Birbai. 8eized articies were sent for ohemicai analysis to Forensic Science Laboratory, Raipur vide EXP/24. The Seroiogist submitted his report oi EXP/25 and found human biood on bone pieces iungi and trouser of the accused earth, wooden stick, stone, shirt and towei of the deceased. However, blood stains coutd not be determined as the sampies were disintegrated. Sr. Scientist Officer, ESL, Rajnandgéon inspected the spot and submitted his report (ExPi’26). He also submitted a diagram of of the place of incident (EX.P!27). After completion of the investigation charge sheet under Sections 302I'201 of the IPC was tiied against the accused in the Court of Judicial Magistrate First Ciass, Rainandgaon who in turn committed the case to the Sourt oi Sessions Judge, Rajnandgaon and learned i Additional Sessions Judge, Rajnandgaon teceived the same on transfer for triai. 3. Sharges under Sections 3Q2/201 of the IPC were framed against the accused. The accused abiured his guilt. Prosecution in order to establish the charges against the accused/appeiiant examined t5 witnesses in all. ii iaiemen’i of ihe accu$ed was a‘so recoa'ded under $ection 313 of' m? Cocie of Criminal Procedure in which he denied the circumstances appea:ing against him m the pi secuuon wee and pieaded ii mnecemse and iaiae impiicaiieim 5i. Hamicidai death 9i” deCeasecl Daehru i° not in diepu'ie. Evei'i otherwise teking‘w o noneideiatwra ‘he evadencn of Dr VB Dhoke (PW 7) who afer conduciing posimotiem fourad thiee franiui‘es over aront pertion of me hem} ant; over both the jaws arid hae furihei (Mm Lhei the cram m ter ha come wt be“ u é‘ ca tied ie oi the semi aw ea pei hi opiniori ihe cause 0’? death was due to eyeeeeive bieeciihg and iaijuries avei' ihe brain, ihe hemicidai death af dec a d Beehiu !s eatebiiwec 5. There ie m eyewi'ihess i0 the incident and ihe whoie case of the presewtim ie based on cifcumsiantiai evidence. The ciycumetances i’eiieci upon by the presecution may be summarized as under; (i) that the appeiiant was iast seen wi’l‘n the deceased whiie he was aiive; (ii) ihei on the next day of incident the eppeiiant left the cio‘thing worn by him at'the time of incident in the house of Birioai at viiiage Ledizob after washing the same and returned to hie home after purring on the iowei and shirt of Birba! from his house and that the troueer of the appeitent contained human btood; (iii) that the b ood soaked tungi of "he appetiant was found on the piece of moident which was identified by his brother Anandrem; and : (iv) that on the basie of memorandum at the appeiiant a ' , bioodstainee‘ wooden pienk and stone were seized o fe’ as the flrst circumstance 0t test seen together is concerned, the osecution nas examiners. PW 1 Anendram who has stated that Dashru is his cousin brether. At doout 800 900 p m he ano Deshru teok their meats thereafter amused Jegdieh came to their house and asked Daehtu t0 6. accompany him to witness Remieela. Their house and the house of Jegdish ‘5 are adjacent. Dashru and Jagdish proceeded i0 see Leela, hcwever, in the night Dashru did not return and in the next morning Pankin Bai cam€ and infarmed that Dashm is Wing in the ,fieEd and someene has kmed him, whereupen he along w§th Patel and Kotwar and othef personts wenf to see DaShruA Jadgish did riot tell anyihing abeut Dashru. They found the deee‘ body of Deshru lying in the behefa fietd, ‘Dashru had sustained iniui'ies ever his head and blood was oozing out of the same. in the cross examination he has stated that they were cultivating the fieid of Daehtu on the basis of share cropping and atter‘harvesting nie shave was taken by hie sisters and his land is being sown by his sisters. Two acres of agiicuimrai/iand is jointly recoi'deci in the name of DashruuAnano’, Ganesha Bai and himself and this iand'is managed by him. However, the crop fizom this heid wiii be shared by his sisters ateo. There is ne suggestion on behatt of the accused/appeiiant that deceased Dashru did not go to witness Ramieeia with the appeiiant as alieged. PW-5 Ganesha Bai —- mother ot the aphetiant and Anahdram, has oorrohorated the statement of Anandram and has stated that Dashru and Jagdish went to see Ramieeiai Though this witness has stated in her cross examination that Jagdish and Dashru did not proceed in her presence, however, there is no suggestion on behait of the aecused that he arid Dashru did, net go to see Leeta. The above statements are atso corroborated by the First information Report of EXP/1 . Dr. XiBDhdke (PW-7) who conducted postmortem on the body or” Dashru on 19.02.t3§4 at about t0.00 am. has stated that the time ot death of the deceased was 24 to 36 hours before the postmortem and thus time of death of Dashru was assessed to be between 10.00 pm. 0h 08.02%9g4 to 10.06 am. or; 09.2.1994 on the way from Karamtara to vitiage Ladizob as described in the spot map of EXP/4. in the cross examination the defence has not been abte to eiicit anything to discredit the version of the above witnesses. Thus it is held that the prosecution has been able to estabiish the circumstance of last seen together. 7. w To establish the second‘otrcumstanee, the prosecution has examined PW-4 Birhai of village Ladizob who has stated that the day on which Dahsru died, Jagdish came to his house in the morning and after washing his trotiser, he took bath, put on his shirt and towel and left his trouser in his house and \ saaaa H~_A_M . \ . went out of the hause. in that period Ramieela wa$ being exhihited in his viiiage and he had aiso gone to see Ramleeia, PW~2 Banshiiai who is a witi'iess to memorandum of the appellant, has wrioborated the statement of PW-41 Birbai and stated that memorandum of EXPIS was given by the appeiiam in his presence in which the appeiiant has etated thai‘ he ieft his worn cioths in the house of Meghnaih (father of PW-4 Birbai). This witness has further stated that on the information 0f the appeiiant his trouser was seized from the house of Meghnath vide EXP/8. The statement of PW#4 Birbai further stands corrobe'ra‘ted by the statement of PW—12 Girdhari Lai of vitiage — Keremtara whe has stated that the‘accueed informed that he has kiiied the deceased with iathi and has hidden his clothes in the house of his relative Meghpath after washing the same and the eame wae got recovered at the instance of accused from the house of Meghna‘th vide seizure memo of EXP/8 where his signature finds place and ih the seizure memo he has signed from B to ‘Bt ln the cross examination he has stated that the trouser in question was got recovered bythe accused and hot by Meghnath and as the accused has stated that the trouser beionged to him, therefore, he stated that the trouser is of the accused. The trouser of the aopellant seized from the house of Maghnath was sent to the Serologists for chemical examination and asper the report of the Serotogtsts (EXP/25) the trouser contained human btood. Thus the prosecution by the above evidence has further establtshed the second siroumstanoe relfed upon by t 8. To establish the third circumstance, the prosecution has examined F’Wnt Ana'ndram - brother of the accusedrappeltant who lodged‘the FIR immediateiy after recovery of the dead body of Dashru. in the said report he has stated that he went to see the dead body in the filed and found a blood soaked tungi of Jagdtsh lying in the ptace of incident which was subsequently seized by the police uide seizure memo of ExP/f) tn the presence of the witnesses Banshtta! I and Parsadi F‘am The tungi s marked as arttcle ‘0. Naib Tehsitdar (emf—15, n x and the Executive Magistrate :o'onducted test identification of the seized artistes :nd we iungi tn question was mixed with other lungis and 9W4 Anandram correctly identified the tungt to be that of accused Jagdishra. PWwt Anandram has consecrated the statement of Tehsitdar that he had eotrectiy identtfied the M 3 ’c n the iest Edefitifigaiion parade. x r-2i$ whe £ a‘so i mwtw identifiecz‘ a lung 0f Jagéish. m ihe crass examiation he ha$ stated at e iungi in questin waS mixed wiih 4-5 ther iungis and he couid caryectiy id&fy the iung§ of Jagd§s becausé the other !ungis mixed with did not contain ioosataim except the iung§ 0f Jagdish. Therefor in iew o§ the above test enon canh be condu sa that e hmg so seed was that of accued J h and for e abov reason we do no tnk hat the prosecutlon has een able to eetabsh rcumnce. y 9. So far a3 t fourth and tast circumotance is oohcerned memorandum of E P was recorded the presence of WuZ Banstal who has etated that on teogan e accused as sed bout stone etc and got the same recovered He has admte gn over the memo of LPIE)‘. He has further stated that the tatht and the stone were concead and t accused discvered the same and got it sezed vide seizure memo of Ex.P/7- whtch bears his signature. He as aiso stated that at the instance of the accused a shirt and vest was seized vide EXP/10 which bears his signature. Howevet, in the ross examination he has stated that the stone and the rafter were in the open piece which was frequented by all. The stone and wooden stick were sent for chemical examination an the Serologists opined that the wooden stick contined huma biood. The statement of PW~ Banshiiai is duty corroborated by te statment of investigating officer K.P. Paikar (PW-14) who recorded he memorandum of the appeiiant and effected seizure vide E P/7, EXP/8, EXP/9 and EXP/10. The statement of PW-Z Banshiiai is aiso corroborated by the statement of Binihawar Singh (PW-t 1) who has statethat on interrogation by the poiice the accused inormed tha the wooden stick and stone by which he has kitted Dashru, had been hidden in the fieid and thereafter ied the investigatig officer to that place from where th same were recovered and seizd. However, he did not accompany the investigating officer to the place where the articles were hidden. u; ec H i n m ih o o mfi h bd e V adtfeau it oL swey ‘d n : iz s aod s th e t hi t b h this elsLa . Qelving upon the judgment of the Hon‘be Sopreme Court reported in 2c03iéi $ER 571 in the matter of Bharat Vs $tate of Ni P learned counsei ior the accdsed/appelant argued that where date oi death was not date of lasi 1 W; *0 G ihg G‘ iag, h he ) /o in P hi mirtio th h tat a ito his ssatute E le he o i h c d a n 2 h e .S t x df f t n e e geen 'Eoge’iher, the circumstance of iast seen ioge’ther is of no consequence am tha appenam couid moi be convicted on the basis of this circumstance abne‘ 11‘ -iow¢ver the :acts of ihe ms‘amt case and that of the case shed are diatmgmshable masrrucn as m Lhe case cxted aeove the Com die {lot believe me Circumstance o‘ bet seen together on the ground thdt death of fhe deceased in that case occurred on 08‘“ Januaw 1981 whereas the earhes’i date of deaih‘ ccuid be mm of January 198‘: as per ihe posimuf‘cem report, therefore the evidenée of iast seen was not considered to be an incriminating circumstance against'the accused/appeiiant However in the instant case we have areaoty observed that the time o" death of the oeceased as per assessnnem o: the doctor performing autopsy corresponds With the date of iast aeen given by the Witnesses. it is tuither worthwhile to mention here that the deceased went with the appeiiant at about 8.00n9i00 pm‘. on 08.021994 iOWards vitteoe Lad'zob to see Ramteeta and dead bodv of the deceased wee iou 1d on the Same way in the flieo in the next morning by PW 5 m nkin Bar Apar‘ ‘rorn the Circumstance of aet seen together the eecond circcmstance reneo upon by the prosecution rs atso materia! as the appeiiant went to the house of Birbal, washed his trouser worn by him at the time of incident and returned from his house after putting on the shirt and towel of Birbai. We have atready heid that the above circumstance has been duty estabiished by the prosecution and the trouser so seized contained human biood as opined by the Serologists. This circumstance ts a very strong circumstance which ieads to in'esistibie inference that the appeiiant proceeded towards eviitage -— Ladizob aiong with deceased Dashru and after committing murder‘éff Dashru returned back atone and ieft his bioodstained trouser after washing in the house of Birbai. However, the appeiiant has not been abie to expiain this circumstance. The seizure of bioodstained wooden stick is aiso estabiished which contained human blood as per the report of Serologists. ‘2 t is a sett ed iaw that when a case rests on circumsiant ai evrdenoe the ioriowrng tests must be satisfied * 1)- the circumstances from which an imferenge of gum is sought E‘o be drawn, must be cogentiy and firmly estabiished; 2) those circumstances shuuid be of a definite tendency unerringiy poiming iowards gum of the accused; 3) ihe circumskmes, taken Cumuéativeiy, should form g chain 530 complete that there is no u e escape from the conciusion that within ail human probabiiiiy the mime was committed by the accused and nOhe else; and § 4) _ the circumstantial evidenee in order t0 sustain conviction must be complete and incapahie of explanation of any other hypothesis that of the guilt ofthe accused and such evidence shoutd not only be consistent with the guilt of the accused but shouici be inconsistent with his li’lriOCei’lce. 13. Thus on the basis of aforesaid discussions, we are of the considered cpinien that the prosecution has been able tc prove the above circumstances independentiy and there is no iilegality or infirmity in impugned judgment of the ti‘ial Court which warrants any interference from this Court. it JV’W" 14. 6 Jin the result, the appeal tails and is hereby dismiesedy Sdl- / L.C. Bhadoo 5 r M‘syra P Judge momma 3udge C