XI:.HC—7i t^K'; ~S:S5( «l||.t<|<^<<, ®Tfly<l(o,R^I'My ..&!C...€t;......5.S..3. ^Rq; ( 3TROT W R-li* 'aan sn^r ^)^!^ wiiw ^fgti snt?i vm ifialkishaa s/o Jokhuiam, Aged 48 1-ears, R/o Daraganj, P.S. Daraganj, ^istt. Allahabad (U.P.) present R/o ^.hunabhatti, In front of Kalimandir, f.S. Giidiyan, Raipur (C.G.) Preseut: Mr. R,P, Tripathi, couiise|l Mr. U.N.S. Deo, Govt.. r.v/- fflnA.i-i^/ii/, This appeal is directed aad order of sentence dated 240/2000 whereby leai-ned holditig tiie accused/ appeHant aiid pay a fiiie of Rs.2,000/^ ^F^41Ti 'RFRTf ^f fec£t<i^l-^.I< ^siRpTsn^r AT BILASPUR L.C.B .tate of Chliattisgarh for ftie accused/appeUazit. for tlie State. Adkocate .pril 2007) ^gainst fhe judgiaent of convictiou 20th August 2001 passed by VI Additional Sessions Jiidge, R^ipui- (C.G.) in Sessions Trial No. Additioaal Sessions Judge after guilty for coiuin.issioa of the oifence under Section 302 of the lf\C, for coBlDiitting the murder of Bhoudu @ Munna, sentenced T^im to uiidergo im.prisoiiiaeat for life further undergo R.I. for fbiree lltontlis. iu default of payiaent of fiiie to XI-HC—78 cilT^I wT Ri-< ~^'^ 'STT^T y^H^h 3^®^;? Sf.??i&" S^ST '^iwi'fl^, isxfly'i'g, Rirtiyy .1^37../3^.....?.^.i an^?r isiv (ijct!-^<8i) ?%KR:'Bte3l(^( 2. Case of the prosecutiou,| was the driver of Swaraj Majdt of Kaawaljeet Sia.gh BhaUa wt^ conductor on the tnick. On 11 Shersiagh of viUage Pmla wel where he Iieard froia the boys soineone is Iving on the coraeil to his residence aad thereaftet body of one person, aged aboi(t the road. There wei-e stab inju( and clotted blood was present.] spot. He gave inerg iiitiraation (' Hasoud, based on that Firs1| registered. Investigating office^ after giviiig notice (Ex.P/7) (Ex.P/8) on the dead body of •was prepai'ed by the in.ves'd.galjui prepared by tlie Pate''ari. Cl^ under Ex.P/ 11. Dead body w^.s to Medical CoUege Hospital 9) conducted postaii.orteni anjl (Ex.P/18), ia wtdch he opuiep. shock and haenion-Iiage as 4 bodv. The accused white ia (Ex.P/22) regardiug the place in brief, is tliat accused Baikishaii ^. ti-uck beailag No. M.P.25/B-0041 [ereas Bhondu (siace deceased) was P.3.2000 at about 9.00 a.m. Kotwar ^.t for taldng bath to vfflage pond of fhe vBlage that a dead body of of th.e road, ou wliich first he went he went on the spot. He saw that 30 years, was lyiug by the side of .~ies ou the head, chest aud stoiaach !^if1<'riil'i 'w^ ^Jivst <f^i^T< ^ SlfiTEt 311^1 There was crowd of vfflagers at the (Ex.P/5) ia the Police Statiou Mandir Inforination Report,.(Ex.P/5j was i left for the scene of occun-ence and t.o the Paachas, prepared inquest it.nknowu person. Site plan (Ex.P/9) ofiicer. Site plan (Ex. P/ 10) was bthes of the deceased were seized sent for postmorteni examiuation 4pur where Dr. UBias Goiuiade (PW- prepared the postmorteia report ;(1 that cause of death was due to resillt of niultiple mjuries to the jpotice custody, gave laeinorandum. ijphere he kept the weapon of offence Ra^pui :r ,,r;lit :1 w i '^ '.I "^^ lit'";.S 'S-: - VM E:M lAlgS 5JL-HC—78 •?i1^ ?? f<-li°h ;rfs5T 'STT^T 'sfTRra' 1.. 3=E^' "i|l^l<?i^, ^xfly'liS, (sldiyy .c^...fii..'..3.S>.^.. sn^w WSK (.'^iy^v. ^giWHf??! sn^i alt Gupti which was seized Ex.P/27. Truck was accused were seized und^r imder Ex.P/23. AU Scieuce Laboratory, Raipi^i Ex.P/38(A) was received. underwear aad Gasndiha offence Gupti, wheel pcaia\ blood. ','24. fh.e histance of the accused under Clothes of U-ie Ex.P/26. The spaan.er was seized iseized articles -were sent to Forensic |r under Ex.P/36, from. whei^ report As per ffa.e F.S.L. report, shirt, the deceased as also the weapou of i.e. spaauer, were found stained with lt>I 3. After coinpletion of in Court of Judicial Magistife.te coiCLuaitted flie case to th< learaed Additional Session^ trial. 4. Prosecutioii in ordei accused examiaed 21 accused was recorded 'uiicyr denied the material evidence and stated fhat mipUcated in fb.e crim.e. appepru' 5. Leanied Additional 9e fiie respective parties, coi^victed aforeiaentioned. cbl^^'fl'T *1t^dl* '^^'^1 <f^t<-^R ^T aifCTT 3n^?i (vestigation charge sheet was filed iii ttie First Class, Raipur who iu tum Sessions Judge, Raipur froui where Judge received th6 case on traasfer for to estabUsh. the charge again.st the wittiesses at the trial. Stateinent of the r Section 313 ofthe Cr.P.C. mwhich he agaiast him in the prosecution he is m.nocent an.cl has beeii falselv ssions Judge after hearirig counsel for aud sentenced the accused as z~= ^ I-HC—78 an^rw ft-ii^ ?f«H3T1^'?T ^RT^ ^& 75^1 "41<410<1, 0iTl1^'16, fst<?iiy^< . . C^r-^- -9'83 "mwir *NI+ "^ sn^w WRR (ijcif^«i^ii) WITW ^f??T 3D^T t/ 1 6. We have heard Mr. R.^ on behalf of fhe accused/a] Govt., Advocate for the State/ .f\. Triapthi, leamed counsel appearini d/aF|peUaiit aad Mr. U.N.S. Deo, leanied 1-espoudent. 7. In fhis case tliere is u4 the accused with the criiae id. rests on circiuastantial evidelnce has tried to establish the circuiastaiices relied upon by] (i) (u) fhat the accuse< togefher; and fhat weapou ol[ recovered at thit examiuation fouitd 8. As per settled law ia circuiastaiitial evidence, as matter of Dhananjoy Chatt) (1994) 2 SCC 220, tlie foUowiag tests: (i) the circunistaace| sought to be established; (ii) fhose circuuistanj unemngly poiatu^: ^T'4i<ni+l'T •HI'R^Y ^T^'fe^ <^(-^1< ^sifgrrsil^I dtrect or ocular evidence to connect question. Convictiou ofthe accused ;, based on which tlie proseciition |ofFeuce agaiast fhe accused. The tiie prosecution are as foUows; 1 and fhe deceased were seen last offence Gupii and spanner were iD.stauce of the accused aad dn stauied with. blood. (^rder to rest conviction based on the Ij.eld by the Hon'ble Apex Court ia the :^rjee Vs. State of W.B. reported ia circtuiastaiitial evidence iniist satisft7 the driawn. froin which au infeiTence of giult is ,vn, niust be cogeufly aad finaly ;es should be of a definite tendency towards guilt of the accused; XI-HC—78 3Ti^?r ?ii R-fi<<i ^SSTT 3TR^T s^iqi ~Swf^W^,WiS\W\<S,, Rl^ltfy ^Wvil **<|eb •V^ 2001 3n^?r ifsas CySyv^st) ^WR^tosiI^T S' circuinstadtial (iii) fhe circum.stan4es chain so coiap^eta conclusion that was coniinitted l|i (iv) the conviction niut explaaation of ^in guilt of fhe be consistent wl be iiiconsisteat >, taken cum.ulatively should fonn. a i^ete fhat tliere is no escape fi-oni ti.ie |wifhiti aU huinaa probability fhe crime ]>y the accused aad none else; aiid eviden.ee ia onler to sustaiii ^t be coinplete aiid incapable of ^iiy other hypofhesis thaa fhat of fhe and such evidence should not onlv Ith the guilt of ftie accused but should ilvith his innocence. accijsed 9. So far as the first concerued, as has been y matter of Bodhrai allas Jamniu & Kaslimir repoitji last seen coines rn.to play timc when fhe accused aad when the deceased is fouiid person other than the adf becom.es im.possible. It conclusiou of guilt m. evidence to conclude that seen together. Based exanmie the evideace Kaawaljeet Singh Bhatla, q>l<<[<']<ill 'WRTf ^fe^ <fatjl< ^siRmsn^i ;ircuinstaace of last seeu toeether is ;ld by the Hon'ble Apex Court iu' tlie Bodha aad others Versus State of /- T+here ed ia (20021 8 SCC 45, "tlie theoiy of ftie ttrue-gap betweeu the poiat of the deceased were seen last alive and dead is so sm.aU. th.at possibility ofaay ;used beuig the author of the cnm.e Tozild be ' hazardous to com.e to a where there is no other positive accused aud the deceased were last the above Drinciple we proceed toi the prosecution witnesses. PW-I ofttie truck, has stated that ia Uie ca&es Dhe ob. df oftner XI-HC—78 S^V ?CT P;-l ^aTT 3TI^T sh+i)=b fflNfl g^q- rf<i<ii«i<<, g.Tllti'ie, Ri^sitiy ..&S:..&'....^.1.. g^j^ ....^.«..........................................,.^ ^p ^ SV^fT 'WK (ljc|f-j«<t{8T) wnw^ifrosii^r £ aiyishaa m.onffa of March accused B; went with the truck with goo< came back with the truck aflt tiie truck near transport. Hej was aU alone aud Bhondu wa^ accused about Bhondu, whe) have goue to take dianer. He| freight charges, then he uifom|ied to Bhondu and he wiU give enquired froin his laother at had deposited tb.e feiaht chat-i that Bhondu did not coine tij) after hvo-three days driver B^lki has been laurdered. lu the is correct to say that io. fhe a^on fhe truck with him. aiid at aboiit Balkishaa.. PW-2 Amiik was workLng as diiver of the anythiag. PW-3 Gunneet Sinff festival, one day at about 9-iq that tiine accused cam.e with same aad at that time condud: ifwe read fhe evidence offhesjf is no cogent and clear evide4ce deceased Bhondu wifh. fhe Sifa -^Q- ^1<1^T4IT1 ^WV^ ^I^St <^1^f< '^i'stRpr an^i along wifh conductor Bhondu fis to Bhilai, in fhe eveniag accused |er unloading ftie goods and parked rn.et hun, at that time the accused not m ffae truck. He enquired froia I'eupou he said that Bhoadu might asked accused BaUdshan about the him fb.at he has given the frej^ht it at the residence. Thereafter, he ]us residence as to whether Bhondu ;es, on which his niother infomied 4 deposit fhe freight charges. Just Mkishaa infonaed .]iun th.at Bhondu ,-exam.inatioa he has stated fhat it Cl'OSS 4onimg of 18.3.2000 BaBcishan took )\it 9.00 p.ui. on fhe same day he saw ;h has simply stated that accused Ijruck, beyond that he has not stated fti BhaUa has stated that before Holy p.ia. he was sitting in the garage, at |fhe truck of his brofh.er, parked the j:tor was not on the truck. Therefore, je fbree witaesses, we find that there to suggest as to when they saw accused and at what time they hl XI-HC—78 •sn^rw R-iii* Tf«H3TT^T ^f^ ~3^[ "Mi<<i<rt<i, ^Tily'Ko, fa'Tii'yy ^TWIT sfRTO C?7f—^ - ? % S 3n^?r 'fss (^if-j«ii{t() ¥;i<nw^if??r sn^r ^ evideb.ee fouijjd cliiic departed. As per fhe accused parked fh.e truck, dec^; fhe bodv of deceased was near viUage Pirda, therefore, witnesses there is no legal, fh.at the deceased was, ia factj place of occurrence before fli< applyiag the law laid dowu by of Bodhraj aU.as Bodha aad| positi.ve evidence it is the basis of last seen togefh^ record, we do not find aay fhe accused had aav intenti.dn deceased to cause his deafh,) question. Moreover, the time tlie accused and the deceasedl momuis of 18.3.2000 and night at about 9.00 p.m., is adduced any evidence to Bhondii wifh fhe accused night or whettier tliey left Bhfl^j. together ia fhe truck near fhe of Bhondu was found. evidence on record to conndcl question based on fhe last segn <»w(<'i4iiiiint ^feczt <(«]<$K ^siRmsn^r j e'W.es.ce of these witnesses, when the sased was not ou fhe 'truck whereas on 19.3.2000 at about 10.30 a.m. if we read the evidence of fh.ese lichiag evidence to establish the fact |last seen with. fh.e accused, near tiie comiaission of iiiurder. Moreover, pie Hou'ble Apex Court ui the m.atter ofhers (supra) fhat wifho-ut aay tis to convict tlie accused m.erely on ;r, on scruttuy of the evidence OD. on record whicb. shows fhat or inotive or grudge against the to connect him witii fhe crinie in. ^ap between the poiat of tim.e when were last seen alive toaether .ia fhe the accused was seen alone in tlie |12 hours. The prosecution has not ftie fact whettier soinebodv saw he caiae wifh. the truck ia the ^j. togefher or bofh of fliem. were seen |3lace of occurrence where dead body ;, fhere is lao legal clmchiag the accused wifh tlie crinie ta! fheoiy. i wh4n esfaUIish wU.en ihitAi Th^refoie 4ct 3=5? l|l*1<'ll **<!* •^ww^, •a-^w'w, Ri«iuy ,•5^ an^?r vsi^ (^f^si^sr) WI, 200/ sn^r.^r Ri-ii* OTI SII^T 'shiWi ^- TOiiw^itei 3ii^i % Gupti-^tB.6. 10. As far as recoven7 of accused is conceraed, as per th^ fhese articles biit there is no the origin aiid group of the bloofd there is evidence to establish that spannerwas sunflar to the bloo^ tlie toasis ofrecovei5r ofthese tw^ caa not be held guilty. 11. For fhe reasons stated opiuion ffaat based on fhe circuijas has not been able to estatolisl accused bevoad reasonable dolibt accused under Section 302 oftht spanner at the instauce of fhe' F.S.L. report blood was foiuid on ejyidence regai~dtng confirmation of fouud on these articles. Unless (t the blood found on the Gupii and group of fhe deceased, merely on bloodstauied articles the accused ;uila 12. In fhe result, the appe^ accused under Section 302 of tUe Bhondu aiid sentence im.pose4 directed to be set at liberty case. Sd/- L.C.BHADOO Judge tiiili'iili iii<nT ^'fs^<l«it$i< ^? aiRiH an^r ^bove, we are of fhe consideicd ijastaatial evidence the prosecution tfie charge leveled agauist (he Therefore, conyiction of. the IPC cannot be sustained. il succeeds. Conviction of the IPC for eoinmission of murder of tliereon, are set aside. He is nvifh, if not i-equu~ed ui aay other forftwifh Judge GRPRJ— FS/246—2/2007— 50,UOQ.