^. ^ ^f/^ :S9^SS^^ ^•7 Corani: HON'BLE & HON'BLE JJ. Chethia Bhagay^'an and another Versys of Chhattisgarh And of 2i of Chhattlsgarh Vijay @ S.Kumar Jsin and another Hon'bie rvlr.R.LJhanwsr, J. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge for proROuncemeot of ftlie on: 27^10/2Q10 Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Coram: Hon'ble Mr.T.P.SHARMA & Hon'ble Mr.R.L.JHANWAR, JJ. APPELLANTS (In Jail) Criminal Appeal No.1227 of 2003 1. Chetha alias Bhagaywan son of Jhariya Ram aged 19 years residentof village Sana Police Station Sana District Jashpur. RESPONDENT 2. Gunu alias Yogendra son of Bhukhan Ram aged 19 years resident of village Sana Police Station Sana District Jashpur C.G. Versus State of S.O.Sana. And Chhattisgarh through APPELLANT Criminal ADDeal No.579 of2004 Stateof Chhattisgarh Versus RESPONDENTS 1. Vijay @ S.Kumar Jain Aged about 27 years S/o Shantilal jain Occupation - Business 2. Amit Kumar Aged about 19 years S/o Jai Singh Sidar Occupation - Student Both residents of villae Sanna Police Station Sanna District Jashpur Chhattisgarh (APPEALS UNDER SECTIONS 374 AND 378 (1) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present: MrAbhay Tiwari, counsel for the appellants in Criminal Appeal No. 1227/2003. Mr.Arun Sao, Govemment Advocate for the appellanVState in Criminal Appeal No.579/2004 and Government Advocate for the respondenVState in CriminalAppeal No. 1227/2003. Miss Sharmila Shinghai and Mr.Sanjay Agrawal, counsel for respondent No.1 in Criminal appeal No.579/2004. Mr.J.S.Baraik, counsel for respondent No.2 in Criminal appeal No.579/2004. JUDGMENT (Delivered on 27th October, 2010) The judgment ofthe Court wasdelivered by T.P.Sharma, J.:- 1. CriminalAppealNo. 1227/2003 filedby appellants Chetha @ Bhagaywan and Guna @ Yogendraagainst their conviction and sentence and Criminal Appeal No.579/2004 filed by the State against acquittal of respondents Vijay @ S.Kumar Jain and Amit Kumar by common judgment dated 18.10.2003 passedby the 2 Additional Sessions Judge (F.T.C.), Jashpur, in Sessions Trial No.17/03 are being disposedof by,, this common judgment. 2. By filing Criminal Appeal No.1227/2003, appellants Chetha @ Bhagaywan and Gunu @ Yogendra have challenged the legality and proprietyof the judgment of conviction and order ofsentence dated 18.10.2003 passed by the 2nd Additional Sessions Judge (F.T.C.), Jashpur, inSessions Trial No.17/03 whereby and whereunder learned 2nd Additional Sessions Judge while acquitting respondents Vijay @ S.Kumar Jain and Amit Kumar has held the appellants Chetha @ Bhagaywan and Gunu @ Yogendra guilty for the offence punishable under Sections 460/34, 302/34and 201/34 ofthe I.P.C. and sentenced them to undergo R.l. for ten years, imprisonment for life and to pay fine of Rs.1000/-, in default of paymentof fine to further undergo S.l. for one month and R.l. for five years and to pay fine of Rs.500/-, in default of payment of fine to further undergo S.l. for fifteen days. 3. By filing Criminal Appeal No.579/2004, State has challenged the acquittal of accused Vijay @ S.Kumar Jain andAmit Kumar. 4. Case ofthe prosecution, in brief, is that on the fateful intervening nightof 11/12.12.2002 at village Khairapath, unfortunate deceased Ramsawarath Yadavwas sleeping in panchayat secretariat. On second day morning, his body was found burnt inside the room. Money from ^ ^^;^y sS^"' almirah was also found stolen. His son Balram Yadav (PW-1) went to the Police Station Sanna and lodged the F.1.R. vide Ex.P/1. Merg was recorded vide Ex.P/2. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/25, inquest over dead body of Ramsawarath Yadav was prepared vide Ex.P/3. Spot map was prepared by investigating officer vide Ex.P/4. BloodstaJned soil, plain soil, bloodstained chair and plastic rope were seized from the spot vide Ex.P/5. Dead body of Ramsawarath Yadav was sent for autopsy to Primary Health Centre, Sanna vide Ex.P/26. Dr.J.K.Lakda (PW-14) conducted autopsyvide Ex.P/30 and found following symptoms and injuries: i) A burnt body, the thorax and abdomen were converted into ash, soft tissue of scalp was retained, skin of head was burnt, skin and soft tissue of neck was burnt, showing bone underneath, soft issue and muscle ofthigh were burntto show the bone under. The legs were not burnt. ii) Lacerated wound of2" x skin deepwas found over forehead. iii) Lacerated wound of 1" x skin deep was found over forehead. iv) Lacerated wound of 1" x skin deep was found over the forehead. v) Lacerated wound of 3" x skin deep was found over forehead. Body was badly burnt. Frontal bone was found into eight pieces. Injuries were ante-mortem and sufficient for causing death in ordinary course of nature. Death was homicidalin nature. Photographs of the spot were taken vide Ex.P/6A, B, C and D. Same was seized vide- Ex.P/6. Panchnamaof room was prepared vide Ex.P/7. Rs.4000/- was foundin one almirah, lock ofalmirah was opened and documents kept insidewas scattered. During the course of investigatjon on 16.12.2002 on the ground of dispute and enmity, accused Vijay Kumar was taken into custody, he was interrogated, he made disclosure statement of Rs.10,000/- andclothes vide Ex.P/11. Accused Vijay Kumar produced Rs.10,000/- from his go down, same was recovered vide Ex.P/12. Accused Gunu @ Yogendra was also taken into custody, hemade disclosurestatementofelectricgrip, Rs.2000/- and clothesvideEx.P/13. Electric grip was recovered at the instance of appellant Gunu vide Ex.P/14. Rs.2000/- was also recovered from appellant Gunu vide Ex.P/15. Accused Amit Kumar was also taken into custody, he made disclosure statement ofRs.4000/- and clothes vide Ex.P/16. Rs.4000/- was seized from accused Amit Kumarvide Ex.P/17.Accused Chetharam was taken into custody, he made disclosure statement of musal (small ironobject like crowbar) andclothes vide Ex.P/18. Musal was recovered at the instance of appellant Chetha @ Bhagaywan vide Ex.P/20. Rs.2000/- was also recovered from appellant Chetha @ Bhagyawan vide Ex.P/21. Record of panchayat was seized vide Exs.P/22 and P/23. Patwari also prepared sppt map vide Ex.P/24. Musal (khalbhatta) was examined by the doctor vide Ex.P/27. Seized articles were sent for chemicalexamination vide Ex.P/28. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. andafter completion of investigation, charge sheet was filed beforethe Judicial Magistrate FirstClass, Jashpur Nagar, whoin turn committed thecase in the Court of Sessions, Raigarh, from where the 2nd Additional Sessions Judge (F.T.C.),Jashpur received the case on transferfortrial. 6. In orderto prove the guilt of the accused/appellants, the prosecution has examined as many as 14 witnesses. The accused/appellants were examined under Section 313 of the Cr.P.C. where they denied the circumstances appearing againstthem and claimed innocence and false implication in the crimein question. They have also examined defence witnesses Prakash Tirki (DW-1), Shantilal(DW-2) and Smt.Prufulla Minz (DW-3). Prakash Tirki (DW-1), Secretary of Gram Panchayat Kamarupa has deposed that he was in additional charge of Secretary of Gram Panchayat, Sanna. Rs.4000/- was given to him. He has received application Ex.D/3 relating to information of cash book from Shantilal Jain i.e. father of accused'Vijay Kumar. Shantilal (DW-2) has deposed that T.1. Kunkuri has called his son accused Vijay Kumar and has illegally demanded Rs.18,000/- to facilitate him from commission of murder of Panchayat Secretary,then he made complaint to the police officers vide Exs.D/4 and D/7. Smt.Prafulla Minz (DW-3) has deposed in hisevidence thaion 11.12.2002, Sarpanch ofGram Panchayat Sanna has withdrawn Rs.28,467/- and the bank has given him 284 currency notes of Rs.100/- denomination, 1 currency noteofRs.50/-denomination, 2 currency notes of Rs.10/- denomination and some coins. 7. After providing opportunity of hearing to the parties, learned 2nd Additional Sessions Judge (F.T.C.), Jashpur while acquitting accused Vijay @ S.Kumar Jain and amit Kumarconvicted and sentenced the appellants Chetha @ Bhagaywan and Gunu @ Yogendra as aforementioned. 8. We have heard Mr.Abhay Tiwari, counsel for the appellants in Criminal Appeal No. 1227/2003, MrArun Sao, Government Advocate for the appellanVState in Criminal Appeal No.579/2004 and Govemment Advocate for the respondenVState in Criminal Appeal No.1227/2003, Miss Sharmila Shinghai and Mr.Sanjay Agrawal,counsel forrespondent No.1 in Criminal appeal No.579/2004, Mr.J.S.Baraik, counsel for respondent No.2 in Criminal appeal No.579/2004 and perused the judgment impugned and record of the trial Court. 9. Mr.Abhay Tiwari, counsel for the appellants in Crimjnal Appeal No. 1227/2003 vehementlyargued that in the present case, conviction is based on the circumstantial evidence. Incase ofconviction based on substantial evidence, the prosecution is required to prove following chain of circumstances (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointjng towards guilt of the accused; (3) the circumstances, taken cumulatively should from a chain socomplete that there is noescape from the conclusion that within all human probability the crime was committed by the accusedand none else; and (4) the circumstantial in orderto sustain conviction must be complete and incapable of explanation of anyother hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the present case, all the accused were aged about 19to 27years and the deceased wasaged about 57 ^- /-;•'. ^A^-—r ^%.. ^^y years, he was Secretary of Gram Panchayat. Even otherwise, therewas no any cause for causing deathof the Secretary. As per evidence adduced on behalf of the prosecution, especially evidence of Sarpanch Amrut Xalxo (PW-10), on the date of incident he has withdrawn Rs.28,467/- from the bankand as perevidence he has given thesame to the deceased who was not regular in maintaining the account whom he has given warning so many times. Even otherwise, Amrut Xalxo (PW-10) was also defaulter, he Was placed under suspension by the higher authorities onaccount of defalcation. Money kept in fhe same room were not stolen and only some money was found missing which was notpart of record without making entry in the accounts book. As per evidence of Sarpanch, he has givenmoney to the deceased which was found missing. These all circumstances specifically show that Amrut Xalxo (PW-10) was having some grudged against the deceased or with a view to clear defalcation committed by him he has committed the aforesaid offence. The prosecution has not adduced any evidence to prove intention forcausing such heinous offence. Refusal to participate in auctiQn is not sufficient for commissionof murder. In case of robbery of artjcles on the basis of (disclosure statements of the accused persons and to keep such articles in the crime in question, the prosecution is under obligation to prove disclosure statements and recovery and also to compare and prove the fact that the articles recovered at the instances of the appellants were directly connected in the commission of the offence. In case of robbery and theft, the prosecution is also required to prove that articles recovered atthe instances of the accused personswere the same which were stolen or robbed. In the present case, although currency notes were not identifiable, but denomination of the currency notes were mentioned in the bank record Ex.D/9 whichshows that denomination shown in the bank record relating to currency noteSf received by Sarpanch Amrut Xalxo (PW-10) which he has alleged given to thedeceased and denomination ofcurrency notes recovered from the accused were not one and the same and there are substantial difference between bothsets of currency notes which show that currency notes recovered from the accused or at the instances of the accused werenot the currency notes alleged stolen from the office of Panchayat. The prosecution has also not sent musal (khalbatta) for chemical examination to connect the objectin the crime in question. In thepresent case, the prosecution has not adduced sterling and clinching evidence to connect the appellants in the crime in questiqn. Suspicion, however strong it may be, cannot take theplace of legal proof and the prosecution was under obligation to prove its case beyond all shadow of doubt. In the absence of such sterling and clinching evidence, appellants Chetha @ Bhagaywan and Gunu @ Yogendra are entitled for acquittal. 10.0n theotherhand, learned Govemment Advocate for the respondent and appellant in Criminal Appeal No.579/2004 argued that evidence adduced on behalf of the prosecution is sufficient for conviction of appellants Chetha @ Bhagaywan and Gunu ©Yogendra,they have committed murder after committing house breaking by night and after commission of murder they have burnt dead body with intent to cohceal the evidence of criminal case, therefore, the trial Court has rightly convictedand sentenced the appellants asaforementioned. As regards the acqujttal of accused Vijay @ S.Kumar Jain andAmit Kumar, the trial Court has convictedtwo accused on the same set of evidence but has acquittedthe aforesaid two respondents on the same setof evidence. Evidence adduced on behalf of the prosecution is sufficient for convicting respondents Vijay @ S.Kumar Jain andAmit Kumar for the offence as aforementioned, therefore, reappreciationof evidence relating to both the accused/respondents is required to convict the,m for the offence committed by them. 11.0n the other hand, learned counsel for respondents No.1 and 2 in Criminal Appeal No.579/2004 opposed the appeal and argued that the prosecutJon has not adduced any evidence of clinching in nature against the respondents. The trial Court has rightly acquitted the respondents. In order to convict the respondents, the prosecution was under obligation to prove complete chain of circumstances sufficient for hypothesis that the present respondentshave committed the aforesaid offence along With the appellants and except four accused persons, no other personhas committed the offence, but the prosecution has utterly failed toprove the commission ofoffence against the respondents. ^ 12.Miss Sharmila Shinghai, counsel for respondent No.1 placed reliance in the matter of V.N.Ratheesh v. State of Kerala1 in which theSupreme Court has held that interference with appeal against acquittal is permissible only when there are compelling and substantial reasons for doing so. The trial Court considering evidence on record hetd that the persecution evidence was not cogent and credible, High Court jn appeal without analysing evidence and in a very cryptic manner discarded conclusions oftrial Court. Learned counsel further placed reliance in the, matter of Darshan Singh v. State of Punjab and another2 in which the Supreme Court has held that while considering the appeal against the acquittal, the appellate Court is required to examinetheevjdence that whether a view taken by the trial Court is possible and plausible. In case a vjew taken by the trial Court was possible and plausible, then interference by the appellate Court would not be justified. It is settled legal position that there is presumption of innocence and that presumption is further fortified with acquittal of accused by trial court. Learned counsel also placed reliance in the matter of Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P. with Kaushal Klshore Singh & Anr. v. State of U.P.3 in which the Supreme Courthasheld that merely refused to forbid his brother from giving evidence against accused cannot be motive forcommission of murder, although the High Court is discretionary power to re-appreciate the evidence adduced on behalfofthe partiesto dispense thejustice. 13.1n ordertoappreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalfof the parties. 14.1n the present case, homicidal death of Ramsawarath Yadav as a result of ante-mortem fatal injures has not been disputed on behalf of the appellants in CriminalAppeal No. 1227/2003 and the respondents in Criminal Appeal No.579/2004, even otherwise also established by the evidenceof Dr.J.K.Lakda (PW-14) and autopsy report Ex.P/SOwhich reveals thaf grievous ante-mortem fatal injuries were found over the head of the deceased and death was homicidal in nature. Burning of 1AIR 2006 SC 2667 2(2010)2SCC333 32006AIRSCW421 M '"^ "s-^:^^—;.-^ ^ ^ c dead body after death also shows that the person who has caused homicidal death has concealed the evidence of criminal case and, definitely they have committed house breaking by night with intent to committhe offence punishablewith death and have caused death ofthe deceased, therefore, the persons who have caused homicidal death of Ramsawarath Yadav are liable for conviction under Sections 460, 302 and201 may withadd of Section 34 of the I.P.C. or independently. After appreciating the evidence available on record while acquitting accused Vijay @ S.Kumar Jain and Amit Kumar, learned trial Court hasconvicted and sentenced the appellants Chetha @ Bhagaywan and Gunu @ Yogendra for the commission of the aforesaid offences. State has preferred the appeal against acquittal of accused Vijay @ S.Kumar Jain and Amit Kumar. 15. While dealing with the question of power of the High Court, ambjt and extent in caseof appeal against acquittal in the matter of Samson Hyam Kemkar v. State of Maharashtra in which the Sypreme Court has observed that the High Court has while dealing with an appealagainst an order of acquittal has full power to review at large the evidence on which the order of acquittal was founded and to reach a conclusion that upon that evidence, the order of acquittal should be reversed. Para 12 of the said judgment reads as under:- "12. The circumstances in which the HighCourt in an appeal under Section 417, of the Code of Criminal Procedure can reverse the judgment of the trial Court are now well-settled. The High Court while dealing with an appeal against an order of acquittal has full power to revjew at large the evidence on which the order ofacquittal was foundedand to reach aconclusjon that upon that evidence, the order of acquittalshould be reversed. No limitationshould be placed upon that power untess it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should give properweight and consideration to such matters as (1) the views ofthe trial Judge as to the credibilityof the wjtnesses; (2)the presumption of innocence in favourofthe accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 4AIR 1974 SC 1153 10 (^ After having been taken through the judgments of the trial Court and the High Court, we find that the High Court has kept those principles in view and its judgment is not vitiated by any such infirmjty as may call for interference of this Court. The appealfails and is dismissed." 16.While dealing with thesame questionin the matter of Tota Singh and another v. State of Punjab5, the Supreme Court has observed that the mere fact that the Appellate Court is inclined on areappreciationof the' evidence to reach a conclusion which is at variance with the one recorded in theorder to acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an orderof acquittalis circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made bythe lower Court to the consideration ofthe evidencein the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such whichcould not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore,liable to be characterised asperverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has takena view which is a plausible one, theAppellate Court cannot legally interfere with an orderof acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. 17.As records the complicity of the appellants in the crime in questipn, nature of reappreciation ofevidence relating to acquitted co-accused and perversity in finding of the trialCourt relating to the acquittal pftwo accused Vijay @ S.Kumar Jain and Amit Kumar, conviction and acquittal both are based on circumstantial evidence. In case ofconviction based on circumstantial evidence, the prosecution is required to provethe chain of circumstances that the circumstantial in order to sustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of the guilt of the accused and such evidence should not pnly be consistent with the guilt of the accused butshould be inconsistent with his innocence. 5AIR1987 SC 1083 11 (^ 18.In the present case, as per case of the prosecution, accused Vijay @ S.Kumar Jain was having grudged against the deceased on the ground that the deceased had debarred him from participating in auction, therefore, he contacted with other accused persons and in sharing common intention with other accused persons, all the accused persons have committed the aforesaid offence. Investigating officer has recorded memorandum of the accused persons and has recovered currency notes and musal at the instance ofthe appellants. These evidences are said to be incriminating evidenceagainst the appellants and respondents of,, Criminal Appeal No.579/2004. As per evidence of Balram Yadav (PW- 1), while Vijay Kumar was participating in auction on 10.12.2002, the deceased had debarred him from participating in auction on the.ground that he is defaulter, then some dispute took place. On 12.12.2002 after two days of the dispute, dead body of his father Ramsawarath Yadav was found. Somarnath (PW-7) has admitted in para3 of his evidence that there was dispute between the deceased and accused Vijay Kumar. Sarpanch Amrut Xalxo (PW-10) has also deposed fhat the deceased Ramsawarath Yadavhad objected participation ofVijay Kumar on the ground that he was defaulter. During the course of investigation as per evidenceof Laxman Bhagat (PW-11), he has interrogated the appellants and they have disclosed the fact of money and same was recovered at their instances. He has also deposed thatappellant Gunu @ Yogendra has made disclosure statement of electric grip vide Ex.P/13 and he has recovered electric grip at the instance of appellant Gunu @ Yogendra vide Ex.P/14. Accused Amit Kumar has made disclosure statement of money, same was recovered at his instance vide Ex.P/17. Appellant Chetha has made disclosure statement of musal vide Ex.P/18, same was recovered from Nadim dam at the instance of appellant Chetha vide Ex.P/20. He has also deposed relating to disclosure statement ofmoney and recovery of money from all the appellants. As per evidence ofAmrut Xalxo (PW-10), just before few hours of death of the deceased after disbursing Rs.9950/- he has given Rs.20472/- to deceased Ramsawarath Yadav whichhe has withdrawn from the bank. Evidence of Laxman Bhagat (PW-11) revealsthat on the basis of disclosure statements of the accused persons, Rs.10,000/- has been recovered 12 r^'^s^ from accused Vijay, Rs.2000/- from appellant Gunu, Rs.4000/- from accused AmitKumar and Rs.2000/- from appellant Chetha, total Rs.18000/- was recovered from all the accused persons. 19.Learned counsel for the appellants has vehemently argued that as per evidence of Sarpanch Amrut Xalxo (PW-10), he has withdrawn the money from the bank and as per evidence of Smt.Prufulla Minz (DW-3) and Ex.D/9, on 11.12.2002 totalRs.28,467/- was withdrawn by Amrut Xalxo containing 284 currency notes of Rs.100/-, 1 currency note of Rs.50/-,2 currency notes of Rs.10/- and some coins of Rs.3/- which find support in Ex.D/9 recordofthe bank, but as perrecovery memo, 200 currency notes of Rs.50/-, totalRs. 10,0007- has been recovered from accused Vijay. Scurrency notesof Rs.100/-, 20 currency notes of Rs.50/-, 20 currency notes of Rs.10/-, total Rs.2000/- hasbeen recovered fromappellant Gunu. SOcurrency notesof Rs.50/- has been recovered from accused Amit Kumar and 8 currency notes of Rs.100/-, 20 currency notes of Rs.50/-, 3 currency notes of Rs.20/-, and 14 currency notes of Rs.10/-, total Rs.2000/- has been recovered from appellant Chetha. 20. Definitely, the prosecution was under obligation toestablish the factthat articles recovered at the instancesof the accused persons were directly connected in thecrime in question. Mere recovery of money from any person itself is not incriminating evidence unless it is supported by the evidence that same was stolen or taken from the custody of the, deceased. Identity of currency notes is very difficult, but in case, denomination of currency notes stolen and recovered are if the same, then it can be safely inferred that currency notesstolen from the possession of the deceased orthe complainant was one and the same which hasbeen recovered at the instances of theaccused persons or from the accused persons. 21.1n the present case, denomination