a S/o Late Shri Sunder Sing d abbut 46 years, Occupation v; Lab ur Caste - Gond (Aniwasi S.C.) R/o illage — Kodagaon P.S. Korar, Distri Kanker (Chhattisgarh) ’ RESPONDENT Stateb Chhattisgarh, Throu‘ z District Magistratn, Kanker D.B.: HON’BLE SHRI BHADOO, J, & HON’BLE SHRI SUNIL KUMgE 8mg, J. ORAL JUDGMENT (26 40.2007) LC. Bhadoo, J:- ' Shri Sankalp Jaiswa‘l, unsa for the appellant. 31m Asmsh Shukla, Go . Advocate for the State. Heani. I ’ This appeal is directed against the judment of conviction and order of sentence dated 2.09.2002 passed by tlie Second (FTC), Kanker (C.G.) in S.T. lned Secend Additional Sessions cused persons Ganesh (present appellant) and Rajm' for co 'ssion of the odence under Section 302 of the [PC read with tjon 34 of the 'IPC for commg Additional Sessions Judge No.57/2001, whereby the Judge after holding the i \312007 —3o,ami. \\ 1' Rm, h e L 1 a c s c . ..C\ mmm 2 WW fz€1W ammm (Veterinary Doctor), sentenced them to life and also convicted these accused the oh‘ence under Section 201 of the years. However, the third accused — y of this appeal, Rajni died on ' 15/5] :2007, therefore, her ppeal wastheld to he abated vide order only the appeal of accused -— Ganesh The case of the pro ecution in brief is that the deceaseri -— Sant Masih was a Vete ' aiy Doctor. Rajni was sick, therefore, took the bun‘alo to the V terinaxy Hospital in presence of Halal (PW-9). In the evening at bout 4-5 p.m., when Rajni along with Ganesh (present accused] ppellant) went to bring budalo mm the hospital after iocking th door of her house, Chheduram Patel (PW-4) came to the hous of Rajhi for taking his labour charges, as the house was locked, munier of Dr.’ Sant Masih undergo imprisonment for persons for commission IPC for screening the evid nce of murder and sentenced each of them to undergo R.I fof Habbi was acquitted. During the pende dated 1'Z. 10.2007. Themf remains to he decided on erits. On 15.9.2000, bunalo of about 9:00 a.m., in the morning, she returned back. Later on, after about one hour, he again cam to the house of Rajm' along with one Devlal. At that time, Raj ‘ and Ganesh were presentin the house of Rajni. After applying intment to the sick buEalo, Chhedulal returned to his house, be use Rajni said to him that she will pay his labour charges when her nephew will come. At about 8:00 e p.m. in the night, Dr. Ma ih, after consuming liquor was sleeping mm,m,m steam (W) o o t c , e FS/S9— 8/2007 ——3 0,000. \ X 3mm ang/ Wwma‘f wW / $aifdq‘a1éw under Ex.-P/ 4 and bedding stained with blood was seized Mm the —6. Accused] appellant — Gancsh gave memorandum (EX.P/ 7) arding the pillow lying in the house of Rajni, in pursuance of‘ , a pillow was seized under Ex.-P-5. One full shirt, Sande b yan and Lungi stained with blood was seized under Ex.-P/8. Th clothes of Rajni were seized under Ex.- P/~ 12. :l‘he statement of hheduram was mcorded under Section 164 of the Code of Procedure. The seized articles were sent for~examina1ion to ensio Science Labomtory, Raipur, mm where report -— Ex.P—18 was received. Inquest (Ex.-P/21) was piepared on the body of the deceased. Body was sent for postmortem examination o A.S.K.D. Govt. Hospital, Kanker under EXsP/ 20, where Dr. V. S ukla (PW-11) conducted the postmortem on the bodypof Dr. Ma He opined that the death has occurred due to asphyxia which w s antemortem, the death was within the duration of 24-36 hours pn'or to autopsy and it was homicidal in nature. He prepared rep (Ex-.R/ 20-A). Site plan (Ex-P] 25)—was prepared by Halka Patw I After completion o the investigau'on, charge sheet was hled in the court of Judicial Magistrate First Class, Kanker, who in turn, committed the Jagdalpur, nom Wher [ house of Rajni under Ex g t , se to the Sessions Judge, Bastar, learned Additional Sessions Judge received the case on tran fer for trial. The prosecution order to establish charge against the d 12 wimesses. The statement of the accused persons ex . C ' r s' o a e ‘ ‘ e WW, WW,W 321T Wi WWW y an-Haw- WW wW %a‘§mm ‘¢ accused pcrSbns were rewarded under Section 313 Cr.P.C., in Laterial appean'ng against them and :nt and have been falsely implicated in which they denied the 11 statcd that they are innoc‘ the crime. Leanled Addiiionél mguments of the respecti accused persons as aforementioned. We have heaxd MJ f. Sankalp‘daiswa], Counsel for the Shandel, Panel Lawyer for the State. alned counsel for the appellant has not :ath of the deceased. Moreover, Dr. V. :d that on 16/9/2000, he conducted 3f Dr. Masih and noticed the following A appellant and Shri U.K.S. i At the vexy outset, 1e disputed the homicidal d( Shnkla (PW‘ll) has stat postmortem on the body t mjunes : Clotted blood was Blood was oozing Sessions Judge after hearing the Ie parties, convicted and sentenced the present in the pinna of the right ear. h‘om the nostrils. Palm, hugers became bluish. Abrasions on the right knee. Swelling on the face and around the neck. Semen was co muscles were congested. Brain was swolle and congested. Dark red colour blood was present in the throat and echymosis was p sent. ' g out of the penis. Temporal parie §©®V0\01ODNH- W m damagégi 200 mm (W) @ m mmm‘g WIEém émifatlm 10. Lungs were congested and swollen and dark mthy blood was oozing from it. According to the Doctor,t]]:xe Injuries were antemortcm in nature and wem smcient in ordinaxy coulse of nature to cause death. Cause of death W‘a's asphyxia, as a result of pressing of the f neck. Therefore, in view that the death of Dr. Mas‘ As far as complicity of the accuSed in the crime in question $ is concealed, there is no accused with the criine circumsiantial evidence. conviction of an accused based on the circumstantial evidence, the pmsecuu'on is req ' View of ' the j decision of based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the cimcnmstances so established should be only with accused. except the evidence n reasonable innocence that legal merely inc‘ the above evidence, it is established was homicidal in nature. t or ocular evidence to connect the question and convm‘tion rests on the s per the settled law, in order to rest below: of a conclusive nature and consistent the hypothesis of the guilt of the Those citeumstances should not be capable of being explained by any other hypothesis guilt of the accused and the chain of the inst be so complete as not to leave any : ground for the belief consistent with the ly established cilcumstances and not .ignation of the court can form the basis of the accused. It needs no teminder W m e HzozsW-WL 200 WW (W) “In a case W ' c W mm, ma, Cwalou/ozui 200 mmfzfw m W 1m; (W) WWW ; WW .WW a:Wm of convich‘ n and the more sexious the crime, the ' mater sh uld be the cam taken to scruu‘mze the evidence 1 t suspicion takes the place of proof.” In order to rest the conviction based on the cimnmstattial evidence, as has been held by the Apex Cou'n. The prosecution has tried to establish the crime against the u f accused‘based on the follc wing circumstances : 1. Abrasion injl Lries were found on the ears of the $ - accused — G esh. 2. ‘ Accused — G esh was seen in the house of Rajni, where the de body of Dr. Masih was lying. 3. In the intexvc ning night of 15-1611 September 2000, Ganesh went to the house of Chheduram, knocked the door 2-3 times and thereafter, the body of Dr. Masih was sh .fted in the vemndah of’l‘ikaram. 4. One pillow stained with blood W% recovemd at the instance of the accused hum the house of Rajni. First Circumstance As far as the met circumstance is concerned, Dr. M.K. Markam (PW—6) has state that on 19/9/ 2000 at about 8:15 p.m, he examined accused/ap Ilant - Ganesh and noticed abrasion injuries behind both the ars of the accused, which were 3-5 days old. The said injuries can e caused by nail, his report is Ex.Pf 15: He stated that the ' juries found on the body of the accused] appellant -— Gan sh can be caused by suetching the ears W 3am, m, Wm (W) am§% 2 WW %QWW &ai1%rqé11%w ’mmm or beau'ng. The injuries were Simple in natuxe,‘ therefore, from the above evidence of this Dnctor, it is established that there were abrasion injuries of 3-5 accused] appellant —- Gane: v t c circumstance, main witne A examined by the prosecu he alongwjth Devlal went to collect his labour c about one hour, when th saw Rajni and accused] stated that‘her budalo ointment to the bunalo. wi]1 come, he will pay alongwith Devlal and p.m. in the evening, Wh of his house, Rajni call replied that she should ca Dr. Masih is sleeping in ’l p.m. Chheduram went ti Ganesh, at that h'me, present there. Rajni stated that Dr. Masih is sleeping in the verandah. Body of Dr. Masih was coveted with cloth and it was lying On the cot. Chheduram called Dr. Masih after removing the Second Circums "* f As far as this cir days old behind both the ears of the ih. e tance is concerned, to establish this s — Chheduram Patel (PW—4) has been ‘on, who has stated that on 15.9.2000, the house of Rajm' at about 4:30 p.m. , but house of Rajm’ was locked. After y again went to the house of Rajni, he ' pellant - Ganesh in the house. Rajni sick, on which, all of them applied e said to him that when her nephew ur charges to him. Thereafter, he sh left for their houses. At about 8:00 Chheduram was standing at the gate him saying that her bun‘alo is sick. He 11 Dr. Masih, on which, Rajni stated that .er house. After sometime, at about 8:30 i the house of Rajni along with son of accused/appellant — Ganesh was also h e ' e c s s p h o e ‘ XI-HC—78 WW,W,W 200 11mm mm (W) WWW ammm mwiwm $afrawm mwm a? da“ cloth but there was no response, when he touched his body, body was cool just like dead body. He said to the son of Ganesh that it seems that Dr. Masih has died. Son of Ganesh touched the body of Dr. Masih and said‘that he has not died, as and when Dr. Thereafter, Masih consumes liquor, his body becomes cool. Ganesh and Rajni said to Chheduram that they will lay the cot for him and he should sleep there, on which, he became suspicious, left the house saying tha‘; he will go and inform his wife. He left $ Rajni and Ganesh at that place and did not return. He informed his Wife that it appeals that Dr. Masih has died. Thereafter, in the night, Ganesh came to his house 2-3 times, but he neither responded to him nor o ened the door, due to which, Ganesh returned back. In the morning, the body of Dr. Masih was found in the verandah of e shop ofTikamm. A scrutiny of the evidence of this Witness- Chheduram establishes the fact that hen he went along with Devlal to the house of Rajni second in order to collect labour charges, he saw Rajni and Ganesh in the house, they applied ointment to the sick bunalo and thereaft he, Devlal and accused — Gan'esli, all 3 of them left the house f Rajni, He has not stated about the presence of Dr. Masih in house of Rajni at that time. He has further stated that there ter, Rajni came to his house to call him saying that her buffalo :s sick, on which, he replied that she should call Dr. Masih, then, she stated that Dr. Masih is sleeping \ in her house. Therefore, he along with the son of accused - \ n ' e e , e MW, m,W @ 200 WW (W) mmm' )0 WW @W $3i1=cmwé¥l Ganesh went to the house present that. Dr. Masih w: when Chheduram touched that he was already dead when he went to the hof1s¢ called by Rajni, accused — t ‘ the house. The body of Dr thereafter, he retmned to and knocked the door of respond. ‘In the next mo in the veranda of the shop of’l‘ikamm. As per the medical evidence of Dr. V. Shukla (PW-11 , cause of death of Dr. Masih was throttling. The question whether this cimnm stance — Ganesh in the murder of After perusal of Chheduram Patel availab] opinion that based on th been referred to above, no Ganesh was party to the adduced to establish that cause death of Dr. Masih witness, when about 5:30 Rajni, Ganesh and Rajn applied ointment on the of Rajni, at that n'me, Ganesh was also 1s Sleeping in the veranda of the house, the body of Dr. Masih, he suspected . As per the evidence of this witness, 3 of Rajni at about 8:30 p.m., on being Eranesh and Rajm’, both wem pxesentin Masih was lying in dead position, and his house In the night, Ganesh came hheduram 2-3 times, but he did not g, dead body of Dr. Masih was found ‘which arises for consideration is that establishes involvement of the accused Dr. Masih. the material and the evidence of e on record, we are of the considered e evidence of this Witness, which has conclusive inference can be drawn that crime in question. No material has been Ganesh had any animosity or motive to . Moreover, as per the evidence of this p.m.,- he and Devlal went to the house, of i were present in the house, they all sicli bun‘alo and thereafter, all three of W m QA/OU L W x W mam, WW, ‘ W m Q/J /0’L 1n 200 WW (W) mwm H WW WW §N$ma11é¥r for their house. Them is no evidence esh returned to the house of Rajni. The Chheduram went to the house of Rajni at about 8:30 p.m., Gane h was present there. Even before that, Rajnj had went to the hou e of Chheduram to pail him saying that her buEalo was sick, on w 'ch, he replied that she should take the buEalo to Dr. Masih for treatment, then, she replied that Dr. Masih is sleeping in the c i there is L10 evidence le Rajni. Therefore, the prosecution is not su$ Ganesh was an accomplic u ‘3 Third Circumstan So far as this circumstance is concerned, Chheduram has stated that in the interVening night of 15-16 September 2000, Ganesh came 2-3 times sleeping in the house of F, any other material on rea in crime in question, it is to the crime in question. be persuading Ganesh to This is a very weak circ1 to his house and knocked the door for ’ajni. Merely on this ground and without )rd indicating the involvement of accused diftirult to infer that accused was party It may be just possible that Rajni might call Chheduram to sleep in her house. \ party to the cn'me in ques 1mstance to infer that the accused was nidor of her house. During that period, ng presence of Ganesh in the house‘of tance pressed into service by the ' nt to establish that the accused - in strangulation of Dr. Masih. tion. ‘ them left the house of Ra' to establish that when G only evidence is that Whe g c' \\ i s WWW 3211mm Fourth Circumstan So far as this ci tance is concerned, leeway of the pillow stained with blood the house of Rajni at the instance of the accused is concern' in the met instance, it caxmot be said house of Rajni cannot be used to connect the accused with the crime in question. The c thes of accused — Ganesh were seized under Ex.-P/8 on 19/9/ 000. 1t is mentioned that fim shirt, Sando Banyan and Lu wele seized stained with blood, but as per FSL" xeport Ex.-P/ 8, the accused. Therefore, blood was found on these clothes of the basis of recovery of clothes, the accused cannot be connec d with the crime in question. ' As per the fn‘st mstance, injuries were found on the eats of the accused — G esh . These injuries Without any other circumstantial evidence annot connect the accused with the crime in question, It is dl$cult to connect the accused with the crime in question on the basis of the injuries, which were siniple in nature For the foregoing reasons, we are of the considered opinion that the prosecution has, utterly failed to bring on record the citcumstantial evidence to connect the accused with the c ' e in m s m e , n ' o n , W 3am, WWI—st, ......cy..w.w/ol mm w 1T1 200 WW (W) H211 WWW 13 question. Therefore, th1o' service by the prosecution, that the accused was The suspicion however S110 ng cannot take place of proof. In the msult, the a sentence imposed upon w 3Q2/34 and 201 ofthe IPC The accused] appella WWW m WWKWW $3imwé¥r 1gh the cimumsfances pressed into no irresisn'ble conclusion can be drawn party to the crime in question. Shyna Lppeal is allowed. The conviction and he accused/appellant under Sections cannot be sustained. nt — Ganesh is acquitted of the charge $ under Sections 302/ 34 and 201 of the IPC. It is stated that he is in detention since 2.9.2 forthwith if not iequiied in Sdl- i L.C.BHADOO Judge 002, therefom, he be set at liberty 2 any other case. dn/ h//r