HIGH COURT OF CHHATTI56ARH AT BILASPUR Criminal Appeoi No.570 of 1990 APPELLANT: Rajkumar- @ Baju @fBnllq,‘ 5/0 . Mi‘rh'rhu Patel, aged 21 years, R/o Sonsarl Chowki Pachpédi P5 ‘Masfun Dustruc'r Bulaspur MP (now CG) Versus The $1’a1'e of MP. fhrough P.$.'V Masfur'i', Dis-rric'r Bihspur, M.P. (now C.6) REspoNDENT: ‘3 .a Present Shrl R K Jam counsel for the appellant Shrl Sandeep Ya&nv, Deptrh/ Gov‘r Advoca'te for- ?he sfa‘re/rasponden‘r Division Bsnch: Hon‘ Shri Dhirmdra Mishra g Hon. Shrijonindra Mohan Shrlvastova',‘ .‘N‘. ' Lu b a M E NT (Delivered on 19*“ Jgnuary, 2010) ' The following judgmen'r of fhe Cour‘r was delivered by Dhlren‘dro Mushro J 1 This crummal appeal under- Sechon 374 (2) of *he CrPC Is dwec'led 'agams‘r 'rhe Judgmenf of convic‘hon and order of sen‘renae dafed 10*“ April, 1990 passed in S.T. No.172/89 whereby learmd 5'“ Addi‘fional . Sessions Judge, Bilaspur has convicied The appellant under Sec‘rion 302 ~ of the IPC and sentenced himwith life imprisonment for committing homicidal death of decenqed Melabai. 4 2. Briefly stated the case of the prosecution is that on 6.5.1989 at about 11 O'clock deceased Melabai was doing some agricultural work in the thrashing yard of her husband Hetram The accused came carrying an axe and called her on the pretext of collecting cow dung. Thereafter, \Pi ‘ i 0% ‘I’he deceased wem' behind ‘rhe accused for collecting-cow dung, In +his ‘way, bofh of 11mm wen'r fownrds Khamariya pond. The deceased was wearing 'silver- bangles and Nagmor-i in bo‘i'h ’hands, waisf bmceie‘l‘ and G ' golden nose ring. When she did not refurn in fhe evening, a search was i; made and she was found lying dead near Khamariya pond. The injuries were found on her person and jewelries ofhand and nose were missing. ” . Her husband had gone ouf of village. He was called back and he lodged ' fhe reporf on 7.5.1989 vide Ex.P/1 againsf unknown personsr “After, wegisfering the offence. the police proceeded ‘for *he “scene 'of occurrence and prepared inquest over fhe person of ‘ihe deceased in‘Th‘e' pnesence ofowifnesse‘s vide.Ex.P/4. Thereafter, dead body was senifor autopsy 1'0 Primary Healih Cen‘rre, Mas‘ruri vide EXP/23A, where Dr.’ Jawaharlal Shrivas'l'ava {PW-16) con'ducfed posfmorfem and gave his ‘ report of EXP/23, On 20.5.1989 fh'e appeiimf was mken info custody '" and in :rhe presence of wifnesses, memorandum was recorded vide EXP/10. On fhe basis of his disclosure sra'remem, weapon of offence ‘— P bloods'rained axe, silver bangles (Kada), silver Nagmori, were recovered a from The indicafed places vide Ex.P/11, P/1Z 6i P/13 respecfively. Affer completing usual invesfigafion, charge she‘e‘l was filed in fhe Cour’r y of Judicial Magistrate, 1" Class, Bilaspur, who, in furn, commifred fhe case fo fhe Courf of Sessions Judge, Bilaspur agid “rhe same was received on transfer for frial by learned Addifional Sessions Judge. . The frial Cour‘r framed ‘rhe charge agains‘r fhe’ appellant under Secfion 394 and 302 of The IPC, who abjured his guilt .. The prosecufion in order 1'0 establish 1he charge againsf The appellanf examined 21 wifnes'sfes in all. Thereaffer, sfa‘remeni' of The accused was recorded, in which he denied the circumstances appearing against him in _the prosecution case and further stated that he is innocent and hehas been falsely implicated. " f . The frial Cour? af‘rer hearing learned counsel for +he respec‘rive parties} convicfed The appellan'r under Sec‘rion 302 of fhe IPC and senfenoed him as menTloned in para-1 of The judgment However, The frial'CourT'i'ie'ld 9 fhuf fhe prosecution has foiled To prove ‘rhe recovery of 1'he loo‘l'ed‘i- articles and further foiled 'ro esfoblish Tho? The arTicIes, so ’recovered,"j Were, in facT,"The nrTicleshwhich The deceased was wearing. and’ occgrdingly, acquiTTed The oppellnnT of charge under SecTion 394 of The IPC. ‘J: Homicidal deaTh of Melabai is noT in dispuTe. Even oTherwise, from the evidence of Dr. J.L. ShrivosTava (PW-16), who conducTed ppsTmorTem ‘ and proved his reporT of EXP/23: Who found Thefollowing injuries on The person of The deceased and opined ThaT The deceased died duo To dTock - as a resulT of excessive bleeding on accounT of head injury and The injury' presenT over her head was sufficienT in The ordinary course of naTure’ To cause deaTh and injury presenT over head could noT be caused by fall on a‘ sTone or any sharp objecT like Tin, homicidal deaTh of Melabai is esTablished. w : ImukIEsV (i) Incised‘wound of size 1 i " x ih" oblique over IefT forehead 3" above The lefT eye bone deep, (ii) Bruise of size 6" x 6" exTending lefT Temparo occipiTal region wiTh Twa laceraTed wounds of size %" x %" boTh obliquely siTuaTed; (iii) Bruise of size 3" x 2" over middle of forehead; (iv) Two laceraTed wounds of size i—" x i" scalp deep boTh obliquely laced over righT parieTal region; (v) Dried blood over nose and boTh ears; and (vi)Abrasion of size %"»wide semicircular over lower parT of boTh arms and forearms. On inTernal examinaTion, he found mulTipIe fracTure of half Temporal bone, occipiTal and lefT parieTal bone. FracTure of size 3" x ' 2” on The base of lefT parieTal scull, ’lungs were pale, boTh The p y . OK chambers were empfy, a“ The injuries have been caused by hard and r blunf objecf and fhe same were an're’-m‘orfem in na‘rure. 9: Shri RJC. Jain,”iearned counsei for the appeilan'r, submi'r‘red Thai 1'he 'friai, Cour-1' has disbelieved the evidence of PW-IO Baburam, who‘ i's 'fhe wihess of memorandum and seizure ‘of axe. ornamenfs,‘ blood s'iained clofhes and acquiffed of fhe appellant of 1'he charge underWSec‘tion 324 of 1'he IPC. The finding of 'i'he Trial Court has attained The finality; as The Sfafe has no? preferred any appeal againsf The ocquiTTa'l (of The “PP‘ellanT under SecTion 394 of The IPC. ConvicTion of The appellanT under SecTlon 302 is based on circumstanTial'evidence as There is no eyewiTness To The incident The only circumsTm’ce relied upon by The Trial CourT is ThdT'The appellanT and The deceased wenT Together Towards Khamariya pond aT abouT 11 am on 6-5-1989. ThereafTer The dead body of the deceased was found from a field near Khamariya pond. IQ. Relying upon The evidence of PW-Z D'akhan and PW—ZO PhoToboi, it has been held that both These wiTnesses have proved beyond doubt ThaT‘ They saw The appellanT carrying axe in The company of The deceased aT V The relevant time while They were proceeding Towards The pond and from" there The dead body of The deceased was recovered.‘ ‘ ,. Referring To ‘The evidence of above Two wiTnesses, it was argued That'j, They cannot be Termed to be witnesses of the last seen, as both o'f them " have deposed that The appellant left‘the company of The‘deceased while ' she was collecting The cow dung from the field.“ He further argued That ' even otherwise, only on The basis of evidence o‘f last seen, without any further incriminating circumstance, the appellant cannot be convicted on the basis of circumstantial evidence. V 12. On The other hand, learned counsel for the State/respondent supported the impugned judgment. \ ; " 13. We have heard learned counsel for The par-ties. We have perused fhe ’ record as also ‘l'he impugned'judgmenf.‘ 14. PW—1 He'rram is the husband of 'rhe deceased. He ‘is 'rhe wimess of"fhe"" faw The? on The ddfe of The incidem he had gone 'l'o Basan‘tpur. ’ On’ahis‘ refurn *0 village Sonsar-i, he was informed by The villagers Thn'l' body of‘ Melabai is lying in ‘Khamariy’a'pond and her ornamenfsrare missing. He r wen? ‘ro’fhe place and found fhaf Melabai was lying dead, however; ‘l’he, i ornaments were missing. Silver Nagmori, bangles and golden nose rings . w waisf bracelei' were’missing. He has also s'rafed tha'f he can‘idemjfy' fhe ornamenfs.‘ He further deposed 'rhaf he was informed fhaf‘fhe‘i; ‘ ornamenfs of fl'he deceased have been recovered and he wen? +0 village ‘ Sonsari wi'rh Chandan and Surajbai and .separa‘red "rhe ornamen‘ls affer" idenfifying fhe same. Chandan is The moThe'r-in-law of’ The dewa‘se‘d 1 She has also deposed in The similar lines. ‘ 15. Amru (PW-5), Aajuram (PW-6) and .Dhanai Bai (PW-7) are wiTnes‘ses of inquesT' reporT whereas PW-B ShanTi Bai is The wiTness of The facT ThaT The appellanT obTained Rs.50/-’ by pledging a gold nose’ring, ’ Pin/:30 Baburam is The wiTness of memorandum of The appellanT and recovery of ‘ The looTed articles, blood sTained cloThes and axe in pursumoe of his ’ disclosure sTaTemenT. Since The Trial CourT' has disbelieVed 'The‘ 'prosecuTion case under SecTion 394 of The IfC and acquiTTedw‘lihe appellant iT is noT necessary To dwell upon Th€ evidence of aforesaid wiTnesses. .a 16.PW-2 Dakhan has deposed ThoT aT abouT 11 am on The daTe of “The x incidenT he was:working in his kiTchen garden whereosa Mela‘baiij (deceased) was plucking The Babool seeds in her Badi. Rajkumar oam’e‘ ‘. There and called Melabai for collecTing The cow dung. Melnhni wenT wiTh" ’ ‘ a baskeT wiTh The appellanT Towards The field and They wenT Towards Khamariya pond. The appellanT was showing Thedeceased The cow dung ‘3 and she was collecTing. The appellanT was puTTing on Lungi 6i Baniyan and! . he was carrying axe However he did nof med Phofobm In 1he nigh? Hetmm told hum fhaf someone has murdered Melabm When Melabm _: 90mg 1’0 callec1 cow dung, she was wearing ormmen?s In her nose and '= bofh hands In cross-examina?lon he has sfa‘l'ed *hn‘r his sm‘temem- was . orded affer 8 days by The pollce and before gwmg The sm‘remenf fog. The pohce he did not disclose 1haf he saw 1he appeHan‘r going wrrh Melabm.’ In para-5, ‘rhns wmness has stated The? the mciderrr Is of ‘Ba'isakh‘. Melabai’wns collecfing’ cow dung after one field; I? is aorrec‘t ‘ 1'0 say that Melabai continued 1’0 collec+ 1’he cow dung and Raju' wenf fo‘wdrds‘ his field af1'er- showing fhe cow dung. He does n‘o‘l' know as fa Towards which field Raju had gone. 17 PW—ZO PhoTo Bal has also deposed ThaT beTween 10-12 in The morning, on H The daTe of The IncidenT she saw The appeIlanT and The deceased ‘ ‘ TogeTher The deceased was collecTmg The cow dung on being shown by The appellanT She has also described The cloThIng ThaT The accused was z puTTIng on aT ThaT Time The appeIIanT was carrying axe They wenT Towards The pond which Is loaaTed m The Khamanya Khan She dld noT see The appellanT and The deceased reTurnIng Thereafter and tn The nlghT she learned ThaT someone has murdered Melabai. In cmss—examinadon; : This wiTness has sTaTed ThaT her sTaTemenT was recorded afTer 10-15 _ ' _ days of The incidenT, she learned abouT The murder in The same nighT. She did noT disclose The facT ThaT she saw The aphellan'l' in The company of The deceased She did noT hear Their Talks as They were aT a dIsTance of 2 3 feeT The appellanT was showmg The cow dung and Melabal was a collecTing. The appellanT wenT Towards The Khamariya pond afTer __ showing The cow dung and The deceased conTinued To collecT The ‘c‘ow, dung. ».. ‘ 18 From close scruTiny of The evidence of The above Two wiTnesses, we are lg of The opinion ThaT lT is very dIffIculT To accepT The case elf The prosecuTIon ThaT These Two w1Tnesses were wlTnesses of lasT sesn as { ‘ ' N ak @ from scrufiny of The evidence of above Two wifnesses, we find fha‘r they ’ only sew ‘rhe appellam' and 111a deceased foge'rher' in a field where fhe I deceased was collecting fhe cow dung. Affer some‘?ime, fhe appellant ; lef‘l ‘rhe company of fhe deceased and went Towards hisqfield/fowards Khamar-iya pond whereas, “the deceased conflnued 1'0 collec‘f fhe cow dung " from fhe' field. Except The evidence of lasf seen; fher-e is no ofher' ’ 4 admissible evidence available on record as The Trial CourT has disbelieved The evidence of PW-10 wiTness of memorandum and recwery Thus we ll i are of The considered opinion ThaT The prosecuTion has u'l'Ter'ly failed To. esTablish ThaT The appellanT and The deceased were lasT seen TogeTher for The lasT Time when The deceased was alive and The prosecuTion has uTTerIy failedjo prove any of The circumsTances which may ‘connecT The ‘ ,oppellanT with The crime in quesTion. g 19. In The nesulT, The appeal is allowed. ‘ConvicTion and senTence imposed on The‘appellanT under SecTion 302 of The IPC are seT aside and he 'is ‘ ‘acquiTTed of The said charge. The appellanT is on bail. His bail bonds are discharged and he need no‘T surrender. / Q. ; ‘ Sdl— Sd/_ Shrivastava 3arvle Dhirendra Mishra v Judge ' Man'mdra Mohan Judge