an^l.^t f^-li* ^qi 311^1 '5KW •^vSf^IP^vPf, ^TS\W\<i,^W^<. HWM *Mt* ,.A...^....^3. OT^T •CHW (Ipf^g^tt) •g^iIWtfe 311^1 APPELLANT: (In JaiD -V RESPONDENT: (Criminal Appeal und Division Bench: • Hon'ble Shri L.C. Bhadoo & Hon'ble Shri Sunil Kumar Sin ka.JJ. 7^-2007:. Miss Minu Banerjee, Adv Mr. U.K.S. Chandel, Pan< Oral judgment dictated 01 L.C. Bhadoo. Jj, This appeal is directed a^ of serrtence dated 28-7-2001 Manendragarh, in S.T. No.61/2p01 Judge after holding the accusedC under SecBon 302 of the I.P.Q. sentenced him to undergo impris in default of payment of fine to ft| GRPRJ—FS/246- +l'i|l<'l'li'l-i 'WRTt" ^ iSVt <P>l'k$K '^sffgtfsii^t Jawahir Singh, S/o Suidaru Gond, aged about 25 years, R/o Funga Sihardand, P.S. Khadgawaon, District Koilya (ChhatBsgarh) rsus- State of Chhattisgarh, Through P.S. Khadgawaon, District Koriya. r Section 374 (2) of the Cr.P.C.) »cateforthe appeBant. il Lawyer forthe State/respondent. Dais. jainst the judgment of convicUon and order pjassed by the Achlitional Sessions Judge, whereby leamed Additionat Sessions fappeltant guiNy for commisston of offence ., for committing Ihe murder of Jagesia, tonment for life & to pay a flne of Rs.5TO/-, (rther undergo S.l. for 6 monlhs. 50-000. XI-HC—78 '3^ "i|l<M10<l, »T)1'y'l<S, fs|<7>l<Hy \^ ~Vf?V *<41«b "^ 200 sn^i cpi 1^-ii* ^^ 3TT^?r ^v^ an^?r'qaw ('pfy??) t^iiw ^ifer sfi^r accUsed Thecaseofttie (since deceased) along Rukman Bai (FW-2) left h^ ttiey were catehing fish atj ladies requested him to do so. On the contrary, therefore, Jagesia be sent] was suspecting that Jagesiji accused Jagesia was sent When m<^ier and sister o<| not present there, then the') enquiry, mother of the not come to her resUence. said that the accused has treatment to his daughtert Sarpanch of the village a|i searehing Jagesia in the in the forest at some neck. He informed the by Bilsia Bai in the information report Ex.P/1-Q also given by Bilsia Bai. registering the crime left Ex.P/3 on the body of , gave memorandum Ex.P/4 underEx.P/5. Plainsoil pro^ecution, ^ith helb them +IAlIdiil-l ^TFRTf ^^T3t <r<>t-^l< ^siRn sii^i i, in brief, is that on 28-10-2000 Jagesia her sister Bilsiya Bai (RW-1) & mother i^r house for catehing fish in the river. When about 2 p.m. the accused came there. The in removing the water, but he refused to he asked them that as his sister is not well, ]along with him to see his sister. The accused ija is practicing witehcraft. On the request of the ^long with the accused. Jagesia did not retum. Jagesia refaimed to their house, Jagesia was enquired from the house of the accused. On said that the accused and Jagesia have On enquiry in the night, father of the accused gjone in seareh of some person who can provkle Bilsia Bai informed about the incident to other vitlagere. Next day people started t. Banshlal coutd locate the body of Jagesia from the village. There was injury on her >. In tum, Dehati Nalishi Ex.P/1 was gwen Station Khadgawaon, based on that first was registered. Merg intimaCon Ex.P/2 was Fhe Station House Officer, Police Station after for scene of occurrence & prepared inquest }4sia. While in the poltee custody, the accused 4|, in pureuance of that he got recovered knife blood stained soil was seized from the place ahd fotest distahce vilt^gers. Poli(te Jag^sia arid 1 1H 'S^ -^iiiw^, 'a-^wiQ, [^vftwy. VWv\\ *Mlcb •W^ 200 sn^i.qiT R-iicb ^qiSIR^I shtll* 3n^?T 'vsiv ('pf^g^sr) TOITW^ta 311^1 body of J^gesia Ceritre of occurrence. The to the Primary HeaNh postmortem on the body of (PW-9). He prepared postm<| death is due to stoppage of vessels) right carotid artery. Ex.P/10 was prepared by thej prepared by Patwari. Knife] examination to the Forensic S|i Ex.P/13 was received. The thedoctor. The doctor aftor Jagesia could be caused by After completion of the| the accused in the Court of Jk who in tum committed the c^ ^filf<l4^ •4144<lf ^f t^^ {FaJ^K ^aiRpTsn^i was sent for postmortem examination Khadgawaon under Ex.P/7-A. Trte |Jagesia was conducted by Dr. R.P. Singh 4rtem report Ex.P/14 & opined that cause of |ieaifs action resutting from injury of (large Death is homicklal in nature. Site plan investigating officer. Site plan Ex.P/8 was and other articles were sent for chemical S|cience Laboratory, Sagar, from where report in question was serrt fbr examinaUon to ^xamination opined that injury on the neck of inquesSon. HegavehisreportEx.P/15. khife khife |investigation, charge sheet was filed against Judicial Magistrate, 1 Class, Manendragarh, ^se to the Sessions Judge, Ambikapur from where teamed Additional Ses^ions Judge receivedthe case on transferfor trial. The prosecution in accused examined 9 witness^s. under Section 313 Cr.P.C. in| him in the prosecution evidejnce, implicatwl in a false case. l-t^ against him on account <rf ani^nosity (^rder to establish the charge against the Statement of the accused Was recorded |whteh he denied material appearing against i, stated that he is innocent & has been ^ further stated that witnesses have deposed GRPRJ—FS/246— iO-000. wwi'ay ® :»0-HC—7S -^SSf^Wv^!, ^W\<», fa^Krfy 3n^T?n'K:]w 'iqi 3WI stiW ^^ffwgfer SII^T •*W[<ri^-( *<|t|dfif_'RIA <l»iWR ^ 3ifii*I •3)1^1 Leamed trial Court ^fter hearing leamed counsel for the respecUve parties, convicted and sen^enced the accused as aforementioned. ' Misls We have heard Mr. U.K.S. Chandel. Panel] Miss Minu Banerje^ Moreover, PW-9 Dr. R.P. body of the deceased, has i poshnortem on ttie body incised wound on neck in Minu Banerjee, counsel for the appellant an3 Lawyer for the State/respondent. has not disputed homteidal death of Jagesia. |Singh,who condudsd the postmortem on the Istated that on 30 October, 2000 he conducted |of the deceased. He tound ttiat there was |the size of 2%" x 1%". Wind pipe & caroBd arteiy were cut. There wa^ bleeding from injury. tnjury was arrte mortem in nature. Cause of death |was on account of cutting of wind pipe. Death was homicidal in nature. Therefore, in view of the above evidence, it is established that death of Jalgesia was homicidal in nature. As far as involveme|nt of the accused in the crime in quesBon is concemed, there is no dir^ct evidence to connect the accused with the crime in question. The wh|ole case rests on the cireumstantial evidence. As per the settled law in|order to convict an accused based on the cireumslantial evklence, Ifie Hon'ble Apex Court jn the matter of Dhananjoy Chatterjee Vs. "In a case b|ased on circumstantial evidence,the cireumstance^ '(1994) 2 SCC 220 StateofW.B.1heldthat: from which the conclusion of guilt is to bedrawn ha^je not only to be ftjtly established but also Ihat all (He circumstances so estabflshed shouU iqm-ay :S3-HC—7E ^ 3:OTr ^TPTRPT, ^>T(1yli^, (strtiyy gRST?iI'R;iW a^Ti ST^T 5h+1!cft 3ii^?r ^raw (ijci(^«t<y(; qiraferihimgf-ifjsi^tN^R' ^?3iRpi3ii^r be of a conclush|r( hypothesis of circumstances explained by an^ the accused andl complete as not| the belief consli' accused. It needt circumstances can form the basf the crime, the scrutinize the ofproof." |re nahire and consistent only with the the guilt of the accused. Those should not be capable of being other hypothesis except the guilt of Ithe chain of the evidence must be so |to leave any reasonable ground fbr Istent with the innocence of the no reminder that legally established not merety indignationof <he court isfs of conviction and the more serious glreater should be the care taken to ev(dence lest suspicton tekes the place aitid The prosecution has accused based on the followin > That Jagesia left along > That knife, weapon (rf accused & as per the knife. Having heard leamed evidence. As far as fir^ stated that on the fateftil day dish of fish, therefore, she a mother went to river in order t< ^ried to establish the crime against the cireumstances:- (nth the accused befbre her death, ofence»,was recovered at the instance of the SL report human blood was found on Itie cireudstance ct>unsel for the parCes, we have scnrtinized is concemed, PW-1 Bilsia Bai has •|er father asked them that today he will eat )(ong with her younger sister Jagesia and cateh fish, at that time, the accused came iqWT<Ogl< 3^^ '<ll-i|l^<<, tfTfl'M4!^, (s|<rtl'yy '^ -H^ sn^r.^ii R-ii* ^'naiK^i •xw an^T iraq; (Tjsrf^g^i) ?Igrwgfe[ ati^i trt ttiere. Theyasked him to rem< refused to do so. Thereafter, well & she is at his residence, to see his sister. Jagesia waa thereafter they went to their was not at their resklence. E' not at the residence of the to the house of the accused the residence of the accused. apprised about the said fact. Jagesia but she could not be was seen by Bansh Kumar in The matter was reported in the hotise acclised. bilrt R/V-2 Rukman Bai, evMence of Bilsia Bai. FW.6. He has steted that Bils|i informed that Jagesia was somewhere & her whereabout^ Jagesia was found 400 yards | her neck. In order to connect the| matter of BODHRAJ ALIAS JAMMU & KASHMIR2 the Ap4 2 (2002) 8 SCC 45 -<?)1^T(¥l4lltTR^Tf "^ f^st Tf^RSR ^siRiHsn^r ^/e water so that they can catch fish but he accused asked them that his sister is nflt (therefore, Jagesia shoukl accompany him sent with the accused. About two hours' at about 4 p.m., they saw that Jagesia ^en enquiries were made but Jagesia was l-1er daughter Hirodi^ Bai was sent neither the accused nor Jagesia were at Thereafter, Sarpanch of the viltage was A seareh was made about whereabouts of (acated. On the next day, body of Jagesia |the forest. There was injury on her neck. Police StaUon. njother of Jagesia, has corroborated the Sarp^nch of the village has been examined as la Bai and her mother came to his house & wfthj them on the river, from there she has gone could not be fraced out. Next day body of away from the place. There was injury on laccused based on last seen theory, in the ^ODHA AND OTHERS Versus STATE OF iCourtheldthat; GRPRJ — F '2007— 50.000. I'sKSI'Hg^ 3:CTT ^iiiii^, dTfly'i<i, fsici'i+<y,< ^W^l shMlcb •^ 200 an^r 'wv (Tpf^g^si) sn^r.^i R-iiif' wnan^i shNJ'* ^grar ^ifer sii^r theo|ry w^re p^raon "The last seen time-gap between th^ and the deceased when the deceased posslbility of any being ttie author of th|e would be hazardous in cases where ttierel conclude that the last seen together." comes into play where the point oftime when the accused seen last alwe together and |is found dead is so small that other than the accused th|e crime becomes impossible. It ^o come to a condusion of guitt |is no olher positive evidence to adcused and the deceased were In the matter of Subhash Apex Court has hekl that last seen and time of the incident. Merely, pereon cannot be held guilty. The evidence ".....Toconstitute evidence must definitely drawn that the victim together at the point| the fime and date of Again in the matter of State Apex Court hetd that: «bWi<'l'lil-< HIICT'i tf feTft <r»lt$l< ^srRiHSii^T ^hand Vs. State of Rajasthan the [together must be near about the date <^n the basis of last seen, the accused 4pex Court further held that; of last seen together, the permit an infierence being |ind Uie accused were last seen |of time in close proximity with cbmmission of crime... ." of Kamataka Vs. M.V. Mahesh4 tte 3 (2002) 1 Supreme Court Cases 702 "' (2003) 3 Supreme Court Cases 353 GRPRJ — FS/246—2/2007— 50,000. iqCTi'ag<<- // ^ ^\ :i.-f 3:Eer ^ii<<i</>4|, BTfly'Ko, [si^iyy W^^\ *<41* W^ 200 W^ TRW (lj<<(-j.«l<ff) 3ii^t?a R-ii+ WT3IR?! V^ "...... Merely being se< What has to be esteblii definite evidence to ind been done to death must be aware as als<^ last seen together... ." figam, m the matter of State the Apex Court held that:- 4n tast together is not enough. ed in a case of this nalure is • fcate that the victim Beena had (f which the respondent is or I proximate to the time of being ()f Goa V. Sanjay Thakran and Anr. "There can be no fixetl or straight jacket formula for duration and the time depend upon the evkl remove the possibiins< Vhe deceased in the irt if the prosecution is li| that likelihood of any being the author of V/f then the evidence together, although the|i be considered as onl chain of cireumstance^ accused persons. Th( accused witti the crint •F5 2007 (4)SBR 321 ^PfeftT •Wq?ffif fS^t tteSR '^'affiTtrgn^r ^ap in this regard and it would ince led by the prosecution to of any other person meeting tervening period, this is to say, ible to tead such an evidence icreon crther than the accused, e crime, becomes impossible, cireumstance of last seen •e is long duration <rf time, can of the circumstances in the to prove the guilt against such irefore, in view ofthe judgment of the Apex Court in t(ie matter of State of Kamataka V. M.V. Mahesh (S^ipra) in order to connect the e in question, merely seen last GRPRJ — FS/246—2/2007 — 50.000. iqnitiy 1 / ~S:E^ ^ww^, •S-iS\W\«,Rlrtiy^ *11*1MI **<lcb •^ 200 an^yr 'q^% (lyf.j.i^CT) 311^1 qn (t;.)ich TOISII^T sbtii* c.... 'roiiwgfeg aii^t together is not enoug^ the case is definite accused is the author] from last seen cireumstantial through which an irret that the accused was i. What has to be estabtished in levidence to indicate that the [of the crime in question. Apart eviflence, there must be other and material on record irre^istibte inference can be drawn ^iuthor of the crime in question." eviderlce In the light of above legal (»osition, if we look into evidence and facts of the present case, as per fl|ie evidence of Bilsja Bai and Rukman Bai, at about 2 p.m. the decease(| body of the deceased was found has been examined as PW-6. He Bilsia Bai and Rukman Bai that Jsj accused. Therefore, evidence of when Jagesia teft the river atong w is about one night and hatf day. inference can be drawn that the material on record or circumstanti murder. The prosecution case is well & the accused was suspectin^ but there is not an iota of eviden4 chi<iT<n'4ln ^mflf^^^ iPtRtiH: ^?3TRr(i3ii^?i accompanied the accused, next day in the forest They have stated that Sarpanch of Ihe village was inform^d by them but Sarpanch of the village (las not stated that he was informed by igesia had teft the river along with the iohan Singh (PW-6) does not support the evidence of these two witnes^es. Moreover, the time gap between ith the accused & her body was found Moreover, the body was found in the forest. There is no other incrir|iinating circumstance Uirough which accused was author of the crime in question. The accused being mat^mal cousin & there is no evidence or 1 evidence adduced that the accused was having any grudge against <he deceased in order to commit her ttiat the sister of the accused was not that Jagesia was practicing witehcraft, e on record to show that the accused FS/246—2/2007 — 50.000. nwiog^ 3:5ST^ITiTT5!T, tSiTfiy'Ko, fsi<?»IU^< © 10 tllM^I **1|cb •W^ 200 ai^?r iRrat (ijcif^«<<^i) ailiff.w R'fi'fc OTT3IR?! 9t]t<l<* WiiW(fe3ii^?r was suspecting that Jagesia was Bai and FW-2 Rukman Bai have| accused was suspecUng that the reason for the accused to comriiit her F|racticing wUichcraft. Even PW-1 Bilsia not stated in their evidence that the l^sia was pracBcing witehcraft, that was murder. Jag^sia Therefore, for the foregoing ] that Jagesia Bai left the river aloi^g corroboration or other material 0(1 accused with the crime in questtenj |reasons merely on the basis of the fact with the accused wtthout any other record, tt is difficutt to conneet the cireumstahce tHe As far as second said to have been recovered at FSL report, human blood was that human blood was of the btood merely on the basis of recovery with the crimes in question unless ] the btood which was found on thte deceased. There is no other with the crime in quesdon. In the circumstances, we ai|e on above circumstantial evidencel with cogerrt, clear and legal doubt that the accused was authctr convich'on and serrtence commission of murder of Jagesia / ch1<4f<n4l'i 'W^ ^ff^^ •(f^'^R ^73TfgtI 311^1 is concemed, the knife in question instance of the accused, as per the fou^d on the knife, but there is no report group (rf the deceased without which of )<nife the accused cannot be connected ]and until Ihere is posiCve evidence that knife was of the blood group of the evide|ice against the accused to connect him ai|e of the considered opinion ftat based |the prosecution has faited to establish cireu^nstantial evidence beyond reasonable of the crime in question. Therefore, imposfed upon the accused/appetlant for Bai cannot be sustained. GRPRJ— FS/2. n — 50,000. iqniflg<r 3^ET'*2ICT^T, gxfly'is, ls(oil<l^< 11 *11*4^1 *NI* •^ 200 an^r ^ra^; ('^crf^a?si) 311^1.^1 R-li* OTI3IR?! **ll<sb Barve T^IIWdfttT 3I)^[ ^nposed upon the accused/appellant ^et aside. Ifthe accused is not requii|ed in any other case, then he should |>e set at Ijberty forthwith. Sd/- L.C.BHADOO Judge c:hi&il<n41Ti 'HT^tnf'^f fe^ •(.r^-^K ^T 3TfgiT sn^T In the result, the appeal sujxeeds. ConvicUon and sentence under Section 302 of the I.P.C. are Y 1 Sdi- SunU Kumar Sinha Judge ^ GRPRJ — FS/246—2/2007 — 50.000/ ICTITI^ .^l' fCT»*"--y'^ 11:1 -Cl ,:S fi!