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' D a t e o f A p p h c a t l o n f o r e o p y o f J u d g e m e n t , V a ( \ J ( D a t e t t m l w h i c h c o p y r e c e i v e d . , 3 D a t e o n l w h i c h A p p e a l s e n t l l - » O a " 1 Q ) 9 9 a : 1 V > W h e t h e r t h e p r i s o n e n w i s h e s - t o b e r e p r e s e n t e d o r n o t i N a m e J a i l ) h i e , l / . > > E a t e d Q § 1 9 9 8 W W O ‘ a Q g e t n e r w r t h a c o p y o f j u d g e m e n t o r o r d e r p a s s e d 1 n t h e c a s e f o r f a v o u r o f t r a n c m r — i o n t o t h e p r o p e r A p p e l l a t e c o u r t O f f l c e - D a t e o f r e c e r p t o f r e c o r d t o a c c o m p a n y t h e M e m o o f A p p e a l t o t h e A p p e l l a t e c o u r t D a t e o f r e c e i p t i n y F o r w a r d e d t o t h e i ~ e ‘ : l N o “ D a t e d . 9 ; ’ l 9 9 l l § a t e o f é r e c e i p t i n l A p ’ p e l l a t e c o u r t 5 . k l “ w ’ W o XI-HC-22 's^l 'ViWlvtt, vsiSww^hwvy. SII^T^iT h-u* 3^1 9hH\^ •yficl tlTqnrsh *<!<») _^^.A.:JMtM.^ 308- [c|<i<ff' 311^1 TRiTWHfltT DIVISION BENCH: HON'BtjE & HON'SLE CRIBfliNALAPF v' Respondent Shri U.N.S.Deo, learned G.A ct)l'LlFclAJ1T1 +11-4<"iT ^ fs'^1 <F»1-^.|< ^ svpw sv^v . , SHR! L.C.BHADOO SHRl DHIRENDRA MISHRA, JJ EAL N0.1398 of 1988 hnglu Stjate of Madhya Pradesh Shri R.K.Jain with Smt.l<jiran Jain, iearned counsel for the appellant. : forthe State/respondent. ORAL (04.104.2006) Per L.C.Bhadoo. J By this appeal under Ssctit>n 374(2) oftheCriminal Procedure Code the accused/appellant has qi^estionedthe legality and correctnsss of the judgment of conviction and Bhandarpara. On 04.04.1997 wfe with Shri M.P.S. Bhatia, leamed P.L. UDQMEMT order af sentehce dated 28.05.1998 pa.ssed by iearned Additional Sessi<|)ns Judge, Baikuntpur, Sarguja in S.T. No. 177/97 wtiereby the learn.ed Ai(iditional Sessions Judge after holding the accused/appeliant guilty for cc|mmission of murder of Bharat Singh convicted him under Section 3021 undergo imprisonment forlife. 2, Case ofthe .prosecution, in of the iPC and sentenced him to" 1 brief, is that deceased Bharat Singh was residing with his wife, moth^r and children in village — Hathhar, of the deceased namely Shyam Bai [TT^^fe^ XI-HC-22 an^r'^T Rt-fi* 3D^T ?Nai"gf%g T5? •^l'HKr)''-!, 8)fll<-l*is, i»«rtl'yy.< ^G^:d.:./.l^.^s ti|t(WISbN|cn '"""""'' 311^1 ?®ITW^rf^T daugl|iter otf cif lodged a report in the Police Sti 03.04.1997 herhusband;wentforfis| went to the forest for collecting fishing in Hathbar pond. When sh| nobn, at thattimeshe also saw her for the house of her eider brother her house in the evening her (deceased Bharat Singh) came atj mea! has again left forfishing and not return in the night. On the next wentto coilect Mahuaand returned inform anything. Thereupon, wife the ppnd and sawthat dead body fieidofManilal. Therewere injuriesi body and blood had oozed out oj Station House Offlcer, P.S. - Patna Ex.P-1 andteft forthe scene of the Panchas, he prepared the Pari) deceased Bharat Singh. Duringl memoraodum Ex.P-6 and in blQodstalned wooden handte ofth^ bloodstained sl<y biye colour shirt axe. The same were takeh into po^; the person of accused were examf after examination ofthe injuries pr^ body of Bharat Singh Afuas sent for Health Centre, Baikuntpur under E} ^I^I^l^l^ ITPR^ ^ f^T^ <f^l-^H ^T srfwT sn^r Ition — Patna to the effect that on >|iing and she after preparing the meal, wt>od and saw that her husband was >^ was retuming at about 1.00 in the fiusband fishing and thereafter she left qhanwar Singh. When she retui-ned to Babi informed her that her father 'about 3.00 O'elock and after taking |ie also took avay the axe but he did day morning motherofthe deceased weepiBQ.and on enquiry she did not the deceased Shyam Bai went near her husband Bharat was lying in the ]on theneck, leg and otherparts ofthe )? the injuries. Receiying this report registered the First Information Report occ|urrence. Atter giving notice Ex.R-2 to it:hanama Ex.P-3 of the dead body of police custody the accused gave pursluance of that he got recovered the axe, onebioodstained pant and one from his house and the bloodstained jsession under Ex.P-7. The injuries on |ned by Dr A.K.Sharma (PW-11) whQ ipared the injuryreport Ex.P-13. The [tostmortemexamination to Community k.P-14 where Dr. R.N. Rajouriya (PW- [Tff^^r^^ r XI-HC-22 Sf7t?T^I 'f?;ira'3n^i stitfl^) •yti^ ~S!si "s|l<41c<'4, Oiil'a'is, (sK'll'My 1|t|WT Shtirai _c^c:..^..l..i sniw^^iwgft^ -3 16)conductedthepostmortem on prepared the postmortem report & handle of the axe were sent for se 16 and the doctor gave his opini( and ptain soii was taken into pos' Ex,P-19was prepared. The reci examination to Forensic Science Ex.P-21 .was received. Report P- After compietion of the investigati accused in the Court of Judicial M; turn committed ths case the SessK Additional Sessions Judge receive^ Ijhe body of deceased Bharat Singh and . P-15. The recoVered axe and wooden i^kirig opinion ofthe doctorunder Ex.P- |n under Ex.P-16-A, The bloodstained iession under Ex.P-17. The site plan (vered artictes were sent for ohsmicai Laboratory, Sagar from where report |22 was received from the Serologists. |;n 'charge sheet was filed against the igistrate First Class, Baikuntpur who in >ns Judge, Sarguja from where learoed the case on transferfortrial. 3. Prosecution in order to accused/appellant exafnined 18 wij: ofthe accused was recorded undet denied theprosecution evidence aj is innocent and has been falsel Additionai Sessions Judge afterh^aring parties, convicted and sentenced paragraph -1 oTthisjudgment. 4. We haveheard Shri R.K.Ja appearing fpr the accused/appeili with Shri M.P.S.Bhatia, tearned P.1 ^i^^i'T^i'H^ "^ 'fe^ <r;ii'(^[< i?3iNiT3ii^r estabtish the eharge a'gainst the nesses. On the other hand.statement Sectiori 313 ofthe Cr.P.C. in which he spearing against him and stated that he implicated in the erime. Learned learned counsel for the respective he accused/appeilant as mentioned (n n with Smt. Kiran Jain, learne'd counsel ant andShri U.N.S.Deo, leamed G.A. ..fortheState. Homicidal death of deceas^d BharatSingh is not in dispute. . .{«^^ XI-HC-22 sni^i^iT Ki-fi'* snt^i StiHI(^ ^^ 'S^.'^qPTRW, d'dl-y'lii, facll'My ww«fr%iira» ^J^^J.^./.!^ 6. As far as invoivement of th crime in question is concerned, case. ThewAole case ofthe prose and. the prosecution has tried ' accused/appellant on the following accused/appeilant in committing the therfe is no direct or ocuiarevjdence in this iution rests on circumstantial evidence t{) establish the charge against the liroumstanees; (i) (") anH houlse (IV) that the axe were recoverect that on the dat< by PW-10 goes to the that on the dat| wife of the acci Shanit Bai andl Manglu has'; hewas saying that the injuriej accused. 7. As per the settled law, in on cireumstantial evidence the prosec evidence satisfy the following tests: -1) thecircumstan guilt is sQught and firmly esta] <=hi<i[(?1'^ITi ^wv^ ^ f^3t <f^f^H ^T StPtTT SII^T the .wooden handie of the axe at the instance ofthe accused; of incident deceased was seen Ball^aran, going on the road which houlseofaccused; t^ ofincident PW-5 Subas6 Bai, tsed went to the house of PW-7 informed her that her husband 'snyched the axe from Bharat and (hathe woyld attack him; were found on the person of. lerto restthe conviction based on the rtion is required toestablish that such bes from which an inference of |tp be drawn, must be cogently ilished; [Trt^^fe^ T l-HC-22 aii^rq^ Ki-ii'* Sf^V stiHift •irTf^ ^ ^^"i<i'41ri''<, »fll'M<is, fawi'yy wR'ff wflra?^^::^J^^7& 3i^i??aiWH^T -) 2) 3) 4) those circumst tendeney uner^ accused; the circumstarices form a chain escape from human probabjlity the accused artd the circumstarttial the conviction of explanation of the guilt of| should not on| the accused bdt jnnocence. 8. Having heard learned coun the evidence available on record. Has h^s 9. Sofarasthefirstcircumsti concemed, PW-3 Shivhath Singh the accused gave information Ex.P|- 'A' and in which the accused h^! wooden handle of the axe in his the house Of his sister and he| pursuance of the said informatio|i possession under Ex.P-7. The 18) has stated that on 07.04.19qi ^l<<I^f''.ii'T ^i\^v\t ^ ^st i[v\^\{ ^sffigiran^r tances should be of a definite ijingly pointing towards guilt pfthe >, taken cumuiatively, shoulsi so complete that there is n6 Ithe conctusion that vwthin all the crime was commrtted by none else; and evidence in order to sustain imust be complete and incapable |of any ottier hypothesis than that Ithe accused and such evidence ^f be consistent with the guiit of should be inconsistent with his el.forthe parties, we have scrutinized ^nce reiied upon by the prosecution is stated that on enquiry bythe potice -6 which bears his signature from 'A' to stated thgt he had concealed the House and the axe had been hidden in could get the same recovered. In the above articies were taken int'o ntestigating Officer Navneet Patil (PW- the accused vras taken into police [Tft^tfe^ XI-HC-22 afl^r^T r<i,-fi'+ an^i Wrv'^ fril?fl ^E? •41<i|ld<i), e>Til'y'is, ['icii'yy .^OyA-13^9/?\ <n*<WT gi<T sn^t ?siiwafB?i 6 ^l^cil' ^ feA <ra|(ril< i? srfigT sn^r custody and on interrogation he gaife information that he has conceated the wooden handie ofthe axe in hi^ house,the iron part ofthe axe vias throtfW) near the Hathbar pond and tl(e clothes he was virearingat the time of incident, have been left for dfying after washing the same. In pursuance ofthe said information vfooden handle ofthe axe sriiich was stained with blood and on which hgir ofthe head were also stuck, one bloodstain&d sky blue colour shirt a^d the axe vrastaken into possession under Ex.P-7. Therefo're, in viewofftie above evidenceof PW-3 Shivnath Singh and PW-18 Navneet Patil, th^ Investigatjng Officer, recovery ofthe wooden handte of axe as well bs clothes of the accused stands establlshed. As per the report of found on the wooden handle-of th However,as perthe report of the'S|erologists blood on the axe, fult-pant and handte ofthe axe was disinte^rated, therefore origin coui.Id not be determined. |UIoreover,the axe ir| question was put for identification before'PW-1 Shyam Bai, wife of stated that the said axe does not be|tongto them. Therefore, the aecused cannot be connected with the crimel of the axe as the recovery itself be| based on this circumstance the establish the crime against the accu^ed/appeilant. !the F.S..L., Sagar, blopdstains were axe (F), axe (1) and full-pant (G). he deceased who has categorically. in question on the basis ofreeovery ;omes doubtful because the axe has not been identifled by wife of the ^ieceased andthe police has tried to create evidence but there is no e<ii|idence to show that blood found ori these articjes was ofthe'bkiodgrot|pofthedeceased andthese articles are common articles which are a|vailable in every house. Therefore, prosecution has not been able to [TT^ ^Ft^ XI-HC-22 ani^r'^i h-v't 3n^v ^^iqi -Mficf 's^ •^wwi, 'w^wie, hv^wy. wwff sniicR^:^:3mi^ SIT^I yCTW-'(lf??T •9- circurristance incjdent aftelr alfsng Howfever 10. As far as the second has stated that on the date of incjc Bihari who asked him to go fo|i accompany Krishna Bihari and pond to attend the call of nature enquired from Jheemal about the he has not seen his buffalos and ai and axe. it was the evening time.j which goes towards the house of about the death of Bharat. examination he has stated that he| bamboo but he could not say thereafter, Thus, the fact that the which goes to the house of the crime in question because iri seen Bharat going to the house o|l he saw the deceased on thel circumstance it cannot be held tha|t to the house ofaccused. ,ln vie[ circumstance the accused cannoft Bharat Singh. accus^d tie circumstance 11. As far as the third. has stated that onthe date of incic her house and stated that Manglu he veas preparing to attack Bharat On the next day she eame to ki 1-lowever. merelvon the evidence chl^Ici41rl ^[^CTI^ f€t<il <i^i^$l< ^TsipgtTsn^i is concerned, PW-10 Balkaran he went to the house of Krishna fishing. However, he refused to some time he was going towards the with Jheemal. Atthat time Bharat IjiUffatos, on which Jheemal replied that |that time Bharat was carrying bamboo Thereafter, Bharat went on the way l|4anglu and next day hecame to know ', in paragraph — 4 ofthe cross- sawthat Bharat was comingcarrying |as to which side Bharat had gone Ideceased was seen going on the road I, does not connect the accused with first instance this .witness had not aecused. Moreover, even thereafter pond, therefore, from the above this wjtness saw the deceased going •IKV of theabove, on the basis of this 3|t be held gui!ty of causing death of is concerned, PW-7 Shanti Bai incicjent in the evening Subaso Bai came to Ihas snatchedthe axefrom Bharatand andthereafter SubasOleft her house. iow that Bharat has been murdered. lofthis witness the accused cannot be [Tft^ ^Rsi^ XI-HC-22 7"T'^ITqRFT, aTil'y'ie, fadl'My STf^f^I h-iM sn^i as+li<=h «f^T _C^,A:../1?CS/^' „» HIXCTI g,t;]cj,'—-—•••—••—•—•••—••—••'g^- -aee— connected with the murder of dece^sed for the reasons that in the first instance Subaso Bai who has Ueen examined as PW-5, has not supported the prosecution case and evidence to the extent that anybody] accused and moreover, based on • handle of the axe the prosecutior| accused with the crime in questioit ^i^^i ^iH^' ^ fiTst -(.raf^K i73if;g*T3n^r she has categorically denied that she went to the house of Shanti Bai anijl informed thatlWanglti has snatched the axe from Bharat and he was ^reparing to attack him. There is no sawthe deceased in the house ofthe he recovery of the axe and wooden •has not been abie to connect the . The evidence of PW-7 Shanti Bai does not find corroboration from o the ground ofthis vireak evidence tf the erime in question. (her evidence. Therefore, merely on le accused canhot be connected with 12. So far as the fourth evidence of Dr. A.K.Sharma (PW-' Manglu on 05.04.1997 and found on left harrd, one abrasion on the rj on the back of the accused. He aU on the knee oftheleft tegand the| opined that these injuries could .Therefore, in the absence ofany o( evidence to the- extent that the ac| injuriesat thetime of struggle with injuries present on the person crime in question. circUmstance 13. In view ofthe foregojng rea^< that the prosecution has not beensfb is conoerned, as per the |1) he examined the body of accused thlat there uas one bruise and abrasion jght knee andthere were two bruises Wo nQticed that there was an abrasion injuries were two days' old. He has be sustained by faliing from tree. (her evidence corroborating the above ;|cused fflight have sustained the said |the deceased, merely on the basis of acctlsed he cannot be connected with the ons, we areofthe conskteredopinipn ie to establish the invoivement ofthe [^^ ^Rsi^ XI-HC-22 ~s t '<iiwtt, 'g^itwis, 'F siit?r'^ h-u'fi sn^i ^raNT^ri^TT .•U<^IA •^40v.^! "t^ ^f^' -^ • -/^ M 2W- ail^i •^gTw^ifta a accused in the crime in question on| pressed into service by it and the Moreover.the circumstances reiied] stood to the test laid down by the| where conviction rests upon the finding ofthetrial Court convictingthj' under Se'ction 302 ofthe IPC cannotl Conviction and sentence imposed] Section 302 ofthe IPCareset asidd chf^^ift'T 'RFRTf ^ 'fer^t <pit<-dl< ^3if=tpT3ii^r Ithe basis of eircumstantial evidence Isame are not conch4sh/e in riature. upon.by the prosecution have not Hon'ble Apex Court in the matters ciifcumstantial evldence, therefore, the <e accused for commissiop ofoffence be sustained. 14. In the result, the appeai sficceeds and the same is allowed. upon the accused/appellant under . The accysed/appellant is acquitted ofthe charge under Section 302 oftfie IPC and he is directed to be set at liberty forthviflth if not required in any| "idf:": ~ L.C.BHADOO Judge other case. Sd/- ! DHIRENDRA MISHRA Judge [TT^'^f^