(\ HI6H COURT OF CHHATTIS6ARH AT BILASPUR Criminal ApDeal No.843/2004 APPELLANT Arjun Kam s/o Lutan ftam, aged 24 years, R/o Gram Bagadi, Thcuia oyid Tehsil, Rajpur, District Sarguja {C6) VERSUS ^ RESPONDENT State of Chhattis9arh, through Police Station, Rajpur, District SargujaCC^) Appearance: Shri Abhay Tiwari, coun^l for the appellant. Shri Ashish Shukla, 6overnment Advocate for the State. Division Bench:- Hon'ble Shri T.P. Sharma & Hon'ble Shri R.L.Jhariwar.JJ ORALJUD6MENT (16.9.2010) Per T.P.Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 25.09.2004, passed by the 4th Additional Sessions Judge (FTC), Ambikapur (CG) in Sessions Trial No.93/2004, whereby and whereunder, the learned 4th Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Budho Bai and Congress, convicted the appellant under ^ction 302 of the IPCand sentenced p- ^ in ^ to undergo imprisonment for life and to poy a fine of Rs.1000/-. in default of payment of fine to further undergo RJ, for 6 months. 2. The conviction is impugned on the ground that without any iota of evidence, the learned Additional Sessions Judge has convicted ond sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on fateful night of 18-06.2003, at about 11.30 p.m., present appellant caused homicidal dealti of Budho Bai and Congress by stick ond Behanga in the storehouse of 6irja Shankar Pandey, situated near the house of Dhaneshwar 0:>W-1). After hearing the sound of beating, Dhcmeshwar (PW-1) came out from his house, at that time, the appellant was coming from the place of incident. On being asked, he caught hold 1+ie neck of Dhaneshwar (PW-1) and dragged him towards forest and when he shouted, the appellant ron away tbwards forest. Thereafter, Dhaneshwar 0?W-1) went on the spot and saw -rfiat dead bodies of Budho Bai and Congress werelying there, Slippers and cycle of the appellant were also found near the place of incjdent. Then he went to the house of ^irja Shankar Pandey along with Dukhan and narrated the incident to him< Girja Shankar Pandey and some other personsof the village went to the place of incident <xnd saw tiie dead bodies of Budho Bai and Congress lying there. Thepeafter. Dhaneshwar lodged FER vide Ex. P/l at about 4.00 am. Merg intimation was recorded vide Ex- P/3 and Ex. P/4, After summoning witness, inquest over the dead bodies of Budho Bai and Congress was prepared vide Ex. P/7 and Ex, P/8. Dead body of Congress was sent "^^s-- for autopsy to Government Hospital Rajpur, vide Ex. P/17, where autopsy was conducted by Dr. Rajendra Bansariya 0:>W-10) vide Ex. P/15 and found following injuries : i. One lacerated wound of 12 x 3 x 4 cm over left part of the head. ii. Bone lying under the injury was found fractured. iii, There was excessive bleeding. iv. Brain matter was comingout. v. One lacerated wound of 4 x 2 cm over left ear. vi. Bone under the ear was found fractured. vii. Fracture of radius and ulna bone of left hand, Mode of death was syncope ouid death w<xs homicidal in nature. Dead body of Budho Bai was sent for autopsy vide Ex. P/18. Dr. Rajendra Bansariya (PW-10) conducted autopsy vide Ex. P/16 and found following inujuries : i. Lacerated wound of 5 x 2 cm over left parietal area. Parietal bone was found fractured. ii. Lacerated wound over left eye brow pf 3 x 2 cm iii, Laceration over left side of the face. iv- Blood was coming out from mouth and nose. v. Bruise of 6 x 3cm found over rightside in chest. Mode of death was syncope and death was homicidal in nature. Spot map wasprepared vide Ex. P/2. Plain soil/blood stained soil and broken pieces of bangtes were recovered from the spot vide Ex. P/ll, Ex. P/12 and Ex.P/13. One pairof slipper and one Atlas Cycle was seized from the spot vide Ex- P/14. Sealed clothes of the deceased were seized. Patwari prepared spot map. Pieces of 'r'- Behanga were examined by br. Rajendra Bansariya (PW-10) vide Ex. P/17. Statements of the witnesses were recorded under Section 161 of the Code of Crimjnal Procedure, 1973 (in short the Code). 4, After completion of investi9ation, charge sheet was filed before the J.M.F.C. Ambikapur, who in turn, commitfred the case to the Court of Sessions, AmbSkapur, from where, the learned Additional Sessions Judge received the case on trcxnsfer for trial, 5, In order to prove the guiit of the accused/appellant, prosecution has examined as many as 14 witnesses. Accused/appellant was examined under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6, After affording opportunity of hearing to the parties, learned 4th Additional Sessions Judge has convicted and sentenced the appellant as aforementioned, 7. We have heard Shn Abhdy Tiwari, learned counsel for the appellant and Shri Ashish Shukla, learned ^overnment Advocate for the State, judgment impugned ond record of the Coyrt below perused. 8. Learned counsel for the appellant vehemently argued that this is a case of double murder, but only on the ground of double murder, liability could not be fastened on Ihe appellant without any clinching and credible evidence. In the present aise, convictjon is not bafied on 1+ie evidence of eye wjtness, it is based on the circumstfluitial /'./ evidence of Dhaneshwar (PW-1)/ which does not inspire confidence and trustworthy. Slippers and cycle was found near the place of incident, but it has not been sent for identification by the Investigating Agency that who was the owner of 1+ie cycle and in whose possession it w<xs, Suspicion, however grave, ccinnot take place of legal evidence. In thepresent case, prosecution has not adduced ony evidence to connect the appellant in the commission of aforesaid offence, 9. On the other hand, learned counsel for the Stdte opposed the arguments and submitt'ed that the evidence adduced on behalf of the prosecution is sufficient for drawing an inference that the appellant is the only person who has committed the afore^xid offence. He has caught hold of Dhaneshwar (PW-1) when he o^ked the appellant that what happened. This fact is relevomt fact and sufficient for drawing an inference that only the dppellant, who was presertt at the place of incident at 11,30 pm at night has committed the offence. 10. In order to appreciate arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11, In the present case, homicidal death as a result of fatal injury found over the bodies of the deceased- Budho Bai and Congress has not been substantially disputed on behalf of the appellant, on the other hand, it is established by the evidence of Dr, -—._^.^; ,: A X ,li: € 1 'l^ \^: ^2W&^* Rajendra Bansariya (PW-10) and autopsy reports Ex. P/15 and Ex.l6 anddeath of Budho Bai and Congress was homicidal in nature. 12. As regards compticity of the appellant in crime in question is concerned, the conviction is based on the following circumstontial evidence'. i. Dhouieshwar (PW-1), heard the sound of assaulting/beating at 11.30 pm, when he was present in the house and was sleeping. ii. He went to the store house of ©irjaShankar Pandey and saw the appellant there. iii. The appellant was coming out from the place of incident. iv. On being asked, the appellant caught hold the neck of Dhaneshwar (PW-1) and dragged him. v. When bhaneshw<ir (PW-1) shouted, the appellant left him and ran away towards forest, vi. A pair of slipper ouid cycle belonging to 1+ie appellant was found on the place of incident. vii. The appellant has not offered any explanation that why he was present near the place of incidentand why he has tefthis slipper and cycte near the place of incident. 13. In the present case, Dhaneshwar (PW-1) was sleeping in his house, which is near the store house of Girja Shankar Pandey. He heard the sound of beating 'dhay dha^. on whi<;h, he woke up and went towards thestore house of Grija ShGmkar Pamdey from where the sound was coming . While he was 9oing towards the place of incident, at that time, appellant was coming from place of incident. When he asked what happened, the appellant caught hold of him and \-.^ ^c,. pressed his neck and when he shouted, the appellant ran awcy towards forest. Then he went towards the Store house of Girja Shankar Pandey, where he saw the injured dead bodies of Congress and Budho Bai. Budhp Bai was wife of Girja Shankar Pandey and Congress was his servant. He has deposed that slippers and cycle of the dppellant was lying near the place of incident. He went to the house of <5irja Shankar Poindey alon9 with Dukhan (PW-6). Dukhan (PW-6) has substantially corroborated the evidence pf bhaneshwar (PW-1) ond has deposed that Dhaneshwar come to his house <xnd informed him about the incident. Then he and Dhoneshwar went to the house of ^irja Shankar Pandey and narrated the incident to him, One (5eda and Behanga was lying near the place of incident. Broken pieces were also found near the place of incident, One stick and slipper were found near the place of incident. ©irjaShankar Pandey (PW-5) has substantially corroborated the evidence of Dhoyieshwar (PW-1)< As per evidence of Bituram (PW-4) son of Dhaneshwar (PW-t) his fa1+ier has seen the inddent and directed him npt to go towards the placie of incident. As per his evidence deceased Congress was his son and he also knew Budho Bai. Evidence of binesh (PW-7) son this witness, Bituram (PW-4) also shows -riiat deceased Congress was son of Bituram and his evidence substantiatly supported the evidence of Dhaneshwar (PW-1). In para 4 of his cross examination, he has admitted that the slippers found near the place of incident were identical to the slippeirs of his grand father bh<xneshwar (PW-1). r-' :^f 14. In the present case, conviction is substantially based on the circumstantial evidence of Dhaneshwar (PW-1). He is a mam, aged abut 60 years. who heard the sound of beating at about 11.30 pm in the night, on which, he came out from his house and saw that the appellant was staaiding at the place of incident. When he was going towards the place of incident, the appelbnt caught hold of his neck. No other person has seen the incident. As per evidence of this witness, slippers and cycle of this appellant was found near the place of incident, which were seized by the Investigating Officer, but same were not sent for identification to connect theappellomt in crime in question. bhaneshwar (PW-1) has specifically deposed that Gongress wois servantof Girja Shcmkar Pandey, But as per evidence of Bituram (PW-4), Congress was his son and grand son of Dhaneshwar (PW-1). Congress was residingwith Budho Bai in the house of Prem Shomkar Pandey. This witness has not explained as tQ why his grand son was residing with Budho Bai in the house of Prem Shankar Pandey. The reason is best known to him. Dhoineshwar (PW-1) has concealed 1+ie relqtionship of Congress wi1h Budho Bai. He is aged about60 years. His eye sightwas weak. He has not shown spedfic ground for slippers and eycle belonging to the appellant. He has heard the sound of beating at a distance of more than 15 meters. The dead bodies of both the deceased persons were not lying in one place. The dead bodies were lying at a reasonable distance. Cycle and slippers found near the place of incident were best piece of eyidence. It were not placed for identification, which was the best piece of evidence available to the prosecution to connect -ttie oppellant in crime in question. who was ^ the owner of slippers and cycle. But, prosecution has not placed the same for identification. 15. In these circumstoinces, on the basis of evidence of Dhaneshwar (PW-1), which does not inspire confldence and trustworthy to rely, it is not sufficient for drawin9 a definite conclusion that only the appellant, was the person, who has commitl'ed 1iie offence. There is much difference between lmay be proved' and lmust be proved'. Suspicion, however grave, cannot take place of legal evidence. Prosecution is required to prove its case beyond reasonable doubt, In case of circumstantial evidence, prosecution is required to prove the chain of circumstances but, in the present case, prosecution has not proved the chain of circumstances to connect the appellant in crime in question. The circumstantial evidence adduced on behalf of the prosecution is not sufficient for drawing conclusion that except the appellant, no other person has committ'ed the offence. While convicting and sentencing the appellant, Court below has not consider&d theaforesaid aqaect of the case and thereby committed illegatity. Therefore, conviction of 1+ie appellant is not sustainable under the law. 16, For the foregoing reasons, we are of the considered view lliat conviction and sentence of the appellant is not sustdnable under the law. Consequently, the appeal is allowed. Conviction and sentence of the appellant is hereby set aside. The oppellant is acquifted of the charge under Section 302 of the IPC. He be set at liberly forthwith/if not required in any other case, Sd/- pm^) Sd/- T.P.Sharma Judge R.L. Jhanwar Judge