t.-S*?* MIGHODURTQFGI-tl-fST-IIISGftRI-I.BII-ASF'UR "~~r?-sm CORAM: Mon'bl&Stlri Raieew^GuDta.^G.J. & Hon'ISIeShriSuniKKuniarSinha.J. CriminalADDealNo; 168 of 1991 MOhan alias Hagra Sahu -:.:Vs.'i : : , •Sta|g|of^||$liy|;;lii;a|lesft^ (N6\|liS81BSi-iaSi%a1rh) JUDGMENT ForGonsideratJon sa/- SunUKumarSinha Judge HON'BI-ESHRIJUSTlCERAJEEVGUS'TA 3 ^- sd/- C'blefJustice ^-'~1': l3ostf6rJ!.idgment:l^f^8@(yi^ Sd/- Sunil Kumar Sinha Judge -:':?ti»>> ".ili "^ '^ ^' •^ ^ ,s^' ^^ <^ !&-%-/b HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kymar Sinha, J. APPELLANT RESPONDENT Crirmnal Appeal No. 168 of 1991 Mohan alias Hagra Sahu, S/o Nohar Sahu, Aged 35 years, R/o Village Dongrigarh, P.S. Lormi, District Bilaspur (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhaftisgarh) Through P.S. Lormi, District Bilaspur (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure, 1973) Appearance: Mrs. Savita Tiwari, Advocate for the appellant. Mr. J.A. Lohani, Panel Lawyerforthe State. JUDGMENT (18.08.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant-Mohan @ Hagra has beenconvicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Third Additional Sessions Judge, Bilaspur in Sessions Trial No. 15/89 on 14 of September, 1990. (2) The facts,;briefly stated, are as under:- f Deceased-Janaiya Bai was the wife of complainant-Bhagat Ram (PW-1). She was missing sirpxie the evening of 14.11.88. A missing report was lodged by h 17.11.88. Thepolice party came ^r husband, Bhagat Ram, on (o the village in the evening of 18.11.88. By that time the deacjl body of the deceasdd was searched by the villagers. It was foijjnd in bushes near a nate in the Criminal Apueal No. 168 of 1991 ^ .:'" outer area of the village. Since it was late evening, no investigation could be conducted on 18.11.88. On 19.11.88, the Investigating Officer gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. Since there were many injuries on the body, a dehatinalishi Ex.-P/5-A was also recorded. The dead body was sent for its post-mortem examination to Primary Health Cenlre, Lormi, where the post-mortem was conducted by Dr. A.K. Jaiswal (PW-9). He prepared his report Ex.- P/11. The body was in highly decomposed condition, therefore, no external injuries could be detected. However, in internal examination, internal injuries were found in neck portion. There were fractures in rings oftrachea and there was fracture in hyoid bone. Tongue has protruded outof mouth. On all these symptoms, the AutopsySurgeon opined that the cause of death was asphyxia due to strangulation and death was homicidal in nature. In further investigation, a memorandum statement (Ex.-P/17) ofthe appellant u/s 27 of the Evidence Act was recorded on 19.11.88 and a kamardhani (an ornament of waist) of the deceased was seized at the instance of the appellant from a nearby field underseizure memo Ex.-P/18. By another seizure memo Ex.-P/19, baniyan, half- paint and a tangia were seized from the possession of the appellant. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.-P/26 was received. According to the F.S.L. report, blood stains were found on tangia, baniyan & half-paint seized from the possession of the appellant. The blood stains found on tangia were not sufficient for Serologist examination, therefore, tangia was not .sent for further examination. Other articles were sent for Serologist examinatton and a report Ex.-P/27 was received. According to the Serologist report, the blood stainsi on baniyan and half-paint were disintegrated and their origin c^Qyld not be determined. The kamardhani tagged with two keys ^as put for identification and was duly identified by the .daughter anfl husband of the deceased. The Identffication memo is Ex.-P/2. Th^identification was conducted by .A. Tirki, Executive Magistrate (PW-j 10). Criminal Appeal No. 168 of 1991 Appellant Mohan is the brother (cousin) of complainant- Bhagat Ram (PW-1). The case of the prosecution was that the deceased had developed illicit relations with the appellant. When it came in the knowledge of wife of the appellant, a Panchayat was convened and they were suitably directed. After that the appellant and the deceased & her husband were not in talking terms ^pd for all this, the appellarit committed murder of the deceased on 14.11.88 when he found her all alonein the field, and thereafter her dead body was thrown in the bushes near nala. (3) Admittedly, therewas no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the Sessions Judge relied on,and convicted and sentenced the appellant as aforementioned:- (i) On account of previous incident and Panchayat etc, the relations b.etween the appellant and the deceased & her husband were not cordial; (ii) In the evening of 14.11.88 Kashiram (PW-2) saw the appellant going fowards his field with a tangia in his hands & (iii) The appellant gave memorandum statement (Ex.-P/17) to the Investigating Officer on 19.11.88 and a kamardhani tagged with keys ofthe deceased was seized at the instance of the appellant from a nearby field and those articles were duly identified by the daughter and husband of the deceased. (4) Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. She argued that1h6 memorandum statement (Ex-P/17) is highlysuspicious; it does not bear the signature'of the apRellant; therefore, the learned Ses&ions Judge erred in believing ori the memorandum statement, " ,^'<- all.egedly given by the appellant. If the m^morandum statement is| .V \-.^;^ held to ^ fc8 Criminal Appeal No. 168 of 1991 be suspicious, the recovery and identification etc. would become meaningless. (5) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment pass'ed by the Sessions Judge. (6) We have heard the learned counsel for the parties at length and have also perused the recordsofthe sessions case. (7) In Dhananioy Chhatteriee -Vs-State of W.B. (1994)2 SCC 22 the Supreme Court held "In a case based on circumstantial evidence, the circumstances from which the conclusioniof guilt is to be drawn have not only to be fully established but also that all the circumstances so establishedshould beofa conclusive nature and consistent onlywith the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of eonviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." , /' ^ . ' • ! ' . (8) In Bodh Rai alias Bodha and othiefs -vs- State ofJammuand Kashmir. AIR 2002 SC 3164, the Supreme Court laid down that there is no cfoubt thatconviction can be based sofely on circumstantial evfdence Criminal Auceal No. 168 of 1991 ^r but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; 2) the factsso established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved;and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with Ithe innocence of the accused and must showi that in all human probability the act must have been done by the accused. (9) Almost similar view was taken by the Supreme Court in Sfate of Goa -Vs- Saniav Thakran & anr.. 2007 (4) SBR 321 by taking note of the decision of Bodh Raj (supra). (10) So far as circumstance of seeing the appellant going towards his field in theevening of 14.11.88 is concerned.it cannot be said to be incriminating. It comes in the evidence that the fields ofthe appellant and the deceased were situated wi the same locality and were adjacent to each'other. If the appellant was seen going towards his field with tangig in his hands, {hat would hardly conneet him with crime in question. Normally every villager holds ajangia orj and.nothing can be attributed to the appe| even ifwe accept the evidence of Kashir£|m(PW-2), that would hardly be jncriTninating against the appellant. danda while going to the field lant on this account. Therefore, Criminal Auoeal No. 168 of 1991 C-: (11) As far as memorandum statement (Ex.-P/17) of the appellant is concerned, we find that it does not bear either signature or thumb impression of the appellant. In Jackaran Sinah -Vs- State of Puniab. AIR 1995 SC 2345, disclosure statement did not bear the signature or the thumb impression of the accused. The Supreme Court held that "The absence of signatures or the thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement". As stated above, in the present casealso there is no signature or thumb impression of the appellant in the discovery memo (Ex.-P/17). The Investigating Officer, ASI- Chotelal Pandey (PW-13), simply deposed that on 19.11.88, he called the appellant and took him into custody and recorded his discovery statement (Ex.-P/17) who made disclosure about the said ornament and the articles ultimately seized from his possessions. Another witness of discovery statement is Mathura Das (PW-11). He was the village Sarpanch. He also deposed that the appellant made discovery statement before Investigating Officer which was recorded by him, which bears the signature of PW-1 1. We find that there arethumb impression of the appellant on the seizure memos of kamardhani and his cloths. If his thumb impressions were taken on these docurnents, why his thumb impression was not taken on the discovery memo, which vyas the root of the tnvestigation. This creates a doubt on the . authenticity of the discQ.very menjio. We further note that the kamardhaniwas not made of silver. It wa^ rh-ade of a common metal alloy called as dalda which was not a valuab takesuch ^rticle which was not at all vali^able. This also creates a doubt ^ ^nyaff !33@^s^^^%^'l^s^^^Esr e ari:icle. Why a person would Criminal Apueal No. 168 of 1991 Ivatti that, in fact, the appellant took the said article with him and hide it in nearby field. For the foregoing reasons, we do not rely on the evidence of discovery memo (Ex.-P/17). (12) Apart from the above, since no human blood were found on the articles seized from the possession of the appellant, they were also not incriminating against him. (13) On due appreciation of the entire evidenceled by the prosecution, in our considered view, the main circumstance of discovery memo given by the appellant was not established beyond all reasonable doubts, and the facts established were not consistent only with hypothesis of the guilt ofthe appellant. The other circumstancesestablished were explainable. The main circumstance of recovery at Ihe instance of the appellant was doubtful and it is not a case in iwhich the other circumstances established, exclude every possible hypothesis except the one to be proved by the prosecution beyond all reasonable doubts. The conviction ofthe appellant, therefore, cannot be sustained. (14) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. He is acquitted ofthe charges framed against him. The appellant was taken into custody on 20.11.88. He was throughout in jail till December 1995 as he was directed to^ b^ released on bail on 21.12.95. Presently he is on bail. His bail bonds arecancelled and-surety staijids discharged. -V Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge