mm / '2‘ 1 C.J.P.i. 5eoog . 1 , \V, '79 Fath6r’s name _‘m w-&...._.....__.:_. . > Residence§312:§;3£§?;if§ Court wili not procec he Wishes i0 be repress d With the base for sev not ‘ ppears be heard eithar. at all If If the the l6gai prisoner practitioner states that does he not does appear not wish with to ‘ if egal .. may practitioner proceed at who once should wish amicar. the ease and med Qe a legar in seven days he may/ en days unless be represented b I Wil not be obliged to give a hearing to any 1 Date of App] ication for copy ‘ - of Judgement%¢€§m‘i§§bEEEW g »§ F |q ‘V‘h K E a § 5’!” r5 i § ....t § y ‘‘ - " ‘ Date of which COpy received 1"; ‘ f0~8 z V v__‘ N0. iggglfg . \Ex‘w . Name W‘ig ‘k m. a r Emxwwmmw Continuedrmw k ‘o r§mr Jail N ,7 .V..V5;? ME Em 3’ W f. LLForwaroed No-3UJ/$Z29Lm to the «Mr datedwk _y _ (Li-mt I QEET‘EQ) _‘i‘ 19 ‘ -‘ c_.r._-a“_r__; K to gather which a trensemission to the Date on which Ahpeal sent copy of judgement or proper. Appellate Court, Superintendent %T haw? §W WW? ar‘ltll% { ; ‘ »’ Date of recept Appeal of of record the uty Appeliate Commissioner’s to accompany Court. Oh‘ice i l \hwmM‘ * »~__ a ‘ ‘1 / rower». )x m ’ \ %—M” NO‘ Forwa/rtled. @ fin ww’fg: gowiWEg to the @i%z;L;e(37‘i- —‘~ g_.‘___ ~71 diggi da ed V__?g&“\ Qfa§4® ’ { , 19y * f %/ ag M r ommissioner w; , e l“ r §_ .é aq 2} 3 7 " i t p i m HIGHW COUT OF CHHATTISGARH AT BILA$?UR CnAgggal No.11051 1939 Samm‘u —Versus- State of Chhattisgarh JUDGMENT FOR CONSIDERATION Hem’ie Shr‘i Justice L.C.Bhadoo b EC. BHA‘Doo Judge " R // R EIGH CQURT QF CHEATTIsGARii AT RELAS?UR CLAEEeal No. 1 105i 1989 Samaru —Versus~ StatE of Chhattisgarh COmM: HGN’BLEE SHRI L.C.BH3D00 \_ H$N’ELE SHRI DILFP RAOSAHEB bESEEMUKH JJ Shri Rakéaah Jain. and Smt. Khan appéilallt. ‘ State by Shri UN. Laiwm‘. Jain, Advocat€S for tha S‘Deo, GA. with. Qhn Akhil MiShra, Panel JUEGMEET M Elier Eiim R. Eeghmakhz Jg The appeiiant has assailed ms arid 404 LRC. by the impugnaijudgment which was dalivemd by Shri R.K.Shaxma in S€ssions Trial No.27f89 on 2G.09. 1989u The appellant has baa]; sentenced to undergo imprisonment for iife milder Section 302 IPC mid rigorous imprisonment for one year under Section 404 I.P.C, 2. It is not disputed that Godirain P.W.4 is the son of deceased Rupotiu Bai aged about 60 years. 3. Briefly stated the prosecution story is that Rupotii'i Bai and the appeilant used to indulge in seiling iliicit country 1iquor in However, some time before the occurrence, Rupotin Bai is alleged to have discontinued this illegal activity cf sellingvcountiy liquor. On 5.9.1988 at about 4.00 PJVL accused l‘ ant went to the house of Rupotin Bai and asked her to accompany him for bringing iiquor from conviction under Section 302 e small quantity. appell h Village Pinia. Godiram ——JH @ -2- RW.4 ilEard this canversaii‘on and saw Rupotin Bai having with the accused appeilant alongwitha plastic containar Qfabout 3 t0 4 Hires. Laknath P.W.5 who said the micit liquor to Rupetiu Bai and i116 ap“pella11t Saw Rupatin Bai emd thé appeiiant toga/thy at hiS balms m the. availing before the occummlce. Jathu P.W.‘2 who W33 wcrkii’lg in his; Badi alSo Saw “the appeilemi aild Rupa‘tin Bai togeihm“ when rim aimellémt stoppai at abOut 5.00 i0 5.30 PM. 1'11 his Badi f0; a smoke. This was fhé last when Rupotiu Bai was saen with the appallamt. In the night, Hiralal P.W.6 who was inside his house hemd the shouts of the appellant who was demeulciing beedi for smoking. Idemi’fying his voice he did not come out and asked the appellant to leave since at that late hour Bidi would not be available. 4. Rupotin Bai clid 11m return to her house. Godiram PW»? wem to the house of appellaut—$amaru at night ami was told by the mother of me appellant that Samalu and Rupotin hacl not retunled from Pirda. Next day, the mofher of the appellant came 1’o his house and asked him to fmd out the whereabouts of Sammu and Rupotin Bai. 6.9. 1988. He informed the Kotwar. Marg intimation was given by Phauii‘am which sparked the investigation. Meanwhile, Godirain mother Rupotin Bai. Dr.Narendra Prasacl Mishra P.W.9 who conducted the post—mortem examination on 7.9. 1988 011 the body of Rupotin Bai fouml that the body was swollen and was in early @ -3“ stage of putrsfaction. Eyes were oadsma’tous aild protruded. Gamma was hazy and congestad. The pupils were dilated and the tongue waS pl‘otrudecl and bitten in between the teeth. Biistel‘S were present all over the body. Skin was peeled Off over leg and abc‘Lomen. He found a bruise over the area of occipital scalp 8116i left parotid region measuring 3" x 1". On internal examination, it was found that membrane, brain, spinal cord and pleura were congested. Larynx and traehea were congested and contained frothy mucus. Right and left lungs were also congested. On exposing the skin of neck a bruise in front of neck measuring 1/2” X 1/4” on the left side of the neck was found. Dr. Mishra P.W.9 opined that duration of the death was within 34 to 36 hours before the autopsy. The injuries were ante mortem and death was due to asphyxia as a result of throttling. Nature of death and mode was homicidal. On 8.9.88 Dr. Mishra P.W.9 also exainined the accused appellant and found the following injuries: 1) There was scratching abrasion 1/2” below the left knee joint in anterior surface measurmg 2" X 1" x 1,1 10 om. The injury was irregular in shape and its door was healed. 2) There was abrasion i/g” below the injury No.1 measuring l” X 1/2” X 11 10” om. which was irregular in shape and the floor was healed. 3) There was scrotal swelling of right side measuring 6" X 3” X 3" in size which was indicative of hydrocoele of right side which was of duration of atleast one year. 4) There was no smegma present over the penis, which meant he had intercoursed or washed the smegma during bathing within 8 days. a 5) No foreign hair was found around the pubic region. 7. investigating Ohicer S.S.Parihar RW. 15 recovered and seized a 1km of green plastic chappais belonging to the deceased from the Darn‘ Temk Vida EX..7. Hsad‘ constabk Kaleshraln Bhardwaj P P.W.13 apprahended the accusad and record€d his memorandum EX.P.3. At the instance 0f The accused—appeiiant, one lathi, one dark open Shir; containing blooci like stains, Rs.15/ — in cash ami om: green coloured plastic container were seized from the house of 11m appellant. One underwear, one red lungi and one green iungi were also seized finm the body of the appellant Vide EX.P.5. One empty black coloured plastic container of 5 litres was seized from the appellant Vide EX.P.6. 8. P.S.Paraste, Naib Tahsildar P.W.10 held the iest idenlification of one pair of plastic chappal and two plastic containers. Godiram P,W.4 idenh'fled the plastic container, having been in use in the house vide EX.P.13. On completion of hivestigation, the accused appellant was prosecuted for oiienees under $ections 302, 376, 201 and 404 LRC‘. Upon committal of the case by the Additional Chief Judicial Magistrate, the learned Sessions Judge named charges under Section 302, 404- and 201 LRC. against the accused Who abjured his guilt. 9. Prosecution exainined the above mentioned Witnesses. The learned Sessions Judge convicted the appeilant for offence under $ections 302 and 404 LRC. on the basis of the following established links in the chain of circumstantial evidence: a) evidence of Godiram P.W.4, Loknath ?.W.5 ‘and Jet‘uu P.W.2 that the appellant was last seen with Rupotin Bai n the evening before the occurrence. s b) the recovery of plastic container of Rupotjn Bai, one lathi, Rs. 15! - and one shirt at the instance of the accused. / 7/ c. Y, c) the tssfimony of Dr. Narandra Prasad Mishra RW. 10 and 130$t—m01‘tem examination 1‘6port EXP. 10 whaeby homicidai death of Rupotin Bai due to throtiiing was establisheci. Ci) the fact that no Explanation was offamd by H16 accused regarding his whereabouts aftar having basn 1213i SEen with Rupot‘ir; Ba1 1‘11 m6 aveiling befom fhE Oucurreace L} 1dm1LLm‘qt10n of me plasuC contamer 1ecove1€€i at Lhc Instance of thc aCLused by Godiram P.W.4. f] r€coveiy of lathi at thE. instance of the aecusad vicie ’EXPA and 110 €Xp1a11aiion having 'beEn 0§6red 13y the. accuSed in this regard. 10. Learned counsel for the anpeilemi mainlV contended ihat the ewdence 1e1ahng $0 the tippellant havulg been iast seen Wlth Rupmm; 3m was 110i rehabie It was also not established by the prosecution‘ that the container aileged to have been Seized at Lhe met'mee of the accused appellaht belonged to the detecised Smce the time. elapsed aiter the appellant was alieged to have been. last seen with the deceased and the recovely of the dead bodv was more than 12 hours, the. evidence of last seen was a very weak on cumstantial evidence was established it was further contended that no motive has been established by the piosecutton for the appellant to commit murder of Rupctm Bat ll. beyond doubt that it was th€ appdlant alcme who had commit'tsd thE murc'ier of Rupmin Bai. i2, WE. have callSiderEd i116 rivai contentions a11d have aiso paused "tha raccrd minutely. Th6 law mlaiing to appreciation‘of evidénce 1'11 a case mStiIlg upon circumstantial evid€nce is now well settled. Circumstamtiai avidmlce should always bE consistent wi tht: hypwihesis of the guilt of the accused ailii inconsistant with the immcsnce. Tim chain of circumstzmcas furnishsd by the prosecution should be so complete as not to leave any reasoziable gromld for the conclusion consistent with the hulocence of the accusecL Each incriminatiog circumstance used against the accuse—(i must be fuHy estabiished and must be sach so as to lead only to a singuiar hypothesis of guilt and exclude every possibility of inaccence of the accused. Each Link in the chain of Circumstantial evkience must be fully established ancl thc chain thus compieted must be such that it is wholly consistent with the guilt of the accused and inconsistent with ln's innocence. The above law has been laid clown by the Supreme Com“: in the case of Hanumanth Govind Nargundkar ancl Ann Vs. State of Madhya R‘aciesh reported in uylvR195‘2 ae. 343., in Bhnnanim; @atteijee v. State of WB. reported in {3.99% 2 $§3C 220, the Apex Court has again laid down the law i‘eiating to appreciation of circumstantial evidence as under: “In a case based“ on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature ancl consistent only e with the hypothesis of the guilt of the accused. Those. circumstances should not be capable of being explained lay any other hypothesis except the guilt of the accused and the chain of the evidence must be. so complete Ky/e" 110i 3:0 iEaWc agy masanable ground for thci beli€f cansisteHt with tha innGCEnce of ths accused. It negds 11o Ismindar that 1egal1y established circumstances and not memly mdignation of thé couyt can form the basis of conviction and €116 mars $61‘ious the. crime, i‘he greater should be the care Taken t0 scrutinize the eviclence lest Suspicion takeS the niace of prooi” i3 ii; was heid 'm Bocihrai and oihere Vs. State of Jammu gold Kashmig repori‘ed £11 QQ®2 WEEQ 36$ 45 that so far as the evidence. rdatmg i0 last Seem together i5 concerned, it merelv provides a Eizik in the chain of circumstautial evidence alici is a weak type of evidence un1ess it is showu that the time eiapsed sirice last seen with the deceased and the recovery of the dead body is so smail that possibility of any person other than the accused being the. author of the crime becomes mpossible. 14. We shall iirst take up the evidence of last seen together as addhced by the prosecution and relied on by the moi Judge against the appellant. Godiraui PRAY/t has deposed that in the 1 evening at 4—.G0 RM. me appellant had come to his house and asked his mother Rupotjn Bai to accompany him to bn'ng liquor from Village Pirda whereupon Rupotin carrying a plastic container of about. 8 to 4 litres had left with the appellant. Both Rupotin and the appellant did not return in the night whereupon Godiram PAR/'4 went. to the house of the appellant and learnt from the mother ofthe appellant that Samatu and Rupotin had gone to Erda village but had not returned till then. He has fiirther stated that on the morning of the next date mother of the appellant canle to their house and asked him to dnd out the whereabouts of o Samaru and Rupotin Bai. When he went to search them, information was received that there was a dead hodv in the Dani Tank. 'U‘9on fhiS, he. W€11t to the tank ajlci fotmd that it was tha dead body of his mother Rupou'n Bai. 15. Th3 testimony of this Wimass has stood the test of crossH V examination. Nothing has been elicited in his cross—examination to Show that he bears any grudge against the appellaiit. it has been eiicited in para 9 of cross—examination that Rupotin Bai Heed to Sell. country liquor in the village but she had given up thiS work Since about 3 to 4 months piior to the occurreiice. It appeals that both the appellaiit and RupotinBai were indulging in the work of bringing country liquor from outside and se'iling in the Village. 16. Loknath P.W.5 is the next witness. fis per prosecution, he is the Witness from Whom the deceased anel the appellant had purchased country liquor on the evening of 5.9. 1988. To hide his complicity in this criminal activity, Loknath has carefully concealed this aspect of the trade which was undergoing and has only said. that at about 5.00 RM. in the evening before the date when the dead body of the Rupotin Bai was recovered, the appeilant and Rupotin Bai came together but he did not have any conversation with them. He has also denied that Rupotin Bai and the appellant had purchased liquor from him. Nothing has emerged in cross—exajnination of this Witness which would discredit the above testimony. Thus, the version that the appeilant and the. deceased were seen together in the evening‘before the recovery of dead body in village Pirda is fully trustworthy. l7. The next witness is Jethu RWZ He has deposed that on Monday {5.9.1988 fell on Monday) in the evening at about 5.00 RM. while he was working in his Badi, Rupotin Bai and appeilant came together. The appellant asked for tire and after smoking w Bic‘iiy both the. appsllallt an£1 Rupotin Bai Wsiit towards villag€ E3ivda On. the :xext daie Whez: 116 was; Working in the sam€ Badi, Pila caliad hinl from i’ha Dani Taxlk. On going them, ha saw a dead body fioa'ting in the Tank. In his croSs~eX9mination, ii has 110': even heal Smggested that ha did not SE6 Rupotin Bai and appellant togethar in the €V€ning bCfore. The. occun‘ance or that thE appeliant had not aSkad for flre to smoks Bieii. Thus) tho testimony of ihis witness is also reh'able. 18. Hiralal P.W.é has dsposed that late nighi 011 Monday tho aCCilsad appeHant camo before his house in village Khurda aild shouted for Bidi whereupon ideatifymg his voice he replied fhat Bidi wouid not be available so iate 1‘11 fhe night whereupoil the appellant went away. The next day meaning he heard the shoute ihat fhe dead body of the mother of Godii‘am i.e. Rupotin Bai was found in me. Tank. Hean'ng ihis) he went to me Temk anci saw that the dead body of Rupotm Bai waie floating ill the. water. E11 creas— examinai‘ion, no queerion has been aaked which woukl render hie testimoiw {ministwormv Ga the conh‘ai'v, it has 33ee11 Ciaiifieci i1} ('31~ooe~examinaiion that Since it was late Bight aiid he. had gone {o sleep) therefore, when the appeliaxlt shoutea loudly for beedio he woke up since The appeHaoj used to purchase Bidi from him on i eariiei‘ occasions also. So ale testimoay of this witness clear}? ehows that 1'11 me xiight of Monday ie. 5.9. i988, theappeLaot had gone to the house of Hiralai mid from about 4.00 RM. (as nam‘ateci by Godiram RWA) he was continuousiv with Ruoo‘on Bai a i9. We have considereci the testimoi’iy oi Godiram PEFixQ «jetiie RWQ) Lokaa‘d: 9W5 ain’t FLaLxl R‘Eo the f; * “.1111 of til 1 e @ -‘Oh 4; {iEtCEaS€£E Ru‘;33‘ii11 339i LJI smiling Gf Moniav ’J 3x3 The {ac-Civm‘v of ”€116 C‘mad bociy m? Rupotin Bai §mm ”£15 Dari amiq gas barsu provad 13y head c011$tab1€ Kakahram Bhaxdwaj n L Cr. KW. 1‘3 which accogdmg t0 him was identifia‘g by Gadiram to b6 €116 daa€1 b06137 sf Rupetm Bai. This. witness has provad Panchanama EXPIS of L16 {EEK} body of Rupa’tin Bai. D1". Narmlch‘a PraSaé Mishra P.W.9 Wha conducted th€ autapsy on 7.9. 1988 0n ’x’lm {lead body of Rupctia Bai feund ths duration 0f Ciaath to be 34 to $6 ileum 131i01‘ta L116 pos‘vmortem Examma’mlan which WélS canduc'teti at 19.30 ELIVL 911 73.1988, it shoWS Tllat death of Rupotill Bai mimt hen/E. 1366.:1 causec£ \at Elbow: 10.30 RM. on 5.9 1988. O11 Or abcui‘ this time 7116 appallant wart to tha haus36 of Hiralal asking for b€€di T116 testimoxly of Dr. Narendra Prasad Mishra 9W3) has beén deali with 1'11 paragraph 5 of ’thE ju€igm€nt gmci astabh‘shas bayonc'i doubt that Rupotin Bai had Ciied a immicidal daath {1116. i0 Asphbiia als a result of iln‘ottlmg. Th6 fact ihat a bruise. sv€r i116 acci§2ital 6a Of scalp and 16ft Paro‘tid ragioil maasuriug 3” X 1" was aiso famld 011 Rxwatin Bali goes to Show that $616 was assa iii 13V Ssms haid aild blunt object. The graseatk of a hruiss £11 § (311‘: 0f firm 115C}: m€asuring 1 1/2” )2: 1 14" 011 The EEft sid€ af n€ck 313.0 Ciaarly shows i’hat thé {hath was £1116 t3 thi‘attiing. T116 fact "Lhai ii}: tcagua was; §muiid€ri 811d 'bittc—Il £11 bsivmal teeth aiSO stzpgioi'ts this. h1f€yenca It is thué; provaé‘x bEVomd doubt thai Rugwfijl Bai had di€d a homicic‘lai daam. ® 2}. DI. Nai‘endra 1’31‘aSad Mishra P.W.9 hac‘; also {161305651 that 03 8.9.3988 cails£a§316 Ramkumar Misshra had brought the appslkmi L --H~ for axammafiGH ami h€ fGunt‘l the. foilcwing injmiES over his; PEI‘SGH: 1) There was scratching abrasicm A/2" bEIOV (he: 16ft knae jGint in gLjcxior surface maasuring 2” X 1" X 1 f! 10 am. The mjury was in‘eguiar in Shape aIKi iii; £1001“ was healed. 3) There was aerasion 1/2” belew "e injury N31 measuring 1" X 1/2” x 1! 10” om. which was; irreguiar in ehane zmé the floor wae healed. 3: V. an 3) There was; ecmial sweiljng of righi sic‘le measurmg 6 A o v 9'” i1} swe which was mdicaiive of hydroceele of righi’ Side of (kiraiion Gf ai'leaist one yeaix 4) There was 110 smegma pi‘eeen‘t aver the peniS, which meam he d interceursed or washed the smegma £11.11i11g baihing wi 8 days. 22‘. TO link Ehe evicience 9f the appellaiit havijlg 'beeil 181$ aeeil with R'upoml Bad from abou’i 4.00 PM. in the evening of 5§ i988 with me murder of Rwwetirl ille injru‘iee fou‘rld 011 the. appeilaixi aesumed Kemei’rc‘ro’ae myoriaime. Medical evidence showed that 6m appeilarri had susiajaed these mjuries E111 me night 0f 5.9.88. rom 0f i11juries susiajlled by the appeMant was shown by Dr. Narendra Prasad Mishra P.W.9 i0 be 6O to 6'2 hours p‘ior t‘c: 3.30 RM. m1 8.9.88 which clearly eetabliehes Ellat the appeliarlt musi. have. Sustained The injuries late in the night of 5.9. 1988 i.e. ai aboui the same ijme whee the homicie’rai death 0f Rupetin Bai $001K elace. Thus it is fully establiehee‘r that Rupofin Bai ahd the appeliaht were last seen tegei’her from 4.00 RM. on 5.9.1988 till 311d Rueetirr Bai harl died a hemicidal death at sheet l0.30 PM. 011 5.9.1983 alld the appellani had alsc: sustahlec‘ mjuries mentioned above at about same wile '23. From the testimony of Godirah‘l ERR/‘4, ii is also established i‘hai rhe appellant had 110i returnecl to his house till the 11w“ worming i.e. 6.9. 1988 whee the. mother of The appellant “eat o A ¢ .., The dur a J av: ha t f / house of Godlram and asked b.1111 to find out th€ whereabouts of Samaru and Rupotm Bai Kaleshram Bharadwaj PW 13 has stated that the accused was found 1n the d11ap1dated house of ‘ appellant 1n this regard. ’ memorandum EX P 3 seized one lathi one open shirt Rs 10/ another man on 7 9 1988 No eXplauatlon has been od‘ered by the 24. Kaleshram \ Bhamdwaj (P.w.13) had on the appeuant’ cash and one green colouled plasnc contalner from the accused v1de EX P4 Another black coloured empty contamer was also selzed from the accused. Both these plastic containers were put to test identification by Godiram P.W.4 by P.S.Para_ste, Naib Tahsildar P.W.10. This: witness hasstated that Godiram had ideiltjiied the plastic coutaiher of‘Rupotin Bai. In the identihcation memo P 13L 1t has been mentloned that Goduam P W 4 had 1denuiied only one plastlc contamel on the ground that the same was contamer used 1n h1s house” This Circumstance also establishes a link in the' chain of circumstances fully established against the accused appellant. L V 25. From the foregoing discussions we find that the following Clrcumstances have been fully estabhshed by the prosecution against the appellant ) The appellant had gone to thehouse‘of Rupotin Bai and ' had asked‘her‘to accompany him for bringing liquor from Village P1rda whereupon Rupotm Ba1 had accompamed him b) The appellant was last seen With Rupotln Bai onMonday y 1e 5th September 1988 from 4 00 PM onwards till evening by / f~12~ V lg? Goduam P w 4 Loknarh P w 5 and JethuV vJS‘ c) Death of Rupotin Bai was homicidal and caused due to throttling. She had also sustained a bruisé over the occipital area of scalp. Death of Rupotjn Bai had occurred at about 10.30 RM. r 011 59. 1988 as per medical evidence. d) The accused appellant had also sustained injuries at e ‘about same ume 1e amund 10 30 P M ofs 9 88 e) That the accused appellant thereafter Went to the house of Hiralal P.W.§ to ask for Bidi. i) That the accused did hot return to his house on thenight of 5.9.88and his mother had on the morning of 6.9.88 gone to the house of Godiram and asked him to find out the whereabouts of the appellant and-Rupotin Bai. g) The appellant was apprehended not from his house but )from‘thc house of another person on 7.9.88 in village Kurda. h) The plastic container carried by Rupotjn Bai from her house and recovered at the ‘mstance of the accused on 7.9.88 was . identaied in}; Godiram awn, 26. _ The above mentioned links in the chain of circumstantial evidence haVe been fully established and are of a conclusive nature ‘ and cons1stent only With the hypothes1s of guilt of the accused appellant The medlcal ev1dence estabhshes that death of Rupotin Bai took place at about 10.30 RM. on 5.9.88. The accused J appellant had also sustained mJunes at about the same time: l ’Thus the t1me elapsed smce last seen together 1s 1n close proxnmty With the recovery of the dead body of Rupotm and therefore, the cucumstance of the accused appellant havmg been last seen a I gudt of the accused appellant for