y \ ^y ^n^r^T Vw^ ^T^TI^T sh^J<*> ^ i>IWcfi<4 ^ :3:5^T'^i<ii<7'>'4, ^xn'y'Ko, I^^i^y NINdl *Nlck"""""""""'""<'?"""""-""—""""^200 Z_ 9n^?r V^K (^ci[^<^) '5^nW ^rfSTT 3^T Crimiaal Appfcal No.^60/2002 APPELLANT Bhadrl.1 s/o Sudru, age 22 years, R/o Village| Palaiiar, P.S. Kodenar, Distiict Bastail(Jagdalpur) .C.G, Vlersi&s RESPONDBNT The Throu Distri< Siate CRIMINAL APPEAL u/s 374 PROi D.B.: HON'BLESHRIL ORAL (16 L<C. BSiadoo, J:- Shri R.N. Jha, Counsel) Shri Ashish Shukla, Gcj^ Heaid. This appeal is directed aiid order of sentence dated Judge(under S.C.S.T. Pre^i Additional Sessions Judge1, CM<lf<yt<Al HI^Krff ^f 'feT^t <P»i^l< ^ 3tRPT3TT^T of Chhattisgarh, ^h PoMce of P.S. Frezerpiir(Parpa), t, Bastm'(Jagdalpur) C.G. 2| OF THE CODE OF CRIMINAL ®DURE C-;BHADOO^_J,,& HON'BLB SHM SllNIL KUMAR SINHA, J. •UDGMENT -..^'1 ! 1.2007) br tlie appeUaiit. ^eminent Advocate for the State. igamst flie judgmeut of conviction .0.01.2002, passed by the Special mtion of Ati'ocities Act) aiid Jagdalpur m Sessions Trial ! -30,000. 3:5:^^TFTT^T, ^T{1-HII<S, fst^l^i s? HWvi[ **414>' TR, 200 3TT^?T T|?|^ ( 4?1^<{^) ^n^r^r R;<ii<b ^W 3?Ty^?T $b^l<sb ^RITW ^rf^T ^TT^T ^ 4>Jiy^ S^t^ No. 195/2001, whereby aad v^here-under, tlie leanied Special Judge after holduig the acc^sed/appellant-Bhadru guilty for coininission of the offence pun|ishable under Section 302 of IPC, sentenced hun to undergo i3ii|prisonnient for liie aiid to pay a fme of Rs.1000/-, in detauli undergo RJ. for 1 year^a^d of payiaent of fme to furttier flso convicted hiai uncler Section undergo R.l. for 6 nionflis. accused- Suklo aiid Sateu. accused/appeUaiitwere direct< Case of tlie prosecution Police Station - Frezerpur fhatj flie field of Mohaii Joshi nearj village Sai-paiich- Gorakhnafl^ person, aged about 30 yeai's,| Rataesh Mishra left for flie sct notice (Ex.P/14) to the Paiich^ tlie body oftiie deceased. He ^ cbi^?<rt€ili^w^S ^f fc*<l <P»t<^i< ^^fRPT^TT^T 397 ofIPC aad sentenced to u^idergo RJ. for 7 years aiid to pay a fiiie of Rs.500/-, ia defau:|t of payiuent of fnie to furtlier However, he acquitted tlie co- Bofli fhe seiiteuces of tlie [d to run concurrenfly. jin briefis tliat at about 11,00 aia ou 30.12.2000, one Prem Pjtakash gave raerg iiitimation iii dead body of a persou is lyiiig ia tlie railway track. He along witii Secretaiy- Gaiipat Paiichkai'aii, Patel Ghasirain had seen ti^e dead body of tliat unknown The said nierg iiitioiation was registered atNo.75/2000 u4der Ex. P/10. Sub Inspector- :ne of occuirence aiid aft.er giviag .s, prepai'ed inquest (Ex.P/15) on >ent a letter of request to Dr. Sint Saiita Mohbia for conductijjig postmorteia, on which, Dr. Smt.Sarita Motibia came:.oa the spot aiid conducted tfae .30,000. —78 ^TT^T ^T f^^ich ^T^T 3T|^?T ^qN)" 3^T •^ii^i0<ti, ^iTflyli<o, fs<0i-y^< p^ *<l<4dl sb^lcb -^ 200 3TI^?T XHR? ( 4<^flfl<<i^ ) '^nW^f^T^T^T postaaiorteia ou tlie bod^ Ex. P/11. She opmed th^ result of straagulation During iavestigatiou, 14.12.2000, seized sMpj Ex.P/16. Site plan Investigatmg Ofllcer cai4e fhe house wifti torch, t^vo tliat he is going to Jag(| Rataii were not known,| fouud that Sudiii, fatiiej Sudri, inotihier of fhe de( Sudru asked Sudri as Rataii. Rataii has beenl Rataii has beeu brough|fc retumed to her lious^ Gorakliuafli aad her soii his house, he was weaii(ig black belt aad sponge plastic bag along witli| Gorakhnafh aiid Padam | tlie house of Bhadru ^ Bhadru told her tiriat Rgjt froin flie railway statioxl <=M^t<rt<flti *ii*i<;iT ^f^fe^ <P»i^i< '5fr ^fRTTT 3ff^T of flie deceased. She prepai'ed report ^t flie cause of deatli was asphyxia as a land deatli was honiicidal iti nature. |3ub luspector- Ratiiesh Mishra, 011 pers aiid a piece of black belt under [under Ex.P/17 was prepared. The to know tliat flie deceased-Rataii left shirts, lungi aad Rs.500/-, sayuig lalpur, but tliereafter, whereabouts of Duruig furtlier uivestigation, it was of fhe accused/appeIlaiit-Bhadru met i^eased iii tiie market of Raikot, where |to why they are not enquiiing aboiit murdered in. Tokapal aiid tlie bag of by his son-Bhadru, on which, Sudri and informed it to her husbaad- 1-Padain, When tlie deceased- Rataa left l(ig one blue colour shii-t, one full paiit, sMppers, He was also canynig one 2shtits, lungi, shawl aiid sweater. |started searchiag Rataii. Sudri weut to ^ud enquired from liiin about Ratan. ^taii left for Jagdalpur aiid he retunied i, Thereafter, Goralchnatli and Padani ^7 F .,^!TSS^-& /y^£% -HC-22 3T[^T"^T r^i<=b ^^ 5h4^icb <if^a ^ F ^'* "3'ST ^\^W^, ^Tll^Ko, f®|<ni^l^< sni^r xra^ ^I^Crll ^b^icb* •M 200 '^T^S' 31T^T'^TTSJT'^ETffn ^ atid iastslnce went to Tokapal and enquir| They went to tiie PoUce St^ sUppers aiid photographs Ratan. Therealler, Bhadru \^ he gave memorajiduin Ex.F( one shawl, one tenycot ful| lungi were seized under Ex| were also seized at the iastsb tliat crime No. 10/2001 un^ The accused persons wer| memorandum of Bhadru, p\ were sent for chemical report Ex.P/24 was receivej tliat botli tlie pieces of fhe b^ After coiapletion of liled ui tlie Court of Chief ui tura coiainitted tlie casel from where tlie leaiTied Spej Judge received fhe case on t| The prosecution iii or| the accused persons exaini4< statenients oftlie accused p^ 313 of the Code of Crumnat accused deuied fhe materij cbi^f<n<fli ^i4-i<riT ^ Fs^l iPti^K ^'^Tf^w^n^r exailaiaation ?d from tlie Kot^var aiid Sarpanch. ition, where tiiey saw tlie clotties, identified tliose aiticles to be of as taken uito custody. On enquiiy, 7 1. Based on tlie ineinoraiiduBi, sleeves shirt, one used fuH shirt, P/4. Tvvo wooden pieces of Tendu of Satin aiid Sukhi. Based on ler F.I.R. Ex.P/18 was registered, arrested and on ttie basis of .ece of belt was seized and articles fo tlie F,S.L. froni where, i, It was meutioned ia flie report dt were of ttie saine belt. iiivestigation, charge sheet was udicial Magistrate, Jagdalpur, who |to tlie Sessious Judge, Jagdalpur, 'ial Judge and Additional Sessions t'aiisfer for trial. |ier to establish tlie chai'ge agaiiist [ed as raany as 11 witaesses, The ^rsons were recorded under Section [1 Procedure, in. which, each of ttie ^l appeaiiag agaiast them iB. tiie [Tft^ ^Ha^ tllie ;HC—78 'ST^T ^T f<Tli<=h TT^n 3TT^T 5h^tich '3-^1 '^1<110<1, yTfl<1<|(S, fc|<»iiy^< Nl^dl sbMlcb "^ 200 3^?r ^^K (4^^<^) ^TTW^f^T^n^r Slliri proseciition evidence ari( have beeii impUcated in After hearmg tlie leained Special Judge oii\ aiid sentenced flie aforeinentioned, whereasj Satm. We have heard accused/ appeUaat and| Govei'ninent Advocate for| Slin Jha has not deceased-Rataii. Moreovl conducted flie postaiorte^n lias stated fliat tliere wi deceased, a Ugature abrasion on tlie kuee ofl side of tlie neck. The cau{ strangulation aiid postinorteni report is E^ evidence aad postmorten|t of Rataii was homicidal ifi As far as tiie comp|j iti question is conceraedj ia fliis case. The deatli <Tt<fll ^tl^<A* '^,'fe1^ <Fai^|< ^^tRpT^T^r 1 stated tliat tliey are ianocent aiid Ifalse cilEue, counsel for respective parties, tlie 1 Additional Sessions Judge convicted accused/appellaiit -Bhadru as acquitted flie co-accused-Suklo aiid ni^irk ^ri R.N.Jha, learaed counsel for tlie Shri Ashish Shukla, learaed the State. disputed fhe homicidal deafli of tiie a', Dr. Saiita Mohbia (PW-6), who on tlie body ofRataii on 14.12.2000, is a niark of belt on fhe neck of tlie of dark colour on the ueck^ aa riglit leg, a ligatuite inax'k on flie left >e of deatli was asphyxia, as a result of was hoiuicidal in nature. The .P/11. In view of tlie above medical i-eport, it is estabUshed fliat fhe deatli nature. icity ofthe accused/appeUaiit iii ciime tliere is no ocular or directed evidence convictlon rests on tlie fe^S-ef ciix^iiinstaiitial \ 31T^T ?FT ^i<+ '^T8H 311^1 5h<-tl<=b ^-^ ~S:SS( ^ll-qi^^, ^Tfl^'l^, {s)(»!)|^^< (^ ^Wv\\ <bt<|cb ^ 200 3^t?T VS^K (4^fT[<s|<{^T) '^TTW^Tf^T ^TT^T <a evideuce. The prosecut| agaiast tlie accused/a^pellaiit on tlie basis of followiag circuinstaiices: 1st circumstasace: ia flie conipaiiy of fhe Tokapal before his deatli. 2nd circumstaaice aiid tlie pieces ofbelt of F| accused/appellaiit-Bhadilu. 3Td circumstaiace; occurrence aiid at tiie in| ihe pieces of saiiie belt. As per the settled F<n41Ti ^ti^<riT '^F,fel:2)' <n»i<^i< ^" ^TRfTT ^TT^T [on has tried to estabUsh tlie crlme that fhe deceased was last seen alive accused/appellant ni tlie market of : fhat fhe bag of the deceased-Rataa ataii were seized at the iastmice of tlie that as per F.S.L. report Ex.P/24, the pieces of fhe belt, wh|ch were seized from flie place of stance of tlie accused/appeUaiit, were aw, iii order to rest tiie conviction 011 circunistantial evidencejas has been laid down by tlie Apex cozirt m fh.e matter of phaaasajoy Chatterjee Vs. State of W.B.1 it is to be estabMshhd fhat: "In a case b4sed on circumstantial evidence, tlie cii'cumst^jices frora which flie conclusion of guiit is to| be drawn have not oiily to be fully establijshed but also tliat aU tlie circunistaiic^ ! (1994)23cc 220 s so estabUshed should be of a :C—78 's^ -qi<<i^^, t$Tn'y4i<s, is)<rl>iy^< ^.-.x-^ ^l^dl sb^l* ^n. 200 ^TT^T ^T f<Tli.<=h 'cT^T 3iTT^?T 5h^icb 3H^ x^^ (44!^^) '^ITW^rftcT 31T^T 7 ^un|i wfh conclusive tiie hypotlie^ Those cu'cun|i$ of being except tiie offhe eviden<| leave aiiy consistent It needs no circuinstaac^s the court aiid tlie raoi^ should be evidence lesl proof" Now coming to estabUsh fhis cii'cuiasta|ii< witaesses uainely-Aasm^n Aasmaa, in his evidencel him, who has died. known to hioi. He does| Rataii in. flie niarket. Rataa for soine tune, at | Rataii asked liim fliat nfeture exp[laiiied g4ilt staliice -Aasmto Tlhe Bhjadm h^w <=M^f<n<i1i +ii^<;if ^F^^ <P»i<^i< i73?Rm3T^T aad consistent only with }is of the guilt of fhe acciised. injistarices sliouid not be capable by aay otlier hypothesis of tlie accused aad flie chaiii ^e inust be so complete as not to r^asonable ground for tiie beUef fhe iaiiocence of tlie accused. ^eniuider that legatly estabUshed aad not merely iiidignation of form tlie basis of conviction serious tlie crime, tiie greater care taken to scrutinize tlie suspicion takes fhe place of 3Tei c^n ffce the iirst cii'cumstaiice, ia order to ;, tlie prosecutiou has exainiaed 2 (PW-8) 85 Ramdev (PW-9). PW-8- has stated tfiat Rataa was known to accused/appellaiit-Bhadru is also not know how Ratmi died. He saw was wifh him. He had a talk wifh |that time, Ramdev was also witli hiin. he has coine to fhe market, then he ^'^'. 3-^cT ^1<110<4, ^Tfl'HII<S, fs|01^^< ^Wv{\ d»NI<*> "^ 200 3n^?r xnra^ (4^fl<s<<?T) a^fT ^FT ^icb TT^TT 3TI^T $t)^l<=h '^TTW^ftU^T^T ^ repMed tliat he has come| aiid ttie accused/appe| Aasniaii was witli hiai.l Bhadin was holdiiig tli^ how he has conie to fhel has coiae to purchase| Bhadru went away aiid house. Based on flie las1 responsibility on tlie shc| tlie settled law, prosecr) tiaie gap befr^veen when when fhe deceased was <=hi^i<n<fli ^i^i<?ii '^f,fe^ <r'i<^i< iR'3ifm3^T to purchase vegetables. At tiiat tiiae, Rataa was holdiiig a b^g. In tlie cross-examiiiation he has stated tliat at about 4.0(|) pm, he retunied to his village. When he was retuiTinig to fh|e village, he did not see Rataa aiid Bhadru. PW-9- Raiadev ha^ also stated tiiat the deceased- Rataii The tiaie when tiie accused/appellaiit aad so sraaU ttiat fhere is n<j [laat -Bhadru ai'e known to him. Rataa aad Bhadra were togetiier. bag, Rataii enquii'ed froin him tliat niarket, on which, he repUed that he vegetables. Thereafter, Rataii and ae along witli Aasiaaa retui-ned to tlie seen iheory, iii order to fasten tlie [ulder of the accused/ appeUaat, as per |tion is requii'ed to estabMsh tliat the pie body of fhe deceased was seen aiid seen alive wifli fhe accused/appeUaiit must be small aiid fhei^ iiiust be proxiaiity bet^veen tlie two. dead body was found aad tiie Iie deceased were seen togetliex', must possibility of coninig any one bet^veen fhera for cominission o]f tlie crmie. In ofher words, tlie tinie when tlie deceased |was seen alive aloug witli the T^f ^WW^, ^Tfl'M1!^, fc|(r!>iy^< 'ill *41<4dl *t<l<!b "^ 200 ^TT^T ?FT Rvli<=b TT^TT -3TI^?T 5FRT^ c'- 3^?r X^RF (4^1^^) ^RTTW^f^T 37T^r t|ie accused/appeUaiit aad proxnnate to flie deatii any uiference of ianoceucj tliis, we ai'e fortified ixi Court rendered iii the m^ ethers Vs. State ofJam^iu fhfe.t oilr as also tlie judginent of tlj ofGpa Vs. Swticys ThciSc^an In fhis case, fiie Apex Cou^f the accused persons seen detection of ciime would appreciation of evidence. possibility of aiiv personj iiapossible. If tlie above piiiiciplt cleai' tiiat tlie prosecution fhe Apex Court in fhe witiiesses have not stated deceased iri tlie compaiiy market. It has also not cfc tmie gap was beUveen deceased were seen io. {T^> deceased was seen, tlieref^re ct)i^(<n<fli ^i^<!if ^f,1^^t <P»t<^i< ^" 3?fRm 37i^r body was foiind, laust be so there is no possibility of drawing of tlie accused/appellant aiid for view by the judg3iient of tlie Apex tter of Bedhrcti CLlias Bodha and and Kashmir. (2002) 8 SCC 45 ^ Apex Court ia fhe matter of State <& Anpthcr, 2007 (4) SBR ^21. has held titiat tlie tiine gap betaveeu |ui tlie company of ftie deceased aiid be a material cousideratiou for phe tiiae gap must be so sniaU that a oflier thaii tlie accused becomes |? is appUed iti fhe present case, it is lias not stood to fhe test laid down by ^.bove judgiuents because botli flie tiiiie and date wheu tliey saw the |of tlie accused/ appeUaat in Tokapal t)2iie in. the evidence tliat what much the accused/appellaat aad tiie >kapal market and tlie body of tlie ^ fhe evidence of fliese 2 witnesses wtien /^^'^ 37T^T^ fqil.ch 'cT^T sn^T sb^jch G 3^''^ll'Ml<r'><<, ^>Tflyll<S, (s|<^l'y^< ^l^^l ^h^lcb ^ 200 3n^?T 'q^RF (4^f^<^T) '^1TW ^rf^T 371^T ^ (^ is not clitichmg aad clear| on tlie accused/ appellaiilj It is also unsate to| based on last seen, unles| record establish tlie irivoll As lai' as recovery at fiie iastaace of ftie ac< PW-1- Patiraoi beforc w| given by fhe accused/aj property was said to haj accused/appellaiit under) He has stated ftiat uotJliui^ presence. No iriformatic^ aiid he has stated tiiat it| deceased was recovered as per tlie prosecut| accused/appenaiit had ^ deceased-Rataii and wtf^ deceased has been brou^ht by ah'eady disclosed by Uie mother of tlie deceasec meBioraiiduni and recovl accused/ appeUaiit? This fhe accused/ appellaiit aij chi^^i<fli ^ii*i<yiT ^f^^) <Fai^i< i73fRFT3TT^T ui order to fasten tlie crixmnal Ilability based on last seen fheoiy. draw flie inference of gullt of accused 5 fliat fact along witli otlier niatenal on /ement of tlie accused ia. tlie aiurder. >f the clotlies aiid bag of fhe deceased ^used/ appeIlaiit-Bhadru is conceraed, Liom tlie mexnorauduia is said to be 3pellaat aad before whom tlie above re been seized at tlie nistaiice of tiie Exs.P/4 aiid P/6, has tumed hostile. img was seized from Bhadni m his n was given by Bhadru to tlie poUce is iacon'ect to say Uiat tlie bag of flie ^t flie instance of Bhadru, Moreover, on case, Sudni- fafher of the dready iaformed Sudri-Biother of tlie of Gorakhnafli fhat fhe bag of tlie his son-Bhadru. If this fact was fatlier of tlie accused/appeUaat to flie [, tlien wliere was tlie qiiestion of ?iy of flie bag at ttie iiistan.ee of flie fact was already known to tiie fatiier of .d he disclosed to fhe niotlier of Ratan, ^^^sr^^ f^?""""*" <?%?k- ':^' ^L '^ /5^ "i% 7 '^il ^^y- -"^^feriC-78 T^f ^WW^, Q-^\W\<6, (s|01'M^< ^n^r^ f<'ii<=h ^T^T '3TI^T ^Fqt^T ^^ HW<r\{ ^W^h "^ 200 3^?T 'q^TSF (44^^) '^ITW^Tf^T ^T^T /( tliereby it cannot be exclusively knowledge ^ mstaiice only fhe bag ^ Siidru has not been ex| tiimed hostile. Regai'diii^ Station. He is a witaesd Chi^f<n<flti ^i^<?if '^,1^^ <P»1^1< ^ ^fRFT 3TT^T said tliat fhe tact was within tlie f tlie accused/appellaiit aiid at his as recovered. Even faflier of accused 3inuied. Moreover, PW-1-Patirain has Biemoraiidum aiid recoveiy, no otlier iiidependeut witiiess h4.s been examiried. PW-4-Dukur @ Dakru has stated fhat B}iadru brought tiie bag froia his house aiid belt froni tlie field ^iid produced it ui the Tokapal Police of nieiaoraiiduni. He has not stated tliat fhe accused/appe^aiit gave Hienioraiiduni before him; tlierefore, evidence of tiii^ witaess is of no use. The belt is said to have been recovered f^oia flie agricultural field. As far as tfie bag is concenied, PW-8|- Aasmaa has stated tliat Rataa was canyiag fhe bag iti ftie stated that Bhadiii was market, whereas, PW-9- Ramdev has canyitig flie bag ia tlie max'ket. The nicident took place |)rior to 13.12.2000, whereas, fhe laem.oranduin was given|on 29.1.2001, about 1 l/2 montiis •after tlie uicident, tlierefore, menioranduni arid recovj of flie accused/ appellant| As far as fhe 3rd d tlie belt at tiie iastaacel on account of fliese iiilirmities, the ^iy of tiie bag aiid belt at fhe iiistaiice I becomes doubtfuL On tlie basis oftitiis circuiastaiice, tlie accus^d/ appellaiit cannot be connected witli tlie crixae io. question. •ircuiustaace is conceiiied, recoveiy of of tlie accused/ appellaat is doubtful; .^"^^, .<^XHIG—78 ^..^^^.^- 'S:SS( ^qi'qiCr'l'q, ?i>Tfi-M<l<0, (s|<y'»l^^< '^ ^l^dl sb^lcb TT^ 200 'STT^T ?5T'f^TW ^T^T 'STltt^T 5h^ich sunita 3ff^?r xra^? (4^^^) therefore, FSL report Ex. accused/appeUaatwitli t^ie ciioie iii question. lu flie result, prose| accused/appeUarit ia circuinstaiitial evidence prosecution does not st^iid up to decisions laid down by tiie Apex Court. ni the caten€ crmiiaal liability on circumstaatial evidence. In tlie result, fhe a is acquitted of ftie abov| upon Iiiai are set aside. It is stated flie ad Jaiiuaiy, 2001, flierefor^ requii<ed iti any otlier cas| <=hl^I<rt<fll ^l^<:lT ^F^fe^ <P»i^i< "^ ^tRpT 3?n^r |P/ 24 is also of no use to connect tlie ^ution has utterly failed to connect tlie ^iime in question based on the mid tlie evidence adduced by fhe ofjudgments regardiag lastenmg the tlie accused/appeUaiit based on [^nviction aad sentences iiaposed upon tlie accused/appellaiit i|iiider Sections 302 aad 397 of IPC caanot be sustaiiied. Ap^eal succeeds. The accused/appeUant ? charges aiid fhe sentences iaiposed cused/appellaiit is iii detention siace , he be set at Uberty forthwith, if not Sd/- L.C, Bhadoo Judge Sd/- Sunil Kumar Sinha Judge