3'EST •<1|<1|1<«'><1|, yiTfly'lts, (sj(>J>|y^< ^ ^WW *t<|cb an^W iraw (4cit-i«i<isi) 3Ti^I.^T l<-fi°b TTqi3IR?F gilflqi- ^aiwnto sn^i HI6H COURT OF CHHAtTISSARH AT BILASPUR bIVISION BENCH: HON'BLEMFL L.C^ HON'BLE MR, &HIR6NDRA MISHRA. JJ CRIMINAL APP APPELLANTS (In Jail) Vs RESPONDENT State Distric Present: Mrs. Usha Chandrakar, Advocate f chi<<I<'l*ill tniRif if -fer^ ^firegrc '^'sfRnsn^ HADOO <& AL N0.504/2001 1. Visl|inu Yadav, aged about 55 years, s/o|/\dhir Yadav. 2. Bhcjrat Yadav, aged about 19 years, s/ol Vishnu Yadav Both ij'esidents of Village Sandaikala, P.S. Bcjdla, Distt. Kawardha, C.6. f Chhattisgarh through THE Magistrate, Kawardha. or the appellants. Mr. U.N.S. Deo,Addl. Public Pros^cutor for the respondent-State. O RA L J (2nd J(ily. 2007) Per LC. Bhadoo. J; This appeal is directed agjiinst order of sentence dated 261 Additional Sessions Judge, No.164/99 whereby learned Adcjlitional -.± U b^ M E NT the judgment of conviction and March, 2001 passed by learned Kfiairgarh, Camp Kawardha in S.T. Sessions Judge after holding GRPRJ — FS/246- L50."GO. r; k^? t'ti f w IB1 i IK '^f^' fl ^' Mfl w ^Sd -l.llill^il, ESlTfl^'IS, Pl^lyy Kttlytl *NI* sn^f ^ra^ (ijci[^«<i{ii) sn^i.^i R-fi=h TmisiTOi stitii* MllS l^;^^^ m^i^ TOIRR ^f?!T 3I1^T accused/appellants Vishnu &Bhara^ deceased Bhagwati Bai) guilty Sections 302 <& 201 of the) accused/appellant to undergo R.) Rs.1,000/-, in default of payment six months <& RJ. for 3 months default of payment of fine to respectively. However, accuseijl deceased) has been acquitted of| further directed that all the sent^nces Case o-f the prosecution, in| Yadav, is husband of deceased, ac|c of deceased & accused Bharat YIJK Deceased Bhagwati Bai was years prior to the date of incidenl house about three years prior to the prosecution is that accusejd deceased Bhagwati Bai, used to favour from Bhagwati Bai and on husband of deceased, used to obji request of his father. On 3.7J.19S19 °ti]«l(CT<fll'qTCff ^f fS^t <f«l^lt ^? sTRrir sn^T (father-in-law <& brother-in-law of for commission of offence under' IPC, sentenced each of the ;. for life and to pay a fine of |of fine to further under-go R.I. for (ind to pay a fine of Rs.1,000/-, in fijrther undergo R.I. for six months Shatrughan Yadav (husband of the said charges. The triat court shall run concurrently. brief, is that accused Shatrughan adcused Vishnu Yadav is father-in-law idav is brother-in-law of deceased. to Shatrughan Yadav about 8 ^. She started coming to her in-laws date of incident. Further case of Vishnu Yadav, father-in-law of her, as he was seeking sexual |the other hand, Shatrughan Yadav, iect and ask his wife not to accede i.e. the date of incident, accused martied •tthe hbrass GRPRJ— FS/246 .o"o. -^- 3. 3^ST -^W^il, d.rflti^lti, [sfi^iy^ an^?r Ttsra; (^<t-i«t<^») sn^T.wfyiw TOTSU^T -SW <E® -^* WIW^gSTf^I Vishnu gave merg intimation (Ex the effect that today his so f-17) in the Police Station Bodla to Shatgrughan Yadav, husband of deceased, had gone to Pandritarjai market, half an hour thereafter about 3.00 p.m. he also went to F|andritar'ai market. 1-lis younger son Bharat Yadav on account of illnes also in the house. Wife of Bharjat namely Kamodni Bai had gone to agricultural field. When he was who was coming to call him, met| that Bhagwati Bai is not well, thef Thereafter, he came to his hous4 Saw that numbers of persons w^i legs <& knee were touching the grj; 'til'illd'lil-l tIPRff -tf fwl "rfSRZTC iisffhHsii^r was in the house. Bhagwati Bai was returning from the market, Ashok, him in Pandritarai market and said efore, he should come to the house. along with Ashok on his bicycle and 'e present at his house. Along with them he went inside the house arjd saw that Bhagwati Bai was hanging from the wooden shaft of the r^of with the help of Sari. Her both und, her one hand was also touching the ground thereby she committ^d suicide by hanging herself. Receiving this report, registered Merg No.12/99, left jl-he S.H.O., Police Station Bodla for the scene of occurrence, after GRPRJ—FS/ giving notice (Ex.P-11) to the Pan^has prepared inquest (ExP-12) on the body of Bhagwati Bai. Site Plhn (Ex.P-13) was prepared by Halka Patwari. Body of deceased Bh^igwati Bai was sent for postmortem examination to Primary Health C^ntre, Bodla where on 4.7.1999 Dr. M --'50.000. '^- 3^5f -^nw^, •^-vS\w'\d, r^wy. (\^ i^, K-il Nltfdl shNJcb •^L aiiisr TR?? (T^ig^g) 3'^I.WfelW wr 311^1 -wv uRPRJ— FS/24t 's^grartte sii^i .L. Watchkar & Cir. R.K. Buxy c report Ex.P-6. They opined thi viscera has been preserved. Hot opinion whether the death was hoi|nicidal or suicidal. Vide request dated 18.7.11 queries under Ex.P-17A from thi present on the neck and injury sustained, whether these injuries injuries found on the chest <& sh| said that neck of deceased was whether such type of knot con| committing suicide by hanging^ asphyxial, but it has not been nji homicidal or suicidal: In reply tk that such type of injury was 'tiwtcttfli 'inTRif if •feizttfSpRrc ^3iRr>T3iT^i jnducted postmortem and prepared )t cause of death appears asphyxia, |ever, they did not give any definite [99 the Investigating Officer made doctor that how the swelling was on the right side of skull can be can be caused by hanging? ; How the lulder can be caused? ; It has been :ound knotted with the help of Sari, be found on the heck of a person Last query was that death was entioned that whether the death is Query No.l, the doctor has stated |iot possible by suicidal hanging. In respect of injuries mentioned ir^ doctor has stated that the sa(ne are due to constriction of neck. Knots described m the report About type of death, findings strangulation of neck. During memorandum (Ex.P-1) regardin^ Item No.2 i.e. chest <& shoulder the |jsually not found in suicidal hangin9. are suggestive of asphyxia due to police custody accused Vishnu gave the piace where he has kept the - 50,000. "^- ':' 'lr-i B:C I®!' d-CTl ^i<<[<?i<<, axfly'i^, fs|c>])|^^< sn^r 1raw ('j^fsg^tT) 3ii^r.'wf?;ri9T WIT3?R?T WV TCIRR Trfga sn^i Itowel, which was use jand in pursuance of that a yellow c After completion of usual ii |against three accused persons [Magistrate, Kawardha for commis; <& 201 of IPC, who in turn commi Judge, Rajnandgaon from where received the case on transfer foi establish the charges against tl^ witnesses. Statements of accus^ Section 313 of Cr.P.C. in which against them in the prose^i accused/appellant has stated tha implicated in the crime. Learned Additional Session of learned counsel for the vnwSf 'ivfi^i ^ feet 'CT3R3R ^3TRriT3i]^[ for strangulation of Bhagwati Bai, (lour towel was seized under Ex.P-2. (vestigation, charge sheet was filed [in the Court of Chief Judicial ion of offence under Sections 302 ttted the case to learned Sessions learned Additional Sessions Judge trial. The prosecution in order to e accused/appellants examined 15 d/appellants we.re recorded under hey denied the material appearing jtion case and each of the he is innocent and has been falsely Judge after hearing the arguments (•espective parties, convicted and sentenced the accused/appellijints herein, as aforementioned. However, learned Additional Sessji Shatrughan Yadav. GR.PRJ -- FS/2'. lions Judge has acquitted co-accused •<J7— 5Q.OOO. yeq- "qi^i^ti, axfly'Ko, Rjiyiiy^ ^IIKdl *^1*' sn^v wra? (lyf-i.st^Ef) aiT^.^il-^iw ^raran^r *w ia£ ,8Md* ?RITW(TfetI 311^1 We have heard Mrs. Ushji Chandrakar, Advocate for the ^appellants and Mr. U.N.S. Deo, Irespondent/State. Having heard learned counsi Ithe record and judgment of the t Addl. Public Prosecutor for the [\ for the parties, we have perused t-ial court. In this case there is no ocular or direct evidence connecl crime in question and the whole (:ase rests upon the circumstantial Dhananioy Chatteriee Vs. State 220. the circumstantial evidence rfiust satisfy the following tests; a. the circumstances from which drawn, must be cogently and fij b. those circumstances should pointing towards 9uilt of the aj c. the circumstances, taken cj complete that there is no esc|: <BI<<[CT<flll1Tq?if'irfe3t ^siRriTsn^i ing the accused persons with the evidence. In order to rest the corlviction based on the circumstantial evidence, as per decision of the ^on'ble Apex Court in the matter of of W.B. reported in (1994) 2 SCC an inference of guilt is sought to be •mly established; 'e of a definite tendency unerringly cused; mulatively should form a chain so ;pe from the conclusion that within all human probability the crime wjas committed by the accused and none else; and d. the circumstantialevidence ih order to sustain conviction must be completeand incapable of exfilanation of any other hypothesis than that of the guilt of the accus^d and such evidence should not only be consisteht with the guilt of ^ GRPRJ—FS/2. --(Xff—50.000. he accused but should be inconsistent with his innocence. The pposecution has tried t<^ establish the charges against the accused/appellants based on the f(?llowing circumstances; 3^ET '^WW-tl, ^rfw'KS,, ^v^Wy, W^?T V ('^S^^I. •w^i.^iWi^ti ;RI3iR?T •SW i^sSSK ^i;;^?i^ wirar'nter sn^r I. That, accused Vishnu, fathe deceased Bhagwati to seek II. That, the towel, with wHich accused Vishnu said to have strangulated the deceasec accused Vishnu. 1 Circumstance; So far as this circumstance evidence against accused Bharat for the murder of Bhagwati B| concerned, to establish first circij has examined Raghav (PW-9), fat| mother of deceased & Keshru Shatrughan Yadav eight years p i»ii-<[<i<fli'WERif if feat 'rfSRsre ^? sjSrci an^r '-in-law of deceased, used to harass exualfavour. , was seized at the instance of is concerned, there is not an iota of [Yadav that how he was responsible bi. As far as accused Vishnu is mstance against him the prosecution ler of deceased, Kalpan Bai (PW-IO), PW-11), uncle of deceased. PW-9 Raghav has stated that Bhagi^ati Bai was married to accused ior to the date of incident. Thr-ee years prior to the date of marri^ige she started going to her in-laws house. There was a child, aged a|3out 6 months old, from the wedlock of Shatrughan <& Bhagwati. He with him. In turn, his wife Kalpar) has further stated that whenever Bhagwati Bai came to their resijdence, she used to tell her mother that his father-in-law is harassifig her and pressurizing her to sleep Bai disclosed this fact to him, but in the cross-examination this witnejss has stated that this fact was not GRPRJ—FS/2<i 50.000. 3^ET -^ww^, 'Q'AWW, ^v^Wy. HINctl *N!<*' sn^i T»gg? (li'lt-i'siiyr) 3TI^T.^lteT?T ?I8IT 311^1 'sKW TOnwgfCTsn^r lisclosed by him to anyone. Morec Father-in-law of his daughter used hhey also used to go to their placi lever complained them or anybod') :rom the date of incident he stay jreturned on 3 day after cremat |also he did not complaint to any| |village. For the first time, he is never lodged any report regarding |other place. PW-10 Kalpan Bai, mother o| her daughter used to come to th^i her wellbeing, whereupon, she usej: is harassing her for sleeping with compelling her to sleep with him to her husband. After delivering thsir house and on enquiry sh\ tiiim^ ilpraf if -fe^ TfSRSR ^sifgtTsil^r jver, he has stated that husband & [to come to their place and in turn, fc. When he used to meet them, he else. He has further stated that ^d in the village of occurrence. He [on of his daughter. At that time >ody and he directly came to his isclosing this fact in the court. He the conduct of accused Vishnu any deceased, has stated as and when ' house, she used to enquire about to disclose that her father-in-law im in the night and her husband is ^i the night. She disclosed this fact ^i child, her daughter again came to ^ again disclosed the same thing. Thereafter her husband went alo|ig with her daughter to drop at her in-laws place. On the date of inc| informed about the ill health ofl dent, Ramji came to their place and Bhagwati Bai. Therefore, next day morning she along with her husljiand went to the house of accused GRPRJ—FS,. J7—50,000. "i^ H .--Jf^ @^°w^~;'- •.^^t^^^'^^^^^^1^. ilgi 9.M 3^ST -^WW^, gxfly'l<s, fsi^iyy ^•\ b' ^wvii **<i* SO^ •W C^lf^q^T) •W^I.^CT R-fi'h ^8naiR^[ A^jch TWiwgfttT sn^i BIgj iSKi? cni<i[ci<fll '>fft)?rf •?| fe^t TfSR^R i?3Tf?naii^i ^ersons, there they saw the bod^. In the cross-examination, this fitness has stated they were regul(irly going to in-laws house of their ^laughter and in-laws of the decea^ed also used to visit their house. iTheir son-in-law also used to come irior to the date of incident Bhag from time to time to their house, but before the death of their dijiughter they never- complained to anybody. PW-11 Keshru, uncle of dec^ased, has stated that two months 'ati Bai came to his residence, she 'equested him to come to their re^idence when he enquired from her that why she is insisting him to (:ome to their residence, then she disclosed that her father-in-law js harassing her and asking her to sleep in his bedroom, for applyin^ oil on hands & feet. She should behave like a wife with him. Then ^e replied that within 2-3 days he is coming to her village. Thereafteij, he met Vishnu in Village Palansari and asked him as to why he is harajssing Bhagwati Bai, he will convene a meeting of community, on which cross-examination he has stated t Vishnu replied that he should not convene a meetin9 ond i" future h^ will not harass Bhagwati Bai. But in lat he has not disclosed this fact to anybody even when he went to tl^e place of occurrence, then also he did not disclose this fact to the p^lice. GRPRJ—F&... :007 — 50.0ft0. 'i^- i^^^^N^^^ -T^ ^-"''T'^'^ lisl r i •7 :- • s.^-'M-e^.s»,.K.:- 10 'Sv^ ^||<(|<rt<<, ®Tl'1<1'l(o,(s|l?>l*l^< NIN^tl *t<l<* sn^?r iraw (Tpf^^sT) 3lI^I.qiI h-U^h wirsn^t sti*4i+ ^stfR, 'S^ITW ^rf^T 31I^[ w|iy Evidence of the above thre< the reason, that the mother, stated that even after coming t( made, the accused persons used also used to visit the place of| complained or tried to persuad< indulging in such activity and Moreover, after happening of th^ accused persons and stayed ther^ also they did not disclose this recorded the statement of Keshrii incident was of 3.7.1999. No e^ effect as to why they did not dis|: they visited the village of accusec( deceased for sexual favour. doubtful for the reasons that h< these things with his brother i.e. He has also stated that he was village of accused, but he did not statement was recorded by thej incident. Therefore, the delay of| Ev4n »RI<<tCT<i1l 'Wi?lf 'if fS^t ifaK^K ^7 3TfOT Sti^T witnesses is not worth reliance for fifather and uncle of deceased have know about the harassment being }o visit their place and in turn, they accused persons but they never accused Vishnu as to why he is he is harassing their daughter. incident they went to the place of for 3 days and dur-ing that period fjact to the police. Even the police (PW-11) on 16.7.1999, whereas, the cplanation has been offered to the :lose to the police at the time when that accused Vishnu used to harass the evidence of PW-11 Keshru is has not stated that he discussed ^father of deceased or anybody else. pij'esent at the time of incident in the disclose to the police. Moreover, his police only after 13 days of the Irecording statement of this witness GRPRJ—FS/24& ,\— 50,"0' ^ '3^- qs-Ej,| 3^er ^iiiii^, gi^gT^, f^rey 11 3ii^T tRW ('^?fg^g: sili'l.wfe^ wirsn^i sp^; TOiraT'gf^rsii^r ^>i«(t<n<ill-WTCif -iffyS <pifWI< ^affinsT^r |by the police as also not disclosing| to his brother or anybody else the fact disclosed by Bhagwati Bai -tjo him makes the evidence of this witness unreliable. When accused Vishnu was r igularly harassing the deceased, the above witnesses might have persijaded accused Vishnu not to indulge in such activity and non-disclosu^e of the conduct of Vishnu to the police at the time of incident parjticularly being the close relatives of the deceased i.e. mother, fathjer- <& uncle, makes their evidence unreliable and the same also do^s not find corroboration from any other circumstantial evidence. I Even the Investigating Officer was also not sure about the involvement of the accused perso|is in committing murder of Bhagwati Bai that is why when the Statior) House Officer, Police Station Bodla registered the FIR after sevenjdays of the commission of crime he registered the offence under Section 302 of IPC. Accused pe police and onlyon 24.7.1999 af Vishnu wasrecorded. Even the of death that is why initially hi iSection 306 of the IPC not under j'sons we.re regularly in touch with the jt'er 21 days memorandum of accused report that the death was homi^ Uoctor was not sure about the nature ^ did not mention in the postmortem idal and even in the reply given to the GRPRJ — FS/24(6^ 7 — 50,000: "^ l;;ii ]i 'Sv^ '^ww-f, •a-^v'w, Rjriiu^ 12 ^Wvi\ *t<jch" sn^OT '<ra% C'rtg^r) a^l.'^l'few wiraii^r gpfe ^<nwgte[3ii^i queries made by the Investigat Idefinite in his opinion about the na' Therefore, the above facts of suggestive nature that the invi not sure about the nature of deatl able to collect the cogent and clej accused persons that they had Even when the allegations were harassing the deceased and askingj husband and Bharat (brother-in-lf crime. No evidence coming forth| is that Shatrughan was advising hi|: cni«<I<1<i1-l tITlRTf -^fyf! ^WK ^sfRPT 311^1 |ng Officer, the doctor was not ^ure of death. land circumstances of the case are sstigating agency till 16.7.1997 was andeven thereafter they we.re. not ir evidence in order to connect the ommitted murder of Bhagwati Bai. gainst accused Vishnu that he was her for sexualfavour, fhen why her iw) have been roped in this heinous rather the case of the prosecution wife Bhagwati Bai (since deceased) not to oblige his father and she sl^ould remain in his bedroom only. Perusal of FIR shows tha-1 the same is also contradictory, at some places it has been mention|ed that Vishnu as also her husband Shatrughan used to harass her tc] bedroom, whepeas, later on, the| oblige is father Vishnu and go to his case is developed that Shatrughan used to ask Bhagwati Bai to rem^iin with him in his room. Therefore, the evidence of PW-9, PW-10 & pW-ll is not worth reliance and does not inspire confidence of the Cc^urt in order to connect the accused Vishnu <& Bharat with the crime i^question. GRPRJ— FS/; ./, ; V. 1 •f ! i !' ,7—50.000. y ff' :.i.: t.^'lsl ^;'^ ^••^t' B^WiSS^.uAw^i.^sEi.s^^^.^^^^ .*^ 13 ^u^ ^IIAIId^, »TJ1<H'l(o, Rlcr'>iy^< ^W^\ sbtllch sn^r TRR; (ij«if-l«<<w) •ar^t.^T h-v'ii ^•iraiT^r st>4i'+ sigi. ^i;g^i^ Roshan/- 'reiiw ^to sn^i >nd 2"° circumstance; So far as the recovery ol instance such towels are gene| moreover, no specific mark was towel was used for strangulation with the crime in question. Ther| house of accused at his instanl prosecution to connect the accuse^l For the foregoing reasons, Bharat cannot be sustained, as clinching evidence. In the result, the appeal ff the same is allowed. Conviction o| Yadav under Sections 302 <& 201; under those sections are hereby ^ charges. It is stated that the apj 1999, therefore, they be set at any other case. Sd/- L.C.BHADOO Judge towel is concerned, in the first ;j'ally available at the residence, (n the towel to establish that this in order to connect accused Vishnu ^fore, recovery of towel from the (:e is of no use or help for the with the crime in question. «Bi<<i<i4-i'wraf if fest :(fSR?TC ^T sjRfii an^r Ithe conviction of accused Vishnu <& he same is not based on any legal iled by the appellants succeeds and appellants Vishnu Yadav <& Bharat of the IPC and sentences imposed et aside. They are acquitted of that aellants are in detention since Juiy, iberty forthwith, if not required in GRPPJ— FS/246—2/2007— 50.000. ^'!T;^^:?ll:^^fcti;3^S?l^^l -^^tt- ^;S:T?1@'^; ^M