AP-<: [GH COURT OF CHHAmSGARH AT BILASPUR lai Appeal No, 253 of 2004 APPELLANT: Gajadhar Marar : i';^-'-":^g!^^ RESPONDENT: Versus State of Chhattisgarh •f-i .•.', JDGMENT FOR CONSIDERATION Sd/- DHIRENDRA MBHRA Judge Sd-/ ,aheb Judge POST FOR JUDGMENT ON I? MARCH, 2009 • Sd/- Dhirendra Mishra Judge /fKWS3t ^Ji.... ,,;;;*ai »??A :t •''••' HIGH COURT OF CHHATTISGARH AT BILASPUR CrimmalABneal No.253 of 2004 APPELLANT: RESPONDENT: Gajadhar Marar, S/o Dwarika Marar, aged about 23 years, R/o ViUage Ranwa, P.S. Atjuiii, District Dhamtari (CG) Versus ^ State of Chhattisgarh, Througb Police Station Atjuui, District Dhamtari (CG) Rresent: Shri Uttam Pandey, counsel for fhe appeUaat. Shri Pravia Das, Deputy Govt. Advocate forthe State/respondent. Divisioii Bench: Hon'ble Shri DIilreadra Mishra & Hoa'Ue Shrl D.R. Deshmuth^JJ. JUDGMENT (Delivered on 1"7'" March, 2009) The foUowing judgment df the Court was delivered by Dhuendra Mishra, J. 1. This Crimio.al Appeal under Section 374 (2) offhe Cr.P.C. is directed agamist tlie judgnient of conviction and order of sentence dated 7th Januaiy, 2004 passed iu S.T. No. 105/03 whereby learaed Additioual Sessions Judge, Dhamtari, has convicted the appellant under Sections 363, 364 and 302 ofthe IPC and sentenced Wvn to undergo imprisoninent for Ufe & to pay a fiae ofRs.1,000/-; R.I. for 7 years & to pay a fine ofRs.1,000/- and to undergo impnsoruaent for Ufe and to pay a fiae of Rs. l,000/ - respectively. It has been further directed fhat on default of pa;rment offine ofRs.1,000/-, hc shaU also suffer R.I. for one year on each count. AB fhe fbree seatences have been directed to run cbncurrentlv. ^z 2. The case of the prosecution, as revealed froia First Informatioa Report of Ex.-P/11, is that fhe appeUaat had iBicit relationship with \ • Bena Bai, daughter of fhe complainant. Bena Bai gave birfb to a inale child on 16-11-94 through her iUegitunate iclationship wifh the appeBant. Panchayat was convened ia fhis regard and it was decided fhat the chUd shaU reinain ia the custody of his inother for the present and custody sba0.pe handed over to ffae appeUaat after titie 'i-f-. child attains the age of 3 years. Bena Bai is urunarried, who is residiag wifh her father Ram Dayal (PW-2), fhe coinplamaat On the date and time of fhe iacident, when tlie ctuld was slceping wifh his luatemal grandfafher i.e. the coniplaiaaat, the appeUant forcefully took fhe cluld and fled away leavrag the bicycle ia the house of the coinplauiant. The coiuplauiant tried to chase fhe appeUant, however, he nianaged to flee. On 6-10-95, Shiv Prasad (PW-1) gave inerg intuaation in fhe PoUce Station Ranchirai, District Dui^ infonnuig fhat the dead body of l-lVz years old child is floating ia the can.al. 3. After registering taei^, the Police proceeded to fhe scene of occurrence aad perfortQed inquest over the dead body of luikno^ni child on 6-10-95 ia fhe presence of^vitaesses. The body was sent for autopsy to the Prunaiy Healfh Centre, Gunderdehi where Dr. A.P. Sawant conducted postmorteiu aad gave his report ofEx.-P/10. 4. Oa the basis ofcoxuplaint dated 5-10-95 of coiBplainaat Rain Dayal, Crmie No.216/95 was registered on 11-10-95 under Section 363 of fhe I.P.C. aganist fhe appellant vide Ex.P/11 in PoUce Statfon Arjuiu. Furfher i.uvestigation coinmenced. The decision of Pauchavat ia tlie fonu of agreenient was seized froin Deen Dayal vide Ex.P/4. Oae bicycle left by the appeUant iu the house of the coniplainant was seized from hiai vide Ex.P/5. Spot inap (Ex.-P/6) was prepared on 11-10-95. Sealed packet contami&g Shirt and underwear of fhe \ deceased was seized on beiag produced by constable Santosh Singh vide Ex.-P/7. The cloth of fhe chfld was identified by tlie coinplainaiit aad bis daughter Bena Bai vide identification ineiuo of 5. After conipleting the uivestigation, chai^e sheet was filed ia fhe Court '/'i- •^ of Judicial Magistrate l'st Class, Dhamtari on 2-1-96 showiag the appeUaat abscondiug. After enqiuiy, learaed Magistrate declared the appeUant absconding aiid issiied penaaiient warrant of arrest agaiast him fhrough PoUce Station Arjuni. The appeUant was arrested on 10-2-2003 aad produced before the Judicial Magistrate, who coiiLmitted fhe case to the Court of Sessions Judge, Raipur on 7-3-2003, who transferred ttie case for trial to leamed Additional Sessions Judge. 6. During ta-ial, fhe prosecution examin.ed 12 wituesses in all, thereafter statement of the accused was recorded iu which he deiiied the circuiustaaces appeariug against Tiim in fhe piosecution case. 1n aaswer to question Nos.28 and 33, he stated ttiat he did not take the chiid and further pleaded that he is ianocent. The complamant has him.se]f fhrown t.he child for the sake of his houour and to ensitrc marriage oflus daughter. He has beea falsely implicated. ". The trial Court after hearing leamed coiinsel for tlie respective parties, convicted and sentenced fhe appeilant as laentioned above. 8. The appeUaat has denied entiie case of fhe prosecutton. Leamed counsel for the appellant also argued fhat the prosecution has failed to prove hoxnicidal deatii of Chetan. J % 9. There is no eyewitaess to fhe incident. The appeUant has been convicted on fhe l?asis of circunistantial evidence. To establish \ homicidal deafh of mfant Chetan, the prosecution has examined Dr. A.P. Saivaat (PW-9), who conducted autopsy over fhe dead body of fhe chiid and subinitted aad proved his icport dated 6-10-95 (Ex.-P/lO). In his deposition, he has stated fhat fhe body was of a healthy child aged about 9- 10 mouths. Rigor inortis was ptesent in fhe bofh fhe hands and legs. Eyes and inouth were closed. Froth was coTning froni bofh the nostrils. Throat and Trachea were fiBed in with secretion. Both fhe lungs were battooned up. Air bubbles caine out on applyiag pressuTe. Right chamber was fiill of blood. Left chamber was eiupty. Major arteiy was firil of blood. Stoinach was full of fluids. Lwer, spleen aiid kidney were congested. He was not suffering frora aay disease or defonrdty. There was no dislocation or fracture of auy bone. He opiued that cause of death was asphyxia due to drowning. The deafh occurred 24 hours before fhe autopsy. [n the cross-examination, he has also adinitted fhat there are no extemal uijuries over the person ofthe infaat. 10.0n the basis ofevidence ofDr. Sawant, the trial Court has held ffaat fhe deafh was not natural. Cause of death is asph^'xia due to drowning. Chetan died any tiiae between 5-10-95 and 6-10-95. There is no findiag whether the death was hosaicMal or accjideutal. 11. Shri Uttam Pandey, leanaied counsel for the appeUaat subinitted fhat conviction of the appeUaiit is based on circuinstaittial evidence. The cu-cuinstaaces.relied upon by fhe trial Court have not been cogently aad firmly established. The inotive attributed to the appeUant fhat he killed infant Chetan because he apprehended tliat the child would :-'i<;L~^ ^ss^.j •l^^y .,.<••./' succeed his properly as shareholder is hi^hly impTobabIe and farfetohed. There\is ixiconsistent and contradictory evidence regardiug the appeUaat coTning to fhe house of PW-2 Ram Dayal aad taking fhe chfld while &e was asleep. The conduct of fhe prosecution witaesses is highly un-natural. Registiation of fhe offence after 5 daysofttie racident on 11-10-95 on ftie basis ofwritten icport dated 5-10-95 creates suspicion,yeganling veracity oftfae prosecution case. Written report itself has not been produced and fhere is ovenvritins with respect to the date of incident, relevant Roj Nasncha Sanha, recorded on the date of fhe incident, has not been produced. Thus, ftie prosecution has failed to establish iadividual circumstances beyond reasonable doubt aud tfae Court below was not justified in convicting fhe appeBant on the basis ofunproved circuBastances. He further argued fhat the probable defence of fhe appeUant that the cotnplaiaaat Ram Dayal bad hiuiself fhrown fhe infaiit in the Nala, as his daughter Bena Bai was beiag defamed due to iilegitiinate chfld aad he was facing problera in her ruarriage has been discarded without aoy proper reason. 12. We have heard leacned counsel for fhe parties. We have perused the record ofthe trial Court as also the impugned judgine.nt. IS.Tfae trial Court, on tfae basis ofevidence of PW-3 Bena Bai, m.0ther of fhe child, has held fhat fhe deceased was iUegitimate cIuM of the appeBant and, therefore, he inurdered the child so fhat he does not succeed to his estate and as such, Iie had a niotive to coinmit the offence. Relying upbn the evidence of PW-2 Ram Dayal and PW-3 Sena Bai, it bas been held that tlie deceased was iBegitunate child of appeUaat thiough Bena Bal. It was decidcd ia the Panchayat fhat ii^-^-1 r after tlie chfld attaias the age of7-8 years, the custody offtie child would be handed over to fhe appeUant; on the date of the iacident \ when Bena Bai had gone to work, tlie deceased was sleeping wifh Ram Dayal. After ttie appeUant took fhe chfld, the above witaesses searched the chfld in the viciaity. When fhey did not find him, tb.ey infomied the vfllage Kotwar aad also lodged fhe report in the Police Station Arjuni. 2 days fhereafter the body of the chfld was discovered ia fhe Nala of vitl^e Avasrt;. They identified the chfld by his clothing aud thread tied arouad his neck aad waist. The version of Bena Bai and Rain Dayal is duly corroborated by fhe evidence of Rajaram (PW- 5) aud Paiasram (PW-6). 14.While abductiag the child, tlie appeISant left his bicycle ia fhe house of the coiaplainant, which was seized fix>in tjhe coxaplatnaat fioin hfe honse. Sliiv Prasad (PW-1), Kotwar of vfflage Avari, gave inerf intiination (Ex.-P/l) ia the PoUce Station Ranchirai on 6-10-95 at 11.00 hours iaforming that the dead body of uaknown child aged about 1-1 */2 years is floatiag ia fhe caaal near Jharmara ciilvert, Avari. After performirig iaquest, fhe body was sent for autopsy. The postcaorteni was conducted on 6-10-95. PW-l Shiv Prasad bas proved merg iatiination (Ex.-P/l) aad iaquest of (Ex.-P/2) aad has stated fhat he does not recognize Gajadhar. He was iafonned by the vfflagers regarding presence ofa dead body ofaboy aged about 9-10 '1. inouttis. He does not know the parents of the chfld. In cross- exainination, he has fiirfher stated that fhe Police did not record his statement. IS.The crunewas registered on 11-10-95 in Police Station Arjuni on fhe basis of\vritten coniplaixit lodged by Ram: D^ral on 5-10-95 under 7 ^) Section 363 of fhe IPC agaio.st the appellaut and iavestigatiou coianienced ftiereaft6r. 16.PW-2 Ram Dayal, father of Bena Bai, has deposed fhat ia the -Paachayat Bena Bai had disclosed tliat appeUaiit is fafher of fhe cafld. Itwas decided iu fhe Paachayat fhat fhe custody offhe child shaU be haaded over to the appeUant after he attam.8 the age of 7-8 years. Oa the date ofinoident, the chUd was about 7-8 nionfhs old. He was sleepuig wifh fb.e child, as his inofher had gone to work after feeding him. At that tune, fhe appellant dragged fhe chfld wifh Iiim.. He uifonned Rajarani (Kotwar) aad ofher villagers and also gave written report in the PoUce Station. After 2 days, Kotwar of viUage Avari came to him aud iafomied regaidiag recovery df dead body of an in&nt. They identified fhe child by his clotluag and fhread tied around waist ia Police Station Ranchirai, In para-3, he bas stated fhat he did not give written report in fhe PoUce Station aad his statement was also not recorded. After few days ofthe inicident, Bena Sai was married to one Rajkuinar and she has given birfh to 4 chitdrcn. In para-5, he has admitted that after learuin.g about fbie iacident, on the next day he had gone to the Police Station Rauchirai wifh Kotovar offhe viflage. However, no proceedings were drawn. The distance of Raiichirai froin his viUage is about 5 Kose. In para-7, he has also admitted that he did not go to fhe house of Gajadhar for search and he accoiapaaied Kotwar Rajarara to Ranchirai Police Station for identilving fhe cloths. He has furtlier stated fh.at when his daughter Bena Bai came jfroin the fleld, he was sleeping. She awoke him and enquired about the chfld and only fhen he infonaed her. However, he has denied suggestion that he had thrown fhe child ia fhe Nala, as he was being defamed due to iUegitimate child and he ,;^ir ^iff''Ba». •I, ii"!"'sv> ^. ^-J^ was also facing problein in the inarriage of Bena Bai. They went to Police Station on fhe next day after receivuig iaformation about the \ • •recovery offhe dead body ofa child. He has also adautted fhat ia the earlier stateiaent before the Court, he had deposed that he did not know as to when fhe appeUaiit came on the date^pf the incident aad he did not see him. He has farther stated fhat after fhe iacident neither he went to the house of Gajadhar nor he enquired from him. It is correct to say that befi^re the iacident or thereafter the appeUant did not quarrel or inisbehave wifh TIJTTI. 17. PW-5 Rajaraia, Kotwar of viUage Rawa, has also deposed that Bena Bai gave birfh to an iUegitixaate child fhrough the appellant. It was decided iu fhe vfllage that tiU fhe child grows up, he wiU reside with Bena Bai and thereafter the appellaat wiU. take care of liim. The father of Bena Bai iaformed hini that fhe appeUaat has taken fhe chUd. When fhe chiid could not be fouad on search, report was lodged on the uext day. Hero cycle was seized froni Ram Dayal by the Police under Ex.-P/S. The Kotwar of Raachirai Police Station came to him and mformed that fhe dead body of the chikl was found ia Dhaiudha Nala, which was taken to Ranchirai Police Station. The child was identified on the basis of cloftiiag and thread tied around his neck and leg. He has admitted ia cross-examination fhat he signed fhe papers on being asked by fhe Police without icadiug the same. He had gone to Police Station Raachirai with coiaplaiuaiit Ram Dayal. TIie wearuig apparels of the child were seized in fhe PoUce Station Arjuni ia his presence. He did not accoinpany Rara. Dayal to PoUce Stetion Arjuui. ^ i8.PW-12 B.R. Singh has deposed th.at he was posted in fb.e Police Station Arjuiu betwee'n 1993 aiid 1996. AppUcant Ram Dayal had given an appUcation on 5-10-95 nienti.oning therein that his daughter Bena Bai had given birth to a chfld fhrough iUegitixiiate relationship with tlie appellaat. The child was handed over to the m.0ther in the Panchayat. Tbe saiue child was taken by the appeUaat. On fhe basis of writtea coinplahit, crtme/,was registered vide Ex.-P/ll. During ^f, " • " investigation, he had effected seizure ofbicycle left by the appeUant in fhe house of fhe couiplaiaaat vide Ex. -P/ 5. He had also seized one agreeinent written by Gajadhar on 11-10-95 vide Ex.-P/4. He preparcd the site plan of the place ofincident Ex.-P/6 on 11-10-95. In cross-examination, he has stated that he received uiformation by fhe coniplainant on 5-10-95. He has further stated that he is not in a position to tell as to at. what tiTne fhe coxuplainaat lodged ftie report. He was also not iu a position to teB whether he did not take aiiy action afier receiviag the appUcation or he received the application on 11-10-95 at about 16.30 hours and only thereafter he registered first uiforDiation report. After registeruig fhe crinie, he oroceeded for Rawa. In para-10, he has stated fhat he received fhe report from soine constable aad he is not aware of fKe naaie of ftiat consteble. He has adinitted overwntiag iu fhe first iDfonnation report. He went to obtaia docuxnents froin Police Station Raachirai on 12-10-95, however, no docuinent ia this regard has beeu fiiled. He has fiu-fher admitted that he did not visit viBage Avari where' the dead body of uaknown iafaat was foujid. He. also adinitted fhat he did not exhuine the body or condzict any identt&cation of fhe dead body and identification was done only on fhe basis-aof clofhxng, fhough docuineut fhrough which identificatioa was done bas not been. filed 10 ! li with the charge sheet. He has also adinitted fhat Ram Dayal aad Bena Bai did not ^isclose the fa.et that the dead bodv of iafant was received on the veiy next day oflodging tbe coinplamt. l9.Kunjlal Chaadrakar (PW-7) has proved the seazure inenio ofEx.-P/7 whereby clofhing of the chfld was seized. He has admitted Iiis signature over identification inemo of Ex.-P/S. However, he has stated that he does ' 'not remember whether he conducted identification of the seized clofhs that were identified by Rain Dayal and Bena Bai. -He has denied the seiziire ofclothiag ofthe deceased by the Police is, his presence and also deiued identification ofclothmg by Bena Bai and Rain Dayal. 20. On close scrutiny of (he evidence of the aforesaid witaesses, it is manifestly clear fhat fhere is no clmchiag evidence avaUabIe on record tQ estabUsh that the coinplainant lodged the written coiaplaint on 5-10-95 or 6-10-95 ia the PoBce Station Arjuni. The origiaal complanit has not been produced nor Roj Naincha Saaha, referred ia tfae first information report, £as been produeed and proved by fhe prosecution. On tlie ofher Iiand, PW-12 Investigating Officer has given evasive aad spacious aaswers ia cross-exanunation regaidias the date aad tfcaie on which writteii coniplamt was received aad action taken thereafter. The coiuplainant bas adinitted that affier receiving infonnation fhat a dead body has been recovered iri fhe PoHce Station Ranchirai, he Went to the PoUce Statioa Ranchirai and identified clofhes/fhreads of fhe deceased child. However, fhere is no evidence that Iie disclosed the fact regardiag involveiaent of fhe appeUant to fhe Police Station Raachirai or what stction was taken by ».tiie P.S; RaacKirai fhereafter. There is no explaaation as to why the 11 % dead body was not exhuined and put to identification either by PS Ranch.irai or PS Arjuni. The identification of fhe dead body is solely \ based on identification of clothing, which was allegedly identified by fhe coiaplainantand. his daughter Bena Bai in the presence ofPW-7, thouKh fhis witaess has denied fhe seizure as weU as identification. Sl.Bena Bai (PW-3), inother of the deceased aud daughter of the coiuplauiant has also niade similar stateinent as her father PW-2 'i-(- regardiag fhe birth of infant aad about fhe iacident. She Ta.as further stated fhat according to her understaiiding the appeUaat kflled tfae deceased, as the deceased had share ia his property. In para-1, she has stated that her father iaformed that the appeUaat has taken the chfld, thereafter they went to ttie Paach aad Sarpaach aad searched fh.e child in fhe vicmity aad fbieicafter, lodged fhe report. In para-5, sb.e has stated that on the very next day when she leamt that one uiiclaiined body of child has beea found ia fhe can.al, she went to Ranchirai. However, she did not disclose the above fact in the PoUce Ststioa Arjiuu. In para-7, she has adinitted fhat she did not disclose fhe fact to the PoUce fhat fhe appeUant inurdered the chUd because he would have share ui his property. She has also admitted fhat after the child was taken by Gajadhar, she did not go to the house of Gajadhar to enquire. 22,The conduct ofthe com.plaiitaiit aad his daughter after the iacident is highly unnatural. Firsfly, bofh of thein have adinitted that fh.ey did not inake aay enquiries iiniaediately after fhe incident froin ftie appellant regarding wheicabouts of fhe child and _secondly, they did not iaform P.S. Arjuni regarding recoveiy ofdead body offhe child in fhe Poiice Station Rauchirai. They also did not Sitimate PS Ratichirai 12 that they had ah-eady lodged report agaiust fhe appeUant in PS Arjiud. v 23. Froni overaU. evidence avaUable on record, we find fhat though there is un-contraverted evidence fhat the appeUaat and Beua Bai had iUegitnnate relationship; one child was bom through fhat illegitimate relationship; in fhe Panchayat, it was decided that fhe custody of the chfld wfll be with the app^ilant after he attauis fhe age of 7-8 years aad at fhe time of the uicident the child was iu the custody of his inother Bena Bai, who was residing with the coinplamant her fafher. However, the evidence ofPW-2 fhat the appeUaat took the child while he was sleepiag wifti Tiim does not iaspire confidence of the Court for fhe reasons stated above. The evidence of Bena Bai is also not worfh reliance. Apart fi-oin this, there is virtuaUy no credible and reliable evidence regardiag identification of the child. The motive for coirunission of crune is also farfetched and it is highly improbable fliat. fhe appellant would kUl infant aged 9-10 inonths and involve himsetf in a heiaous offence just to ensure that he does not claiin share in his properly after attaining raajorily, that too in fhe absence of evidence that fhere was aay dispute wifh respect to property betaveen the appeUant and luofher and niateraal grandfather of the deceased in this regard. The trial Court has relied upon recovery of bicycle of fhe appeUaat f^osi fhe house of ttie coiuplamaat, as a inaterial cu-cuinstance against the appeUant, however, ia tlie absence of aay evidence regardiag identification of bicycle, ffae above circuiustacice against fhe appeUaut caanot be held. to be estabUshed. 13 24. It is a settled law as held by the Hon'ble Apex Court ia plethora of judgments that wh^n a case rests upon circumstantial evidence, such evidence inust satisfy fhe fbUowixig tests:- "(1) fhe cireumstances fix>ia which aa inference of giiilt is spught to be drawn, m.ust-be cogentiy and firaaly estabUshed; (2) those circuiiistances should be of a definite </ tendency unegi-iiigly poiating towards giult ofthe accused; (3) the cu-cumstaaces, taken cuiiiulatively, should forru a chaua so coiaplete fhat there is no escape froin the conclusion fhat wifhin. all humaa probability fhe crime was coiainitted by the accused aud none else; and (4) the circuiastautial evidence in order to sustaia couviction luust be coiaplete aad incapable of explaaation of aay other hypothesis fhan fhat of the guilt of fhe accused aad such evidence should not only be consistent wifh tlie guilt of the accused but should be iaconsistent with his innocence. 25.Thus, haviag regard to tlie entire facts aad circuiastaaces ofthe case aad evidence available on record, we are conviaced that the prosecution has nuserably faUed to build up any cbain of circuiiistances which in its totality would point out tlie guUt of fhe appeUant aud consideruig fhis aspect alone, we are of the considered opinion fhat leamed Additional Sessions Judge. totaBy misdirccted himself iu the niatter of appreciation of evidence and this wron^ appreciation of evidence led to him to hold fhat fhe appeUaat was guilly ofiaurder oftbe deceased, therefore, we are not ia agreeiiient with fhe view of leamed Additional Sessions Judge and ui fhe i<-^;-aa&,.. f /_" ^^•PS5^, ' ^'\ \ '\^:^ ti 14 Sarve aforesaid circuinstaaces, fhe appeUant was entitied for benefit of doubt. \, 26.It is a settled law fhat suspicion, howsoever, grave iiiay be, cannot take place of proof as there is a long distance between "inay be" and "ruust be" aiid presuinption ofinnocence is available to fhe accused. Reliance is placed on fhe judgraent of fhe Hon'ble Supreine Court reported m (2004} 10 SC^ 699 ia fhe matt.er ofNarendraSindi and 77- another Vs. State of M.E. in this resiard. 27.Thus, ia view of fhe aforesaid discussion and having regard to the evidence available on iccord, we are of fhe consideted opinion that the judgnient of conviction and order of sentence passed by leamed Additional Sessions Judge agauist the appeUant caanot be sustained and the same is liable to be set aside. 28.In fhe result, the appeal succeeds. The appeUaiit is acquitted ofthe chai^es leveled against him and he is directed to be set at liberty forttnvith, ifnot required in coiuiection wifh any other offence. Sdi- Dhirendra Mishra Judge •''. Sd-/ aosaheb 1 Judge