lUfflinil CF0000062002 'a") AviSion Ba^r! ^1'"""'" IN THE HIOH eOUR'E OF JUDICATURE AI JABALPUR Gr.Appeal No. ^S~3 0£ 1999 (ManorendaiT! of Appesl UnderSsction 374 of Cr.P.Co) APPEL.L.aNT TN 3-.AIL Khursal @ santosh Oiandra, g/o Ihany Ram Chandra, aged 24 years, resideat of village Kumhari Chowki Kosir, 13-iana sarsragarh district Raigarh («P). ^): ff U! i, '—'- t' '~4* :^y <//,)<. RESPONDENT Versus The State of Hadhya Pradesh, Ihrough -the District Hagistrate RAIGARH (MP) . BEMaRANDUM OF APFEAL UNDER SECIION 374 OP Cr.P.C. .^. ^^ HIGH COURT OF CHHATTISGARH : BILASPUR CRIMINAL APPEAL N0.253/1999 Khursal @ Santosh Chandra Vs. The State ofMadhya Pradesh (Now Chhattisgarh) CORAM : HON'BLE SHRI FAKHRUDDIN & HON'BLE SHRI DHIRENDRA MISHRA, JJ Present: Shri Vimlesh Bajpai, counsel for the appetlant. Shri U.N.S.Deo, Govt. Advocate/Addl. PubUc Prosecutor for the State. JUDGMENT As per Dhirendra IVIishra. J ' The appellant has preferredthis appeal under Section 374(2) ofthe Code of Criminal Procedure against the impugned judgmentdated 28-11- 1998 passed by learned First Additional Session Judge, Raigarh in Sessions Trial No. 158/97 by wAiich the learned First Additional Sessions Judges after holding the appellant guilty for eausing death of deceased Chhavilal, has convieted the appellant under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment fpr life. 2. Case of the prosecution in brief is that Police Outpost Kosir, Police Station Sarangarh registered a crime under Section 302 of the Indian Penal Code on 21-8-1997 on the basis of information (Ex.P/10) given by Nand Bai to the effect that on 20-6-1997 at about 6.00 p.m. when her two sons after taking meals wsnt outside, deceased Chhavilal retumed at about 9.00 p.m. and went for sleeping on the terrace. After 1 to 1% hours she heard the voice of her son Chhavilal 'Oh mothef' whereupon she went on the terrace alongwfth her sister-ln-law Shyam Bai. On the terrace Chhavilal was crying 'Oh Mothei' and thereafter his voice stopped. She saw the blood spread on the terrace and there was injury over the left shoulder of Chhavilal caused'/by a sharp edged weapon and some unknown person has murdered her son Chhavilal. 3. The police proceeded for the scene of occurrence. Inquest was conducted after giving due notice to the witnesses vide Ex.P/1. Dead body was sent for autopsy to Primary Heatth Center, Sarangarh. Dr. P.K. Tripathi (PW-5) after conducting post mortem over the dead body of the deceased submitted his report (Ex.P/12). Blood stained mattress was taken into possession from the spc^ vide Ex.P/3. On the basis of ths memorandum under Section 27 of the Evidence Act of the appellant (Ex.P/4) blood stained T-Shirt was seized. Weapon of offence Fare/ was seized from Ishwar Prasad vide Ex.P/6 after taking the same out ofwell. Blood stained full pant, blood stained gamchha and shirt were seized from the appellant vide Ex.P/7. The weapon of offenee Fara; was sent for examination to the Doetor who opined that the injuries mentioried in the post mortem report could be caused by the above weapon and such injuries may cause death. However, he advised that the weapon of offence be sent for chemical examination for confirmation of presence of blood. The underwear wom by deceased Chhavilal was taken into possession. Spot map was prepared by Halka Patwari vide Ex.P/13. The seized Farsi was put for identification by the Executive Magistrate and the identification memo is Ex.P/19. Identification parade of appellant Khursal @ Santosh Chandra was also conducted vide Ex.P/20. After completing IIli the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Sarangarh who in turn committed the case to the Court of Sessions Judge, Raigarh from where learned Additional Session Judge, Raigarh received the case on transferfortrial. 4. Learned Additional Session Judge framed charge under section 302 ofthe Indian Penal Code. However, the appellant abjured the guilt. 5. The proseeution in order to establish the charge against the appellant has examined 19 witnesses in all. Statement ofthe accused was atso recorded under section 313 of the Cocte of Criminal Procedure in which h® denied the cireumstances appearing against him in the prosecution case and pleaded innocenee and false implisation. Leamed trial Court after hearing the Public Prosecutor and the counsel for the appellant held the appellant guitty and convicted & sentenced him as mentioned above. 6. Homicidal death of the deceased is not in dispute. Even otherwise from perusal of statement of Dr. P.K. Tripathi (PW-5) who conducted the post mortem over the dead body of deeeased and from the injuries described below, the homicidal death of deceased Chhavilal is established: (i) Sharp cut injury size 11.0 cm x 3.0 cm x TD on the antero-lateral aspect of the left side of neck, placed horizontally, 7.0 cm above the left clavicle. Left conrimon cavotid artry and external jugular vein was completely cut. ^-/r"' (2) Sharp cut injury size 12.0 x 3.0 cm x TD on the teft shoulder, 4.0 cm above the left clavicle, placed horizontally. (3) Sharp eut injury size 18.0 x 5.0 cm x TD reaching upto the vertical column on the postero lateral aspect ofth^'root ofthe neck. (4) Sharp cut injury size 1.0 x 0.5 cm x TD on the dorsum of the index finger of right hand as the proximal phalanix. 7. Admittedly there is no eye witness tp the incident. The case of the prosecution is based on cireumstantial evidence. Learned Additional Sessions Judge has convicted the appetlant on the basis of foltowing circumstances: (i) SK months prior to the incident, the appellant left his house after quarrelling with deceased Chhavilal and joined as Khalasi in a Bus Sen/ice. (ii) The accused was spotted in the vicinity ofthe place of occun-ence at the time of incident. (iii) The weapon of offence was obtained by the appellant from the temple, which was subsequently seized from the well. On the basis ofthe above circumstances, the appellant was held guilty. 8. Leamed counsel for the appellant submitted that none of the circumstances relied upon by the prosecution has been established by leading reliable evidence. The circumstances so established d6 not unerringly point towards the guift of the appellant and the chain of circumstanees is not complete and on the basis of the circumstances so •Kss^S. ^^'^Ss^k' established it could not be inferred that the appellant alone has caused the death ofthe deceased. * 9. On the other hand, leamed counsel for the State supported the impugned judgment. 10. We have heard leamed counsel forthe partles. 11. So far as the first circumstance is concemed, the Court below relying upon the stipulation of the First Information Report which was lodged by the mother of the appellant, has arrwed at the conclusion that since there was a quarret between the deceased and the appellant six months back and the appellant started residing elsewhere, a motive to the ^ appeilant to cause death of the deceased is established. However, from perusal of the Court statement of PW-4 Nand Bai who has lodged the Report, we find that she has not mentioned this feet in her Court statement and to thal extent she has been declared hostile. In the statement PW-4 Nand Bai has stated that the appellant and the deceased are her sons. Herson Chhavilal is dead as somebody killed him on the terrace. After hearing the cries of her son Chhavilat she along with her sister-in-law Shyam Bai went there and saw Chhavilal lying, blood was oozing from his body. She also stated that Chhavilal could manag®only to say 'Oh mother what happenesf and thereafter he died. She did not see anybody there. Thereafter number of villagers gathered there and on their adviee she lodged the report in the police station. She has denied the suggestton gh/en by the Additional Public Prosecutor that she did not give statement AtoAoTEx.P/11. ^'; ^- 12. Ravishankar (PW-7) brother ofthe deceased has atso not stated anything against the appellant. However, the finding of the frial Court is based on the stipulation of the FIR, which is not substantive peace of evidence and therefore, in our considered opinion the Court below has committed illegality. There is no' moth/e of the appellant to kili his own brother. 13. So far as second circumdance is concemed, PW-8 Ravi Kumar has stated that appellant Santosh works as a Cleaner in a bus and generaily he used to wear Green T-Shirt and Catechu (KatMha) Pant. He further stated that after the incident he met the appeUant at Bargarh. On enquiry, as to why he do not attend his services, the appellant informed that he has been removed •from the service. He stated that thereafter the appeflant had borrowed an amount of Rs.25/- from him. On the other day, Rameshwar, Dmer, informed him that Santosh has ran away after committing murder of his brother and Police is in seareh of him. From the statement of this witness we are unable to concur with the finding of the Court below that the appellant was seen in the vicinity of the place of incident as this witness nowhere stated that the appellant was seen in the vicinity and the above finding ofthe Court belowis wthout any evidence. 14. The Court below has based the convietion of the appetlant on the statement of PW-18 Chitra @ Ramkishan. He has stated that the accused daiiy came to him and purchased cocohut. He further stated that after some days the appellant again came and asked for Farsi for using the same for oblation and obtained the same. On the next day on being asked by the Police he informed that he had gwen Fars/ to the accused and SI^^^^T^ ••'•-=^"1-g!Ss>"esSS»- thereafter the same Farsi was put for identification and as per the identrfication memo of Ex.P/19 he had identifled the Fars/ and put his signature on the document Ex.P/19. Thereafter the identification of the accused was conducted in his presence. He identified the accused amongst 4-5 other persons ai)d put his signature on the identificatlon memo (Ex.P/20). The Court below has arrived at the conclusion that the Farsi seized from the welt was in fact obtained by the appellant from PW- 18 Chitra @ Ramkishan, forthe purpose ofkilling his own brother. 15. From pemsal of the record, we find that the Farsi in question has neither been seized from the accused nor did it contain human blood as per the report ofthe Serologist. Thus we are ofthe considered opinion that the Court below was not correet in holding that the above circumstance was also established. 16. In vtew of the aforesaid discussion, we are of the considered opinion that the prosecution has utteriy faited to connect the appellant with the offence alleged against the appeilant on the basis ofthe circumstantial evidence and the Court below was not justified in hokling the appellant guilty under Section 302 of the Indian Penal Code & sentencing him to undergo imprisonment for life. 17. In the result, the appeal succeeds. The judgment ofthe trial Court convicting and sentencing the appeltant as above, is set aside. The appellant be set at liberty forthwith ifnot required in any other case. Sdi- Dhirendra Mishra Judge Judge Go\wri