(£) HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR. JJ 88. •i»H-' Appellant In Jail Criminal Appeal No.751 of 2008 Shankar @ Lodhu, Son of Gautam Dubey, aged about 30 years, Caste Brahmin, Occupation Agriculturist, resident of village Baknakala, Post Lundra, Distt. Surguja (CG) Versys Respondent State of Chhattisgarh, through the Police Station : Lundra, Distt. Suguja (CG) 1 IS:;: Present: Shri VK Pandey, learned counsel for the appellant Shri Sandeep Yadav, learned Dy GA for the State. ORAL JUDGMENT (Delivered on 11th September, 2009) PerDhirendra Mishra. J 01. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 23 June, 2008 passed in ST No. 184/07, whereby learned Sessions Judge, Ambikapur has held the appellant guilty of commission of murder of Shivkumar, and convicted him under Section 302 of IPC and sentenced to undergo life imprisonment, and pay a fine of Rs.500/-, in default thereof, to undergo additional Sl ofthree months. 02. Case of the prosecution, in brief, is that on 2.4.2007 at about 11 pm the appellant came to his house; quarreled with his wife, and hearing the quarrel, deceased Shivkumar, who is grand-father of the appellant, woke up and chastised the appellant for causing noise, whereupon the appellant beat him with fists and hand, dragged him towards the gate and assaulted him with axe on his head, as a result, Shivkumar fell on the ground. Hearing the commotion, the family members residing nearby reached there and snatched the axe from the appellant. The deceased was taken to Gpvernment Hospitat, Ambikapur in a jeep belonging to Hanjff (PW 2) where he died on 3.4.2007 at about 7.40 am. On further investigation, it revealed that the deceased was admitted in the hospital by Gautam by suppressing the real fact and giving false •i ^" SIB1" y^'\' ^^. w^ '&s:: iis^ li8i; 118fr ^tlljh ;:;^^'; %;;)%i^; ai? ^l^^' iai: ^t|I|!:i •3^iJ '^ . ^IIIIi Bi reason that the deceased sustained injury as he fell frommango tree. Crime was registered on 10.4.2007 vide Ex.P/6. 03. During investigation, inquest over the dead body of Shivkumar was prepared vide Ex.P/15. Dead body was sent for autopsy where Dr. Anupam Minj conducted postmortem and submitted his report of Ex.P/8. Spot map was prepared on 9.4.2007 .vide Annexure P/5. Halka Patwari prepared Nazri Naksha vide Ex.P/6. On memorandum (Ex.P/2)of the appellant recorded on 9.4.2007, weapon of offence-axe was seized vide Ex.P/3. On 9.4.2009 bloodstained and plain soil were taken into possession vide Ex.P/4. The axe seized from the appellant was sent for chemical examination for opinion of the doctor and opinion of Dr. Anupam Minj in this regard is Ex.P/6. Treatment papers (Ex.P/10) of deceased Shivkumar were also seized during investigation. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur and report of the FSL is Ex.P/22, according to which sample of soil 'Article A' and axe <Article B),contained blood. However, origin ofthe blood could not be confirmed as the sample was disintegrated Ex.P/25. 04. After completing investigation, charge sheet was filed against the appellant and his father Gautam in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of learned Sessions Judge for trial. 05. Learned Sessions Judge framed charge under Section 302 of IPC against the appellant and under Section 177 of IPC against co- accuse Gautam, who abjured their guilt and pleaded innocence. 06. During trial, the prosecution examined 15 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of Cr.P.C. The appellant denied the circumstances appearing against him in the prosecution case and pleaded that he has been falsely implicated in the aforesaid offence as his father refused to fulfill the demand of illegal gratification of the police. '^K:- ^i^i<^; l^? Stli;- 07. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in para-1 of this judgment. However, co-accused Gautam-father of the y;S81! 'IKI^ ;SB ;%^: •f^: lill: i&s ys^. .-ISI^ appellant, was convicted under Section 177 of IPCand sentenced with a fine of Rs.1,000/-, and in default thereof, to undergo Sl of one month. :!s& ^l^ll;.:' ':S . $ffi. sar ia!i;';' Il;i§^' 'isii^ •^K :aa ^•'^f Al^». ^HyNji'i^ 'mi :@t Si ig?t ^i'i.^^ ! '^:M^ •!iB:i. 11B 'i£ ;-. 'S'Si': 'a 08. Learned counsel for the appellant argues that none of the prosecution witnesses has supported the prosecution case and they have been dectared hostile. Even in their cross-examination, the prosecution could not elicit any incriminating evidence against the appellant. Conviction of the appellant is based on conjectures and surmises. Defence of the appellant, which is established from the prosecution witnesses, has been erroneously and illegally rejected on the basis of conjectures and surmises that it was highly improbable that the deceased, aged 60 years, would climb mango tree, that too, in the night at 11 pm for plucking leaves to feed the goats. It is further argued that the prosecution has failed to prove that the death of Shivkumar was homicidal in nature. 09. On the other hand, learned counsel for the State has supported the impugned judgment ofthe trial Court. 10. We have heard learned counsel for the parties and perused the material available on record as also the impugned judgment. 11. The deceased was admitted in the District Hospital, Ambikapur on 3.4.2007 at about 3.15 am in an unconscious condition with a history of fall from mango tree about 10 ft. high. PW-7 Dr. Uttam Singh has proved the Bed Head tickets of Ex.P/10 and has deposed that the patient was brought by his son for admission with a history that he has fallen from mango tree. Shivkumar died at 7.40 am on the same date. This witness has further stated that son of the deceased gave this information that his father fell from the tree. At that time he had stated that the injury must have been caused by sharp edged weapon as the injury was not possible by falling from tree. However, in the cross'-examjnation, he did not describe the injury as incised wound and described the same as lacerated wound, and further admitted that such injury is possible if someone falls from tree over a pointed stone. Postmortem was conducted by Dr. Anupam Minj (PW 6), who has proved his report of Ex.P/8, and opined the cause of death as coma due to head injury. He has also examined the axe, which ^^M^- •••:^^:'' w^. l^^f'. 'IMI :";;•'m' '•:t;:?i^ iss sc %11^- •iill • •• 'i;^^-^. Mffi'f' ^ii^ ai: SSfi' ^s'!^.;^';' ^w'. il ^ ?Sl tM^^ •^^ tljl^p was seized at the instance of the appellant, and stated that the injury present over the head of Shivkumar could be caused by the axe. In cross-examination by the defence, he has answered the suggestion put by the defence in the affirmative that if a person falls from tree headlong on a pointed stone, such injury could be caused. 12. Learned Sessions Judge after discussing the evidence of Smt. Meena Bai (PW 1), Latti @ Shivdatta (PW 3), Prakash Dubey (PW 4) , Om Narayan (PW 5), Jhariho Bai (PW 8), Devi Prasad (PW 9), Padmavati (PW 14) and Sonia (PW 15), has disbelieved their version regarding the deceased sustaining injury as a result of fall from the mango tree.It has been held that the incident occurred in the outer courtyard of the house of the deceased and there is no Badi at a distance of 30-35 steps therefrom and therefore, the evidence offall from tree is unreliable. It has been further held that according to the evidence available on record, age of the deceased was between 60-65 years, and therefore, a person of this age would not climb a tree in the night at about 11 pm, that too, for plucking leaves for his goats. It hasbeen further observed that since all the witnesses are near relatives of the appetlant, they are highly interested witnesses and have given false evidence in order to save the appellant. There are inherent contradictions in their statements. 13. The trial Court has based the conviction of the appellant on the following circumstances: (i) Mohd. Haniff (PW 2), owner of the jeep, which was used for carrying the deceased to hospital, has Stated that Gautam asked for the j'eep and stated that his father was suffering from vomiting and dysentery. His above version remained unchallenged in the cross-examination. Thus, cause of injury of deceased Shivkumarwas suppressed. (ii) The incident took place in the night between 9 & 11 inthe premises where apart from the accused persons and their wives, no one resides and thus, it was for the accused persons to explain the cause of injury of Shivkumar. (iii)The appellant was present jn the home whereas false explanation was given by Om Narayan (PW 5) that he has gone to Kusumi. ;»] :%Bllt' a lifl- :Siii. ^iti"' 9 ar 'Si&^ :^^^ SSI' ijgi; IB'11 sf! .^;A':; j Itt. lil^ 181-. iiir Siv :^^-' IB ff^s^' isfi' ^BiC "^K[ iair Ig^:1 m.i (iv)Santuram (PW 10), who resides at a distance of 70-80 ft. from the house of Shivkumar, woke up around 10 pm on the date of incident and heard the words of abuses and also overheard the appellant saying that "today 1 shall finish the father and the son". (v) On the basis of memorandum of the appellant, weapon of offence-axe was seized from his house, which contained blood as per report of the FSL (Ex.P/22) 14. So far as the first circumstance is concerned, PW 2 Mohd. Haniff has deposed that Gautam came to his house and asked for jeep and stated that his father is suffering from vomiting and dysentery, he is to be taken to hospital, whereupon he gave his jeep along with the driver. He has further deposed that the appellant took out axe from his house and gave the same to the police inspector and he signed Ex.P/2 & P/3. He was cross-examined after being declared hostile. However, in the cross-examination by the defence, he has denjed the suggestion that he was made to sign blank papers in the morning and that the axe was already with the inspector. Suppression of cause of injury, if any, is by co-accused Gautam, therefore, this circumstance cannot be construed to be a circumstance to connect the appellant with the crime in question. 15. So far as the second and third circumstances are concerned.the version given by the prosecution witnesses that the deceased sustained the above injury as he fell from the mango tree, has been disbelieved on the ground that the above version was highly improbable because an old man, aged between 60-65 years, would not climb the tree at the dead of night for plucking leaves to feed the goats. Even if the version of the prosecution witnesses is disbelieved on the aforesaid ground, the same would not lead to an inference that the injury sustained by the deceased was caused by the appellant, in absence of any positive evidence to this effect, particularly when the incident occurred in an open Badi near the house of the deceased, where, apart from the appellant, his father, mother and his wife also resided and there are several other persons residing in the vicinity. It is not the case of the prosecution that the deceased died in the house, which was in exclusive possession of the appellant or that in the night of incident, apart from the appellant, no other person was present in the said house. »: 9 IB ^aK' ^^•i^ ^ISi' sg? ^iiE '^;' ;1,;!:^ ;-^ii;. w- iBI.' •^:'^.!' m % ; ai' IBr '^•:. .'• SIIijIII SK isili lilflB.'l" 6 16. As for fourth and fifth circumstances, Santuram (PW 10) woke up in the night on hearing commotion and abuses being hurled by the appellant. This witness was declared hostile and cross-examined by the prosecution. The trial Court has heavily relief upon the evidence given by him in the cross-examination that he heard "today 1 shall kill the father and the son". The other part of his evidence wherein he claimed to have heard Sonia (PW 15) shouting that the appellant has assaulted the elder father and he would not survive, and that Goutam informed that Lodu (appellant) has assaulted Shivkumar with tangi (axe), has been discarded as Sonia and Goutam did not depose to this effect. We find nothing against the appellant in the above innocuous statement of this witness as he has not attributed the above version to the present appellant. Lastly, the trial Court relying upon the recovery of weapon of offence-axe on the memorandum of the appellant, which was found to be stained with blood in chemical examinationby FSL, has held the appellant guilty of the above offence on the basis of aforesaid circumstantial evidence. Firstly, the witnessesof memorandum and seizure are not of that quality, on the basis of whjch it can be conclusively inferred that the weapon of offence was seized at the instance of theappellant. Even otherwise, in the absence of any positive evidence regarding origin of blood present over the axe, merely on the basis of above seizure, the appellant cannot be held guilt ofthe offence. 17. In order to rest the conviction based on the circumstantial evidence as per the settle principle, the prosecution is required to establish that such evidence satisfy the following tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt ofthe accused; (iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv)the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanationof any other hypothesis that of the guilt of the accused and such evidence ^Slft a •;: ms^:i igi'- :iS 111. lil. gsr' IBI^i ^ should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 18. If we apply the above principles of law laid down for convicting the accused on the basis of circumstantial evidence, we are of the considered opinion that no complete chain of circumstances, as observed in the foregoing paragraphs, to holdthe accused guilty has been established by the prosecution. 19. In the result, the appeal is allowed. Conviction and sentence imposed upon the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge. He be set at liberty forthwith, unless required to be detained in any other case. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge 4' .iSt.;: ^1^^^.' '.l'^':'<' !^' ^^: iSR ^Iffi'!"- ^'111?; M. ws- '^WM. ^Sfi' ':c^s^ ::ii^ Stfll1 SjSts ^^%^:". ii IS$ij: