/ .)•. p. ii^'^i ^\ •&''.1 4 ^- ,V 7 ^•.•( CF0000059391 2 Vivfiion u&i^ i,. IS <EHB ai6B OOTOS QP EAMYA PBADESH AS_JABAL]PTO ,,.^ A"^ ^o' \\ Jo' • m^ •. '^,,^-— ^——"t~s.^o.v A^^^_ Orimiaal Apyeal Ho« \Y \» 5" ef 1996, Paraa soo. o£ Mehtareo,eged about 5§ yeara, ealtivator aad labourer, resldeat .of (ra%<» Bhater®l, p» S« Earua , Eahsi1 Dhaatari, Mstriet- Baipar»M<P» »t preseat i& Dhaatari^aia, • VERSIS The State of M*S» —°- APPELIAB2 SESSOSSSSS A^mii triiDES SE02IOB WA ^21 OF GB.P.G* i<^ I.A ^Bi E2l ^F^L HIGH aOUKTOFJUDICATURE AT BILASPUR. CHHATnSGARH ariminal Aopeal No.l40S of 1996 Purao., S/o Mehtaroo, Aged about 35 years, Cultivator anid Labozirer, R/o Gram: Bhakhara, PoUce Station: Kurud, Tehsil: Dhamtan, District: Raipur (M.P.) (now C.G.) - Versus - State ofM.P. (now Chhatdsgarh) Througji: Station House OflBcer, Police Station: Kunid, Tehsil: Dhamtan, District: Raipur (M.P.) (now C.G.) ORDBR POR CON8IDBRAT1CT! Sd/- J U D G B 26-6-2004 HON»BLBTHB CHIBF JUSTICB c^f^^ Sd/- Chief Justice PCWT FOR ORDBR ON 8 JULY. 2004 Sd/- L.C. Bhadoo Judge HIGH COURT OF JXJDICATURB AT BILA8PUR. CHHATTISGARH Crtanlnal Appeal No.1405 of 1996 Puraji, S/o Mehtaroo, Aged about 35 yeare, Cultivator and Labourer, R/o Gram: Bhaldiara, PoUce Statbn: Kurud, Tehsfl: Dhaintari, Districfc Raipur (M.P.) (now C.G.) - Versus - State ofM.P. (now Chhatdsgarh) meh: Stetion House Officer, Police Station: Kiirud, Tehsil: Dhamtan, District: Raipur (M.P.) (now C.G.) Present: - Smt. Savita Tiwari, Advocate: Shri Ashfeh Shukla, Govt Advocate: For fhe appeUaat. For the State/respondent DIVI8ION BBNCH: - HON*BLE SHRI A.S.V. MOOKTHY, C^J. AND HON*BLB SHRI L.C. BHADOO. J. JUDGMBHT (DeUvered on €?^<* Jufy, 2004) The foUowmg iudpment of fhe Coiirt was deUvered bv L.C. Bhadop, J: - 1. The accused/appeUaat has prcferrcd fhis appeal under Section 374 (2) of the Code of fhe Cruimial Procedure, beiag aggrieved by fhe judgment dated 16til August, 1996, passed by fhe Additional Sessions Judge, Dhaintari, ia Sessions Trial No, 160/1994, whereby fhe learaed Additional Sessions Judge after holdiag the accused/ appellaat guilty under Section 302 of fhe I.P.C. for committir^ fhe murder of his own wife namely, Radhika Bai^ sentenced him to undergo imprisonment for life and furfher to pay a fme of Rs. 1,000/-, m defazilt ofpayment ofJBne to further undex^o r^orous imprisonment for one year, (^; 2. Briefly statedy the prosecution case is fhat in fhe iaterveniag night of 1st & 2nd Februaiy, 1994, at about 11.30 p.m. the accused/ appellant along wifh his fafher Mehtaroo and Rama Nai went to the house of Kumar, brofher ia law of the accused/appellant, kn<x?ked his door, when he came out offhe house, accused/appeUant Puraii informed him fhat his wife Radhika Bai (since deceased) was haviag iUicit relations with one person, today he saw her wifh that person m a compromising position, but, fhat person raa away from his house, fhen he picked up a wooden haadle ofpickaxe and assaulted Radhika Bai on her head 5-6 times wtth fhat wooden haadle. On receivuig fhis infomiation, Kuinar along wifh fhe appellaat, fafher of fhe appeUaat Mehtaroo aad Raina Nai went to tiie Police out post Bhakhaia and lodged the report vide Ex,P-1. P^Uce caaie on fhe spot and sent Radhika Bai, for treatment to Dhamtad, where Dr. 0,S, Bajpayee after giving her first aid treataient, looking to her senous condition, vide note Ex.P-14 referrcd her for furfher treatcaent to Medical CoUege, Raipur. But, on fhe way Radhika Bai succiimbed to fhe iojuries sustained by her. Intimation to fhe effect was given to the Police Station: Dhamtari, The Police entered merg iatimation (Ex.P-11) and in tura Police Station: Dhamtari, iaformed fhe conceraed Police Station; Kurud wherc on the basis of Ex,P-11 the case was registered. The Invest^ating Officer after reachiag on fhe spot prepared fhe Paachanama of fhe dead body of Radhika Bai vide Ex,P-9, Dr. Raoiesh Kuinar Tripafhi conducted the post mortem on fhe body of Radhika Bai aad prcpared the report Ex,P- 10. The Invest^atmg OfiScer took into possession fhe shirt of accused Puran zmder recoveiy memo Ex.P-2. Under rccoveiy memo Ex.P-3, he took into his possession ffae sad ofdeceased Radh&a Bai fi^om fhe house of fhe accused. Under Ex,P-4, fhe Inve&tigating OjBBicer took into possession flie plaia soil as weU as fhe blood stained soil fix>m fhe place of occzirrcnce, He also took iato possession one Lungi, one shirt in tora condition, one petty coat, aad one blouse of the deceased vide Ex,P-5. Under Ex.P-6, fhe weapon of offence Le. wooden handle of fhe pickaxe was also taken uito possession firom the house of the accused. The rccovered ardcles werc sent for examiaation by the Forensic Science Laboratorv froxn wherc fhe blood staiaed articles werc sent for <^J examiaation to the Serologtet aad aftser examioation fhey seat reports Ex,P-19 & Ex,P-21. The Patwari prepared fhe site plan Ex.P-15 aad fhe Investigating Officer preparcd fhe site plaa Ex.P-16. 3. After coiapletion of fhe iavestigation, charge sheet was ffled ^amst fhe accused/appellaat ia fhe Court of Judicial Magistrate, First Class, Dham.tari, who ia tara comnutted the case to fhe Sessions Judge, Raipur, fix>m wherc fhe Additfonal Sessions Judge, Dhamtad, received fhe case on transfer, 4. The leamed Additional Sessions Judge after hearing fhe ai^umente on charge found fhat prmia facie ofFence was xaade out agaiast the accused/appeUaat for eoinmission of offence under Section 302 of the I.P.C. Therefore, he fi'aiaed fhe chai^e, real over and explaiaed fhe same to fhe accused, which he denied aad clainied for trfal, 5. The prosecution in order to prove ftie oflFence against the accused/ appeUant examined as inaay as 12 witoaesses, On fhe ofher haad, statenient of the accused was recorded under Section 313 of the Cr.P.C. ia which he stated fhat fhe evidence of fhe prosecution witnesses is irxcorrect or said fhat he does not know. However, isi the last, he stated ttiat on the fateful day after takmg his dmner at about 9,30 p.xa., he went to watch video ia fhe viciaity, when afier watchirig fhe video, ia between 10 p.in, and 11 p.ni. he retumed to his house, he saw fhat one person namely, Bauva, came out of his house aad startod ninnmg, he chased Buava, but Bauva took out a kaife and fhreatened and ran away, He entercd his house and after lightmg the niatchbox he saw that his wife was lying on the ground ia iajured condition, blood was oozing out of her head, fhen he asked his son Kuldeep to wake up aad enquired fioui hini. Kuldeep infonned fhat Bauva came to fheir house, ravished aad assaulted his Diofher. The accused further stated that he saw fhat fhe body of Radhika Bai was lyiag in naked condition. On fhis he informed his father. The accused/appellant also exanuned fais faftier as defence witaess, 6. The learaed Additional Sessions Judge after heanng fhe argunients of the learaed Additional Public Prosecutor aiid leamed counsel for '&o fhe accused believed fhe prosecution evKlence, convicted and sentenced fhe accused/appellaat in the aforcsaid maaner, 7. We have heard Snit. Savita Tiwari, counsd for (he appellaat and Shn Ashish Shukla, Qovt. Advocate for tiie State/respondent 8. As far as fhe question of fhe nature of deafh of Radhika Bai beiag concenied as homicidal, it has not been disputed by fhe learaed counsel for fhe accused/appeUaat PW-5 Dr. Ramesh Kumar Tripafhi has stated ia his evidence fhat he conducted fhe post inortemi on the dead body of Radhika Bai and noticed three iojuries. There was one lacerated wound on fhe irontal region of head deep up to fhe braia aiid fherc were iniiltiple fractures on the auxiliaiy bone on ftie right side and fherc was a fracture in the left panetal bone, membrane was congested, bram was congested, aQd throat and fhe windpipe were also congested. The cause crf deafh of Radhika Bai was haemorrhage aad shock, The doctor's report is Ex,P-10. Thercforc, ia view ofthe above evidence ofthe doctor, it is proved that the nature of deafh of Radhika Bai was homicidal. 9. Now^ comiag to the question of involvement of fhe accused/ appeBaat in coixmiittmg fhe niuider of Radhika Bai, fhere is no dircct evidence m this case as PW-6 Kuldeep, son of the accused, who was said to be sleepiag m the same nx)m where the deceased was sleepiag, saw fhe iacident, but thte witaess h^ tumed hostile aad stated fhat fhe accused/appeUaiit had not assaulted his xnother, rather one person nainely Bauva assaulted his niofher with club. Thercfore, fhe whole case rests on fhe circumstantial evidence. / 10.In order to coxivict tfae accused/appellant^-^/ on the basis of circuinstaiitial evidence, fhe pix>secution has to prove the ofiFence as per fhe settied priuciples laid down by fhe Hon'ble Apex Court in fhe matter of Nesar Ahmed v». State of Biluur reported in AIR 2001 8UPRBMB COURT 2416 ie.ma case based on circumstantiial evidence, beforc fhe Court can record conviction, it must satisfy itself fhat circumstances from which an iafercHce of guflt could be drawn have been estabUshed by unimpeachable evidence led by the prosecution aad fhat all fhe circumstaaces put together are not only of a conclusive nature but also complete fhe cham so fuUy as to unerringly point to fhe guflt of accused aiid are not capable of any explanation which is not consistent wiffa fhe hypofhesis of ftie guilt ofthe accused. 11 .The learaed trial Court has relied on fhie foBowing circiimstaaces: - a. fhat, fhe accused raade extra judicial confession regarding fhe coinniission of niurder of his own wife; b, fhat, the blood staiaed clofhes of fhe accused and fhe deceased werc foxmd stamed wifh human blood of <B> group; c, that, fhe weapon of ofiFence Le, fhe wooden haadle of pick-axe was rccovered fix>in fhe house offhe accused; aad d. fhat, fhis is a house niurder and fhat too ia fhe n^ht where oiily the accused and fhe deceased were rcsidiag, Now, we shall proceed to exaxniae fhe circumLStaiitial evMlence adduced by fhe prosecution ia order to prove fhe ofiTence against fhe accused/appeBant aad to see whefher the prosecution has been able to prove fhe ofifence agaiast tiie accused/appeBant ia conformily wifh the above priaciple, 12.As far as fhe question of extra judidal confession is conceraed, Kusaar, who lodged fhe F.I.R, before fhe Police Station, had mentioned in the F,I,R. fhat fhe accused confessed beforc him fhat he conixnitted fhe inurder of his own wife. Kuxnar has been examiaed by fhe prosecution as PW-1, This witaess has tumed hostile, He has not stated anywherc fhat fhe accused made extra judicial confession before hini. On fhe contraiy, he has supp^rfeed fhe defence taken by fhe accused/appeDaat in his statement under Section 313 offhe Cr.RC. fhat fhe accused/appeUaat mformed Tiim fhat one person caxiie out fix)in his house and raa way, when he saw his wife after lightmg fhe matchbox, she was lying smeared wifh blood, Similarly, fhe fafher of fhe accused has not been produced by tiie prosecution beforc whom the accused said to have made extra judicial confession, but he was produced by fhe accused/ appellant as DW-1. He has not stated lliat fhe accused/api»UaD.t had made aoy extra judicial confession befbre him. On^ contraiy, he has also supported the case of fhe appeUant fhat the accused/appellaat ioformed him that when he retamed to his house after watchiag video he saw that Bauva was comiag out fix>m his house aad raa way, IS.Now, coimng to fhe evidence of PW-11 Ramia fhat extea judicial confession made before him, but he has also not supported fhe prosecution case, He has stated fhat Mehtaroo (DW-1), fafher offhe accused/appellant came to him aad mJformed that ttie accused/ appeHant (his son) has murdered his wife. He has not stated aaywhere that fhe accused himself made extra judicial confessioxi before him, Thereforc, his evidence fhat fhe fatiher of fhe accused informed Tiim that his son has miixdered his wife does not faU in fhe category of exfeta judicial confession, Therefore, the ffc&ding of fhe leamed trial Court tfaat fhe extra jiidicrial confession made before Rama (PW-11) is not corrcct 14.Now, comiag to fhe question fbat on fhe clofhes ofthe ^;cused and fhe deceased huinaa blood of €B9 group was found, fherefore, fhis circiixnstaiice connects fhe accused wifh fhe inurder of his wife, in the first iastance, ifwe look iato the report of llie Serologist (Ex.P- 21) ia which it has been mentioned fhat Article-30 (Liingi) marked as <B'; Ardcle-31 (shirt) marked as <C?; Articte-36 (sari^ mariked as <H1'; and Article-37 (blouse) inarked as <H2f were staiaed wifh blood of Group-'B^ The Serologist's report shows fhat on the shirt (Article-32) xnarked as SD\ which was recovered firomi the body of fhe accused, blood was disintegrated aad thercforc, the or^in could not be determined. Since, fhe group of blood, which was found on the shirt of accused, which was recovercd under Ex.P-2, coiihl not be determined, fhe accused camiot be connected on fhis circumstance with fhe Hiiirder of his wife, As far as other ardcles namiely, shirt, Lungi, sari aad blouse are conceraed, they werc taken iato possession iinder seizure memos Ex.P-3 & Ex,P-5 aad wito^esses to this recovexy memos are Hemnarayan Sahu, Nageshwar and Kumar, PW-1 Kumar has stated fhat under Ex,P-3 sad ofthe deceased was taken iato possession. PW-8 Nageshwar has also stated that sari, blouse, Lungi and T-shirt were taken iato possession under Ex.P-3 ./@ & Ex.P-5, Similar, are fhe statements ofPW-2 Hemnarayan. Since these clofhes were not recovered finom fhe accused aad rccovered from fhe spot, fherefore, fhe accused canaot be connected on the basis of fhis circiimstaace wifh fhe mtirder of his own wife. Even ofherwise, ifwetake fhis circuinstaace, as it is ttiat humaa blood of Group-<B? was found on fhese clothes, inerety on fhis circunistaiice, fhe accused caanot be held guilly, As has been held by fhe Hon'ble Apex Court in fhe matter of Namdeo Daulate Dhayagude aad others v. State of Maharashtra reported in AIR 1977 SUPRBME COURT 381, "Recovery of clofhes stamed wifh human blood fix>m accused - This caanot be regarded as concluswe evidence iiicrmiiaatuig accused - It is a piece of evidence which nxay support ofher evidence about giult ofaccused." Siinilar vievy has been taken by fhe Hon'ble Apex Court m the matter of Manish Diadt and otliers v. State of Rajasthan reported in 2001 SUPRBMB COURT CASBQ (CRI) 235. In this case also, fhe Hon'ble Apex Court h^ld that ^Bloodstaia found on fhe inotorcycle of fhe accused matching wifhi fhe blood group of the deceased - Said circumstaace, held, is not decisive enough to poicit to the iavolvement of fhe accused in the muxder of the deceased." Thercfore, in the JSrst uistaace, these clothes were not rccovered firom fhe accused and ia fhe second place it has not come on r^^ord tihiat what was fhe blood group of fhe deceased or fhe accused aad it has also not coine on record fhat at fhe tmie of arrest sonie iojuries were found on fhe body of fhe accused which was suggestive of fhe fact that on accouiit of fhe iajuries, fhe clofhes got stamed wifhi his blood, 15.Therefore, we are of fhe opiaion fhat on fhe basis of fhis circumstance, the accused cannot be connected with fhe murder of his wife, As has been held by fhe Hon'ble Apex Court, if it is proved fhat fhe rccovered ardcle was stamed wifh blood of the accused, even then, based only on ffaat circuinstance fhe a<ccused caanot be convicted. That caii be one circuinstaace and piece of evidence, which may support ottier evidence or circuiiistantial evidence, but ^. 8 €) ia fhis case, fhere is no other circumstaiitial evidence agamst the accused suggestive of his iavolvement in fhe miuder of his wife. Thercforc/fhis circumstaace is also ofno help to the prosecution. 16.As far as fhe circximstance fhat fhe (weapon ofofiFence) wooden club was recovered under Ex.P-6 firom fhe house of fhe accused is concemed, such wooden haadles of pickaxe are normalfy found ia eveiy house aad nofhiag was found on fhis ardcle which suggests that fhe accused used fhis ardcle as a weapon ofofiFence. Therefore, fhrough fhis circumstance also fhe prosecution has not been able to connect the accused wifh fhe murder of his wife. 17.As far as the circumstaace that this was a house miirder aad that too in fhe night where only fhe accused aad fhe deceased were residiag is concemed, it is true that Radhika Bai ws^ assaulted in her own house at about 10 p.ia,, but fhe accused in his stateinent under Sectfon 313 of fhe Cr.P.C. has explamed fhat after takiag dianer at about 9 p,m. to 9,30 p,m. he went in the vicinity to watch video and when ia between 10 p.ni. aad 11 p.ni, he retunied to his house after watchiag video, when he was entering his house he saw one person naraely, Bauva coiniag out of his house, he chased Bauva, but Bauva raa away and fhercfore, he went in his house aad on l^hting the inatch box he saw fhat his wife was lyiag on fhe ground in iojured condition aad blood was oo2dag out of her head iDJuries. Same thing has been stated by his son Kuldeep (PW-6). Even fhe father of fhe accused (DW-1) has also stated so. He was mformed by the accused fhat Bauva came to his house in his absence. Thereforc, ia view of the above, we are of fhe opinion that even fhough fhe deceased was assaulted in fhe night at 10 or 10.30^ but m view of fhe explaaation offered by fhe accused, therc is no other circuinstance estabUshed by the prosecution which is suggestive of the iavolveinent of fhe accused in conuiutting fhe inurder of his own wife. Therefore, based onty on this circiimstaace also the accused caanot be coDiiected with fhe murder of his own wife, 18.As the circuinstantial evidence is a veiy weak type of evidence, unless and until, as per fhe setfled principle of law, the -1; '\. .' -\ -— circuinstantial evidence is cogent, consistent aad fhe chaui of circunistaaces is coniplete which poiats fhat fhe accused is fhe only person responsible for crune aad fhere is no even lurkiag doubt of comjnitting the criine by soiae one else, tfaen aad fhen onty fhe accused caa be held guflty. But fhe prosecution has fatled to prove the offence agsdnst the accused up to the test lakl down by the HonT^le Apex Court for convictmg the accused based on the circumstaatial evidence. 19.Therefore, ia view of fhe above, we are of fhe opioion fhat the judgment of conviction aad sentence cannot be sustaiaed for the reasons inentioned above, as fhe findiag of fhe trial Court holdiag fhe accused/appeUaat guHly for fhe commissk>n of miirder of his wife is not based on legal evidence. Henc^, the JBbadiag cannot be sustauied aad it deserves to be set aside. 20.In fhe result, the appeal ofthe accused/appellant succeeds and the saiae is aUowed, The conviction and sentence awarded under Section 302 ofthe I.P.C. on fhe accused/appeUaat are set aside aad he is acquitted of fhe charge under Section 302 of the I.P.C, If fhe accused/appellaat is not required ia any other case, he be set at Uberty forthwifh. Sd/- Chief Justice Sd7- L.C. Bhadoo Judge Sonaa