^ K-> HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA SB HON'BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL N0. 1188/2003 APPELLANT (IN JAIL) RESPONDENT VERSUS DUKALHA AGED ABOUT 60 YEARS S/0 SHRI SUKHLAL DHRUV R/0 VILLAGE KANAKOT, P.S. PALARI, DISTRICT RAIPUR (C.G.). STATE OF CHHATTISGARH THROUGH P.S. PALARI, DISTT. RAIPUR (C.G.). APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE. Present:- Shri Manoj Paranjpe, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 12/11/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10/10/2003 passed by First Additional Sessions Judge, Baloda Bazar (C.G.) in Sessions Trial No. 189/2003 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Jhalar Bai, convicted the appellant under Section 302 of the Indian Penal Code and 'sentenced imprisonment for life and fine of Rs. 2,000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year. ./'/^•-^ "%^ ^^^y '^.^ ~^..,^ @ Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 4/4/2003 at about 5:00 A.M. appellant caused homicidal death of Jhalar Bai by axe and stick in front of the house of Hansram at village Kanakota, Police Station Palari, District Raipur. Appellant was present near dead body. PW1 Chatur Singh lodged the First Information Report vide Ex. P-1 and Marg intimation vide Ex. P-2, thereafter, appellant went to the police station along with axe and stick and surrendered himself. Blood stained axe along with hair adhered in the axe was seized vide Ex. P-12 from the appellant. Investigating Officer left for scene of occurrence and after summoning witnesses vide Ex. P-5 inquest over the dead body ofJhalar Bai was prepared vide Ex. P-6. Dead body was sent for autopsy to Community Health Center, Palari vide Ex. P-13. PW10 Dr. P.L. Chandan conducted autopsy vide Ex. P-13A and found following injunes:- (i) One incised wound of 3" x 1" x 0.5" over upper side of left eye. (ii) Zygomatic bone of right side was found fracture with lacerated wound of 4" x 3" x 3". (iii) Fracture of mastoid bone and occipital bone was found. Brain came out from the injury. Mode of death was coma and death was homicidal in nature. 4. Investigating Officer has also requested to preser^e the hairs of head of deceased vide Ex. P-13 for examination sanie was preserved vide Ex. P-13A. Seized cloths ofthe deceased and hairs of the deceased preserved for chemical examination were sealed from the concerned Constable vide Ex. P-11. Spot map was prepared vide Ex. P-3. Plain and blood stained soil were recovered from the spot vide Ex. P-7. Sari of deceased was seized vide Ex. P-8. Broken piece of bangles were seized vide Ex. P-9. Blood stained T-Shirt & Lungi of the accused/appellant were seized vide Ex. P-10. Accused/appellant was also examined by PW10 P.L. Chandan vide Ex. P-15A and found swelling over his right wrist. Sealed articles were sent for chemical examination Vide Ex. P-19. Presence of blood over cloths seized from appellant, axe & stick seized from appellant was confirmed vide Ex. P-21. Hairs found on axe and preserved from head of deceased Jhalar Bai were examined vide Ex. P-23 and same were found morphology and microscopic character one and same. 5. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions, Raipur from where learned First Additional Sessions Judge, Baloda Bazar (C.G.) received the case on transfer for trial. 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing VSSSSSS'K ^. 10. against him, innocency aiid false implication is claimed. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge, Baloda Bazar (C.G.) has convicted and scntenced the appellant as aforementioned. Shri Manoj Paranjpe, learned counsel for the appellant and Shri Sandeep Yadav, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that case is based on circumstantial evidence in order to sustain conviction, chain of circumstances must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused bui should be inconsistent with his innocence. In the present case, evidence adduced on behalf of the prosecution is not even prima-facie sufficient to create suspicion that appellant has committed the offence and in absence of any credible and clinching evidence conviction and sentence imposed upon the appellant is not sustainable under the law. On the other hand, learned Dy. Govt. Advocate for the respondent/State opposed the appeal and siibmits that conviction is based on following circumstantial evidence that :- 1. Dead body of Jhalar Bai was lying iri front of house of Hansram in injured condition. 2. Appellant was sitting near the dead body between 4:00-5:00 A.M. at morning and his presence near the dead body between 4:00- 5:00 A.M. at morning was not natural. 3. Appellant went to the police station along with axe and stick and surrendered himself Ex. P-12. 4. Hairs were adhered with axe along with blood which was seized along with axe Ex. P- 12. 5. Blood was found over the cloths of appellant, stick and axe was confirmed. 6. Hairs found on the axe seized from the appellant and sealed hairs of deceased preserved are human head hairs and they are similar in morphology and microscopic character. 11. Learned Deputy Government Advocate for the State/respondent further submits that if aforesaid circumstances are considered together then only inference would be possible that only appellant has committed homicidal death amounting to murder of Jhalar Bai and no other person has committed murder of Jhalar Bai, same is also sufficient to exclude the possibility of innocence of appellant. 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case homicidal death of Jhalar Bai has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW10 Dr. P.L. Chandan and autopsy report Ex. P-13. Death was homicidal in nature. 14. As "regard the complicity of appellant in crime in question, conviction is based on circumstantial evidence. As per the settled law in order to convict an ^ '^. i'^a 1—^ 15. accused based on the circumstantial evidence, the Supreme Court in the case of Dhananjoy Chatterjee Vs. State ofW.B.1 has held that :- aln a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." In case of conviction based on circumstantial evidence, as held by the Supreme Court in the case of C. Changa Reddy v. State of A.P. , the prosecution is required to adduce evidence and such evidence must satisfying the following tests:- i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ' (1994)26cc 220 2 AIR 1996 SC 3390 : (1996) 10 SCC 193 ii. those circumstances should of a definite tendency unerringly pointing towards the guilt of the 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 conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 16. In the present case as per evidence of PW1 Chatur Singh who was informed by Tijau that appellant has committed murder of Jhalar Bai then he went to the police station. PW2 Tijau has deposed in his evidence that between 4:00-5:00 A.M. at morning when he went his house after ease, at that time he saw that appellant was sitting near the house of Hansram and dead body of Jhalar Bai was lying within a distance of 8 - 10 ft. from the appellant then he shouted and went towards the village and told the incident to other persons. Defence has cross examined this witness at length and in Paras-2 & 4 of his cross examination he has further admitted the presence of appellant within a distance of 10-12 ft. from dead body of Jhalar Bai which he narrated to other witnesses. Evidence of PW1 Chatur Singh (Para-2), evidence of PW3 Hansram (Paras. -5 & 10) reveal that appellant went to the police station at ..'^ U '^—;.^i ^ .. ~""S .f T.-.^^y 8 ^ the time they were present in the police station. As per evidence of PW3 Hansram appellant was holding axe and stick. 17. PW8 C.D. Lahre, Investigating Officerhas also deposed that appellant came to the police station with axe and stick and surrendered himself then he seized axe and stick Ex. P-12. He has also supported the seizure of articles. As per evidence of PW9 Daduram Sahu he was informed by Chatur Singh that his sister Jhalar Bai has been murdered then he went to the police station along with Chatur Singh where appellant came with blood stained axe and stick which was seized by Police Officers Ex. P-12. These facts are unrebutted in the prosecution witnesses that between 4:00-5:00 A.M. at morning appellant was sitting within a dist^nce of 8-10 ft. from the dead body of Jhalar Bai. Appellant went to the police station along with stick and axe which was seized Ex. P-12 containing blood and hairs. At the request of Investigating Officer Ex. P-13 sealed hairs of deceased was preserved by PW10 Dr. P.L. Chandan along with autopsy report Ex. P-13A same was seized Ex. P-11. Cloths. of the appellant was also seized and same was sentfor chemical examination and presence of blood on stick, axe, cloths of appellant and hairs found on the axe and preserved in the head of Jhalar Bai were confirmed vide chemical examination report Exs. P-21 & P-22. Hairs found on the axe and preserved from the head of deceased Jhalar Bai were further examined chemically by the Expert Ex. P-23 and same was found human head hairs in similar in morphology and microscopic character. Expert has also opined that no definite opinion can be given about their origin one and different persons. t-^. 18. Present appellant has not offered any explanation relating to presence of blood on his cloths, axe, stick and has also not offered any explanation presence of hairs on axe which he produced before the police station, if aforesaid circumstances are considered together then only inference would be possible that only appellant has committed culpable homicide amounting to murder of Jhalar Bai and except appellant no other person has committed culpable homicide amounting to murder of Jhalar Bai and has also sufficient to exclude the possibility of innocence of appellajit. 19. After considering the aforesaid circumstances learned First Additional Sessions Judge, Baloda Bazar (C.G.) has convicted and sentenced the appellant as aforementioned. Conviction & sentence of the appellant is based on credible, clinching and legal evidence sustainable under the law. 20. On close scrutiny of the evidence, we do not find any illegality in the judgment impugned. Consequently, criminal appeal is devoid of merits and same is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^\