HIGH COURT OF CHHATTISGARH, BILASPUR ^ D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon?ble Shri Sunil Kumar Sinha, J. Criminal Appeal No.897 of2QQ2 Smt. Sushila Bai Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J <A^^^_ Sd/- Chief Justice Post for Judgment :/2^-08/2008 Sd/- Sunil Kumar Sinha Judge •'v^^/ HIGH COURT OF CHHATTISGARH, BILASPUB D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No.897 of 2002 APPELLANT ••< RESPONDENT Smt. Sushila Bai, wife of Tirath Prasad Tiwari, aged about 43 years, resident of village Sukhava Supara Bagicha, Police station Bagicha, Distt. Jashpurnagar, Chhattisgarh (C.G). Versus State of Chhattisgarh, through the Police Station Incharge, Bagicha, Jashpurnagar (C.G). Appearance: Shri Shailendra Dubey & Shri Rajneesh Kumar Shrivastava, counsel for the appellant. Shri Ashish Shukla, Govt. Advocate for the state. JUDGMENT (/2-.08.2008) Following judgment of the Court was delivered by Sunil Kunaar Sinha, J, (1) This appeal is directed against the judgment of conviction and order of sentence dated 22.3.2002 passed in Sessions Trial No. 135/2001 by the Addl. Sessions Judge, Jashpurnagar, whereby the appellant has been convicted u/s 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RJ. for two months. (2) The brief facts are that the deceased namely Sanjay was son of the appellant. They were residing in their house in village Sukhvasupara, Bagicha. The case of the prosecution is that on Cr.A.No.897/2002 (-DB) 15.9.2000 at about 5.30 p.m., the appellant and co-accused Florence, in furtherance of their common intention, committed murder of the deceased by strangulation with a leather belt. A merg intimation Ex. P.9 was lodged by the appellant on the same day at about 22.00 hours. The appellant suppressed the factum of strangulation and she simply lodged the merg that after returning back to her house from her labour work at about 5.30 p.m., her son asked for water which was given to him and when he also asked for bread, the appellant went to the house of one neighbour and when she returned back, she saw that her son was dead. (3) On such information, the Investigating Officer reached to the scene of occurrence on 16.9.2000. He prepared inquest (Ex.P-5) on the body of the deceased and sent the body for its postmortem examination to Primary Health Center, Bagicha. The postmortem was conducted by a team of two Doctors namely Dr.R.N. Dubey (P.W.9) and Dr.H.C. Bakla, who prepared their report Ex.P.7. They opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. It is on this report, the First Information Report, Ex.P.ll, was registered on 20.9.2000 and further investigation commenced. During the course of investigation, statements of various witnesses were recorded and on 14.5.2001, a memorandum of appellant (Ex.P.3) was recorded u/s 27 of the Evidence Act, in consequence of which, a leather belt was recovered from the possession ofthe appellant vide Ex.P.4. (4) After completion of the usual investigation, the charge sheet was filed in the Court of concerned Magistrate against the appellant and her co-accused Florence @ Topi Mistri and the matter was committed to the Court of Sessions Judge from where it was received on transfer by the Addl. Sessions Judge, Jashpurnagar, who after conducting the trial, convicted and sentenced the accused/appellant as aforementioned. However, ,^^^-,33^9^1"-.-. Cr.A.No.897/2002 CDB) c the co-accused Florence @ Topi Mistri was acquitted giving benefit of doubt to him. (5) Admittedly, there is no eye-witness account in this case and the conviction is based upon the circumstantial evidence. The following are the circumstances, on which, the learned trial Judge has placed reliance to convict the appellant:- (i) The deceased was always quarreling with his mother as he was resisting that the mother should not prepare and sell illicit liquor; (ii) This was also in the back ground of illicit relations of the appellant with the co-accused Florence (iii) The deceased was last seen together with the appellant. \\\r) A leather belt was seized on the instance of the appellant and the Doctor has opined that the injuries on the neck of the deceased could be caused by the said article. (6) For resting the conviction solely based on the circumstantial evidence, the law laid down by the Apex court in the matter of Dhananfov Chhatterfee -Vs- State of W.B, (1994] 2 SCC 22 is that "In 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 ofthe guilt ofthe 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 ^ Cr.A.No.897/2002 CDB) ^ crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." (7) ln Bodh Raf alias Bodha and others -vs' State of Jammu and Kashmir, AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may9 be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and 3) 4) 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. About the last seen theory, the Apex Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were r Cr.A.No.897/2002 fDB) last seen together, it would be hazardous to come to a conclusion of a guilt in those cases. (8) Almost similar view was again taken by the Apex Court in the matter of State ofGoa -vs- Saniav Thakran & anr., (2007 (4) SBR 321. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case (supra) and finally about the circumstance of last seen together, again it was reiterated that it would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. (9) In case on hand, the prosecution has tried to prove the first and second circumstances by leading evidence of Pratima Vaishnav (P.W.l), who was wife the deceased. She was married with the deceased just 7 months prior to the date of incident and she was not present in the village on the date of incident as she has gone to her parents place 14 days back. She deposed that her mother in law used to sell illicit liquor and co-accused Florence used to visit her place. Some times he used to stay in the night also. Her husband used to quarrel with the appellant on account of these facts. Except the above evidence of P.W.l, no other witness has supported the case of prosecution on this point. P.W.2 Dhanmat Bai, who was a neighbour of the appellant, was examined on the point of previous conduct of the appellant and the co-accused Florence, but she turned hostile. However, in the cross examination, she has only admitted that the appellant used to sell illicit liquor and the appellant and deceased used to quarrel with each other. She has categorically denied about any quarrel taking place between the appellant and deceased on account of illicit relations of the appellant with the co-accused Florence. These circumstances are not Cr.A.No.897/2002 (-DB) conclusive in nature and tendency. Even they are not fully established by the prosecution. In appreciation, we find that on the evidence of above two witnesses, it is only established that frequently the deceased was quarrelling with his mother and that was on account of selling of illicit liquor by her. The evidence regarding illicit relations of the appellant with the co- accused Florence is too vague to accept. Even othenvise also these circumstances are not so incriminating, which may independently lead to some conclusion about the guilt of the appellant. At the most, they show the relationship between the deceased and the appellant and they may be pressed into motion to prove the motive ofthe crime. (10) As far as the third circumstance about the last seen together is concerned, that by itself is not very incriminating in this case. The deceased was son of the appellant and they were residing in a common house, therefore, the presence of the deceased and the appellant together in their own house would hardly be incriminating. The case of the prosecution is that the deceased was a truck driver, aged about 22 years. On the date of incident; he was present in the house as he was suffering from fever since a week. Further case of the prosecution is that when at about 5.30 in the evening the appellant returned back from her labour work, the deceased asked for a glass of water which she gave to him and thereafter when he asked for bread, the appellant rushed to the house ofTejpati Bai (P.W.3), who is her neighbour. It appears that she rushed to her house to have the bread immediately without losing any more time as the preparation of the bread in her own house would have taken some more time and the boy was hungry. When she returned back to her house after taking the bread from the house of Tejpati Bai, she noticed that by that time, the deceased has died. Tejpati Bai (P.W.3) has deposed vide Para 1 of her Examination- inChief that on the fateful day, she along with appellant Sushila had gone for labour work and they had returned at about 4.00 Cr.A.No.897/2002 CDB) p.m. After some time, Sushila came to her house to take some bread for deceased Sanjay and she went back. She has further deposed that thereafter Sushila had again visited her house and had told her that Sanjay is saying that he will not eat the bread and thereafter when Sushila returned back from her house, she came to know about death of the deceased. A perusal of the evidence of this witness would show that deceased was alive till appellant Sushila had visited her house and after some time, when she left her house, the deceased had died. Therefore, there was some time gap between the two events, firstly the event of visiting the house of this witness Tajpati Bai by the appellant and secondly the event of hue and cry when the appellant returned to her house and in between these two events a possibility of any person, other than accused, visiting the house of the deceased and committing the crime cannot be fully ruled out. Therefore, this circumstance of last seen together does not appear to be incriminating against the appellant. (11) The last circumstance about the seizure of leather belt on the memorandum given by the appellant is also of no help to the prosecution. According to the prosecution, the memorandum of the appellant was recorded on 19.5.2001, whereas, the incident had taken place on 15.9.2000. That means the disclosure statement was recorded after about 9 months. The prosecution has not been able to explain the inordinate delay in recording the disclosure statement of the appellant. More over, no document has been produced by the prosecution regarding chemical examination of the leather belt. The case of the prosecution was that this leather belt was used for strangulation of the deceased, then looking to the ligature mark on the neck of the deceased, which was prominent and was of 23cm x 2 cm situated at the cord of thyroid cartilage, it should have been sent for its chemical examination so as to trace about the materials of muscles/skin scratches over the texture of it but nothing like this was done. The leather belt is a common article which may ^•^ .-•?' ti^ ^s^%. ^%^B'^ t.' "w%:s ^^y./ sw^^^:' Cr.A.No.897/2002 (-DB) (g) be available in each house where a male member is there. Only on the recovery of such belt from the house of the appellant, in absence of any further investigation on the line as indicated above, no inference can be drawn against the appellant and such kind of evidence would also not be incriminating against her. (12) It is important to mention this fact that co-accused Florence has been acquitted by the Trial Court on the ground that it could not be established that he was present in the house of the appellant on the date of incident and the entire liability has been fastened on the appellant that she committed the murder of her son by strangulation with the help of the leather belt. Even otherwise also it is difficult for us to accept that a lady alone (appellant), who has been shown to be aged about 45 years, would be able to over-power the young man aged about 22 years and it would be possible for her to kill him by strangulation. (13) For the foregoing discussions, in our considered view, the prosecution has not been able to establish the circumstances consistent with the hypothesis of guilt of the appellant in view of the principles laid down by the Apex Court in various judgments (supra). These circumstances^ pressed into motion by the prosecution^do not form the basis of conviction of the appellant. They only raise suspicion against her, which cannot take the place of proof. (14) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside. The appellant is acquitted of the charges framed against her. It is stated that the appellant is in jail since 14.5.2001. She be set at liberty, forthwith, if not required in any other case. — Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge ^(^-o