HIGH COURT OF CHHATTISGARH AT BILASPUR DB Hon’ble Shn Suml Kumar Smha & Hon’ble Shn Radhe Shyam Sharma, JJ Criminal AgLeal No. 1 1 62/1 995 ‘ e APPELLANT Ramnath @ Kolhu S/o. Salikram Sahu, Aged 35 yeara Rio. Babai, P.S. Sahaspur, Lohara, Tah. Kawardha, Distt. Rajnandgaon Vs. State of Madhya Pradesh (Ncw State of Chhattisgarh) Respondent ‘ ‘ ' (Cnmmal Aggeal under Qecfnon ’%74§2) Cr P C \ Present: Shn Abhay Tuwan for the anneliant Shn Ajit Smgh Panel Lawyer for the State QRALJUDGMENT (22.06201. 1.) ' The following judgment of the court was pasged by Sunil Kumar Sinha, J. This appeal is directed against he judgment dated 20‘“ of July 1995 passed in $essions Trial No.124/94 by the Additional Seesions Judge, Khalragarh!Camp Kawardha. By the impugned ,iudgmen‘t, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/—, in default to further undergo R.l. for six months. ‘ é 0 2. The facts, briefly stated, are as under:— The appeliant and deceased Pusao, both were residents of village Babai. On 09.951994 at about 5.00 a.m., dead body of deceased Pusao was found in ai'g‘afi in the village. lt was seen by the villagers. Kotwar Munnadas lodged First Information Report (Ex—Pli) at about 7.30 a m Merg Intimation (PX-P \ was also registered The Investinating officer m: l: MW gr @j reached the p!ace of occurrence, gave netice (Ex-PIS) to the panchas and ' prepared inquest (Ex-P/6) en the dead body of the deceased. Dead body of ihe deceased was sent for post modem to Primary Heatth Centre, Khamaria. The poet mortem examination was conducted by Dr. H.N. Gupta {PW—1.2). He noticed multipie incised wounds on the body of the deceased. There Was a fracture in the parietal bone. Biood oiots were present in the brain. There were iniuries in the brain’matter. The autopsy surgeon opined that the pause of death was .e.orrhage and coma on account of injuries i sustained by the deceased and the death was homicidai in nature. The post mortem report is Ex—Eli4. in further investigation, the appeiiant was taken into custody and his memorandum statement (Ex—PH Q) under Section 27 of the Evidence Act was recorded, and a tangia was seized at his instance yide seizure memo Ex—P/i ‘i. Seized articies aiong with tangia were sent for chemioai examination to Forensic Science Laboratory, Raipur; from where a report (Ex-P/Zi) was received. According to the FSL report, blood stains were found on the tangia and ciothes of the deceased. The stained articies were further sent for seroiogioai examination to Gwernment Laboratory, Caicutta, but the seroiogicai report couid not be fited. After compietion of e usual investigation, charge sheet was iiied in theé‘Court of Judiciai iViagistrate, First Class, who in turn committed the matter to the Court of concerned Session Judge, from where, it was received on transfer by the Additional Sessions Judge, Khairagarh, Camp Kawardha, who conducted the triai and convicted and sentenced the appeilant as aforementioned. 3. Admitediy, there was no eyewitness to the incident and the case of the prosecution was based on circumstantial evidence. Though the prosecution had tried to estabiish that the a‘ppeiiant was seen going towards i W the piace of occurrence along with tangia, no substantial evideme to this effect was adduced by the prosecution. The ieaned sessions Judge mainly relied on the circumstances that the appellant left the place of occurrence immediately after the incident, therefore, his conduct was not proper; blood stainedi tangia was seized at the instance of the appellant on his memorandum statement (Ex-P/10); and according to the FSL report, blood stains were confirmed on the said tangia seized at the instance of the appellant. g u: 4. Shrl Abhay Tiwarl, learned counsel appearing for the appellant argued that the above circumstances were not sufficient to hold the appellant guilty under Section 302 IPC. .Even if the circumstances are taken on their face vaiue, it cannot be said that it was the appellant who “committed murder of the deceased. He aiso argued that though the blood stains were found on the tangia, the origin and the group of the blood were not determined! therefore, the above circumstance would also not be incriminating against the appeiiant. 5. On the other hand learned counsel appearing on behalf of the state opposed these arguments and supported the judgment passed by the sessions Court. é!- 6. We have heard iearned counsei for the parties at length and have .13eruseo‘ the records of the sessions case. 2". in ' chatteri £3 5:2 the Apex Court heid that “in a case based on circumstantiai evidence, the circumstances from which the conclusion of guilt is to be drawn have not onty to be fuiiy estahlished bl it also .hat a" the ctr im-tances so established l l Ehanan‘ot ae should be of a canclilsive nature and consistent only with the hypothesis of the gum 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 iegaily established circumstances and ot merely indignation of the Court can form the basis of conviction and ore serious the crime, the greater should be the care taken to scrutinize e evidence test suspicion takes the place of proof.” 3. in godh Roi alias Bodha and others Vs. State of Jammu and ashmir. AIR 253m Sf: 3164, the Apex Court laid down that there is no oubt that conviction can be based soiely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully estabiished. They are: (i) the circumstances from which the conclusion of guilt is to be drawn shouid be fuiiy established. The circumstances concerned ‘must’ or ‘should’ and not ‘may" be estabiished; (2) fa so established shouid he consistent only with nests or the guilt or the accused trat is to say, 'i c. ' ‘ uid not be exp'ainabie on any other hypothesrs except tnet the accused is qutlty, i3) the Circumstances should be of a conciusive nature and (4i they s‘no Id xciude every possible hypothesis excep. c proved and there must be a chain of evidence so complete as not to e ire any‘vr‘reasonabie ground for the conclusion entl ith the innocence of the accused and mus “' “t all human probability the act must have coer‘ none oy me accused n m th K d o $, Ainrusé $émiiaf vEew was again taken by the Apex Court in the matter a? 1 - $iav Thakran am. {209 14 SBR 321 " ,iudgment, the Apex Ceurt has atso referred to the decision Q VVhHe I.‘ Eng the principles laid dawn in the abeve cited cases, se tar as the conduct 1 of the an eiiaht, ieavin the iece of occurrence immediateh/ after the incident iS ocncerned, we find that it was not a case that the eppeiiant v t arte‘cendee y . after the incident. . .’ On the contrary, it . appears from the evidence of Kitemtn Bai (PW-9) that when at the reievant time she was preseht at the weii, she saw the appeiiant returning to‘ his house. in ”ii’riirnn‘ia u '’ ae of M sore AIR 193 S.- heid that“ Though the conduct of accused in absconding immediateiy after 1e oceurrenoe oi the offence is reievant evidence, as indicating to some extent hie guiity’ mind, it is not conotusive of that fact because even innocent pereeh whee suspected may be tempted to such conduct to avoid arrest.” ‘i'l’oereiere, we do not find t.is circumstance as proved and incriminating attainst the aepeiiant in the prese.t case. The finding in this regard is se or: ‘.he rate of evidence of Khemin Bai (PW-9). 1 3H the Supreme Court $5 a 1 1 w. a the c t umstance of seizure of tangie from the possession ot the not much incriminating, because, suoh tangie is a common whish is nonnatiy kept by the viiiaeers in the viiiage. The teamed eese-s suede has given undue importance to the seizure of tangia at the instanes c teappeian 'oeoausétf'Eiood stains mere found on that articie by ood stains vv r ifound on tangia, peiiant from his house, the erioin Saw a? @12 4’s. an 7 . s. Eiie $ M C. = ; o . , @ and gmuo 0 'ihe bbm mund there en were net proved by the p.osecution, thereby we cenciue’e mat it we- net estab!iehed that the bleed stains, which were feund J tertgie were either human b!ood or the btoge of the b!ood grcup of the deceeeeri. tn the above facts and circumstances, we are of the View that the sett‘tery evidence of setzure of tengia and the btocd stains found on it, in aheence of proof of its origin end group wouid hardiy be / incriminating in thie matter. z 12. Vefpart from the above, we further note that it comes in the evidence of prosecution witness that the appeiiant was found holding a turnbier in his ¢ :3“ and. Khemih Be: (PW—9) though hes stated that she hedseen the appeiient aiong rgre tn his hand, she did not mention that she couid ’ t ' e see the biood evaiiabie on eouu we ere of the View that the circumstances pressed into motien were v oonsisent onty with the hypothesis of the guitt of the petient; they ee exptaihebie; they Were not of oonoiusive nature and hey a not exeiude every possib.e hypothesis exce, t the one to 2-”v j oe proved by e proseoution; and chain of oitcumstantiai evidence was aiso not eon'i p oohoiusion port er y the on the tahgia. After going through the entire evidence E so es not to ieave any teasdnabte gtound for the with the innocence of the apgeiiant and they do not t'nen prohahiiity the act must have heen don D( 13‘ ‘eesons, the eppeai is atiowed. The conviction and sentence anarceu - ire appeiiant under $ection 302 IPC are set -asrde. the appeiiant re act. we“ Mien into L on 10‘0594 ant: was released on bait vide order charges framed against him. The appeiiant “v u- ‘ ’u t o :Jeay Bini i Sd/- i// Sdl- R.S. Sharma JIL¢ // W Sunil Kumar Sinha Judge '§g v