""'^w '..^' 1.1-' I. 'T'ys-T* ^•i? . S, 't-f-'A' Criminal Appeal No.233 of 1991 Sudhir Kuinar aiias Sautosh Kuiaar, aged 17 years, S,'o Sunderlal Yaday, R/o Bhifai-3, Near New Police Line, Indira Pai-a, P.S. Purani Bhilai, District:Duri (MP) (now C.G.) (Regular studeat of B.Sc. Fuial Yeai-i Versus State of Madhya Pradesh (now Chhattisgarh) Shri S.C. Venna, counsel for fhe appeUant. Shii Saadeep Yadav, Dy. Govt. Advocate for the State/ responde] [DeUvered on 6th Jaauary, 2010) foUowtn.g sm.eut of the Court was delivered bv 1. This criiniaal appeal is directed agaiast fhe judgiaent of couviction ac.d order of sentence dated 19th Febraary , 1991 passed in S.T. No.31/1989, whereby the leamed 13t Additional Sessions Judge, Dur.e, has convicted t-he appeUaiit under Secticn 302 of the IPC and sentenced him to undei^o ufe uapnsoniuent. 2. Case of the prosecution, in brief, is that tlie inarriage of appeBarit's sister- Kiraa was fixed bv Iier raofher wifh deceased. Tlie auveUant did not ',""•;, "^. ri' ! . 'A ite'.-'^tet 1 '•i;feiaii'ii^ g ...^y ""<"*ffi'i!^^; approve tlie abo'/e relationship, Appeliaat and co-accused-Kaiiial too'k ttie deceased to vulage Bhaiitagaon on ftie pretext of attendiug the death cereinony of his inateiTi.al grandfather aiid comTnitted his mnrder iii conspiracy with co-accused KaiD.al b;>- ta-kmg him xieai' caaal and strarigulatiag with the help of rope. Aft.er miu-deiiag, the dead body of ttie deceased was fhrown ia the caaal. Mohaa (P.W.l), brofher ofdeceased gave uiforinatioa iu fhe Police Station- Utai on 22-10-1987 luentiouing thercia fhat his brofher Bhondu alias Udav went to village Bhantagaon witb his would be brother-in-law oa 09-10-1987 aiid did not retura for a week. On 17-10-1987, Saatosh retumed to his house, however, he did aot tell aayfbiag about Bhondu. Oa enquiiy, he said fhat Bhondu has already retumed back. Thereafter, he inade searches and found dead bodv of his brotber Bnondu lyiag iiear culvert. 3. After registering the inerg iatiiaation, offence was i-eeistered against unkaown persoa in ttie Police Station Utai on 22-10-1987 vide Ex, P-1 aiid fhe same was subsequenflv registered m. the Police Station- Runcbirai vide Ex.P-20. Prior to the lodgiag of fae aforesaid report, Bhavsiagh (P.W.2), father of deceased-Bhoadu aave iiifonaation on 19-10-1987 regaidiiig inissiag ofhis sou which was recorded io. the Roiaamchasana vide Ex.P-9. After recovery of fhe dead body of Bhondu, iaquest was prepared by Police Station- Utai vide Ex.P-10 on 22-10-87. The dead bodv was sent for autopsy to Govt Hospital, Durg, where Dr. S. A. Khaa (P.W.8) conducted tlie postaiorteiii a&d gave his report vide Ex.P-12. On the basis of nieiaoraiidum. Ex. P-7 of the appeUaut, wearing apparels of the deceased and. liis own blood stauied shirt was taken iD.to possession "ide Ex. P-6, Articles seized during iuvestigation i.e. wearing apparels of the appeUaat aad deceased, rope, viscera, stone werc sent for cheinical exaiainatioE to SSiO^I J -.^""' Porensic Scienee Laboratory, Saear vide Ex. P-22, Ex. P-24 and Ex. P-25, wbereas documeat ofEx.P-26 is tlie report ofcheiaical examiner. 4. After coiapletiii.g iavestigation. charge sheet was filed ui the Couil of Judicial Magistrate Pirst Class, Durg wtio in tura coBiruitted fhe case to the C.ourt of Sessions Judge, Durg aad the same was received on ti-ansfer by the learaed 1st Additional Sessions Judge, Durg for trial. 5. The leai-aed trial Court fraaaed charge under Section 302 read wifh Section 34 of the I.P.C. or in altemati.ve Section 302 of the I.P.C. agaiast tlie appellaat and ofher accused, who abjured fhetr guUt. 6. The prosecution ia order to establish charge against tlie accused persons examiaed 13 witnesses ie all. Thereafter, stateinents of accused uader Sectioa 313 of Cr.P.C. were recorded in wluch fhe appeUant denied the cii-cumstaQces appearuig against thein ia tfae prosecution case aad pleaded innocence and false iiuplication. 7. The trial Court after hearing tiie counsel for respective parties, convicted aiid senteuced fhe appeUaat as inentioned iii para-l of ffae judgiaent. However, fhe co-accused Kam.al was acquitted of tbe charge. 8. Learaed couasel for fhe appellajit firsfly argiied that fb.e prosecutioa has la.iserably failed to estabUsh that fhe deceased died homicidal de&th. Refemag to fhe evidence of Dr. S. A. Khaii (P.W.8), it was argued fhat dead body of Uie deceased was found in a liighly decomposed condition aad fhe doctor was not ia a posinon to give any definite opiaion regarding the cause of death aud thus fhe firidiag of the trial Court tliat 'the deceased died hoEiicidal death is -ivifhout aiiv evidence, He furfher argued fhat fb.ere is no eyewitoess ofthe iacident. The circumstances relied upon by the trial Coiu-t have uot beea estabUshed. No iuference regardiag fhe guilt of the accused appellaiit caa be drawn froni t&e circum.staiitial evidence establishecl durm.g trial. Oa the contraJT, fhere is evidence avajlable on record ihat the ffi!:i8 appeUaiit aiid. the deceased reached vulage Bhaatagaon and attended tlie deatb. cereinoay of his m.aten.ial grandfather. There is no evidence thax fss appeUaiit accoinpanied tlie deceased thereafter. Thers is sufScient evidence iii the shape cf stateiiient of fatlier-Bhavsiagb (P.W.2) and fcro'tiie';'- MobaafP.W, 1*, of the deceased that fhe auoeUaiit aad flie deceased were ha\Aig very good relationship. The recovery of blood stained cloftie at the instaiice of fhe appeUaut has not been proved. Even ofherwise, fhere is no conclusive scientific evidence fhat fhe shirt contaiaed huraan blood aiid fh.at too ofthe blood group offhe deceased. 9. On the otlier hand, learaed counsel for tbe State bas supported the iaipugned judgnieat. 10. V/e have heard leamed counsel for the parties. We have penised the record of ihe Sessions TriaS uicludiug fh.e impugued judginent, 11. Undisputedly fhe dead body ofthe deceased was recovered froin tlie canal. A rope was tight around its neck. The dead body was identmed by ihavsingli i'P.W.2), father of the deceased on the basis of uant aud shirt wora by his son. Both fhe witnesses Bliavsiagh (P.W.2) aad lus brofher Mohaa Singh (P.W.l) have deposed tliat fhe clothes which were seized duriag iavestigation belong to Bhondu, as fhe same were wom bv hiiii v/hue he went 'firoin his house. Dr. S.A. Khau (P.W.8) has proved tae postmorteia report of Ex.P-12. He has deposed tbat fb.e dead body was highly inutilated and decoinposed; foul sm.eU was em.anatuig froui tlie body; niaggots were present; ffaere was no soft tissues over face, scalp and neck and bones were exposed, eyes were absent from the socket; soft tissues over the front aud sides of the chest werc absent exposia.g boiiey cage bones looselv attached; skia and soft tissues over abdoiu.cn badlv deconiposed --L- and eaten-up; flesh of both upper Uiabs eatea up; fingers ..oFNn. '^"> ^: :{i' eaten up. bones looselv attached; genilatia decoiaposed, lower lunbs trtiaUy eaten-upivith exposed bones; stoiuach pail- pieces ofliver, spleen, Iddney, uitestm.e, lungs were present and presen?ed for cheiaical exaiaiEation. He has cafegorically opiued that no definite opinion can be giveri. about cause of deafh aud time passed siace death has been opined froia 10 to 14 days befoi^ tbe date of postiuortem.. Forensic Science Laboratory iu its report has opined fbat pieces ofviscera and the liquid sent for chemical examiaation did not contaui poison. 2. The learaed trial Court on fhe basis of evidence of Dr. A.S. Khan (P.W.8) has arrived at a conclusion that a rope was tigbt around necls: of ttie deceased, which reveals fhat Bhondu was ruurdered by strangulation w-ith the help of rope and thereafter his dead body was thro\!s7n ia fhe canat water. .3. Co-accused- Kamal has beeu acquitted of fbe chai^e oiily on fhe ground fhat fhe shirt aad full-pant seized from him. was sent for cheiaical examijiation to F.S.L. aad fhe saine did not contain blood. However appeUant has been convicted on the basis of circuinstantial evidence. The circunistaiices reUed upon by fhe trial Court are as under:- •!. STf^cRT ^Efr? 'grf? <rat? 3TlFft 6|f§r| qiT Rcj|g Hddi !l:ff^ ''^ W8? ^?1 c^ f$T4 ICT 'I^T &TT, ^irfe 3^W ^PT ^B^ '??N ^ WT fN[? ^l srRP^T 't?CT ^t aft, 2. ticil ?p ^cf l^p iT)r^ qff 3TpTgERT ^JTTN 3T[r^ •:ITFTT <^ ^cp ci5pfi?H' '^ ITPT ^ m f^ TlldHllcf ^ '<TOT &TT, f^5 'S^TE^ aTc 'ipW 'sf^ uftf^r? ^TTO' '•T^T c'jtel 3il7 •<jt|cp1 cTRT 'Htenm' uIT^ c^ WW^ ^ff f^ff ?R' y^f •.Tg^ qit ^i^i ^ -qre T^CI 5g ?TcRT :K tiT^ 71^, 3. ^TfSi ift^ a?T 3?ftRptT WTN ^ ^flTsj fTTgpTTg' u]T^ ^ 3)T3 feir acp gift?RfTT ^Efr? ^ft WlN 3ft? l^f; ''Tt.^ 'sj^ ^rro •ER •F|^: g]T^ &'t ^ 4. 3lf^CT;R? 3T°fr? \5Tfi WJN ® <TTaT ItTcp ''lT^ 'i41dljt!'c| ^ 3lf^?{cRT ^sfr? cp 7!TrTF w 4»rlcp 4;|<fct>i4 cp f^?T •)l!'dt-l||'cj 1{ TJtuiq' STT, ^3 /. 5. ~c^fi ^i 'tTT^ 'Wg^ ETRT srfTyRI WN ^ Tn»Tf ^ '*Tf3rTra' ^fiu?3 y'T ^ :3^ srnrqT TR[T f?o '?mT w y: sFjT 'nrRp 'iffe 'g^r^ ?R ^ 'cT?iT 'TRIT aiT. 6. ^ f^, w ^rtopm ^ uIT^ -^ -5<T '^ <(!? aifin^RT ^IRN ^fR T3^ 3pf75i, TO f^TcTI^ c'itET ?^r 'I}t?7:rTT? cB7i^ fg lToT6 ^^r Uicr ^rTcR 1T<:BM TT? TpIT rJT 3i^TgERT 'FraN cp 'ET? ?& 3R7 ^ri •g^ .ifr TRnH 'tBT tiiidii.ril '^ft ^a^Ti 7. 'Cj^fj fff^ 'V :S^5. Pp5T ^T7T ui3' 'P' 3lfTT^"Ff ^fR 130? 'TTtfT1? ^' ;tJT^^ cS 6?R ^ [t?are> tej cft siftqcRi ^Efr; ^m^ '<?? ri^T crarar f^ sTRft c^ cBRfcpT ^ gTC- 'ffT^cB^i 'cfeTT ^prr i 8. sTf^JTuH -rrar? '^•T ^ra ^i' ^yidiy cR'r tR sri^cRi ^efR ^ 3rT"Trai f&i ?K Tft^ ITTfcf) c^ <TTal ^TrT •i^ Tfg^ ^ T:^ 7I,ST^ f£T^H^ 'f^r ^JT arr f^i TJ;ffc^ 6IT3' ft^ ifl^ ^?f ^rIT WH ^ -itf 'qTcpT, 9. ^V cfT v^ 'lfteTT "4\ WS Sfftf^ffj >H'^q ^ •d'Mcb ferf^ cfte^ IR STO^ VT^ ifts. c^ 3R 4 1{®Trft •3Tp)^ch1 <H'tl1tj •^' 6|d|<i| fEp ^T'^—Tft'-t^ Er^ iff^ ^icp VT\stVS ^ W 'gWQ ^f ?f5FT t, <t>g4>< "^lcIT 7raT aTr, 10. •3TP:I<prT ^Efr? c^ 3.1Tf6iTTcT ^ ^3) T^qT cf^ T^fr up<T (i^ ^ aft, 11. gifil^RT ^eft? Tpripiq? •ffte^ TS^. T? irra ws cpi^t' q ^Rl 'g^TT qrai 7raT &TT. 12. STRnpRF ^Eft^ gKl •ff^a; T]T^ ^ ri^^^<i!<; .^ STfoFTfiT CTim ^naj ?f ^ vn^ sT[c[rT 'SlSS 6|'dlc| cfiTT [ 14. The trial Court on the basis ofevidence of Bhavsiagh (P.W.2) aad Hussaui (PW.5) has held that aforesaid circunistances are established. 15. On close sci'utm.y of fhe evideuce of fue aforesaid eyewitaesses, we are of fhe opinion that fhe :Siading of fhe trial Court fhat the appeUaat had inotive for coiamission of fhe offence, as he did not approve ftie inarriage of his sister wifh the appellaat does not bome out from fhe evidence available on v record. Mohaa (P.W.l)(»as categoricaUy deposed fhat the appeUaat and Bhondu were bosoin fidends. Though Bhavsingh (P.W.2) has deposed fhat ,.^^ f ^.'..sitjlSSSi!, 't r 'Iicgtss5ii"'i% S a. --rf"' .!^" 'v^y 18,.^' the accused was not ready for luarriage of his sister with the appelisiit, but he has also adnutted ia the cross-exaiitiastion that borli used to duie together from tiie same plate and fliere was no quaiTel beteeen fhem. Siaiplv bv not beiag ready for inarriaee of Iiis sister cajinot be construed as a aio'dve for coinnuttiag aa offence that too offence of laurdering his bosoiu briaed. 16. The other circuiustaiices that the deceased accoinpaiued fhe appeUaat to Bhantgaon for attending the death cereniony of appeUants' matemal Erandfatlier aad fhereafter did not retum. alive aad his dead bodv was found froin fhe can.al is also not established, as Mohau (P.W. 1) iu para-3 of his deposition has stated that fhe inatenial uncle of appenaiit uiforiaed hiic. that appeUaitt aad Bhondu caine there on the date of cereinouy at about 12:00 in fhe aoon aad stayed ia house for fhe whole day, however he was not prcsen.t at 6:00 p.ni. and on enquiiy Santosh ui&rmed W-m Qiat ihondu has left for Power House on fhe pretext fhat he had some work. He further stated that on the next date, Santosh went to Palari aud fliereafter he has returued to Bhflai. When he went to house of Santosh he found Saatosh, wlio said that Bhondu had left earUer. Bhavsiagh [P.W.2] also deposed that they eaquired about Bhoudu for eight davs therei fhev weat to Bhantagaon aiid leanit tliat Bhondu left Bliantagaon iii fhe eveniag of cereinonv. 17. Thus from. fhe evideace of above tivo witaesses, it is clear that th.e prosecution has failed to prove tbat fh.e appeltant and the deceased were seen together when the deceased was aUve aad tliereafter his dead body was fouud. 18. Hussara (P.W.5) has deposed fhat Bhondu and fhe appeUant went to attend sonie cereinony in. a vfflage situated in Police Station Raiichirai. \Vhen he did not returu for ten days arid appeUaat alone returaed, fhey went to •^.s^iS^.--, '•- appeUaat's house to enquire about Bhondu, however, tiie faaiily nienibers of appeUaiit did not opeii tlie door. Thereafter fhey went to tbe place of thetr ziiaterB.al .graadfaftier, who told fhem. that Bhondu caiiie there to attend tb.e cereinony. It is just posslbls he luight have gone with the appellaat. In para-12 of cross-examiaation he has deposed fhat appenaiit told fhem fhat he aiid Bhondu had gone near the canal to wash fheir niouth wifh Gudakhu. However, fhis fact was never disclosed by tius witaess to fhe Police aud fhe sam.e was stated for fhe first time ia the cross- examinaUou. 19. The trial Court has also relied upon the recoveiy ofblood stained c]othe at ftie iiistance of fhe appeUant as an additional circumstaiice for couvicthi^ t3ie appellant wifh the said offence. However, fl-oin fhe report of F.S.L., it is clear fhat there is no scientmc evidence that fhe blood fouad iu the shirt of the appeUatlt was hunian blood aud that too of fhe same group of fhe deceased. Only on fhe basis of ctrcuiastances that fhe appeUaiit said Hussaiu (P.W.5) fiiat he and deceased went to caual for Gudakhu and a coiitaiuer of Gudakhu was recovered from. fhe pocket of fhe deceased can.n.ot be considered as uicriminatiag circuiastaiice, particularly when fhe aforesaid fact was never disclosed by Eny of fhe witaesses ii'^cluduig Hussam. (P.W.5) durillg investigation, 20. It is setfled law fb.at where fhe case rests upoa circum.staiitial evideiice, such evidence inust satisfy the follo-ivuig tests : - °(l) fhe circum.stances froin wbich au iaference of gudt is sought to be drawn, ruust be cogeafly aad fimily estabUshed; (2) those circuaistaD.ces shouM be of a defiiiite tEndency unen-uigly pointiug towards guilt of fhe accused; (3) the circuinstaaces, laken cuinillatively should froin a chain so coiaplete fhat there is no escape froxn. fhe T^ @ conclusion that wifhin aU hum.au urobabitit',' ftie ciime was coininitted by the accused aad none else; and (4) fhe cn-cum.staittial evidence ia order to sustaiu conviction niust be complete and iiicapable of explaaation of aay other hypofhesis fhan fhat of fhe ;uilt of fhe accused and suctt evidence should not onlv be consistent wifh the giult of fhe accused but should be inconsistent wifh bis uuiocence." 21. F'roin the evidence available on record, we have slreadv observed that the evidence of motive adduced by the prosecutiou is farfetched as the appeUant and the deceased were bosoiu fdends. The prosecution has utterlv failed to establish fhe m.creiuentin.a circuiustaiices to establish fhe case ofthe prosecution. On the basis ofaforesaid discussions, we are offhe ppinion that fhe prosecution has failed to prove tlie accusation against fhe appeliant beyond aU reasonable doubts and the appeUaat is enutled for benefit of doubt. 91';' In fhe result, fhe appeal is allowed. Conviction of fhe appeIlaxit-Sadhir Sataar alias Saatosh Kumar under Section 302 of the IPC and sentence imposed under that Section are hereby set aside. He is acquitted of fhe charge frained agaiust him. The appeUaut is on baii, fherefore his bail bonds staad discharged. E-!e need not surrender. Sd/- Dhirendra Mishra Judge Sd/- Manindra Mohan Shrivastava Judge