HIGHCOURTOFCHHATTISGARH.BILASPUR DIVISIQNBENCH CORAM: HON'BLEMR.T.P.SHARMAAND HON'BLE MR. R.L. JHANWAR, JJ. Criminal ADpeal No.1191 of 2003 Kulanjan - Versus -• State of Chhattisgarh 'z^"< .IT.:'-' JUDGMENT FOR CONSIDERATLQN HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge th Post for pronouncement ofiudamenton 28"' September. 2010 Sd/- T.P. Sharma Judge •i!t.:/ ''^^-.......-- HIGH COURT OF CHHATTISGARH.BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (InJail) Criminal Appeal No.1191 of 2003 Kulanjan S/o Bhagirathi, Caste Yadaw, aged 40 years R/o Hathi Dom Pplice Station Dhamdha, District Durg (C.G.) Versus State of Chhattisgarh RESPONDENT: {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: ;.. 1 ,',./". ! .'•/.., '! •, . -1,; .-,.'•1"-1'.''.1''1' ."• Mr. Shailendra Dubey, counsel for the appellant. Mr, Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. JUDGMENT (Delivered on 28tn September, 2010) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentencedated 5-8-2003 passed by the 5th Additional Sessions Judge, ' Durg in Sessions Trial No.377/99, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Baisakhu, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to furtherundergo R.l, for three months. 2. Conviction is impygned 6n the ground that without any iota of evidence, the trial Court has Gonvicted & sentenced the appellant and thereby committed illegality. •^A:'.- :;s®%spss..'r. 3. Case of the prosecutjon, in brief, is that the appellantwas havjng illicit relation with co-accusedofthe case namely Ahilya Bai, daughter-in-law of Bajsakhu (since deceased), since last one year and whenBaisakhu came fo know aboyt such relation, he quarrelled with the appellant and stopped him from coming tohis house. The appellant enfered into conspiracy with Ahilya Bai with intentto kill Baisakhu and they also decided t6 prepare a letter showing that son of Baisakhu has committed murder of his father on account of property dispute, and in furtherance 6f such conspiracy, the appellant contacted his friend Ajay Prasad Shukla (PW-13) at Kesli and requested him for preparation of one letter which' Ajay Prasad Shukla has prepared as Article 'A'between25-12-98 and 28-12-98. The appellant went to the house of Baisakhu with the said letter and caused fatal injuries by stick and caused his death, thereafter, he put the letter Article 'A' upon the chest of Baisakhu and fled away form the spot. On the same day i.e: in the intervening night of28 & 29th December, 1998 the appellant was seenby Nand Kumar Patel (PW-3) at Village Parpodi in a bus at 4 a.m. which is nearer to Village Gabhradih, , where the incident took place. The said letter was taken but by co- accused Ahilya Bai. Ahilya Bai herself has lodged merg vide Ex.P-20 and on the basis pf merg, F.I.R. was recorded vide Ex.P-24. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-10, prepared inquest over the dead body of Baisakhu vide Ex.P-11. The letter Article 'A' was seized from Ahilya Bai on 29-12-98 vide Ex.P-1. One pair of chappal was seized from the spot vide Ex.P-2. Spot mapwas prepared by the Investigating Officer vide Ex.P-5. Dead body was sent for autopsy t6 Primary Health Centre, Dhamdha vide Ex.P-13A. Dr. P.D. Chandrawanshi (PW-6) eonducted autopsy vjde Ex.P-13 and found contusion over neck of s^ ^. %•' :-^?aY->' . • • -^ '^^'^. :13' .' ;,-::1/'".-'-:0S deceased Baisakhu in the size of 1 %" x 1/4", hyoid bone and cartilage of neck were found fractured, and 4th rib was also found fractured. Cause ofdeath was asphyxia asa resultof pressing of neck. The accused was taken into custody on 3-1-99, he made discloser statementof stiek vide Ex.P-16 and the same was recovered vide Ex.P-3. Patwari prepared spot map vide Ex.P-4. Clothesof the appellant were seized vide Ex.P-8. One copy Article 'B' was seized from Ajay Prasad Shukla (PW-13) vide Ex.P-14. Panchnama relating tocopy Article 'B' and letterArticle 'A' was prepared vide Ex.P-15. Sealed clothes of the deceased were seized vide Ex.P-19. Seized articles were sent for chemical examination vide Ex.P-21 and blood was not found on the clothes of the appellant vtde' -Ex.P-23..\. "'': 1'1.-:/:;.1 ••'•1 :/" ';•'., . '^' 1'' ;;1 ' -••; ,••.' 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Durg, who committed the case to the Coyrt of Sessions, Durg, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as twenty-two wjtnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumsfances appearing against them and pleaded innocence & false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Ahilya Bai of the charge under Section 120B of the I.P.C., convicted and sentenced the appellant as aforementioned. 7. We have heard learnedcounsel for the parties, perused the judgment and recordof the trial Court. /' :r'' •i.^' -'--y^ 8. Learned counsel for the appellant vehemently argued that cpnviction is solely based on the evidence of Ajay Prasad Shukla (PW-13), Article 'A' letter and the evidence of Nand Kumar Patel (PW-3) which may be sufficient for casting doubt that the appellant may have committed the offence, but is not sufficient for drawing inference that the appellant has commjtted the offence. Suspicion howsoever grave cannot taken the placeoflegal evidence and in absence bf cogent and clinching evidence, the appellant is entitled fbracquittal. 9. On the pther hand, learned State counsel opposed the appeal and submitted that letter Article 'A' was written by Ajay Prasad Shukla (PW- 13) at the instance of the appellant which was found on the body of the deceased and was taken out by co-accused Ahilya Bai, and the said letter has been seized from Ahilya Bai pn the same day. This evidence along with the evidence of Nand Kumar Patel (PW-3) is sufficient for drawjng inference that the appellant was seen by Nand Kumar Patel (PW-3) at Village Parpodi while he was going by bys at 4 a.m. These facts are sufficient for drawing inference that only the appellant has committed the offence. 10.1n order to appreciatethearguments advanced on behalf of the parties,,, , we have examjned the evidence adduced on behalf of the prosecution. 11. Ih the present case, homicidal death of deceased Baisakhu as a result of fatal injuries found on his body has not been substantially disputed on behalf of the appellant, otherwise also, jt is established by the evidence pf Dr. P.D. Charidrawanshi (PW-6) and autopsy report Ex.P-13 that the death ofthe deceasedwas homicidal in nature. iT.: .-r- •. .!•••'•'.. "•"• 5 : • .:; :':1'::1:/:'^^ 12.As regards complicity of the appellant in the crime in question, conviction of the appellant is based on circumstantial evidence and the pFosecution has adduced following circumstances: - (1)The appellant was having illicit relation with the daughter-in-law of deceased Baisakhu i.e, co-accused Ahilya Bai. (2)Baisakhu quarrelled with the appellant and stopped him from visiting his house, and same was motive for the commission of offence. (3)The appellant contacted Ajay Prasad Shukla (PW-13) and' succeeded in preparing the letter Article'A' which shows that son ofthe deceased was having motive for the commissipnofbffence. (4)Justafter the incident at about 4 a.m. the appellant was seen at Viltage Parpbdi while he was sitting in bus, by Nand Kumar Patel ,(PVV-3).'-''''::,'::1':.:.-';-..''1.:':: ,.',:;1:-;;'1. . •.•'..••:1;1';''''';1':11,..?:; ;:.-1;/ (5)Village ParpodiisthenearbyvillageofVillageGabhradih. 13.Conviction can be based ypon circumstantial evidence. In case of convictioh based on circumstantial evidence, as held by the Supreme Cpurtinthe matterofC. Changa Reddyv. State of A.P. reported inAIR 1996 SC 3390 : (1996) 10 SCC 193, the prosecution is required to adduce evidence and such evidence must satisfy the following tests: - (a) the circumstances from which an inference of guilt is sought to be drawn, mustbe cogently and firmjy established; (b)those cireumstances should of a definite tendency unerringly pointing towards the guilt of the accused; (c) the circumstances taken cumulatively should form a chain so complete thatthere is no escape from the conclusion thatwithin'all< human probabilitythe crime was committed by the accused and noneelse;and (d) the eircumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis th;an that oftheguiltofthe accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. f' . .(-; •:'.!T-' -'%:^:'-:,'.:.: ^^y&' •fc...''.'''y.'"'% /&'*^;.1.^.- '^••' "A/:-;:''' •; ^ " . -'v ;'%ss-"; 'w 14. In the present case, Ajay Prasad Shukla (PW-13), friend of the appellant, has deposed that on 25-12-98 the appellant came to his house, he stayed for three days and requested for preparation of one letter which he refused, but finally he prepared the letter Article 'A'. He has further deposed that after three days when the appellant left his house, he told that hewill go to Balaghatand hewill notgo to his house. 15.Ashwani Bai (PW-1) - Kotwarin has deposed in her evidence that she was informed that Baisakhu died and when she came tb Village Gabhradih in the house of Baisakhu, she was informed by villagers that one letter was found on thechest of the deceased which has beeri taken by Ahilya Bai. She has corroborated seizure of letter and other thirigs. But in her cross-examination para 5, she has deposed that she herself has not seen the letter upon the chest of the deceased, however, Ahilya Bai has produced thesame. 16.Nand Kumar Patel (PW-3) has deposed that on the date of death of Baisakhu he wentfQrVillageParpodibyJai Bhole bus from Gandai at 4 a.m. and the accused/appellant was also sitting in thesame bus. 17.The prosecution has also examined Radhika Bai (PW-17) - daughter of the deceased who was present in the house on the date of incjdent, Harichand (PW-18), Manglin Bai (PW-19),Krishna Kaushal (PW-20)- husband of Ahilya Bai, Ky. Santoshi Bai (PW-21) - daughter of Ahiiya Bai and Bhanu Singh (PW-22),relating to character of Ahilya Bai and illidt relation of the appellant with Ahilya Bai, but they have not supported the case ofthe prosecution. 18.The prosecution has also examined another witness Smt, Dharam Bai (PW-14) - residentof Village Dhadhi whp has deposed that the appellant came t6 her house and asked the address of Ajay Prasad Shukla (PW- -.^^sw^ ^^.^•••••:-^% .'^'.f&'.; '^ :'.^.:': ::: :'••• 13)Qnwhich shetoldthathe mayasktheaddressfromotherpersonsin the village (Gudha). Although as per her statement recorded by the police Ex.D-1 the appellant came to her house on 23-12-98, stayed for two days and went from her house on 25-12-98 for the house ofAjay Prasad Shukla, but she has not supported her aforesaid version.in her' evidence. 19.As per the prosecution, the appellant has succeeded in preparing letter throygh Ajay Prasad Shukla (PW-13). As per para 8 of his cross- examination, the appellant used to work as witchcraft and as a result pf such witchcraft, this witness was blessed with a son and, therefore, he knows the appellant. This shows that they were previously known to each other. Ifthatis so, whatwas thenecessity of asking the address of this witness by the appellant to Smt, Dharam Bai (PW-14) - friend pf Geeta Bai, who issisterofAjay Prasad Shukla (PW-13), andwithoutany previousintimacyorrelationhowtheappellantstayed for two daysinthe houseofSmt. Dharam Bai(PW-14). 20.The prosecution has not examined any witness who has seen the letter on the chest of the deceased. As per the case ofthe prosecution, co- accused Ahilya Bai entered into conspiracy with the appellant, but the trial Court has acquitted her. Ahjlya Bai has not offered any explanation that how she received the letter Article 'A'. As per the evidence adduced 6n behalfof the prosecution, the prosecution has not proved the factum pf relation between the appellant & Ahilya Bai. Circumstances relating to thealleged letter and that the letter found on the chest of the deceased appeartobesuspicious. iiT, 21.Theappellant is resident of Hathi Dom, Police Station Dhamdha, Distt. Durg. As per the case ofthe prosecution, he went to Vjllage Dhadhi for .•/'/ .'•:'']. -•;"^'..!T.'' 8! " ';1 •' , : ..' - .'',' •':'/;.:':1'":.- gettirig the address of Ajay Prasad Shukla (PW-13), he stayed in the house of Ajay Prasad Shuklaat Kesli for three days and he left the hpus^pfAjay Prasad Shukla on 28-12-98with theletterArticle'A'. Why theappellant has chosen Ajay Prasad Shukla (PW-13) for preparation of said letter; ifthe appellantwas so intimatewith Ajay Prasad Shukla why he went to the house of Smt. Dharam Bai (PW-14) for asking the address ofAjay Prasad Shukla; and when same was not informed by' Smt. Dharam Bai, hpw the appellant got the address of Ajay Prasad Shukla, if he was not previously havjng such address. These are the adverse circumstances whichcompletely cast doubt upon the case of the prosecution relating to preparation of letter and recovery of letter from thechestofthedeceased. 22. In the present case, the prosecution has not proved any of the circumstances beyond ajl reasonable doubts. Evidence adduced on' behalf of the prosecution does not inspire confidence and is not trustworthy. While convicting the appellant, the trial Court has placed heavy reliance on the letter and its recovery, but has not considered the aforesaidcircumstances,andtherebycommitted illegality. 23.For the foregoing reasons, we are of the view that conviction of the appellant on flimsy and shaky evidence is not sustainable. Cpnsequently, the appeal is allowed. Conviction & sentences of the appellant under Section 302 of the I.P.C. are hereby set aside and the appellant is acquitted ofthesaid charge. 1-1ebe set at liberty forthwith, if not required in any other case. ^— — Sd/- T.P. Sharma Judge Soma Sd/- R.L. Jhanwar Judge