^ IN 'EHE HIGH COURT OF JUDICA1URB AT BILASPUR (C.G.) CR.A. N0. IT^ /2002 APPSLLANT Vs. •<yRESPONDENT S S.T. N0. 348/94 U/s 302, 201/34 of I.P.C. P»S. Sihawa Court of A^S.J. Dhamtari C^KENAL, APE'EAL, U/S 3,74, OF C.R.P.C. Smt<. Devki bai w/o Phelcaram^ aged about 32 years, R/o village - Belar- Bahra P*S, Sihawa Tah, ©hamtari Dis-bt. Raipur (C.G.) The State of Q.G. Through P»S» Sxhawa Distt^ Raipur -(C*G.) M ^" -<^~. ^ ^•/'•l^ OF ^J- J- OF 1996 Raj Kumar State of (now Chhattjsgarh) OF 19Q6 Feku Versus of Madhya Chhattisgarh) 4ND OF 2002 Smt Devki Bai Versus of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- JU DGE J.^Ljuly. 2003 HON?BLE THE CHIEF JUSTICE ^tc^y^^ ' , Q ^- Sd/- Chief Justice POST FOR JUDGME.NT ON. Jiily, 2003 Sd/- L.C. Bhadoo Judge HI^H COURT OF JUDICATURE CHH^TTES^ARH; BILASPUR OIVISION BSNCH: - HON'BLE SHRI K.H.N. KURANffA. €.J. AND HON'BLE SHRI LC. BHAbOO. J. CRIMIN^L A??EAL N0.268 OF 1996 Raj Kumar Versus State of Madhya Pradesh (now Chhattisgarh) CRIMIN^L APPEAL N0.269 OF 1996 Feku Ram Versus State of Madhya Pradesh (now Chhattisgarh) AND CRIMIN^L A??€ALN0.794 OF 2002 Smt. Devki Bai Versus State of Chhattisgarh Present: Mrs. Kiran Jain, Advocate fo?"* tlie appeliants. Mr. Praveen Das, Panel Lawyer for the State/respondent. JUD&MENT (Defiversd on^^/^Juiy. 2003) The followina .iudQ'ment of the Court was delivered by Ju^tice LC,BhQdoa\ - 1. Ail the above three criminal appeais are arising out of the same judgment dated 18 January, 1996, passed by th® Additional ^ Sessions Judge, bhamtari/Disti-. Raipur and they relat©to the incident As all the three accused/appeiiants were accused in the ie. Sessions Trial No.348/94, these three appeais are being disposed of by this common judgment. 2. The accused/appellants have preferred these criminal appeals under Section 374 (2) of the CrP.C. being aggrieved by the judgment of conviction and ssntence dated 18 January, 1996, passed by the Additionai Sessions Judge,Dhamtari, Distt. Raipur, in Sessions Triai No.348/94, by which the learned Additionai Sessions Judge after holding the accused/appeiiants guiit^ of the commission of the offences under Sections 302 & 201 of the IP.C. sentenced each of them to undergo imprisonment for life and to undergo rigorous impris0iaiment for two years, respectiveiy, Both the sentences were directed to run concurrentiy. 3* Briefly stated, the prosecution case is that accused Feku Ram, resldent of Viibge: Belarbahra iodged a report at Poiice Station: Sihawa, Distt. Raipur on 06.06.94 at about 8.30 p.m. that on the previous day rnorning i*e. on 05.06,94 there was a quarrei between the wife of his younger brother namely, Ramob Bai and her husband Raj Kumar. Raj Kumar sdd something to Ramob Bai regarding her iliicit relations with one Jahanghasia. Thereafter, RamobBai died by hanging herseif in the house. Upon receiving this orai report, merg intimation No.19/94 under Section 174 of the Cr.P.C. was 3 ^ .^? registered. C,S. Netam, the Sub Inspector, Poiice Station: Sihawa, Tehsii: Dhamtari reached viibge Beiarbahra and after giving notices Ex.PSB5 to witnesses, prepared Panchanama Ex.Pca6 of the dead body of Raa&Inola Bai. At that time, the dead body of ftamoia Bai was found hanging in the room and her knees were touching the ground. Some pieces of broken bangies and also match sticks were lying there. Biisters and burning signs were p?"esent on the thigh region of the The paims of both tiie hands were also found burnt. The anus and uterus coming out. After preparatlon of the Panchanama of the dead body, the post mortem of the dead body was conducted by &r. Padmakar Mishra (PW-13) and the site plcm of the pEace of incident Ex.P-21 prepared. The broken bangie pieces were under Ex.P-7. On 07.06.94 accused Devki Bd gave a memorandum Ex.P-10 and in pursuance of that memorandum one utensil meant for preparation of tea was recovered at the instance of accused Devki Bd under Ex.Pall. On the same day at 12:30 p.m, accused Feku Ram gave a memoranduni Ex.Pal2 and in pursuance of that one bamboo stick was under Ex.P-lS. The blood stained soi! from the room of accused Raj Kumar undsr ExP-14 and the soil of the piace of incident was seized under Ex.P°15. On 06.06.94 one iamp made of soiution box and three haif burnt match sticks were seized under Ex.P-S. Broken bangle pieces aiso under Ex.P-9. The ciothes of Ramob Bai <^ under Ex.DBS16. Ail these articles were ^nt for chemical examination from where report ExPn24 was received. After completion of the investigation, charge sheet was filed against the accused/appeilants for the cominission of the offences punishabie under Sections 302 & 201 of the I.P.C. 4. The charges for the offences punishabie under Sections 302 & 201 of the I.P.C. were framed against the accused/appeilants. The accused/appeliants denied the charges and cbimed to be tried. 5. The prosecution in order to prove the offences agdnst the accused/appeilants examined in aii fourteen witnesses. The statements of the accused persons were recorded under Section 313 of the Cr.P.C, The accused persons denied the prosecution evidence appearing against thern. Accused Devki Bai said that at the time of the incident she was not present in the house as she had gone to her agricujturaj fieid, she has been faisety implicated in the case and she is innocent. Simiiariy, accused Feku Ram also denied the evidence of the prosecution and said that at the time of the incident on the fatefui day he had gone to the forest along with Bhuneshwar Sahu for collecting the wood and when he returned in the evening hls brother informed him that Ramoia Bai has committed suiclde. Accused Raj Kumar aiso said that on the fatefui day in the morning he went to Village: Aawamuda for cutting hairs of the viiiagers as he doing the work of Barber. Raj Kumar further said that when he retumed to the house he saw the dead body of his wife Ramoia Bal. He info?"smed his brother Feku Ram and thereafter, Feku Ram went to the viliage Kotwar to inform him about the incident. In their defence, the accused persons examined DWW1 Thanvarsingh Dhruv and DW-2 Bhuneshwar. The Searned Additionai Sessions Judge after hearing the arguments of the Additionai Public Prosecutor and counsei for the accused persons and after beiievlng the evidence of the prosecution convicted and sentenced the accused persons as mentioned above. 6. We have heard the learned counse! for the accusecS/appeIlants and learned Panei Lawyer for the State/respondent. 7. As far as the nature of death of ftamola Bai being homicidai is concerned, the tearned counsel for the accused/appellants has not disputed this fact. PW-3 br. Kishore Som and PW-13 Dr. Padmakar Mishra who conducted the post mortem on the dead body of Ramoia Bai have stated that on the left cheek of tiis deceased abrasions and swelling were present: there was G hgature mark on the neck and lines were present beiow the ligature mark; there were abrasions and sweiiing on the neck; scchymosis bruises were present on the neck transverseiy: anti-mortem ty'pe scalds (burn injury) were present on the pe!vic region: whole iower genital organs (vagina), anal and both palms were found burnt: thyroid cartibge was ruptured: ecchymosis bruises were present on the frontof neck; and anti-mortem burn injuries (scald), redness and blisters were present on the peivic region and iower extremit/ (front & back) of paim. The doctor opined that the cause of the death was due to asphyxia as a resuit of strangulation and the nature of the death was homicidal. Apart from stronguiation/ the burn injuries were present on anus and vaginaj area. Biisters aiso present. The Doctors have stated that injuries coufd be caused by any iiquid substance and there was 40% burns on the lower portion of the body< The iaceration was present in the anus and vaginal canal, The Doctors further stated tt-iat hard object was inserted in the anus and vaginal canai. These injuries coupted with the evidence of stranguiation show that the death of deceased Ramoia Bai was homicidal and not suiciaai. 8. Now coming to the questlon of invo!vement of the accused persons in the rnurder of Ramola Bai Is concerned, most of the prosecution witnesses have turned hostiie and the who!e of the prosecution on circumstantjai evidence on!y. 9. The law on the point Is that in a case based on the clrcumstantiai evidence the Court can record convicti0i5i but it must satisfy itseif that the circumstances from which an inference of guitt couid be drawn have estabiished by unlmpeachabie evidence ied by tiie prosecution and that ai! the circumstGnces put together are not only of a concjusive nature but aiso comptete the chain so fuEiy as to unerringiy point oniy to the guiit of the accused and are not capable "? > \^y f—s of any expianation which Is not consistent with the hypothesis of the gullt of the accused. lO.The first circumstance, as per the prosecution evidence, is that PW- 2 Johansingh saw aecused bevki Bai abusing the deceased and saying that Ramola Bal wiii be murdered and a stick will be inserted in her anus. Similarly, PW-7 Radhsylai hsard 1+ie cries 'Save Save' from the house of accused Feku Ram to the effect* PW«8Repotin has stated that on the fatefu! day at about 3 p<m. when she returning from the forest she heard the noise from the house of Feku Ram. The evidence of these three witnesses has relied upon by the tria! Court whlle convicting the accused/appeiiants, As far as the statement of PW-2 Johansingh is concerned, even though 1+iis witness has turned hostite, he has stated that a year back Ramob Bai was doubting that her husband Raj Kumar and sister in iaw Devki Bai have iilicjt retations. Devki Bai used to ask Ramola Bai on whom she was doubting and also used to abuse Ramoia Bal and sald that Ramoia Bai wiii be ki!!ed and a Danda wiil be inserted In her anus. This dispute was going on for the last one year* PW-2 heard these conversations one year before the death of Ramoia Bai and thereafter, he came to know that Ramola Bai has died by hanging/ In the cross examination, this witness has stated that he has not disclosed this fact to any person in tiie vitlage because this was their persona! affair. If we scrutinize this evidence,no inference can be 8 drawn on the basis of the same that the accused persons were the persons who caused the murder of the deceased/because this witness has stated that he heard Devki Bai abusing Ramola Bai and fur1+ier he said that this thing he heard one year before the date of the death of the deceased. Therefore, this witness has not stated that he heard or saw accused bevki Bai abusing or threatening Ramob Bai immediateiy before the date of the death of Ramola Bai, 11. As far as the evidence of PW-7 Radheyfa! is concerned he has simpiy stated that iast year at the time of the season of sowing of paddy, he was going to the market he heard the scream l5ave Save\ but he had not gone inside the house of Feku Ram. Therefore, the evidence of this witness is of no heip to the prosecution as neither he had gone into the house and saw the incident as to who was cssauiting whom and who was crying for heip nor this vvitness has stated that the accused persons were assauiting Rarnoia Bai or the scream was of Ramoia Bai. 12< Now as far as the evidence of PW-8 Repotin Bai is concerned, she has stated that on Sunday at about 6 a.m. some quarre! took piace between Raj Kumar and his wife Ramoia Bai on an issue concerning the iliicit relations of Raj Kumar with bevkl Bai and in the evening at about 3 p.m.when she was retuming from the forest, she heard Feku Ram and Raj Kumar saying kili ftamoia Bai. She a!so heard the voice of Devki Bai who was saying to klil Ramoia Bai. She a!so heard the 9 scream of Ramob Bai 'Save Save\ As she was frightened, she went away towards the co!ony. In cross examiiaiation, this witness has said that heard the voice from the outside and she had not gone inside the house of Feku Ram. She only heard the voice, but she had not disciosed this fact to the Poiice when the Police came to the village and for the first time she has stated this in the Court. In view of the above reasons, it is not possibie to hold that the accused persons were the oniy persons who assau!ted ftamoia Bai for the reason that she had not entered the house of Feku Ram and not stated that she could recognize the voice of Feku Ram, Raj Kumar and Devki Bai. Moreover/in Para 3 of her evldence she has stated that she has not disciosed this fact to any one, even to the Police when the Police to the viiiage for investigation and for the first tirne she was disclosing this fact before the Court, She had not discbsed this fact to any one tili her evidence was recorded before the Court. Under t^ese clrcumstances it is not known how she WQS made a witness in this ease. She has not stated that she was fQmiljar with the voice of tiie aceused persons and therefore, she able to recognize their voice. Moreover, she has not stated that when Ramola Bai was asking for he!p why she has not informed the sald fact to any one in the village. The only expbnation given by her is that she frightened. If she was frightened, then she h&s not explained as to why she came before the Court to give the 10 < ". evidence. In circumstances, the evidence of this witness is rsot convincing and does not inspire confidence in the mind of the Court. This wavering statement cainot be made the basis for holding the accused/appelbnts guilty of such a heinous crlme. IS.Now, coming to the question of recovery, as per the prosecution evidence, on the memorandum given by accused Devki Bal (Ex.P-10), the utensii meant for preparation of tea was recovered vide Ex.P-il from the kitchen of the accused persons. Such utensiSs are generally found in every house and it is not understandable how the recovery of this utensii can connect accused Devki Bai with the murder of Ramoia Bai. As far as the recovery of wooden Danda from accused/appeitant Feku Ram is concerned/as per the report of the Chemical ExGmlner Ex.Paa24, blood was founci on this Danda, but recovery of this Danda itseif is doubtful. PWBa6 is the witness of this recovery memo Ex.P-13. The prosecution case is that, accused gave the memorandum Ex.P-12 and in pursuance of that the Danda recovered vide ExP°13. But in cross examination, this witness (PVi/-6) has stated that the Danda was brought by accused Raj Kumar from the garden and at the time of investigation both the accused persons with the Police. Further in Para 7, this witness has stated that it Is correct to say that the Danda which recovered from the garden was found in the corner of the garden. In Pa-ra 8, PWac6 has further that at the time of the recovery 11 f^ ^ of the Danda, Feku ftam and Devki Bai were not in Poiice custody« In view of this evidence, the recovery of the banda itseif Es doubtful. Therefore, on the basis of these recoveries, the accused cannot be connected with the murder of Ramob Bai. 14,Now on the point that Ramola Bal found dead in the house of the accused persons, the accused persons have given explanation that they not present in the house as accused Feku ftarn had gone to the forest for cutring wood: accused Devki Bal had gone to the agricultural fieid and accused Raj Kumar had gone to other viiiage for cutting the hairs of the vi!tagers and oniy when they returned in the evening that they came to know about this fact There is no dlrect evidence adduced by the prosecution that the accused persons were present in the house. On!y the evidenee of PW-8 ftepotin Bai remains. We have aiready recorded reasons for not placing reliance on her evidence. i5.Therefore/the prosecution has not been able to estabiish against the accused/GppeSiants beyond reasonab!e doubt that they are the onjy persons who committed the murder of Rsmob Bai. The circumstantial eviaence adduced by the prosecution does not stand up to the test iaid down by the Hon'ble Apex Court as stated above In the matter of placlng reliance on the circurnstantia! evldence. On the basis of the circumstantia! svidence adduced by the prosecution in the case it cannot be heid that the aecused persons are ths on!y 12 c t\ :/' persons who had committed the murder of Ramola Bai. The trial CoLsrt has not properly appreciated the evidence of the witnesses. In view of what has discussed above, the judgment of the triai Court is not based on the and convincing evldence. Therefore, the judgment of conviction and sentence by the trial Court cannot be sustained and the is iiabie to be set aside. 16. In the resuEt. the appeals or the accused/appelbits succeed and they we. albw®as. The jud9m©ntof th®triai Court dated 18th January, 1996, convicting and sentencing the accused/appeiiants for the commission of the offences under Sections 302 & 201 of the I.P.C. is set aside. The accussd/appeiioOTts are acquitt-ed of the charge^ under Sections 302 & 201 of the IP.C, and they be set at liberty forthwith, If not required in any other case. Sd/- Chief Justice Sd/- L.C. Bhadoo Judge Soma <^