•^ .!_:"%%% 1?;:! " •" •^Vfa'^Wf <y 3jQy^(y<^iw \yif9^~~^fcl^^y'^j'- Sjq^^ff''£1+^rai^t SteBteaced „ _ O . ^. ~. fi\ r^/<y^- S^/oy»/<p -'7/7 U/&C' on ^T" _- -^r i^- Q- m^ aifler i3-WT/13'»i'-c?S/s?7q'7\</- .--^..L- .„ ^ r^ ^---^ _ __—__-_(2_ ftfen 'SeS t£fi-e.^ ~byFS>WQt^ "'W^'f^^ ^X^ye^^7,^% '^WQ^ ^WW'V- <W^f:^fK^t!1)^J^P?^ "^^^f^W^^T^Q '@^ J- t993 j/-^-/$.93 fl. tQ.J.9^3 u n lasae i ^-^ __. .ia . ' ' ^HW&W^ /> HJW ^-Ivi^V^ ad . • "' 'f^ff:] P'^^"i iV- @' ~^—-.;: '; ^.^l^^ j^7S..'":"^ F^a% [;sSfi • tKSI SiK B8:- ^lE^r^A__M ""^i^^i<? /£/y.,^_- 55lJ_^^^ Dated Tpi^?^ ^?-S '^'-^_2;;S7 -•' \ ' ' ^^^ \ Ki 'SIQKXM.-'M.ASSfKKSE,"'7"^' r°L "^^^ of-arder passed uathe wse'fffi favour'< ''""s'r^.era, 'cn'j^ ^ / ^S.S.S'tS^ 5aCM« y« JABAI-rUR ';131 -H? .-''' . 1].^: ^e%dn^' m t X3'' .<;•'?. :T.,0.:|. Y'RscuptClnk^; ' ^^s^^i, c iSiiSt& XI-HC-22 ~?sf^Wld*i, ^-d1yt|<», Mdiyy (^, ft. ^^-/T^ WTOIT siiirai STi^I^ h-fi^i si^s. ^^i?h ^i[?a sn^i^aiwgft^T CMt4l<rt41l TFFEff ^ t^TSt <f^i<<.i< ^? 3iP<m sn^i SP. L.C. 1 Honble Mc. &hirendr'd rtishro. J. Mr. K.K. Singh, counset for t^ie appelicnt. Mr. U.N.S. Deo, Additioncll Pcnel Lawfyer for the State/respanj Public Prosecutor a'ith Mr. M.P.S. ent. . Oral jydgment dictatec! on C ais. y this appea! under Sectiol|> 374 (2) of the Code of Criminai Procedure, |Centrc! Jail.Rflipur, sccusey Shanti Kumar ^dgmento'f conviction and Qfder'of sentence pijssed by the Additional Sessions Judge, No.^3/93, whereby learneo Additional Sessions i/jsppeilant guiity -for commission of offence ^entenced him to under'go imprisonmerit for sent through the Superintendent, has questioned the legciity of the 'aated t8<h September, 1993,; Khajr'aqar'h, in Sessions Triai Jud9e after holdin9 the accused; under Section 302 of the I.P.C. ilfe. The prosecution ease;in bri^ festiyal, on that day, &hcBiir'am (PWf in-law Rukmini (PW-5), residents <t DugFiera festivai at Kawardha. and peguested .theitt that she wob rf, is. thst on 6-10-1992 there-was Dushera -1), his wife Sbdavari $:>W-2) and hissister- f Villa9e;''6hottQ, were going to watch the ambai (since deceosed) cams to their house !d also go clong wjth them to watch the [^ft^^fe^ -w XS-HC-22 3iI^I.^[ r<;-ii+ s^[ sn»ii+"gftit •y^ ^PtRPT, tffli-M'iS, T^IWP C5-'.4, TITfRW Wqf* .^l^ sii^i'g^nwato - aJ Dushera. Rukmini (PW-5), on the Shvombw on whlch' she wwre ths Kdwardha. By the time they niaht had aiready set in. Accused 3j hoid of the hand of Shyambai askej even then, the accused tooh her al< o.m. the body of Shyambai was -The inforj (•e< Kotwar Dhunariram (PW-6) to the Pij Tne Station House Officer cano! ond prepored the Panchpamcl custody on 13-10-19.92, accused regarding the ploce where the brol^ pursuance of the same, he got recov^ ^•equest of' 5hyombai, pr'cvided 'her sa-i to |sari of Rukmini and o!J of them feft for i^d to.Raipur Naka in the city of Kowordha, Shcnti Kumor come there one! after catchinc .^fi her to sccompany him, but she r'efused, with him. On the next dcy, at obout 9-10 jrjd f!oatin9 in the conai whjch 9003 towar'ds of the body (Ex.P-ll) wos given by (aria Police. or\g fourld inforjnsfion. possession Lunas of-the accused were taken in( bwken bangle was taken into posse^s post-mpf'tem - exdmination under Kawardha, where &r. R.K.Baxi A DrJ body of Shyambai and prepar-ed th< injuries. Onty injury No.2 ndmeiy, co| on the vital part of the ^iody i.e. 4 ; . • mortem examinatjpn/ the doctors coi 'bwti'i-'il-i yiyifl'f ^ ftizt tf3R?R ^TSlfigHSI^I •eceiving this report !eft for the Birkona .of the body B<.P-1. Duping the potice phanti Kumar gove roernopondum ExP-2 en bangies of 5hyombai were lyirig and in sred the brohen bangies under Ex.P-3. One Ex.P-4. One upper under gdr'ment and fro possession under Ex.P-5. One anofher ion under Ex.P-6. The body wos sen-t fov px.P-7A to the ©overnment Hospital, N.K. Yadu conducted pst-niortero on the rep&rt Ex.P-8 (B which they noticed nine 'htusion in the size'of 8 x 4 ems. was found ^n the forehead. Aftef conducting post- Id not form definite opinion r-egarcfing the 'if- ^L^. Ar—a. Tn^^R^ a1 -~:"F" ^. [I-HC-22 • 311^1 ^iT ?7 311^1 ?h<-ii^i ^f^l ^^^TPTRra, ritfl'y'iti, hai^y &^, •1^4^^ HINCTI thHICS p (:ni^I<v}<i]Ti ^wcif'^ [e^l <f^i^i< i?3if;?n 3ii^i cause of death. However. viscera no viscera reoori' wasrecelvetl. •Dit'in siso got the broken banglss identil the identification parade which wdf Tehsitdar. Site pian Ex.P-10 frprt was prepor'ed. Based, an the obov^ Ex.P-13 of the identifisation of W was prepared. Copy of Roz Namch^ the eariier report mode by Shya^nbi accusea was aiso taken into posses^ ^ere preserved, but til! the dateofdecision, |<ing investigGtion, the Investigating Officer |ied from Basant, father of the deceased, in s con3ucted by J.R. Chourosia (PW-7), Naib where the broken bangles were recovered ., F.I.R. Ex.P-12 was registered. Panchnama e body of ShyambQi by, Basant, her father', i Ex.P-15A was tsken ihto possession a9ainst >oi and the report Ex.P-16A against the ;lon. After completion of invest accused in the Court of Judldal M^i ,committed the case to ttie Sessl Additional Sessjons Judge, Khairsg| gation, chiarge.sheet was fi!ed agdnst the tgistrate, First Class, Kcn»ardhs,whoin turn ons Jud9e, Rajnandgaon, from where, the irh, received the case on transfer for trial. The examined 13 witnesses 313 of the Cr.P.C. in he is innocent snd has in order Statemerrt] which he denij been.falseiyl to establish charge against the accused of the accused wosrecorded under Section .d'the prosecution e-vidence and stated that mplicated in the crime. Learned .Additiona! Sessiorts Additiono! Publie Prosecutor and sent^nced the accused as mentionel; '»>1- Judge after hear'ing the srgumentsof counsel for the accused convicted arid d in psro 1 of this judgment. • [^Tt^ff^^ XI-HC-22 ^sf -siiFTRra, ^^ly41<B, facni'yy / wi-Rwaiirai .&^^^^ sn^i-^T Ri-ti'sh STI^t ^^ict> ^fia sn^i^aiw^ifCT ^ c{^qt<'i<ft'iTn^^T'^ r^€l<P;)<$t< . ^; 3if:gtT-3D^r We have heard Mr. K.K. Sir^gh, na' Mr. U.N.S. Deo, learfled. Ai hatia, lecrned Panel LaBuyeron b^half |gh, iearned counsel fof the Qccused/appetlsnt Iditiona! Pub!ic Prosecutor with AAr. M.P.S. of'the State/respondent. . ats f4r Lesrned counsei for the right in convicting the accused accused for the r-edson that no del'f regarding the cause of death of by the accused was not estsbiishe^ ipellant <rgued that the trial Court wss not commission of murder of Shyamboi by the e^finite opinion was given by the Medicol Board ^hysmbai, as such causin9 death of Shyambci On the other hand, Mr. 0^4 supported the judgment of the triol Coiirt. In order to appreciate th^argument sdvanced by learned counsel for the accused/appellonf. we have pe| evidence of Dr. N.K. Yadu ff'W-6).| injuries were.found on the body o1[ 'used the post-mortem report. Ex.P-8 snd the As per the evidenceof thedoctor,fo!lowing I; - 1. one crush' injury on the p|nna of the saf 'm the size of 0?5 x 0.5 cms. in length and breadth; 2. contusion in the size of 8 x 3. abrtision in the aiz'e of 3 x 4 cms. on th®forefaead; cms. near the left eye; 4. contusion on the left side otf the mouth; i. contusion onthsright shouj 6. eontusion in the size of 4 xl 7. multiple obr'asiorss in the ^ Ider in the size of 3 x 2 cms.; 3 cms: on ri9ht eibow; ize of 0.5 x 0.25 cms. to 0.5 x 0.5 cms. on- righ^wrist; . . ^ .['^fT^^'R^ t-^ [-E1C-22 's^ ^TORFI, ^frms, facii'ay 'WW'n'SITqi^i &.A...(^A an^l^i k-i Sf^ft E^*-if^>'^fi<T 3D^i'^giwnftB -5~1 °hi<l[<-]'i?ll 111?ff'?'fSI^<pi]<ril< i;3Tpgii3n^r . . i. contusion in the sizeof n x 31 '. contusion in the.sizeoT 0.5xi ihe above injur'ies were ant fflembr-one of the br'ai.n was fo| haemorrhage on the brsin. Ultimat^ couid be given ond for.that, viseera report is Ex.P-8. There wos have been caused on account of SLJ report, {he doctors have mentionecii the cause of death. Moreover, vis: prosecution. Eyen Ae size'of or-der to cscertain the extent o^ Shydmbai. ' subddra cms. behind left elbow; and 5 cms. to 1x 0.5 cms. on ieft '*'''•'' - . < s-mqrtem in natur-e. On openin9 the skuil, jnd 'congested and there was subdura! )y, thedoctors said thdt no definite opinion tere preserved and sent. The post-mortem haemor'rhageon brain and deafh «night fadural haemorrhage In the post-mortem that no definite opinion can be given about bera r-eport has not been produced by the haemorr-hage has not been given in pressure on brain to cause the death of sullidur-a therefore, in view of the Qfc|ove, we ore ofthe considered opinion that the prosecution wos not able to cjefiniteiy establidi by ad'ducing necessary evidsnce that the death of Shyam^ai was homicidal in ntri'ur'e. Lscrned tria! Court has mentioned in the judgm4nt that since. as per the evidence of the doctor, cause of death was not droi^ning and strangulation, therefore, esuse of deoth was subdural haemorrhage ^ u.t as has been discussed above, even the doctor has not been ab!e to give c|efinite opinion that subdupol haemor'rhage was-thedefinite cause for- the deop'h. In the circymstances, the prosecution has not been able-vto establish ttje fact that the death of Shyombaj was homiddal in ndture.. '»«>. ['Tfr^^sT^ .?[I-HC-22^ SII^T^T 3i'3TT^?T Hic^ ^f^a ® ?S[''^iraiWT,.'STftOTS; f°i<Yli'Mll< M|lRWSi<n3f> .^A.^J.^ 311^1 ??aTW ^f?n Now, coming to the questio^ the crime in question, ther^ is rip rests 6n the circumstantia! evideilice the circumstantial evidencs, th|e "Jn. Q case basedl circumstances froml be drawn have not 4 thaf.al 1 the circumsl conciusive nature hypothesis of th^ circumstances stioul by any other' and the ehain' of tH not to !eave any consistent with thel no reminder that lel not merely jndignatji of conviction and greater' shpuld be evidence lest suspic hypot^ssis tt? Now, we sholl proceed whether the pf-osecutioh has beelfi in question. The oniy circumstanc^ ond adduced evidence is that •tii'ifd'il-i ^WvS ^ fest <Rit{i< ^7 3lf=tflT 3D^I of involvefflent of the accused in committing eyewitness to the incident and whole case i. In order to convict an accused based on e Hoh ble Apex Court in the matter of of W.S. reported jn (1994) 2 SCC 220 held on drcufflstantial evidence. the which the conclusion of guilt is to inly to be fully estiAiished but olso t-ances so established shouid be of a and consistent only with the 9Uiit of the accused. -Those d not be copabie of being explained except the guilt of the accused e evidence must be so complete as "essonable ground for the belief innocence of tha accused. It needs jdily established cir'cumstaices and on of fhe court can form the basis the more serious the crime, the the care taken to scrutinize the on takes the place of proof." exQmine the prosecution evidence as to able to connect the accused with the crime s on svhich the prosecution has placed reliance e accused snd the deceased were last seen tfgether alive os the accused in ^he evening.of 6-10-1992 tookShyambai along him from, KabffOt'dhQ, In QfcleF- to convict the accused based.on the last [Tft^^f^ 2-HC-22 ^sr ^nqRra, dijlwid, faini-My ^.:.&...A,.[2^/^ sn^i^ii ST3n^?[ F?)^ y[?a ctil^t<l4lrl ^l*1(?l[^ f^^t <f^1^T< . ^73lPTO 311^1 seen, the Apex Court in the m4tter of 45. held thst; "the-theory of tast time-gap betwsen.tli ond the dececsed deceased i.s found any person other thc the crime becomes se.eh comes into play where the |e point-of time when the accused tdere seen last aiive and when the d^ad \s so small that possibility of jn the accused being the author of injipossible." , Tne Hon'ble Apex Cour't'fur "It would b®hazwdc in cases where ther' eonclude that the' frher held-thi3t: us to come tQ o conclusion of guiit ^ is no'other positiveevidenee to ond the deceased were last adcused seen t^ether." Agsin, in the matter of 'reported in (2002) 1 Supreme Co' that; Bubhosh Chand vs. State of Rojasthan \SFt Cases 702 the Hon ble Apex Court held "..;..To constitute evj evidence.must defi^iitely drcnvn that the vict'im together st a point time snd date of' jdence of last seen together, the permit an inference bein9 and the accused were seen ^f time in.close proximity with the comlmission of crime,..." In the motter of Stote o'i 3E vs. M.V. Mahesh repqrted in 3 the Hon ble Apex Court has held thdt: estdblished ".....; Mereiy being s^en What hcs to be / defihite evidence to / 'to desth of which. tH iost together is not enough. in a case of this nature is indicote that Beena had been done e respondent is or must be awore '»•>- [«^R34 -^- ."i.1-n^--. "3'ST -<41<41irl4, riTil'y'lri, facliyy fN^s?' sii^r'^1 Wt'h S!^[ sfi^li^ '^TT •*l'!<ffl41-1 ^WvS ^ feT3t tlaK^K I? Slf^TlT 311^1 as also proximate together....". o the time of being iast sesn In view of the above law la| comictmg an accused based on tHi required to ascertain from the between the point .of time when ti) together slive wid tha death of sn inference regarding the guilt possibility of coming any third peit death of the deceased. There musit shouid point towards the invbh^em^ Further', it is unsafe to eonvict a the last seen coupled with other dt) Gccused is.the outhor of the crime.l d down by the Hon ble Apex Court, before lie'lQSt seen together theory, the Court is egal clinchi'ng evidence that the time-gsp |e deceased and the accused were seen last dejceased must be so close and proximate thct bf accused con be drawn and there is no. |son in between the tast seen together and be unerringiy clinching legsl evidence thaf Int of the accused jn cornmissiori of murder'. |ersort based on the. Jast seen theory unless lcumstances is indicator of the fact that the Therefore, it is to be seen -I haf during the time between when the body At<!^ of Shyambai waq found and deceased along with him, there^s between ond the accused was thel accused, as per theevidence of iai yw-5) took Shyombai with him| Shysmbci was found in the mornin^ js no evidence that, in between. wh^n the accused is said to hwe taken the t^ [no possibility of coming any third person in only-author of the crime in question. The D^iamram (PW-1), eodavori (PW-2) & Rukmini |ih the evenin9-of 6-10-1992 and fhe body of of 7-10-1992 at 9 a.m. in the cancl. TTiere whether the accused and the deceased were seen •toge'ther a!ive, jn order to c^nnect the accused with the' crime. At the [TTt^ ^a*\ ~. XE-HC-22 ^s; -Mjtjlrl'il, ri-dlti'Ko, fadl'ay ,&;^i^^^ SiT^T'?? ;-3I1^I *t|i<t'Hfs^ 'W^f^'l ^\W^t ^ f^k^ -•t.R^I-i: i? sipgii SRI^I piec^s nbt instance of the accused, bmken piec^ near the conai ond the soid broken pi father of the deceased, but he hcs was not troceable. Therefoce, therel examine him on the point of jdenti Chourasia (PW'-T}, the Tehsildar, identified the bongles. As per- the ii to identify t'ne yellouv pieces of -coiour pieces. Even these broken pief the father of Shyambai namely, B< Forensic Science Labor'atory. As the disputed bangles, which' were re| the bangle/which was giyen by the not similar in characteristics. TheHe the accused cannot be connected witlh ic^s of.bangleswere recovered fr'om a room i^ces of bongles were identified by.Basant, been produced by the prose&ution as he was.no occasion for the accused to cross- iffcation of borgies by him. However, J.R. stated in his evidence.that Bosont hod lentification memo Ex.P-9. Basant was able les, but he could not identify the red :es 6f bangles and.the bangte produced by iijissnt, were sent for- exQmination by the the laborato.ry report dated 10-5-1993, i):ovsr'ed from the place of occurr-ence and f^ther of the deceased namely, Basant were er^efor'e, based on the recover^ of bangies, thecrime i(l question. hals bi^igl pe]r The other circumstonce whicht has been pressed into service against the accused is that a report Fe9ar'di^ig attempt to outrage the modesty of Shyamboi by the accused wos lod96(| by Shyambai at Police Station: Kawardha on 19-4-1992 and ultimately, char^e sheet was filed against the accused/ appellant as per Ex.P-l6A for commi^sion of offence under Sections 354 & 342 of/the I.P.C. If that report is tal{en in+o considerfftion, then there was no occasion for Shyombai to accompan^ the appeliarrt' on 6-10-1992 and why she did not r'ais^'ories as on account of f>ushera festival there was huge crowd, at •w^- [1Tt^ ^io') XI-HC-22 -(z^ 's^ •^MMf, ^Wl<£,Kwwy. ..&>..fl.:.L^ <sii^r'?ii "S^TTai'SFT^T sb4i+ 'Hffg 4il^f}<4lr1 MR^ff ^ 'f^t"^R?R ^? sifigir sn^i • / <-••-'••... the ilitt'o the place where she was taken by PW-2) & Rukmini Bai (PW-5) hac| Shyambai by the accused eyen af1)e] Shyambai has not resched viltage; only on 9-10-1992. Why they.did they did not report. the motter evidence doubtful. If we take ilijt'f month of Aprii, 1992, the accusecfl and he took her with him in a roohi per the medical report.no evidenc^ AAedicol Board. Had the &ccused| every possibiiity that the accusad^ but no such eyidence h6s been fourtd does not ins&ire confidence of the accused. Even bhanjram (PW-1), ©odavar'i -not disciosed this fact of takir^ away of ir coming to kncw in the next morning that gotia and their statements were recorded ^ot disclose this fact in the yillage and why to.the poiice for three days makes their account the earlier incident that in the tried to outrage the modesty'-of Shyambai where broken bongies were found, but as of rape with Shyambai was noticed by the took Shyambai to a room, then there was ought to have had eommitted rape on her, I. In view of the above fact, their evidence Court. For> the foregoing reaaor^ esfablish thst the death of Shyam^o hos not been abie to satisfy fr'om of guilt couid be drawn by the sepvice for connecting the accused in nature so as to complete the.eh^in -fff the occused, Ttierefore, wear'^ ;, the prosecution hss not been oble to boi was hoffljeidal in nature. The prosecution the circumstonces from which an inferenee Gourt and the cipcumstQnces pr-essed into with the.crime in question are notconclusive lin so fully as to unerr'ingly point to the guitt of the considered opinion that the finding of the trial Court-connot be sustcirled [Tft^ ^^ XI-HC-22 sn^i'qii -. iwsn^r ^RT^) ^[^1 •Svl^S^^, ei'-ily'li?, I't'tl+iy ifp-imi giHii^i_...&>.^.£.:.j[i^/lf- sn^i wirwafStT - tl^ In the result, the appeal of the accused/appellant under Sec under thst Ssction are set sside. be set at liberty forthwith, if not suitceeds r'4. Parties are entitled for certi .•--.-y^^'^- Sd/. L.C. Bhadoo Judge Ebl'l<lfl41-f 41^<-fl'? fe<^ <[«]«lt Aarf^ sii^w and the s.ame is allowed. Conviction rton 302 of the I.P.C.dnd sentence owarded fhe-accused js acquitted of the charge. He '^quired irr any other case. ped cbpyof this order. Sd/- DhirendraMishra Judge '*1^