<^ IfffjBWIi CF000005934^' •i ^- ^, ^.- ^^ M-V ^, s ^- , ( • :': ,V s ^ IN V1E HIGH COURT OF H&DH-xa. PK&DSSH AT JABAU'UR "\ f. vS^w agsd aboat 20 years, resident ®f RESPO »a3TS stateof Maflhya Pradesh, Througti Poliee S-fcation Sarangarit, CiUMIHAL APPS&L UHDSR _SJg"E'lQH_37_4_0_P 'ffI3_CODS CjStINraAIi PBlXEDURB. i;!,; ••:^'-. mOH COORT OF CHHATnSCIARH ; BILUSPBR CRlMniAI, APPEAL MO. 729 OF 1991 Dsaulaftrain aad tuiotlieff Pradesh 'nieState (now State ofCUliBttlsgitfli) .t KW Judement for cpnsideratioa Sd/- Dilip Raosaheb Deshmukh ; Judge . Hon'ble Shri Justdce BlakhiEuddte 0(-—;_^'-^L. ..' Fakhruddin Judge 9ast fn» 3Aoa-' 1:>1 :r ss B18 1B f& s: /.2.'5~ HIGH COURT OP CHHAmSGARH :BILASPUR Criminal ABpeal No. 729 OF 1991 Daulatrain and aaofher. Vs. The State of Madhya Pradesh (now State of Chliattisgarh) Ctoram :- Hon'ble Shri Fakluruddin, J Ss Hon'ble Shrl DUlp Raosaheb DeshmuUi, J Shri Vivek Ranjan Tiwari, counsel for fhe appeUants. Shri Ashish Shuhla, G.A./Addl. PubUc Prosecutor for State, JUDGMBNT (DeUvered onU.09. 2005) Per DUip Raosaheb Deshanukh, J. This appeal is directed agam.st the judgmeut dated 13th Juty 1991 deUvered by Shri R.B.Smgh, First Additional Sessions Judge, Raigarh in Sessions Trial No. 152/90 whereby the appeUants were coiivicted uiider Section 302 read wifh Section 34 of the I.P.C. for coinnuttuig inurder of Bhukhiram ia fhe uitervenmg iiight of 19th / 20th July 1990 in. vUlage- TengnapaU, Police Station Saraagarh, District Ra^arh and sentenced to undei^o imprisoninent for life. 2. Briefly stated fhe prosecution stoiy is that the deceased was fhe father of fhe appeUant Daulatrain. The appeUant- Maheshram is the son of Daulatrani. Since inofher of fhe appeUant-Daulatrani had expired, BhulEluram. was liviag alone in the house. Lakhan P.W. 10, brother of the appeUant, and his wife Dhwaja Bai P.W.3 used to lookafter ftie deceased. On 20.07.1990 when Dhwaja Bai P.W.3 weat to the housc, she saw that Bhukhirani was lyiag dead on the Qoor in a pool of fiA' 41^ blood wifh injtuy on the head. On seeing fhis, she started shouting. The appeUants reached there and saw fhe dead body of BhTikhiram. They also found that the papers relating to Bank deposits of BhuMurana were lyuig scattered on the road. 3. Daulatram, appeUant No. l, iminediately went to PoUce Station Sarangarh and lodged F.I.R. vide Ex.P.25. Marg iatunation vide Ex.P.26 was written at 7.45 A.M. Sub- Inspector Miikesh Khare reached fhe spot on the samc day and prepared iaquest memo vide Ex.P.3. The body of Bhiikhirani was sent for post-inorteni exami&ation. Dr. J.N.Shukta P.W.ll found fhe foUowing injuries: a) Three linear abrasions obUquely placed on the right side of neck in middle, just r^ht to mid Ime, inteinunglm.g with each other and ineasuring 0.5 cin each. b) Linear abrasion obliquely placed on left nuddle neck sldn going upto mid Uae 01 long. c) Abrasion over left neck, skin. lateral anterior part below left angle ofinan.dible oblique iu area of 0.5 cin x 0.5 cm wifh clotted blood at one part seen. 4) Abrasion over r^ht side neck anteriorly below right angle ofinandiblc obliquety placed 01 cin. long. 5) One Unear abrasion at right Imear skia of neck above r^ht clavick obliquely placed 01 cin. long. 6) Lacerated wound centre of forehead 04 CTCL x 02 cin. x bony deep clotted blood present. 7) Lacerated wound oblique crossing inid line 04 cm. x 02 cin x bony deep placed superior to injuiy no.6 with clotted blood present 8) Oblique lacerated wound over left side of scalp parietal region goiag mid line 06 cia x 03 cni. x bony deep wifh clotted blood present, 9) Lacerated woiuid parietal left postenorly oblique 02 cm x 02 cia x bony deep wifh clotted blood present. 10) Lacerated wound oblique left parietal regkin going posteriorly over teiaporal area 02 cia x 02 cm x bony deep with clotted blood present 11) Lacerated wound oblique going posteriorly 07 cm. x 03 cin x bony deep. Thick clots of blood present around wouud. Bony chips seen extemal to woiiad which was inore or less obUquely aaterio postenoriy placed . Upon dissection, there was a depresscd fi-acture of left teiaporal bone going upto the teiapero parietal sutiire. Soine of bony parts went inside the bram tissue. Memibrarie was congested left side below teinporal and parietal area. Brain matter was injured on left teinporal area and congested left teinporal and parietal brain matter. In the opinion of Dr.J.N.ShuMa P.W.ll, inode of deafh was due to coina as a result of head uyuiy. Nature of death was honiicidal. 4. Two days after fhis investigation Sub-Inspector Mukesh Khare recorded fhe meinoraaduni of the appeUants Daulatrain and MaheshTam vide Ex. P.4 & P.5 and recovered one old black coloured halfpcin( wifh blood Uke staias vide Ex.P.6 and one half banian of Hira Paana Company inake with blood Uke stauis vide Ex.P.7 finxn fhe appeUant-Daulatrain and one iron Bindhana aad one old tom hmgi with blood like stains fixiin ftic appeUant-Maheshram vide Ex.P.8. Bloodstained soil and p1ain sofl, one cotton GaTncha, torch aud one Chaddi were seized vide Ex.P.9 6-oni fhe spot One box inade oftin. and an old k>ck with key iaside was sdzed fix»mthe spot vjde Ex.P. 10. The Shoti wora. by deceased was also seized vide Ex. P.11. At the Sarangarh - Rai^rh road at Idloineter 50-60, one cotton dftoft" having blood Take stains, anofher cotton dhoti, one saree, one inoney bag, one national flag, one plastic foUer of S.B.I. ./-'---J—-.. 4 and a tom sale deed which were scattered on flie road were seized vide Ex.P. 13. Bindhcina. and one terricot fiiU shirt aad hingi seized 6-oni the appeUant-Mahesh aad one black hatf pant and one half bca-dcm. of Hira Panna m.ake, bloodstamed soil, plain soil and the articles seized fiuin fhe spot were sent to Forensic Science Laboratoiy for exaxaination. Presence of blood was confirmed on aU fhc articles except plain soil vide Ex. P.30. The report of Serologist could not be obtained by the prosecution. After coiapletion of iavest^ation, fhe accused- appeBants were prosecuted for offence under Section 302 read wifh Section 34 of the I.P.C. The appeUant abjured the guflt, pleaded iniiocence and fcd no evidence ia defence. The prosecution examined as inany as 16 witaesses. The trial Judge relying upon fhe seizure of Bindhana, hmgi and baman fium appeUant Mahesh, fhe seizure of one cotton half pani aud hatf banian froia appellant Daulatram, fhe report of the Forensic Science Laboratoiy confirxniag presence of blood oa fhese articles recovered on the laeinorandum of the appeUants, the opmion ofDr. J.N.Shukla P.W.ll relatmg to the weapon of ofFence seized fi-oia appetlant-Mahesh aiid fhe evidence of motive for the appeUants to cominit murder of Bhukhiram convicted the appellants under Sectioa 302 read with Section 34 ofthe I.P.C. aod sentenced thein as aforesaid. 5. Leamed counsel for the appeUants has ai^ued that there is no legal or reliable evidence on record to bring home fhe guilt of the appellants under Section 302/34 of I.P.C. beyond ftie shadow ofdoubt. The certificate ofthe S.B.I. Saraagarh Ex. P.23 also showed that Bhukhiram had only Rs. 1006.80 Ps. ia balaace ofhis savings account. The niedical evidence of Dr. Shukla P.W. 11 ia paragra.ph 10 clearly ruled out the possibility fhat lacerated wounds sustaincd by Bhukfairaia could be caused by the Bindhana article 'A' which was seized from the appeUant-Mahesh. It was also coxitended that no opiaion of Serologist was placed on record to show that the stauis on the articles seized at fhe instaace of the appeltaats were huniau blood. ReUaace was placed on State of M.P. v. Kriparcan reported in (2003| 12 Supreme Court Cases 675. Itwas thus ai^ued that the circumstaiitial evidence led by the prosecution did not exclude the hypofhesis of innocence of the accused appellaats aad was also whoUy incoasistent with fhe hypofhesis of fhe giult of fhe appeUant. On fhe ofher hand, leamed counsel for the State has ar^ued in support of the judgnient ofthe trial Court. 6. We have heard fhe rival contentions. We have also perused the record. The case for the prosecution rests solely on circumstantial evidence. The circumstances relied on by fhe prosecution for bringing home tfae guilt of the appeUants are as under: a) the recoveiy of one iron Bindhana, article 'A' aad one lungi vrifh bloodlikc stains froia appellaat Maheshram vide Ex.P.8; b) the recoveiy of one old black coloured half pant vide Ex,P.6 and one half banicn of Hira Panna make with bloodlike staias vide Ex.P.7 from appeUaat Daulatram; aad c) inotive for the appeUaats to commit the niurder of BIiukhiram. — - — (•x^ 7. The law relating to appreciation of circumstantial evidence is weU setded. In Dhananjou Chattenee v. State of Wes( Bengal reported in (1994J 2 8CC 220, the Apex Court has laid down the law relating to appreciation of circuiastantial evidence as iinder: "In a case based on circuinstantial evidence, the circuiastaiices Qxrsi which fhe conclusion of guilt is to be drawn have uot only to be fuUy estabUshed but also that aB the circiunstances so established should be of a conclusive nature and consistent only with fhe hypothesis of the giult of the accused. Those circumstances should not be capable ofbeuig explamed by any ofher hypofhesis except the gmlt of fhe accused and the chain of fhe evidence must be so coinplete as not to leave any reasonable ground for the beUef cousistent with the initocence of the accused. It needs no reininder fhat legaUy estabUshed circiuastances and not inerely ind^nation of the court can form the basis of conviction and fh.e more serious the crune, the greater should be the care taken to scrutiruze fhe evidence lest suspicion takes the place ofproof 8. Appfyiag fhe test laid down by fhe HonTale Apex Coiut, we have scaiuied the evidence led by the prosecution. So far as fhe evidence relating to inotive for the appeUants to cause the death of Bhukhiram is concemed, the testimony of Dhwaja Bai P.W.3 aad Denha P.W.2 oiily shows that the appeUaat Daulafa'am. was not ou talking tenas with bis father. Punirain P.W.l has deposed that the relations between fhe appeUant Daulatram and Bhukhiram were nonnal but they did not speak to each other. So &r as the appeBaats having an eye over the cash or jeweUeiy possessed by Bhulduram. is conceraed, although Lakfaait P.W.10 has stated fhat Bhukbu-ain was possessed of soine omaments, fhere is absolutely no evidence on record wtiich would show that soiae jeweUeiy possessed by Bhuldiiram had been stolen or was recovered frova. the appeUants. The certificate of State Baak of India Bx.P.23 also shows that Bhiikhirani had a veiy ineager suxn of Rs. 1006.80 Fte. ia his account which niles out the inotive for niurder on this couat. Lakhan P.W.10 has furfher deposed that he does not know about aay inoney dispute between the appellaats and BhuJdurani. The inere fact that the appeUaat Daulatrain and Bhukhiram were not on talkin; tenns does not estabUsh motive for Daulatrain to coinmit laurder of his fafher. So far as the appeUaut-Mahesh is concemed, there is not even an iota of evidence to show that he had aay inotive to kffl his grand-fa.ther Bhukhirain. Thus, there is no cogent or reUable evidence on record wluch would go to show that fhe appellants had fhe motive for conunitting niurder of Bhukhirain. 9. So far as fhe recoveiy of Bindhana ardcle 'A' aad one terricot ftiU shirt and one tom hingi from appeUaat Mahesh Ram vide Ex. P.8 and the recoveiy of one black balf pant and one half banian o{ Hira Panna make vide Exs.P.6 & 7 froin appellant-Daulatram is concemed, investigating officer Sub- Inspcctor Mukesh Khare P.W.16 has not stated as to upon what iiifonnation did he record fhe ineinoraadum of appeUaats and made the recoveries. Mukesh Khare P.W.16 was campiag in viUage Tengnapali siace Wh Jvty 1990 upon a proihpt P.I.R. lodged by the appeUant Daulatraia. He bas not stated that during iavestigation he had coflected soine inaterial which pointed the needle of suspicion towards the appeUaats. 10. The prosecution has led evidence of Nanliuram. P.W.5 (^\^-' ^ sS' aud Eeswar P.W.8 who corroborate the testimony of Sub- Inspector Mukesh Khare P.W.16 relating to recoveiy of the above inentioned articles fi'oia fhe appellants. So far as the recoveiy of iron Bindkcina, terricot fiiU shit and tom. hmgi froin appellaat Mahesh and a black halfpan.t and cotton half banian seized Sxfm. fhe appeUant Daulatram vide Ex. P.6 & P.7 is concerued, Sub-Inspector Mukesh Khare P.W.16 bas in his testiinony not stated that he had sealed these articles inunediately after effecting tfaeir seizure vide Ex.P.6 & P.7. The report of Dr. J.N.Shukla given vide Ex.P. 16 also does not show tbat he had received the iron Bindhana, fbr exainination in a sealed condition firoin Police Stafion Sarangarh. The report of F.S.L. Ex.P.30 shows tliat fhe iron Bindhana, one tenicot fuU sbirt, one tom lungi seized fi?om. the appellaat-Mahesh and black half pant and hatf bcauan of Hua Panna make seized froin appeUant Daulatiam were sent to tfae Forensic Science Laboratoiy vide letter dated 1.8.1990 meaniag thereby that these articles were lying ia an open condition with the Police for almost a week. The possibflity that bloodUke steins could have been implaated during this period on these articles cannot fherefore be raled out. In ttie abseuce of evidence that the above mentioned articles seized from the appeUants were sealed inunediately after their seizure and sent ia a sealed condition to fhe Doctor for exanuiiation, fhe presence ofblood confinned by the F.S.L. vide Ex.P.30 on the above mentioned articles is ofno consequence. 11. In this case, the prosecution has faUed to produce fhe report ofthe Serologist. It is, therefore, not a case ia which the WVh-va^ fe Serologist has after exainiaation of the bloodstains expressed his opiiuon that their origin could not be detemuned since the bloodstains had disintegrated. In fhe absence of fhe report of the Serologist, the report of Forensic Science Laboratoiy therefore does not take fhe prosecution in farfher. In State of M.P. v. Kriixirmn reported ia (2003) 12 Supreme Coart Cases 675 the Apex Court has held that in absence of the report of fhe Serologist as to fhe origin of blood found on the crune weapon aad clothes of fhe accused would be of no assistence to the prosecution. 12. Thus, the prosecution has faUed to establish fhat huxnan blood was present over fhe articles seized fiuin the appeUants on 22.7.1980 vide Ex.P.6, 7 and 8. What is surprising is the absence of any inaterial ia thc testimony of Sub-Inspector Mukesh. Khare P.W. 16 which would go to show that fhere was suspicion that fhe report lodged by DaiilatrELm. was false. Sub- Inspector Mukesh Khare was campuig in vQlage TengnapaU fi-om 20.07.1990. F.I.R. had already been lodged promptly by the appellant-Daulatram at 7.35 A.M. 20.07.90. Sub-Inspector Mukesh Khare P.W.16 had gone to the spot on 20.07.90, prepared the inquest iuem.o aad had also sent the body of Bhukhiram. for post-inortem. examination. There is nothing on record to show as to how the needle of suspicion suddenly revolved aroiind fhe appeUaiits-Daulatrain and his son Mahesh. The testunony of Dr. J.N.Shukla ia par^raph 10 clearly shows that he had opiaed fhat fhe lacerated iajztries sustakied by BhiLkhu-aia could not have been caused by the sharp pordon of the Bindhuna, article 'A'. In the next breafh, ;'"°E|KSf:'El:'<tiW:I 4-1 '•«», 10 he has reiterated fhat the mjuries sustaiaed by Bhukhirani could not have been caused by Bindha.na, ardcle 'A'. 13. Haviag fhus considered the evidence led by the prosecution in its entirety we find that the circuxnslantial evidence is not whoUy inconsistent with fhe hypothesis of the ianocence of the appeUaats. The chaui of circumstaaces considered ia its entirety does not lead only to fhe hypothesis of guilt of fhe appeUants. In the above nientioned circuinstances, in ozir considered opinion, the appeUaats are entifled to benefit ofdoubt 14. In the result, the appeal is allowed. Conviction of fhe appeUaats under Section 302 read wifh Section 34 offhe I.P.C. aad fhe sentences awarded fheieunder are set aside. The appeUants are acquitted under Section 302/34 of fhe I.P.C. after giviag the appellants the benefit of doubt. Bail bonds of the appeUaats are caacelled and their sureties are also dischai^ed. Sd/- Fakhruddin Judge Sd/- Ditip Raosaheb Deshmukh Judge Aa^ani