r184 B IJ WT"*SS£Si^.S^s~V8oii ^ / .la»o®-?ffls^S-?iay3tiBi®"l£~&:sg^arss°s®'i.~si-' as.Efc'' aoffi.i.sgl i~y~~i~~ '"~^~:___~t^\^i^^s^L',.z'l^__,:':_L.T.-' J ^ ~" ' ®''^;t&i©®Ga£:'SIE SSarfBT~'S'~S':8.Q. £0fiy SI.i.£SS T3SSSD..WSSS g.aeaucST.iaKI 8J'tr[ sor.e4reg' ;^ 'o'a'i.gQes/fl aoi'i.sTAaoo A / 'qsepej.ia: BAn-iBii je Bq.sig -:tufep^odsss - s a e a. s' ^ ~ ! : •.tBqssa *4.q.eT:a*j:na®.[-tauoT^4gssT10i3;*.[BK(ii8.i'[T (ipi j" • KT) 6/S. tK 6£ SQ.^aoep pe2® 'iaBj'j.TOqo b/g '•pisi.ssii -s ^aBIlB'ttav '6S6T 30 (3~S S-7 *ofi TGBadV 1E" WO 'ancCTfsvj?' jy HsaEpnia: VAiicfffB' •i^Bag ••iKi&ifr ©•ly-affrrc" •Ife • 'smfi^-tW z: HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.Appeal No.1020/1989 Peelsai -Versus- State of Madhya Pradesh CORAM: HON'BLE SHRI PAKHRUDDIN, HON'BLE SHRI DILIP RAOSAHEB DESHMUKH. JJ Shri Ranbir Singh, Advocate with SKri Sourabh and Ms. Samta Jain for the appellant. Shri Sachin Singh Rajput, P. L. for the State. JUDGMENT Per DiUp R. Deshmukh, J. Heard. 2. The appellant staads convicted under Sectiou 302 I.P.C. for coTnmitting niurder of Shaati Bai, widow of Premlal iu the intervenHig night of 7<h aad 8th April 1985 ia viUage Kueyiiar, district Bastar aad has been senteuced to undergo impiisoiunent for life. Co-accused Sawantram who along with the accused appetlaiit was charged for fhe same offence uiider Section 302/34 I.P.C., was acquitted. 3. The prosecution story Ues within a narrow coinpass. The deceased Shaati Bai was a inamed wonian. Her first husbaad had expired. Prior to the date occurrence, Shanti Bai was carryiag pregnancy of 8 inoufhs aad used to live alone in ber house. It is alleged by the prosecution that fhe appeUaat-Peelsai bad iUicit relations wifh Shanti Bai who had conceived froin him. On 4.4.1985 fhere was a panchayat in the viUage iu which Shaati Bai had stated that she was pi-egnant through Peelsai. Peelsai had f^— /t ^ Ik.- r\ •w^ - 2.- denied fhis aUegation. When Shanti Bai had persisted iu her allegation Peelsai had threatened Shanti Bai. On 08.04.1985 one SuMiiraru saw fh.e dead body of Shanti. Bai inside her house and reported fhe sanie to Kotwar Bundi Biclthaui (P.W. 1) who lodged the inarg intunation Ex. P.5. The voinits offhe deceased and other iasigiuficant articles were seized on 9.4.1985 froni the house of Shariti Bai. Post-mortem conducted by Dr. M.L.Gupta (P.W. 13) on 9.4.1985 at 8.00 A.M. revealed one bruise over the auterior aspect of neck adineasuring 6" x 1 1/2", bruises over the back of fhe left shoulder just over fhe acroinion processes adiueasuring 1" x l", sonie discharge frora the vagiaa aad bleeduig froiu nose. Abdoiuen was enlarged and 8fil nioafh of pregnaacy was seen. In his opiaion, death of Shanti Bai was due to Asphysda caused by strangulation resulting ui obstruction in the air passage i.e. Trachea and was honucidal. During fhe iavestigation, it was fouad that Baratu Rara P.W.3 had seen the cycle offhe appeUaat parked outside fhe house of fhe deceased ia the evening before the occurrence. After coiupletion of iavest^ation, th.e accused appeUant was brought to the tnal. 4. The accused appeUant abjured his guUt. He denied that Shanti Bai had conceived froiu 'him. In support of fbis, he led the evidence of Dr. K.K.Harzpal, Assistaat Surgeon, D.W.l who stated tiiat on examii'iatiou of the seinea of fhe accused'-appeUaut, he did not fiiid any spermatozoa. D.W.2 Dr. L.K.Naik has testified to show that he had suggested for the exaiuination of fhe sem.eu of the appeUaat siace fhe appeUant had already undergone Vasectoiuy Operation. Invest^ating OfBcer P. Santosh Rao P.W.12 -5- -v^MsaitSi-w- Y- ^ •^ "~ has also, in paragraph 4, stated fhat during investigation, the report of examination of the seiaen of fhe accused was received which had confirm.ed ffaat the accused could not reproduce fhough he was capable ofperforming sexual iiitercourse. 5. The tnal Court had in paragraph 9 of ttie judgiiient framed two paranieters for consideration of the circuinstaatial evidence where were as under: a) The accused appeUaat having been last seen with fhe deceased; and b) Moti.ve for m.urder. So far as the first qiiestion was concemed, fhe trial Court in. paragraph 13 of fhe judgment held tliat it was not proved fhat fhe accused-appeUaiit Peelsai and co-accused Sawaat Raui were last seen with the deceased before the occun-ence. Thus fhe mnin 1in1<- in fhe chain of circiunstantial evidence is coiupletely niissing. It was also held fhat fliere was not even aa iota of evideace against L fhe co-accused Saldiantrain. Haviag held this, fhereafter the Court upon scrutuiy of the prosecution evidence fouad in paragraph 17 fhat ftie appeUant had fhe inotive siace Shaiiti Bai had leveled false aUegation in fhe Panchayat of having conceived froiu Tnm. On this basis alone, fh.e leamed tnal judge convicted fhe appeUaiit Peelsai imder Section 302 I.P.C. 6. Leamed couiisel for the appeUant mamly conteuded fhat inotive alone could not be silf&cieut to convict the appeUaut. He furfber contended fhat the conviction underSectiou 302 I.P.C. and senteuce awarded thereunder is not sustamable ia law siace there was no legal and reliable circunistantial evidence to connect flie appeUaat-Peelsai wifh fhe offence of inurder of Shanti Bai. 7. On the ofher hand, leanied Panel Lawyer for the State contended fhat since Shaati Bai had in Panchayat leveUed aii aUegation agaiast the appeUant that she had conceived froiu him, therefore, the appeUant alone had the requisite laotive for coniniittuig fhe inurder of Shanti Bai. He has further argued that fhere is sonie evidence of P.W.3 Baratu Ram who had seen the cycle ofthe appeUant staading outside the house of the deceased ia the eveuuig before fhe occurrence. He has thus argued fhat fb.e tnal Court has rigbtly convicted ffae appetlant for fhe offence of niurder of Shaati Bai. 8. The law relating to appreciation of circuinstantial evideuce is now weU. settled. Where there is no direct evidence relatmg to coinniission of fhe crime the circumstantial evidence should always be consistent with fhe hypothesis of fhe guilt of fhe accused aad iaconsistent wifh his iniiocence. It should be bome ia mind fhat the chain of circuuistances famisbed by the prosecution should be so coiaplete fhat it does not lead to any reasonable groiuid for drawiug aa inference consistent wifh the iauocence of the accused. The iiicriminating circuiastaaces used against the accused inust be such so as to lead only to a sitigular hypofhesis ofguilt aad reasonably exclude every possibility offtie uinocence of fhe accused. The circuiastaaces whieh are consistent only wifh fhe hypothesis of giult of fhe accused should also be fully established and should be ofconclusive nature. -3- 2^sr. y "'r' - s- 9. Motive for the coininission of an ofFence is a weak type of circuinstantial evidence aiid by itself cannot couiplete the chaui of circuinstances leadiag to the hypothesis of guilt. It niay at the ruost be called to be inerely a tuik aud uot the chaia. itself, There m.ay be cases ia which aa ofFeuce m.ay be coiniuitted iD.tenti.onally without there beiag any inotive for conuiutting the offence. In sucli a case, if the iutention to r-nmmit fhe ofFence and fhe circuinstaiices are fulty established fhen nierely because of the absence of inotiye, ftie circi 1mstaiitial ewideuce caanot be found lackmg to draw fhe conclusion of fhe guilt of the accused. Smiilarly, therefore, where neifher fhe iatention nor fhe act or any other circ'uin.staiices are existing in fhe prosecution evidence, the inere fact that fhe appeUant could have fhe inotive for the coininission of fhe criine caa uever be said to be sufficient to brLag houie fhe guilt of fhe appeUaat. 10. In fhis case, fhe circuiastance which has been putforth by fb.e prosecution. against fhe appeUant is fhat the deceased Shaiiti Bai had in fhe vfflage panchayat alleged fhat she had conceived from. the appeUaat. Suraj Bai P.W.5 has also stated fhat after the panchayat she had seen Shaiiti Bai cryiug who had told her that F'eelsai was denyiug the pareut-hood of fhe child conceived by her. ^aratu Ram P.W.3 has adinitted fhat the appeUant had biult a house for Shanti Bai aiid iu the Paachayat when Shanti •Bai had stated that she would go to fhe house ofPeelsai, he had refused to accept her in his house. Peelsai had also said ia fhe Pauchayat that if Shanti Bai would com.e to his liouse, he would breab her feet. The testmiony of Budbram P.W.6 papuaiui J:3Tpis iSByaddv ai^ ^eq^ Aoqe o^ souapiAa i-BpUBiSTixnojn.o on si ajsip 3TP.[A 'aseo snp u; ·joo.id jo 33B[d ac^ 33[Bi ^OTHJBO STIOLTtS J3A30SAOq 3AIIOTII ^BIp PPq H33q SBq ^I T4t»'[ •3"s eOOZ ~a'I"V 'sjaiRO piie qsms Bqong •A qBlmid jo s^^g ai -T^ •sasiauns pttB saiittosftioo ^nq Sniip.oa si iT[3TiiSpnf aip jo gT: qdBjS&lBd iti IJnoQ tBi-4 atft ^q Tiweip aoHaiajm aqj^ •saotretSTUnojto jo Tireqo B tcuoj o^ spiri E apiAO.id TISAS o^ sonapiAa aoi^nsascud 3Tp iti Stttipon pauiBniaj ajai^ 'paqsiioniap SBA aoaai-mooo 3Ip aiOJSq p3SB303p 3Tp TRTM a33S U33q SlITABq pSSnOOB 3Tp pue piGyaddv aip jo aone^sTiinojTO av^ aauo "^oauooui ^[{oqA uaaq ssq 3oa3plA3 3ip §TiRBioaiddB airqAi ^inoo ]Bt4 3tp jo qoBCuddB sqj, 'soiiaooTnii siq qsi[q^s3 ppioo pasnooe 3tp ssnBoaq TBg T^ueqg jo japjnui ^iuiiuoo o^ aApoui a^xsTnbai aTp 3Aeq ^ou: pp.ioo aq uopBjado ^tuio^oasBA 3tTl aaoSjapnn ApBaqe peq sq SB unq TIIOJJ p3Ai3oaoo pBq ieg i^Tieqg IBT[^ psniap ^qSiq.no peq pasnooB sqi soitis ^eip jB3p snq^ si ^; -TioTiBjsdo Aiao^oasBA 3Tft aaoS jspan pBq oqM respsd jo uauias aip IH Bozo^Bttuadg oa SBA 3.131^ ^BTft pasnooB 3Tp jo sonajap 31^ ^oddns ^nnj OS^B g'M'Q :!'tFBN"?I "~l '-ta ptre T'M'Q TBd2-iEH">I'?i "-IQ jo aouapiAa pannqa-mn sqjt •soTlpoiidgj ^on p]noo pssnooB arp ^Btp UAioqs pBq qorqA paApoai SEA TBSpaj jo uoiiButiuexs naniss jo ijodaj aqi TiopB§ltS3Aui 3in.mp tBTp SAoqs osp3 OBy qso^Ties 'd ST 'M'd -ISOIBO SitpBgpsaAui jo jtaoittpsat sqj^ •Tdrq rsio.y aATsauoo ^oa p^noo Teg i^ttBqs 'aopBJsdo ^nioioasBA sttoSjapun p^q aq SOCTIS ^BTp IBABqonEij STR nl pafB-^s peq TBSpsd ^Bip SilcuinipB Aq jsTqo-TTE-uoT^euiTiiBxa atp ui UOISJ3A TIAO srq pa^oipKquoo ssq aq ssnBoaq 3iqBi(aiiin Anoqm 81 -9- -7 — to coiniciit the inurder of Shaati Bai or did gmy act in furtherEm.ee fhereof, even fhe rn.oti.ve for nnmmitting her niurder is found to be lacking. Thus, the approach of fhe ta-ial Court ia appreciating the evidence has been whoUy erroueous. The alleged inotive, iii fbLis case, is clearly dislodged by fhe fimi assertion by tbe accused ia fhe Panchayat fhat he had undergone the Vasectoiny operation, aud fherefore, Shanti Bai could not conceive froin him. This fact was also borue out duriag the course of investigation. Thus, fhe leamed trial Judge stretched his iinaguiation too far to hold the appellaat guilty m.erely ou fhe basis of ev~idence of inotive which failed to inspire coiifidence. 12. There are four aspects io. fhe coinuiission of an oifence. Firsfly, fhe appeUant niay have the m.otive which niay coiiipel nim to fonu the intention to conunit the offence. Thereafter fhere has to be preparation or som.e act ia furfheraace of the intention to coininit the offence and lastly the conuiiissiou of fhe oifence itself. The ch'cuinstaaces in relation to the inotive, iatentiou, preparatiou aad coiuinission if estabUshed beyond doubt could com.plete the ctiaui of circiuastantial evidence leaduig to the hypothesis of ttie ;uilt. Mere possible niotive howsoever strong cau not take ftie place of proof to establish the hypofhesis of fhe guilt of Uie appeUant beyond doubt. 13. Before partiiig with this appeal, we would like to consider another aspect canvassed before us that the approach of the frial Court in framiug fhe charge under Section 34 of fhe I.P.C. has been casual. It is weU. settled fhat whenever a person is said to have fonned a common intention wifh anofSier for fhe coniBiission. of an offence, fhe act which was coDunitted by fhe person who - &- coinEiitted the offence as far as possible be specifk'alh" ineutioaed icL the charge. If tiie trial Judge had borne 'this iii. iniud, it cou3d liave been noticed at the stage of charge itsetf alsout the chaia of circiTcis'taii'tial evxclence, liie trial Court, thei^iore, Biay be 'weil advised to nieiition the aature of the act coiaraitted. or omitted 37 •the accuseu EI furtlieraQce oftlie coninion ia.teiitkin of co-accused, K. The contention of tlie leamed counsel for the appellarit tls.at there was no ziotive to connect fhe accused. wifh ;ruiie rn.us be accepted since the very fbLuidatioii of the prosecutkin case has cruisibled dcrem and fhe inotive if auy has becoine: uicorisequeEtial ia. uiis case. Even fhe ruotrve to coiiiiait inurder o't' Shaiiti Bai ha& fcdt been fuUv estabMslj.ed ui the instaiil 16. In the ultiinate aaalysis, tlie appeal is sllowed. Thc convic'tiDn ofthe appellaxit under Section 302 I.P.C. fbr coiii££iitung the Eiurder of Shanu Bai aiid fhe sentence awarded tliereuiider ai'e set aside. The appeBant is acquitted of !the charge i.uider SecGcn ^5 ;. Ball bonds of fhe appeUaTit staiid caiicetu _^. Sd/- Fakhruddin Judge ^6-06.2005 Sd/- Dilip Raosaheb Deshmukh Judge lfc.OS.2005 30 - &- coTnTriitte.d fhe ofFence as far as possible be speci&caily ineutioned ia the charge. If the trial Judge had bome this ia inind, it could have been noticed at fhe stage of charge itself about the chain of circuiastan.tial evidence. The trial Court, flierefore, niay be weU advised to inentiou fh.e nature of the act coiiunitted or oinitted by fhe accused iu furfheraD.ee ofthe coininon in.ten.tion ofco-accused. l^. The coutention ofthe leamed counsel for fhe appeUant that there was no m.otive to coruiect the accused wifh. fhe ciime inust be accepted siace the very fouiidation oftiie prosecution case has cruiubled down and the inoti.ve if aay has becoine, inconsequential ia this case. Even the luotive to com.nut inurder of Shaati Bai has not been fuUy estabUshed in the uistaat case. 16. In the ultunate analysis, fhe appeal is aUowed. The conviction offhe appeUaat uiider Section 302 I.P.C. for conrmittuis the inurder of Shanti. Bai aad the senteuce awarded thereunder ai-e set aside. The appeUaiit is acquitted ofthe charge under Section ' [.P.C. Bailbonds offhe appeUant stand caiicelled. / Sd/- Fakhruddin Judge 06:2005 Sd/- Dilip Raosaheb Deshmukh Judge _r ilo.06.2005