y ..A, 1 CF0000061297 n;>.U°A um^^ IN THE HIGH COUHT OF JLDICATURE AT JABALPUF; Criminal Appeal No,\^<3_yl997 APPELLAI'JT (Accused in JaiL) Lala Rarn sof) of Shri Pav.Sn Kurnar Kevat, ,aged 23 years, residenj.- of Darang^ P^S^ Chanpa, Distirict Bilaspur (M<.P<,) V/s ^^ R^sfo E^T. S-tr^?- State of Madhya Pradesh r Through Police Station, Chanpa | Teh» Janjgir, Disft, Birapyr(MP), ]|| •<l.ed on* aySliri '€]f£^yyi""""".i £fiIM!:i^A£!^^^l^£ffi^icTI2^3Z$i^^F^J:Ml£i^ ^,_._...........^...-A^V @g£E£ E..£ODE* . . ^-- • _A- 1 COURT OF JUDICATURE AT BILASPUR. CHHATTSSGARN Criminal Appeal No. 1807 of 1997 Laia Ram Versus State of Madhya Pradesh JUDGEIVIENT FOR CONSiDERATiON HON'BLE L.G.BHADOO^J, POST FOR JUDGMENT ON ^ Sd/- J U D G E 19/04/2006 Sd/.- L.Q Bhadoo Judge 3.1 - 4 - 200S Sd/- Dhirendra Mishra Judge DtVISION BENCH: HON'BLE SHR! L.C. BHADOO & HON'BLE SHRI DHJRENDRA 3VSJSHRA, JJ CRIiVI!NAL APPEAL N0. 1807 of 1997 AppeiJanS Lala Ram Vs. Respondent : State of Madhya Prades'h Shri Sachin Singh Rajput, iearned counse! for tiie appeilant. Shri U.N.S. Deo iearned Additionai Pubiic Prosecutor for the respondent/State. J_U_D.©_MEXT' (Delivered on ^/.04.2006) Per Dhirendra I^ishra. J The appeiiant has preferred this appeal under sectjon 374 (2) of the Code of Criminai Frocedure against the judgment dated 217.1997 passed by Additional Session Judge, Janjgir in Session Triai No. 55/1995 convicting him under sections 302 and 201 of the Indlan Penai Code and sentencing'to undergo imprisonrnent for life and Rl forfour years respectively on both counts. .2. Case of the prosecutjon in brief is that deceased Ghasnlnbai ^Jas mamed to the appeiiant in the Chalt month ofthe year 'when Incjdeat occurred. Theappeiiant brought the deceased in the Assadh month ofthe same year and they lived together in vl!!age Darang, On 27.10.1994 the appeliant killed the deceased wth the help of pick axe and concealed the dead body in a garbage pit situated behind his house. Thereafter, he gave false written .report on 9.11.1994 regardlng rnissing of his 'wife. However, the dead body of the deceased was recovered on 10.11 .1994 from a pit and it vras identlfied to be of Ghasninbai. AS! (PW-15) D.R. Yadav recorded Dehati Merg Intimatlon of Ex. P-20 cn 10.11.1994 at 15,20 hours mentioning therein that he reached viliage Darang in connection witSi the rnissing report No. 22/1994 ^iere he ?net father ^ ofGhasninbai namely Budhrarn Kewat and his retetiyes. On inquii'y' Budhram Kewa.t stated that his daughter Ghasninbai was not mbsing but his son-in-law. had kilied her and buried the dead body in a garbage pit situated behind his house. Thereupon, pit was opened and mutilated body ofGhasninbai aiong with clothes \^/B.3 recovered. Identification memo of. dead body ,Ex. PM1 was prepared. inquest over the dead body was conducted on 10.11.1994 in the presence of wtnesses. Slte plan of Ex P"5 v^^ prepared by Station House Officer on the sarne day. Body was sent for post mortem exannination vide Ex P-9 on 10.11.1994 to BDiVi Hospita! Champa. Post mortem examinatlon v-/as conducted by Dr. H.S. Chandel PW-5 and Dr. R.K. Chandra PW-6 on the sarne day. Dr. Chande! recorded that skeietai frame of a young iady in niuitiple pieces wth petticoat and sari wasreceived by him for post morterrs. Scalp was peeiing from.the skull bone. Skeletai frarne contalned soft tissues with offensive srneil. Softenlng of attached soft tissues vras there. Skeietai system consisted of sku!l. Cervica! vertebra, thoracic'case, iumbar vertebra with petvic bone wtth sacrum and femur, tibia and fibula ofboth legs were there. Except bones and pieces of flesh the other parts were not avaiiable at the time ofpost mortem examination and therefore, post mortem examination of separate parts ofthe body couid not be recorded. The whole body v^s at the advance stage of decomposition and in the aforesaid circumstances no definlte opinion regarding cause of death couid be glven. !n the cross examination PW-5 Dr. Chande! has stated that though iooking to the remains of the body it could be sald that they were of huniian body but iength of.the body could not be ascertalned. He has a!so stated that there were no genitai parts in the dead body norv^s there any visra. He further stated that at the advance stage of decomposition ail the bones get separated and in the instant case the.dead body had crossed that aiso. He further stated that at the time of po'st mortem examination ofthe dead body, the parts necessary for establishing the identity of the deceased and cause of death were destroyed and therefore no opinion could be given regarding cause of death of the deceased. Btood stained sari, blood staisied ragged bedding (katfin), blood stained pieces of curtain, biood stained fuil pant, green coiour shirt, blood stained and plain earth and one pick axe were seized from the ^^^a^^^^.s^^.Sa^^)^^ }.Wi,W^»SS^S^»S. <r house of the appeiiant on 1,1.11.1994 vide seizure memo Ex. P-4. IVIerg intlmation' vide Ex. P-15 l^as prepared on the basis of Dehati merg on 10.11.1994. Thereafter, FIR Ex. P~16 was recorded on 10.11.1994 at 20.35 hours mentionlng the offences under sectlons 302 and 201 ofthe !PC on the basis of.Dehati First Information Report Ex. P-21, Dead body \ms recovered vide recovery memo Ex. P-19. Site pian of Ex, P-22 was prepared by Halka Patwari PW-3 Ashwani Kumar Sao. Doc'tor performing autopsy over tha dead body of the deceased had referred it to the Chief Medica! Officer, Bilaspur for opinion who in turn referred the same to Forensic Medicine Department of Medica! Coliege, Raipur for opinion wiiereupon Dr. D.C. Jain, Head of the Department of Forensic Medicine, yedical Coiiege Raipur gave his os^inion vlde Ex. P-"23 and opined 'that cause of death is injun/ to chest ieading to 'haemprrhage and shock, syncope and death. Injury was sufficient to cause' death in ordinary course of nature and it was caused by hard and biunt object and it was homicldal In nature. Duration of death v^s opined as 2BM3 weeks from the date ofexamination. On the basis ofmemorandum ofthe appeilant Ex. P"6 weapon ofoffence i.e. pick axe ^^s taken into possession on 19.11.1994 vide Ex. P-7 and thereafterthe appeilant was arrested on that very day vide Ex« P-8. 3. After completing investigation poiice fiied charge sheet in the court of Judiciai Maglstrate First Class Janjgir under sections 302 anid 201 ofthe IPC v^io in turn committed the case to the court of Session Judge Biiaspur from ^ier'e learned Additlonai Session.Judge, Janjgir received the case on transfer fortriai. 4. Learned trial Court framed charges under sections 302 and 201 of the iPC agajnst the appeliant. 5. Prosecutlon in order to estabiish the charge examined as many as 18 wtnesses, Thereafter staternent of the accused was also recorded under section 313 ofthe Code ofCrimina! Procedure in-vvhich the aj3pella.nt denied the circumstances appearing against him and pleaded innocence and faise impiication in ttie case. However, learned trial Court after hearing counsei for ^- the accused as aiso counse! for the State convicted and sentenced the appellant as mentioned above. 6. Learned counse! for the appeilant submits that there is no eyewtness to the incident. Even the identity of the dead body and cause of death has not been estabiished beyond reasonabie doubt. Accordirsg to the counsei for the appeiiant the trial Court has convicted the appeiiant relying upon the inadmissible evidence. It is argued thatfrom perusa! ofthe post mortem repoit it is clear that all the parts ofthe body necessaiy for estabiishing identity ofthe deceased and cause of dea.th were destroyed and only skeietal remains were recovered by the police, even then relying upon the statement of PW-8 Budhram, father of the deceased, PW-9 Kartikram, PW-11 Ramcharan and PW-12 Bhajoram Yadav, the court beiow has heid that the dead body vvras of deceased Ghasninbai, wlfe ofthe appellant. !t is further argued that the body of the deceased was recovered by the police on'the basis of information given by Budhram, father of the deceased and others from an open place which v^as accessible to one and a!i but even then the trial Court has convicted the appeiiant on the basis of circumstance that body was found from the house of the appellant, !t is further argued that from the materiai availabie on record it is estabiished that the appeitant and the deceased had cordiai reiatlons and therefore, there ^^as no motive to the appeliant to kii! his owi wfe and further that the prosecution has not been abie to establish the motive attributable tothe appellant for committing murder of his wife and thus in the absence of motive particuiariy In the case Vutiere conviction is based on circumstantiai evidence, the appeiiant couid ?wt have been convicted. 7. On the other hand learned counsel for the respondent has supported the impugned judgment ofthe triai Court. 8. We have heard iearned counsel forthe parties and perused the material avaiiable on record, ^ 9. Learned counsei for the appellant has seriousiy disputed the identity of the deceased and stated that cause ofdeath ofthe deceased has also not been estabiished. in order to estabiish identlty of the deceased Court beto¥/ has reiied upon the statement of PW-1 Firturam who has stated that body ofthe deceased was taken out from a garbage pit and It was identified by h Im as that of Ghasnlnbal, wlfe of the appeilant vide Ex.P"a1. Thls wtness In the cross examination has stated that body wltich was in pieces was wrapped in two bundles. Petticoat, sari and ragged beddlng (kathn') were aiso there. In one bundie head ofthe deceased and her ciothing were there and tlie other pieces ofthe body were in the other bundle. This wltness has denied the suggestlon that he identified the deceased from hair and bangles. He rather stated that he identified the body from her head. However, Ex. P-1 mentions that body was Identified on the basis of hair and bangles. PWaa8 Budhram has stated that he identified the body of his daughter in the presence ofwtness Sukhiram. He has admitted that body was decomposed and foul smell was emanating from it. He a!so admitted that he could not identify the bangies over the body. PW-10 Ramial has admitted that after seeing the dead body he couid not identily it as tiiat ofGhasninbai. However, he stated that herfather and uncle identified the body to be of Ghasninbai. He further stated that body was beyond recognition and therefore, he couid not identify. He stated that the face was aiso beyond recognltion. PW-5 Dr. Chandei who conducted the post mortem has also stated that poition ofthe body necessaryfor identification were found destroyed. Thus, if we screen the evidence availabie on record regarding identification of Ghasninbai, we are ofthe considered opinion that iooking to the advance stage of decomposition and that the body was found in pieces and the evidence of Dr. Chande! (PW-5) as aiso independent witness Ramial (PW-10), It wcHjld not be safe to draw a conclusion that the body in question 'was of Ghasninbal. 10. So far as the cause of death is concerned, both the doctors conducting autopsy have categoricaliy stated that body referred to them was received In pieces and it \<vas at the advance stage of decomposition and jn such condition sr the bones get separated and in the instant case the body had crossed that stage a!so and therefore, according to them no defmite opinion regarding cause ofthe death ofthe deceased could be given. However, the Court beiow on the basis of document of Ex.P-23 Vtittich has been exhibited by the Court and v^ich has not been proved by the author, In paragraph 6 has held that as per the report ofthe Professor ofHead ofthe Department of Forensic Medidne, Raipur judicial notice of which was taken under sectiorf 293 of the Cr.P.C. wtiich mentions that fourth, fifth and sixth ribs were found fractured, skeleton of bones pertains to 18-20 year lady asid the cause of death is snjury over chest which was sufficient to cause death in the ordinary course of nature, death of deceased Ghasninbal was homicidal in nature. 11. !t is not in dispute that report of Ex.P-23 has not been admitted by the appeilant and nor the. same has been proved by its author Dr. D.C. Jain and as such appeiiant had no opportunlty to cross examine Dr. D.CJain. Section 293 (1) of the Cr.P.C. pennits certain document purporting to be a report under a hand of a Government scientific expert may be used as evidence in the inquiry, tria! or other proceedlngs under this Code. Government scientific expert to which section appiies has been enumerated in sub-section 4 of section 293. Report Js •admittedly glven by Professor & Head of Department of Forensic Medicine, Pt. J.N.M. Medicai College, Raipur and Government scientific expert specified in sub-section 4 of section 293 does not inciude the author of document of Ex.P-23. Therefore, in our considered opinion the Court below 1was not justified in taking judicial notice of document of Ex.P-23 wthout the same being proved by examining its author. in the aforesaid circumstances there is no evidence on record that the lady v^iose body v^as recovered from a garbage pit died homicidal death. 12. So far as other circumstances are concerned, the Court below has re'ied upori the evidence of Budhram (PW-8) -who has stated that a-fter marriage his daughter and the appeiiant both had come to his house and stayed there for 7-8 days and returned back. They again came to his house during Dashhara and at that time he saw some black spot over the face of Ghasninbai and he advised y •L- Lalararn to com e again and take medicine but he did n.ot com e. !n the month of Kartik during han^esting season Laiaram came alone and on jnqulry about Ghasninbai he said that she was a!! right. He WQS putting on Mangalsutra of •Ghasninbai. He to!d him that father-in-law of Ghasninbai had called'him and thereafter on the very next day he went to village "- Darang alone. On reaching Darang his sister Titarbai toid him weeping that Ghasninbai wa's not there, she was missing for 3-4 days. Thereafter this wtness went to Lalaram's house and Lalaram to!d him that Ghasnlnbai had gone to the house of her materna! uncie at viilage - Sarhar, v^iereupon he went to Sarhar and inquired from her materna! uncle about Ghasninbai ^jvtio to!d.him! that Ghasninbai had not come there. When on search Ghasninbai cou!d not be located by them, they went to Poiice Station - Champa with Sarpanch and lodged missing report of Ghasnlnbai. After lodging the report they returned to viliage - Darang, Accused Lalaram and his father on seeing them fled a\my from the viliage, upon ^ich they got suspicious. Poiice personne! asked them to search ifthey were suspicious, upon v^ich they searched the house of Laiaram and found blood !ike stains overthe walls and on search ofkitchen garden they recovered the dead body from a garbage pit tied in a cloth. Thereafter, the body was' taken out with the heip of Ramiai and Gendram. Similar Js the statement of PW-10 Ramial who is aiso resident ofviliage - Kamrid. He has stated that they were searching Ghasninbai and when they reached viilage - Darang'aiong with 20-25 peopie they found that Lalaram and his father were tiying to flee, ^iereupon they caught hold of Laiaram and at the sarne time poiice personne! aiso reached there and cn search in' the vicinity they found that Laiaram had dug a pit equa! to the height of a man near the v/ai! of his house. Ho\wever, they cou!d not recover anything from the ^Afrali. They dug the garbage pit and recovered the body. In the cross examination th'is wltness has stated that he did not see Lalaram running nor he absconded after seeing hlm. PW-11 Ramcharan has stated In hls evidence that Ghasninbal was his niece, Lalaram came to him 2-3 days back and inquired about Ghasnlnbai and on his denlal he said that she might have gone to viliage— Kamrid. Thereafter they aiso proceeded for Karnrid. He has further stated that on the third day father of ^ Laiaram came to him and aiieged that he (Ramcharan) had .conceaied Ghasninbai. Thereafter he aiso started searching Ghasninbai. He has further state.d that the day when the body ^MIS recovered from the pit he had gone to Darang. !n the cross examination this witness has stated that Lalaram and deceased Ghasninbai had very good reiationship and his brotheMn-law or anybody eise in village - Kamrid never toid regarding any dispute between the two. 13. TSie Court beiow has heavily reliedupon the evidence of PW-13 Ku. Lalitabai and PW-14 Kanchanbai to arrive at the conclusion that Laiitabai saw the appeiiant dlgging the garbage pit. Kanchanbai w?w is neighbour of the- appellant has statedthat kitchen garden of Laiararn and herown kltchen garden are adjacent and she used to ta!k to the wife of Laiaram (deceased) from her Baadl and- she had given her vegetable on that day» However, on the next day when she did not meet Ghasninbai she inquired from Laiaram about her, to \Miich he replied that she had gone to some viilage and 4-5 days thereafter she saw Lalaram digging his garbage pit with spade. At that time she atso saw Rajni and Laiita were swlnging near the garbage pit. After 4-5 days of this incident she feit that some foui smeii WBS emanating, she asked Laiaram about the said foul smeli, to which repiy was given that smei! is of dead snake. 14. On ciose scrutiny of the evidence of Lalita we find that she has stated that Laiaram was not digging garbage pit but was digging some other pit. From the evidence of PW-14 Kanchanbai it cannot be said that the pit was not accessibie to others and it was accessible oniy to the appeilant. On the other hand Kanchanbai has stated in paragraph 8 of her evidence that if anybody had to reach the Saadi ofthe accused then he had to come through the iane. There is a smai! wail between field of Daduraiya and the garbage pit and height ofthe :wail is just 1 or 1 % ft., therefore, it cannot be said that the place v'^as not accessibie to others. Hovtfever, the court belov^ on the basis of circumstance that the appellant gave mlssing repo?1: in police station and the body was recovered from his house and PWm13 and PW-14 sawthe appeltant digging the pit, has considered the above circumstance sufficient to arrive at the conciusion ^9- that the appetiant alone committed the murder ofthe deceased and concealed tlie dead body in his garbage pit and accordingiy convicted him under sections 302 and 201 oftheiPC. 15. In order to rest the conviction based on the clrcumstantial evidence it is the duty ofthe Court to ascertain whether based cn the foilowing principie, the prosecution has been able to connect the accused/appeiiant wth the crime: 1) the circumstances from Vi4iich an inference of guilt Is sought to be drawi, must be cogently and firmly established; 2) those circurnstances shouid be of a definite tendency unemngty pointing tov/ards guiit ofthe accused; 3) the circumstances, taken cumulatively, shouid form a chain so complete that there is no escape from the conclusion that wthm ail human probability the crime was commltted bythe accused and none else; and 4) the circumstantia! evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than ,that of the guiit of the accused and such evidence should not only be consistent wth the guilt of the accused but should be inconsistent with his innocence. 16. Ifwe test, the instant case in the light ofthe above prindple, we are ofthe opiniosi that the circymstances established by the prosecution are not of such a dinching nature on the basis ofwliich it can be inferred conclusiveiy that the appeiiant committed the murder of his wife and concealed the dead body in a pit because (i) the prosecution has failed to prove motive for the crime; (ii) dead body of the deceased was not recovered at the instance of the appe!!ant: (IH) case of the prosecution is that missing report was iodged by the appeiiant on 9.11.1994 whereas said report has not been proved, on the contrary the ^fr wtnesses have stated that PW-8 Budhram went to iodge the missing report a day earlier to the incident, however, report lodged by the father ofthe deceased has also not been filed and proved, (iv) there is discrepancy in the statement of PW-8 and PW-10 regarding the place where the pit v^s dug and (v) that as aiready he!d the identity of the body to be of Ghasnlnbai is doubtful and even the prosecution has not been able to estabiish the cause of the death of the deceased, Thus the prosecutlon hasnot been abie to est.abiish the charges against the appellant beyond a!l reasonabie doubt and the appeliant is entitied for benefit of doubt. 17. Accordingly, we are'ofthe considered opinlon that the triai Court was not justified in convicting the appellant for the offences under sections 302 and 201 of the iPC and sentencing to undergo imprisonment for life and R.l. for four years respectiveiy on both counts, bythe impugned judgment. 18. !n the result, the appeai succeeds and the' imp'ugned judgment of conviction and sentence passed by the triai Court is set aside. Appeilant'is acquitted of al! the charges ieveled against him and he is directed to be set at iiberty forthwth if not required in any other case. Sd/- L.C, Bhadoo Judge Sd/- Dhirendra Mishra Judge