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2003 DIGILAW 54 (CHH)

SANTRAM ALIAS SANTA SAHU v. STATE OF C. G.

2003-04-03

K.H.N.KURANGA, L.C.BHADOO

body2003
JUDGMENT As per Hon'ble Shri L. C. Bhadoo, J. :1. The accused appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment of conviction and sentence dated 28-2-2000, awarded to him by the First Additional Sessions Judge, Bilaspur, in Sessions Trial No. 177/1999 holding the accused/appellant guilty for the offence under Section 302 of the Indian Penal Code for committing the murder of his own wife and sentenced him to undergo imprisonment for life and to pay a fine of Rs.100/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. The relevant facts for the disposal of this appeal are that: on 29-1-1999 at about 10.00 a.m. Kotwar of Village Kunwa namely Sukhidas gave a Merg intimation (Ex.P/l) to the Officer-In-Charge of Police Station Takhatpur, that today in the morning at about 6-7 a.m. Shailendra Sahu came to may house and informed that his mother Birij Bai is lying dead in a room in his house. On this information, after taking Roshan Mishra along with him I reached the house of Shailendra and saw that the dead body of the Birij Bai is lying in a room on the floor and blood is coming out from the nose. Blood is also found on the floor. The body of the deceased is covered by a cloth up to the neck. I am directly coming from the spot of the incident. Upon receiving this information PW-12 V.K. Mishra, after registering the report (Ex.P/l) left for the spot and after giving notice (Ex.P/2) he prepared the Panchanama (Ex.P/3) of the dead body in the presence ofthe witnesses. On the same day through Ex.P/4 he took into possession three burnt buds of the Bidi. Thereafter he sent the requisition (Ex.P./22) to the doctor for conducting postmortem on the dead body of the deceased. He also prepared Dehati Nalishi (Ex.P/13) under Section 302 of the Indian Penal Code and that Nalishi was sent to the Police Station along with Constable Mahendra Singh for giving its number. He also took into possession a sample of simple earth as well as blood smeared earth and coloured Sari. Through Ex.P/23 he took into possession the clothes of the deceased which were sent by the doctor after conducting post mortem. He also took into possession a sample of simple earth as well as blood smeared earth and coloured Sari. Through Ex.P/23 he took into possession the clothes of the deceased which were sent by the doctor after conducting post mortem. On 4-2-1999 he took into possession an In-land letter (Ex.P/21) which was produced by Jagat Ram through Ex.P/5. Through Ex.P/6 he took into possession the previous letters sent by the accused. On 23-4-1999 he took into possession the Bidi buds through Ex.P/20, after getting them smoked by the accused/appellant in his presence. On 23-4-1999 the accused/appellant while in Police custody gave the information Ex.P/16 regarding the recovery of stone and knife - the weapons of offence. These two articles were recovered through Ex.P/17 on the information given by the accused. The clothes, stone and knife were sent to the Forensic Science Laboratory, Sagar for their examination through Superintendent of Police, Bilaspur. The In-land letter was also sent for examination to the handwriting expert through Ex.P/28 who in turn sent his report (Ex.P/43) saying therein that the writing of the letter (Ex.P/21) is similar to the undisputed handwriting of the accused/ appellant on the other papers. The report Ex.P/29 of the Forensic Science Laboratory, Sagar was received and after completing the investigation the Police filed the charge-sheet against the accused/appellant. 3. The learned Sessions Judge, Bilaspur framed the charge under Section 302 of the Indian Penal Code against the accused/appellant and it was read over to him which he denied. 4. The prosecution in order to prove the offence produced in all thirteen witnesses at the trial. Thereafter the statement of the accused under Section 313 of Cr.P.C. was recorded by the Presiding Officer. In his statement the accused denied the circumstances which were appearing in the prosecution evidence against him. He also denied the statements of the witnesses and said that on the date of the incident he was in Delhi with his elder son. He denied the recovery of stone and knife on his information. 5. The learned First Additional Sessions Judge, after hearing the arguments of the learned Public Prosecutor and the counsel for the accused/ appellant delivered the judgment mentioned above. 6. We have heard Shri V.C. Ottalwar, learned counsel for the appellant and also Shri Gautam Bhaduri, learned Govt. Advocate, for the State/ respondent. 7. 5. The learned First Additional Sessions Judge, after hearing the arguments of the learned Public Prosecutor and the counsel for the accused/ appellant delivered the judgment mentioned above. 6. We have heard Shri V.C. Ottalwar, learned counsel for the appellant and also Shri Gautam Bhaduri, learned Govt. Advocate, for the State/ respondent. 7. Learned counsel appearing for the accused/appellant argued that there is no eye witness in this case. Even in the first information report it was reported that some unknown person has committed the murder of Birij Bai. The whole case rests on circumstantial evidence and the conviction is also based on that. Whereas the prosecution has not been able to prove by the circumstantial evidence that the accused had committed the murder of his wife. He further argued that the accused/appellant was not residing in the house since long and he was not in the house on the fateful night also. Therefore, the accused/appellant is entitled for acquittal. 8. On the other hand, the learned Government Advocate appearing for the State/respondent supported the judgment of the trial Court. 9. It is true that the whole case of the prosecution rests on the circumstantial evidence. PW3 Shailendra who is the son of the accused/ appellant and was in the house on the fateful night has said that when he woke up from sleep at 6.00 a.m. he came to know about the death of his mother and on this he informed the Kotwar. At that time his father was not in the house. On that day where his father was, it is not known. This witness was declared hostile. PW4 Mahendra Kumar who is the other son of the deceased and the accused, has said that on that day he was in Delhi and one boy namely Ganesh of his village informed him about the death of his mother. On coming to know this he came to his village. He does not know how the death of his mother took place. His brother Shailendra did not tell anything about the death. This witness has also been declared hostile. Therefore, there is no eyewitness regarding the murder of the deceased Birij Bai. 10. As far as the question of homicidal death of the deceased is concerned, the same has not been disputed by the learned counsel for the appellant. More over, Dr. His brother Shailendra did not tell anything about the death. This witness has also been declared hostile. Therefore, there is no eyewitness regarding the murder of the deceased Birij Bai. 10. As far as the question of homicidal death of the deceased is concerned, the same has not been disputed by the learned counsel for the appellant. More over, Dr. R.K. Agrawal - PW5 who conducted the post mortem of the deceased prepared post mortem report Ex.P/11 in which he noticed in all eight injuries on the dead body of the deceased. Injuries 1,2,3,4,7 and 8 were found to be contusions and injury 5 and 6 were found to be incised wounds. The doctor has further stated that on dissection and examination of the internal parts of the body he found that there was blood clots on the brain membrane, frontal and temporal region. He further said that injury 1 to 4, 7 and 8, which were contusions, were caused by a hard and blunt substance and injury 5 and 6 were caused by sharp and heard weapon. The cause of the death of the deceased is possible by shock and due to excessive shock and haemorrhage from the injuries. The nature of the death was homicidal. Therefore, from this evidence it is proved that the nature of the death of the deceased was homicidal. 11. Now coming to the circumstantial evidence upon which the learned First Additional Sessions Judge has recorded his findings and reached to the conclusion that the accused/appellant has committed the murder of the deceased can be summarised as under : (a) The death of the deceased took place in the house of the appellant and accused appellant has not offered any plausible explanation about the death. More over, he has said that on the fateful night he was in Delhi which he has not been able to establish. Even the son of the accused PW 4 Mahendra Kumar who was in Delhi no question has been asked in the cross-examination on this point nor Mahendra Kumar has said that the accused/appellant was in Delhi on that day. (b) The recovery of Bidi buds from the place of occurrence. (c) The memorandum of information given by the accused (Ex.P/16) and in pursuance of that information the weapons of offence namely the stone and knife were recovered at the instance of the accused/ appellant. (d) Dr. (b) The recovery of Bidi buds from the place of occurrence. (c) The memorandum of information given by the accused (Ex.P/16) and in pursuance of that information the weapons of offence namely the stone and knife were recovered at the instance of the accused/ appellant. (d) Dr. R. K. Agrawal PW.5 has said that the injuries which were found on the dead body of the deceased can be caused by knife and stone. (e) The In-land letter Ex.P/21 which was written by the accused appellant in which he raised a doubt about the character of his wife. Therefore, he was having a grudge against his wife for being a lady immoral character. These are the circumstances. 12. It is settled law that, in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. It is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case. 13. Now coming to the first point that the accused has not been able to offer any plausible explanation about the death of his wife his absence from the house on the fateful night is concerned, PW-3 Shailendra who is the son of the accused/appellant and is the person undisputedly was in the house on the fateful night and reported the matter about the death of the deceased early morning around 6-7 A.M. to the village Kotwar. In his examination in chief he has said that at the relevant time his father was not in the house. On that day where he was he do not know and on this aspect he has not been cross examined. Rather he has been declared hostile and he has said that it is incorrect to say that I have deposed before the Police that my father came on the fateful night at 10 PM after jumping over the wall. On that day where he was he do not know and on this aspect he has not been cross examined. Rather he has been declared hostile and he has said that it is incorrect to say that I have deposed before the Police that my father came on the fateful night at 10 PM after jumping over the wall. Similarly, Mahendra (PW-4) the second son of the accused/appellant and the deceased who was in Delhi, has said that he does not know anything. This witness has been declared hostile. He has said that Shailendra did not tell anything to him. In his cross examination he had denied the suggestion given by the Public Prosecutor that Shailendra informed him that his father accused appellant used to come in the night. PW-2 Tarachand is the witness of Panchanama and seizure memos (Exs.P-4 & P-5) of Bidi buds and the In-land letter. In his cross-examination he has said that on that day the accused was not present. Since last 14 months he is seeing Santram for the first time. The date on which the death of the deceased took place Santram was not in the village since last 14 months. The accused had gone for earnings. Birij Bai had also gone to Delhi for earnings. The other circumstance about the absence of the accused is that PW-9 Jagatram is the brother of the accused. He has said in para 4 of his statement that Shailendra informed him that some unknown person has committed the murder of his mother. In the same para he has said that there was some dispute about the partition among the brothers i.e. the accused, this witness and the other brother Bhagatram. In the cross• examination he has said that the accused inflicted the injury on the other brother Bhagatram. His brother Santram and deceased Birij Bai used to go out of the village for earnings. They used to come only for agricultural activities. He does not know when the deceased came to village Kunwa and on the fateful night who was in the house. PW -11 Ramsharan who, is the nephew of the accused and the son of Bhagatram upon whom the accused inflicted the injury and chopped off his leg and a case about that is said to be going on. He has said that the In-land letter was taken into possession in his presence. PW -11 Ramsharan who, is the nephew of the accused and the son of Bhagatram upon whom the accused inflicted the injury and chopped off his leg and a case about that is said to be going on. He has said that the In-land letter was taken into possession in his presence. In his cross examination he said that Shailendra only informed that Birij Bai is dead. He did not disclose that how the death took place and he has further said that it is true that there is a dispute between his family and the accused and even they are not visiting the house of each other. His father's leg was chopped off by the accused 6-7 months before this incident. Therefore, if we look at this evidence which shows that the accused used to remain out of the house for earnings. PW -2 Tarachand is independent witness and he has said that the accused was out of the house since last 14 months and he saw him for the first time in the Court on the day when his statement was being recorded in the trial Court. It is also on record that, the accused used to go out for earnings and Shailendra has also said that his father was not in the house on the fateful night. Therefore, there is no direct or circumstantial evidence on record through which it can be inferred that the accused appellant was in the house or came in the house on the fateful neight. In the circumstances even if the accused has not been able to offer any plausible explanation about his absence from the house on the fateful night, it cannot be inferred from the circumstances that the accused was in the house because as per the evidence re-produced above it is clear that the accused used to remain out of the house for earnings. The finding of the learned trial Court on this count that by the circumstantial evidence inference can be drawn that the accused was in the house, is not correct and is not based on any circumstantial evidence and in the background of the above evidence it cannot be even inferred from the circumstances that being the owner of the house and head of the family the accused was supposed to be in the house on the fateful night and in this regard the finding of the learned trial court is not based on sound principles. 14. As far as the recovery of buds from the place of occurrence is concerned, in order to prove the fact that these Bidi buds were consumed/ smoked by the accused/appellant, the Investigating Officer took into possession the other Bidi buds after the same were consumed/smoked by the accused/appellant while in custody of the police. Unless there is evidence of the forensic science laboratory i.e. expert to the effect that the saliva of the accused/appellant was present on both the Bidi buds i.e. which were found on the seen of occurrence and which were later on taken into possession by the Investigating Officer after getting them consumed/smoked by the accused/ appellant in his presence, this circumstantial evidence cannot .connect the accused that he was present on the fateful night in the room of his deceased wife, which is missing in the present case. Therefore, the prosecution has not been able to establish through this evidence that the saliva of the accused was found on both the Bidi buds which were recovered from the seen of occurrence and which were later on taken into possession by the Investigating Officer after getting them consumed/smoked by the accused/appellants. 15. As far as the recovery of the stone and knife at the instance of the accused appellant is concerned, the date of incident is 29-1-1999 whereas these articles were recovered on 23-4-1999 after a period of three months. The Investigating Officer PW-12 V.K. Mishra in para 13 of his statement has said that the accused produced these articles after taking out from the water and the same were taken into possession and the recovery memo shows that there were blood stains on the stone and the knife. The Investigating Officer PW-12 V.K. Mishra in para 13 of his statement has said that the accused produced these articles after taking out from the water and the same were taken into possession and the recovery memo shows that there were blood stains on the stone and the knife. It is beyond imagination that when the stone and the knife which were laying in the water for about three months, how the blood stains remained on these articles in water for three months. Moreover, the report of the Forensic Science Laboratory report shows that on the knife-F no blood stain was found. Even otherwise there is no evidence about the grouping of the blood and the nature of the blood to show that the blood which was found on the stone was human blood and it was the blood of same group of the deceased. As such, simply on the basis of recovery of these articles it cannot connect the accused for committing the murder of the deceased by these two weapons. In these circumstances, even if the doctor has said that the injuries which were found on the dead body of the deceased can be caused by these two weapons it is of no help to the prosecution for the reasons given above and unless and until it is established by some other evidence that these were the only weapons by which the injuries on the body of the deceased were caused. 16. As far as the In-land letter (Ex.P/21) is concerned, Ramsharan (PW-11) who is the nephew of the accused has said that the handwriting on the letter Ex.P/21 is of the accused as he is conversant with the hand writing of the accused/appellant. Even the hand writing expert after examining this letter and comparing the writing of this letter with the undisputed handwriting of the accused has said in his evidence that on examination of writing on both the documents i.e. on undisputed document and on the letter Ex.P/21 he reached to the conclusion that the writing on the letter Ex.P/21 were found to be written by the same person who has written on the undisputed letter and he gave his report through Ex.P/43 and Ex.P/44. Only on this circumstance it cannot be held that the accused is the only person who had committed the murder of the deceased. Only on this circumstance it cannot be held that the accused is the only person who had committed the murder of the deceased. If we look at the letter Ex.P/21, the accused had expressed his anguish and feelings to his son that the deceased was a lady of immoral character, as it has been written in the letter that the deceased had illicit relations with many persons. 17. This letter is like a double-edged weapon, which can cause injury from both the ends. It can be used to draw an inference that the accused was unhappy with his wife and had a grudge against the deceased that she was not faithful to him as she was easily accessible to the persons being a lady of easy virtue to the persons having illicit relations with them. This is the one aspect of this letter. If we look at the other aspect of this letter then it can also be inferred that as the deceased was easily accessible to the outsiders for having illicit relations and therefore they can come to her at any point of time and particularly during the night it was very easy for them to have this lady. Therefore, the possibility cannot be ruled out that any other person might have come and committed the heinous crime. Through this, letter it cannot be inferred or presumed that the accused is the only person who committed this heinous crime, unless it is supported and corroborated by other circumstantial evidence to prove that the accused was present in the fateful night in his house. In this background if we look at the evidence available in the present case, and as discussed in the point No.1 that it has not been established beyond reasonable doubt that on the fateful night the accused was in his house or came to his house. As per the other statements it has also come on record that the accused used to remain out of the house for earning and other purpose, therefore vide this letter Ex.P/21 the accused cannot be held guilty for coming to his house in the fateful night and committing the offence. 18. As per the other statements it has also come on record that the accused used to remain out of the house for earning and other purpose, therefore vide this letter Ex.P/21 the accused cannot be held guilty for coming to his house in the fateful night and committing the offence. 18. In view of the above, we are of the opinion that there may be an element of truth that the accused might have committed the murder of his wife but the suspicion howsoever strong cannot take the place of proof. These circumstances upon which the prosecution tried to establish the case against the accused and the learned trial Court has recorded its finding of conviction are not so clinching as to negate the reasonable hypothesis inconsistent with the innocence of the appellant. On the contrary the statement of PW-3 Shailendra who is the son of the deceased and the accused and was in the house on the fateful night and the statement of PW -2 Tarachand create a reasonable doubt about the presence of the accused appellant in the house on the fateful night and as the links are missing, the chain of circumstantial evidence is not complete and the case against the accused becomes doubtful. It may be possible to point out the finger of suspicion towards the appellant but that suspicion cannot be made the basis for holding the accused guilty of heinous crime of committing the murder of his own wife. 19. For the reasons given above, the finding of the learned trial Court cannot be sustained and maintained. As such the same is set aside. 20. In the result, the appeal of the accused appellant is allowed and the conviction and sentence imposed on the accused appellant by the learned trial Court are set aside. The appellant is in jail. He be set at liberty forthwith if not required in any other case. Appeal Allowed.