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2011 DIGILAW 121 (CHH)

Sammat v. State of M. P. (Now C. G. )

2011-03-29

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2011
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 15th of September, 1993 passed in Sessions Trial No. 302/90 by the Fourth Additional Sessions Judge, Bilaspur, Link Court Mungeli. By the impugned judgment, the Appellant has been convicted Under Sections 302 & 201 IPC and sentenced to undergo imprisonment for life and R.I. for 7 years, with direction to run the sentences concurrently. 2. The facts, briefly stated, are as under: Deceased- Purain Bai was the daughter-in-law of the Appellant. Her dead body was seen at an open place in Mahelikhar on 28.7.88. The matter was reported to police station- Kunda and a merg intimation (Ex.-P/8) was lodged. The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/3) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. The dead body of the deceased was sent for post-mortem to Primary Health Center, Pandaria vide memo Ex.-P/9. The post-mortem examination was conducted by Dr. S.K. Tiwari (PW-14). Since the body was highly decomposed, he could not determine the cause of death. Viscera was preserved for chemical examination. The post-mortem report is Ex.-P/9(A). On 20.8.88, the villagers told the police that the Appellant has made extra-judicial confession before them, on which, the Appellant was arrested on 21.8.88. Later on, on 5.11.88 Sahetru (PW-12) stated that he had seen the deceased in the company of the Appellant. It is on all this evidence, the prosecution filed a charge-sheet against the Appellant and the learned Sessions Judge after conclusion of trial, held the Appellant guilty of the aforesaid offences on the basis of above set of circumstantial evidence and convicted and sentenced him as aforementioned. 3. Mr. Baijnath Pandey, learned Counsel appearing on behalf of the Appellant, argued that the prosecution relied on 2 circumstances; extra-judicial confession; and last seen together, but none of the circumstances have been established against the Appellant, therefore, the conviction based on above set of circumstantial evidence cannot be sustained. 4. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case. 6. 4. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case. 6. Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the Appellant has been established beyond a reasonable doubt. 7. The two circumstances, relied by the Sessions Court are circumstance of extra-judicial confession and last seen. 8. The extra-judicial confession was said to be made before Jhaduram (PW-1), Amoli (PW-2), Ridhram (PW-3) and Jawahar (PVV-7). Out of above 4 witnesses of extra-judicial confession, Jhaduram (PW-1) and Amoli (PW-2) have turned hostile and they have not supported the case of the prosecution. They have been disbelieved by the Sessions Court also. Ridhram (PW-3) has also been disbelieved by the Sessions Court. The Sessions Court has relied on Jawahar (PW-7). Jawahar (PW-7) deposed that after 7-8 days of the recovery of the dead body, the Appellant made extra-judicial confession before the villagers namely Jhaduram (PW-1), Ridhram (PW-3) etc. He was also present there and he heard extra-judicial confession made by the Appellant. We find that he disclosed these facts to the police on 20.8.88 when his 161 Code of Criminal Procedure statement (Ex.-D/2) was recorded. The dead body was recovered on 28.7.88. The 7th day after the recovery would come on 5th - 6th of August, but he disclosed all this on 20.8.88. We find that he disclosed these facts to the police on 20.8.88 when his 161 Code of Criminal Procedure statement (Ex.-D/2) was recorded. The dead body was recovered on 28.7.88. The 7th day after the recovery would come on 5th - 6th of August, but he disclosed all this on 20.8.88. Moreover, when the same extra-judicial confession has been disbelieved by the Sessions Court on the evidence of other witnesses, the evidence of this witness becomes doubtful. Moreover, he admitted in the cross-examination that when Patel of village Mahelikhar- Ridhram (PW-3) asked the Appellant saying that the police is investigating the matter and he should tell correct things, then only, the Appellant made the alleged extra-judicial confession. In appreciation of the evidence of Jawahar (PW-7) in light of the evidence of other witnesses and his delayed disclosure regarding extra-judicial confession, we are of the view that it was not safe to rely on the sole testimony of this witness to hold that the Appellant made extra-judicial confession before them after 7-8 days from the date of recovery of the dead body. 9. So far as evidence of Sahetru (PW-12) regarding last seen is concerned, the same is very shakey. He has not deposed the date and time when he saw the deceased in the company of the Appellant. His evidence is vague. Moreover, he disclosed this fact for the first time on 5.11.88 when his 161 Code of Criminal Procedure statement was recorded. G.R. Diwan (PW-13) is the Investigation Officer. When it was asked as to why he recorded the statement of this witness so late, he gave explanation vide Para-12 of his cross-examination that this witness - PW-12 was not available in the village. PW-12 has deposed in clear words that he was throughout in the village. Therefore, the explanation offered for late disclosure regarding last seen by Sahetru was also not acceptable. There is also a long time gap between the deceased allegedly seen in the company of the Appellant and the dead body discovered. The deceased was the daughter-in-law of the Appellant. Even if she was seen with the Appellant in casual manner like above, it would not be incriminating against the Appellant when the time gap is so long. In these circumstances, we are unable to accept the evidence of Sahetru (PW-12) for the purpose of last seen together. 10. The deceased was the daughter-in-law of the Appellant. Even if she was seen with the Appellant in casual manner like above, it would not be incriminating against the Appellant when the time gap is so long. In these circumstances, we are unable to accept the evidence of Sahetru (PW-12) for the purpose of last seen together. 10. For the foregoing reasons, we are unable to sustain the conviction of the Appellant on the above set of circumstantial evidence. 11. In the result, the appeal is allowed. The conviction and sentences awarded to the Appellant Under Sections 302 & 201 IPC are set-aside. The Appellant is acquitted of the charges framed against him. He is on bail. His bail bonds are cancelled and surety stands discharged.