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2011 DIGILAW 182 (CHH)

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

2011-05-05

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2011
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 11th of August, 1994 passed in Sessions Trial No. 19/94 by the Fifth Additional Sessions Judge, Bilaspur. By the impugned judgment, the Appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: On 14.11.93, at about 4.00 p.m., deceased- Muritram left his house and went in the village locality. When he did not return till 10.00 p.m., his father- Sudhu (PW-2) made a search and found that he was in company of Jhadudaar, Tiharu and Bharat (accused/Appellant). They all were in drunken condition. When he tried to take the deceased, the deceased told him that he is going to take meals in the house of accused-Bharat. Thereafter the deceased went along with accused- Bharat. The deceased did not return in the night. On the next morning i.e. on 15.11.93 at about 6.00 a.m., the dead body of the deceased was found in outer area of the village. There were many injuries on the dead body. Sudhu (PW-2) made a report to the police station, on which the First Information Report (Ex.-P/2) was registered. The Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/9) on the dead body of the deceased. He also seized various articles including one pair of chhappel made by motor-tyre material and a piece of babool wood. In further investigation, the Appellant was take into custody and his memorandum statement (Ex.-P/l1) under Section 27 of the Evidence Act was recorded and a piece of babool wood (said to be the broken piece of the wood which was seized from the place of occurrence) was seized at the instance of the Appellant vide seizure memo Ex.-P/l 2. The Appellant was given to wear the chhappels seized from the place of occurrence which became fitted in his feet and a Pcmchnama to this effect was prepared. The seized articles, including babool wood pieces, were sent for their chemical examination to Forensic Science Laboratory (F.S.L), Bilaspur, but F.S.L. report could not be filed. The Appellant was given to wear the chhappels seized from the place of occurrence which became fitted in his feet and a Pcmchnama to this effect was prepared. The seized articles, including babool wood pieces, were sent for their chemical examination to Forensic Science Laboratory (F.S.L), Bilaspur, but F.S.L. report could not be filed. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fifth Additional Sessions Judge, Bilaspur, who conducted the trial and convicted & sentenced the Appellant as aforementioned. 3. There was no eye-witness to the incident. The conviction of the Appellant was based on circumstantial evidence. Following are the circumstances on which the prosecution relied: (A) Deceased had developed illicit relations with the wife of the Appellant; (B) The deceased was last seen with the Appellant; (C) Two chhappel seized from the place of occurrence were of the size of the Appellant and they got fitted in the feet of the Appellant; (D) The Appellant made extra-judicial confession vide Panchnama (Ex.-P/8); (E) Two pieces of babool wood, one seized from the place of occurrence and the other at the instance of the Appellant, were of the same log & (E) The Appellant also received injuries on the date of incident. 4. Out of the above circumstances, circumstance No. (A) & (D) were not held to be proved by the Sessions Judge. However, relying on the other circumstances i.e. circumstance (B), (C), (E) & (F), it was held that the Appellant committed murder of the deceased by using the babool log, therefore, he was liable for punishment under Section 302 IPC. 5. Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, supported the judgment and findings recorded by the Sessions Court. He argued that all the above circumstances were rightly held to be proved; they were of conclusive nature and pointing towards the guilt of the Appellant; therefore, the Appellant was rightly convicted by the Sessions Court. 6. We have heard learned Panel Lawyer for the State and have also perused the records of the sessions case. 7. He argued that all the above circumstances were rightly held to be proved; they were of conclusive nature and pointing towards the guilt of the Appellant; therefore, the Appellant was rightly convicted by the Sessions Court. 6. We have heard learned Panel Lawyer for the State and have also perused the records of the sessions case. 7. In Dhananjoy Chhatterjee v. State of W.B. (1994)2 SCC 22, the Supreme Court held "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." 8. In Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir AIR 2002 SC 3164, the Supreme Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. About the last seen theory, the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some case to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases. 9. So far as circumstance of last seen is concerned, Sudhu (PW-2) deposed that when his son did not return in the night, he went towards chauraha and found that his son (deceased) was present along with Jhadudaar, Appellant-Bharat and Tiharu. Jhadudaar is father of the Appellant. Jhadudaar said to his son (Appellant) to take the deceased to their house for meals. He clearly deposed that he cannot say as to where the accused took his son with him to his house or not. Therefore, the outcome of his evidence is that he had seen the deceased in the company of 3 persons i.e. Jhadudaar Bharat (Appellant herein) and Tiharu, and it was not a case that the deceased was seen in the company of the Appellant alone. Therefore, the outcome of his evidence is that he had seen the deceased in the company of 3 persons i.e. Jhadudaar Bharat (Appellant herein) and Tiharu, and it was not a case that the deceased was seen in the company of the Appellant alone. Besides the above, there was a long time gap between the deceased seen alive and his dead body found. The deceased was seen alive in drunken condition at about 10.00 p.m. and his dead body was found at about 6.00 a.m. on the next morning. In view of all this, the circumstance of last seen together was not established and the Sessions Court erred in law in holding the said circumstance proved against the Appellant. 10. The circumstance of seizure of two chhappel from the place of occurrence was also not incriminating. It was not proved that those chhappel were belonging to the Appellant. Chhappel are very common articles which anybody can have for his personal use. The prosecution has relied that the chhappel were of the size of the Appellant and they were fitted on his feet. This may be a co-incidence, but in any manner, this cannot be incriminating against the Appellant, unless it was conclusively proved that the chhappels were belonging to the Appellant. Therefore, the Sessions Judge erred in law in holding the above circumstance proved against the Appellant. 11. So far as circumstance relating to seizure of piece of babool wood from the possession of the Appellant is concerned, the same was also not incriminating as no report relating to blood stains over the said article was filed by the prost-mortem. Moreover, there is no expert report to show that the two pieces of babool would, one found at the place of occurrence and other found from the possession of the Appellant were of the same log. The prosecution has not sent both logs for examination of their fibers/tissues so as to come to a definite conclusion that they were pieces of same wood log. The Sessions Judge relied on the Doctor's evidence who simply says that they were pieces of same log, but no reason has been assigned by him. Admittedly, the Doctor was not an expert to give such report and the above report would hardly be binding on the Court. The Sessions Judge relied on the Doctor's evidence who simply says that they were pieces of same log, but no reason has been assigned by him. Admittedly, the Doctor was not an expert to give such report and the above report would hardly be binding on the Court. We are of the view that the reliance placed by the Sessions Court on the query report of Dr. C.L. Chandrakar (Ex.-P/15) was totally misconceived. We are of the opinion that no inference can be drawn on the above query report in which the Doctor opined that both pieces of babool wood appear to be that of same log. 12. The last circumstance held to be incriminating is that the Appellant had also received injuries and was examined by the Doctor who gave his report Ex.-P/26. According to the said report, the Appellant was examined at about 1.45 p.m. on 16.11.93. The Doctor found that he had received multiple contusions which could have been caused by hard and blunt object within 24-48 hours. The Sessions Judge held that the above injuries must have been received while assaulting the deceased by the Appellant. This appears to be a simple presumption which the Sessions Court has drawn against the Appellant. There is no foundation for drawing such presumption. There may be many reasons for the injuries sustained by the Appellant. Unless it was proved by conclusive evidence that there was quarrel or scuffling between the Appellant and deceased and the Appellant sustained those injuries in the said quarrel, the above injuries found on the person of the Appellant by itself would not be incriminating and conclusive of his guilt. 13. We are of the view that the circumstances from which the learned Sessions Judge reached to the conclusion of the guilt of the Appellant were not fully established and they were not of conclusive nature and tendency. All the circumstances were explainable and it is not a case in which the chain of circumstantial evidence was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Appellant. 14. For the foregoing reasons, we are unable to sustain the conviction of the Appellant on the above set of circumstantial evidence. We are of the view that the learned Sessions Judge erred in law in holding the Appellant guilty of the offence on the above circumstantial evidence. 15. 14. For the foregoing reasons, we are unable to sustain the conviction of the Appellant on the above set of circumstantial evidence. We are of the view that the learned Sessions Judge erred in law in holding the Appellant guilty of the offence on the above circumstantial evidence. 15. In the result, the appeal is allowed and the conviction and sentence awarded to the Appellant under Section 302 IPC are set-aside. The Appellant is acquitted of the charges framed against him.