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2012 DIGILAW 168 (CHH)

KAMLA BAI v. STATE OF C. G.

2012-07-10

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 28th June, 2008, passed in Sessions Trial No. 1/2008 by the Additional Sessions Judge, Sarangarh District Raigarh (CG). By the impugned judgment, the appellant has been convicted under Sections 302 and 201 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1000/-, and R.I. for 3 years and to pay fine of Rs.1000/- with default sentence of R.I. for 6 months. The sentences were directed to run concurrently. 2. The facts, briefly stated, are as under:- The appellant is wife of deceased- Mahesh Sidar. On 30.8.2007, Chamrulal Bharati (PW-2), lodged merg intimation (Ex. P-/7) that the appellant told him that the deceased was missing since 28.8.2007 and ultimately on 30.8.2007, his dead body was found by her near Everest Cement Factory. On the above merg intimation, the Investigating Officer reached to the place of occurrence, gave notice (Ex.P/5) to the Panchas and prepared inquest (Ex.P/6) on the dead body of the deceased. The dead body was sent for postmortem. Postmortem examination was conducted by Dr. M.K. Manahar (PW-13). The Autopsy Surgeon noticed 2 incised wounds on the neck of the deceased. He opined that the cause of death was shock due to excessive blood loss and it was homicidal in nature. Postmortem report is Ex. P/t3. In further investigation, the appellant was taken into custody and her memorandum statement (Ex.P/1) under Section 27 of the Evidence Act was recorded on 5.9.2007 and a knife and other articles were seized at the instance of the appellant vide seizure memos Ex. P/2 and Ex. P/3. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur and report was received. According to the FSL report, blood stains were found over the knife and the clothes seized from the possession of the appellant. The prosecution came with the case that on account of some dispute between the appellant and the deceased (husband and wife), the appellant committed murder of her husband (deceased) in her house; kept the dead body for some time and thereafter, threw the dead body at the place, from where, it was recovered. 3. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. 3. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. The learned Sessions Judge relied on the circumstances of memorandum and seizure and has held that on the above circumstances. it was proved that the appellant committed murder of the deceased in her house, and then she threw the dead body at an open place, therefore, she was liable for punishment under Sections 302 and 201 IPC. The appellant, thus, was convicted and sentenced as aforementioned. 4. Mr. Manoj Kumar Dubey, learned counsel appearing on behalf of appellant, argued that the above circumstances were not sufficient to hold the appellant guilty of the offence punishable under Sections 302 and 201 IPC; the circumstances were not of conclusive nature and tendency; the circumstances were capable of being explained; though blood stains were found on the knife and the clothes, allegedly seized from the possession of the appellant, but in absence of proof of origin and group of the blood stains found over those articles, the circumstance of memorandum and seizure would not be incriminating against the appellant. 5. On the other hand, Mr. Rajendra Tripathi, learned Panel Lawyer appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 7. Firstly we shall look into the principles relating to a case based on circumstantial evidence. 8. In Dhananjoy Chhatterjee Vs. State of WB. (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. 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 the care taken to scrutinize the evidence lest suspicion takes the place of proof." 9. In Bodh Raj alias Bodha and others Vs. 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. 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. 10. In the instant case, the solitary circumstance, which has been taken into consideration is the circumstance of memorandum and seizure of knife and clothes at the instance of the appellant. According to the prosecution, the appellant gave discovery memorandum (Ex.P/1) on 5.9.2007 and knife and clothes were seized at her instance on the same day. The above articles were sent for chemical examination to FSL Raipur. The FSL report would reveal that blood stains were found on the above articles. The origin of the blood stains found over those articles is not proved by the prosecution, as we do not find Serologist report, which is normally filed to prove the origin and group of the blood stains. The FSL report would reveal that blood stains were found on the above articles. The origin of the blood stains found over those articles is not proved by the prosecution, as we do not find Serologist report, which is normally filed to prove the origin and group of the blood stains. We further note that the FSL report is kept in unproved documents. 11. A perusal of statement of the appellant recorded under Section 313 Cr.P.C., would show that not a single question has been asked from the appellant relating to the FSL report or the blood stains found over the articles seized at her instance vide seizure memos Ex. P/2 and Ex. P/3, which according to the prosecution was based on the discovery statement made by her vide Ex.P/1. It is a settled legal position that no part of evidence can be used against an accused, which is not put before him/her for explanation under Section 313 Cr.P.C. 12. Besides the above, we find that prosecution has also not proved the motive in this case. Mr. Rajendra Tripathi, learned Panel Lawyer, argued that Chandrakumar (PW-1) has deposed in Para 7 that Kamla Bai had stated to him that she does not want to live with the appellant and had asked what is the way out for that and while saying so, she added that whether the appellant should be beaten. We note that the above motive suggested by the prosecution was based on the hearsay evidence of Chandrakumar (PW-1). Moreover, it does not appear to be reasonable that on account of the above reason alone, the appellant (wife) would commit murder of the deceased (husband). Therefore, the motive appears to be insufficient. 13. It is not a case, in which, the dead body was found in the house of the appellant. The deceased was missing since 28.8.2007 and his dead body was found at an open place on 30.8.2007. According to the map, the dead body was found at a distance of 150 feet from the house of the appellant. It is difficult to accept that a woman, after commission of the murder of her husband in her house, would be able to carry the dead body to a distance of ISO feet without assistance of any other person. The house is situated in dense locality. This also creates doubt on the case of the prosecution. 14. It is difficult to accept that a woman, after commission of the murder of her husband in her house, would be able to carry the dead body to a distance of ISO feet without assistance of any other person. The house is situated in dense locality. This also creates doubt on the case of the prosecution. 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 circumstances set-forth by the prosecution were not fully established and they were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant. 15. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant under Sections 302 and 201 IPC are set aside. She is acquitted of the charges framed against her. It is stated that the appellant is in jail since 5.9.2007. She be released forthwith, if not required in any other case. Appeal Allowed.