Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 234 (CHH)

ATMA RAM v. STATE OF M. P.

2013-08-12

Sunil Kumar Sinha, Yatindra Singh

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 9th of May, 1997 passed in Sessions Trial No. 312/1996 by the 6th Additional Sessions Judge, Durg. By the impugned judgment, the Appellants have been convicted under Sections 302 & 201 IPC and sentenced to undergo R.I. for life and R.I. For two years with a direction to run the sentences concurrently. 2. The facts, briefly stated, are as under: 2.1 In the intervening night of 26/03/1996 & 27/03/1996, Deceased Banwali had gone to his Pump-house for guarding his crops. He did not return in the morning. Bimla Bai (PW-1), wife of the Deceased, then visited the Pump-house. There she did not find Banwali (Deceased). On 29/03/1996, at about 12.00 noon, his dead body was found in his field. Merg intimation (Ex.-P3) was lodged. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P-6) to the Panchas and prepared inquest (Ex.-P-7) on the dead body of the Deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. C.B. Prasad (PW-11). He did not find any external injury on the dead body of the Deceased. However, his tongue was protruded. On internal examination, he found that there was fracture on his right humerus bone. There was also a fracture on his 3rd left rib. There were two fractures on his 3rd right rib and there was a tear on his right lung. The autopsy surgeon opined that cause of death was asphyxia due to compression of chest which caused blockage of respiratory passage, and the death was homicidal in nature. The postmortem report is Ex.-P-18. 2.2 In further investigation, the Appellants were taken into custody and their discovery statements (Exs.-P-10, P-12 and P-14) were recorded under Section 27 of the Evidence Act and a Lungi, shirt and piece of stones were seized at the instance of Atmararh (A-1); a tangi was seized at the instance of Arjun (A-2); and a bicycle was seized at the instance of Rishi Kumar (A-3). Their seizure memos are Exs.-P-11, P-13 and P-15. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where a report (Ex.-P-24) was received. According to the FSL report, blood stains were found on Tangi, shirt, shawl (belonging to the Deceased) and earth seized from the place of occurrence. Their seizure memos are Exs.-P-11, P-13 and P-15. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where a report (Ex.-P-24) was received. According to the FSL report, blood stains were found on Tangi, shirt, shawl (belonging to the Deceased) and earth seized from the place of occurrence. The above articles were sent for Serologist examination and a report (Ex.-P-25) was received. According to the serologist report, earth was stained with human blood, however, the origin of blood stains on other articles could not be determined on account of disintegration. 2.3 Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances on which, the learned Sessions Judge has relied and convicted and sentences the Appellants as above:- 1. The Deceased had gone to his pump house in the night of 26/03/1996; in the morning i.e. 27/03/1996 at about 9:00 a.m., he was lastly seen alive by the villagers and thereafter, he was not seen alive; ii. The dead body of the Deceased was found in his field at about 12:00 noon on 29/03/1996. The postmortem report revealed that he had died homicial death; iii. Arjun (A-2) had told the wife of the Deceased, Bimla Bai (PW-1) that the Deceased had gone to Durg, whereas, the Deceased was found dead, therefore, his conduct was suspicious; and iv. On the discovery statements made by the Appellants, the above articles were seized. 3. Mr. Uttam Pandey, learned counsel appearing on behalf of the Appellants, has argued that the circumstances set-forth by the prosecution were not fully established and almost all the circumstances were capable of being explained. The above circumstances were insufficient and were not incriminating against the Appellants, and the chain of circumstantial evidence was also not complete. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. In a case based on circumstantial evidence, the circumstances set-forth by the prosecution must be fully established. All the circumstances so established should be of conclusive nature and tendency, the circumstances should not be capable of being explained, and the chain of circumstantial evidence also must be complete. 7. 5. We have heard counsel for the parties. 6. In a case based on circumstantial evidence, the circumstances set-forth by the prosecution must be fully established. All the circumstances so established should be of conclusive nature and tendency, the circumstances should not be capable of being explained, and the chain of circumstantial evidence also must be complete. 7. In the instant case, there is no dispute that the dead body of the Deceased was found at an open place on 29/03/1996 at about 12:00 noon and the Deceased had died homicidal death having sustained above injuries on right forearm, ribs and lung. Bimla Bai (PW-1) is wife of the Deceased. She has deposed that on 26/03/1996 in the night, the Deceased had gone to his pump house for guarding the crops. When he did not return in the morning, she went to the pump house, but the Deceased was not there. Thereafter, the dead body of the Deceased was found at about 12:00 noon on 29/03/1996. 8. The report was made to the police and the investigation has commenced. During the course of investigation, the Appellants were taken into custody on 02/04/1996 and their above discovery statements were recorded. According to the prosecution, the Deceased had died homicidal death in the intervening night of 26/03/1996 and 27/03/1996 in the Khaliyaan, which was adjacent to his pump house, and then the dead body was thrown at an open place. 9. Punauram (PW-9) was the witness of discovery and seizure. He was also the witness of inquest. In para 30 of his cross-examination, he admitted that he had seen the Deceased alive sitting along with a Bail Kochiya (a person who sales the cattle) on the betel shop of Bhagat Ram. He further added that Kartikram, Gagpati, Laxman, Indul, Rajendra etc., were also present with the Deceased in the betel shop. 10. S.I. - N.K. Suryavanshi (PW-10) was the Investigating Officer. He also admitted in para 37 of his cross-examination that Bhagatram (not examined) and Punauram (PW-9) had stated in their diary statements that they had seen the Deceased sitting with a Kochiya along with the above villagers at about 09:30 a.m., on 27/03/1996. 11. 10. S.I. - N.K. Suryavanshi (PW-10) was the Investigating Officer. He also admitted in para 37 of his cross-examination that Bhagatram (not examined) and Punauram (PW-9) had stated in their diary statements that they had seen the Deceased sitting with a Kochiya along with the above villagers at about 09:30 a.m., on 27/03/1996. 11. The above evidence of Punauram (PW-9) and N.K. Suryavanshi (PW-10) makes it clear that even according of the prosecution, the Deceased was seen alive in the company of the said Kochiya and other villagers at about 09:30 a.m., on 27/03/1996. This creates a doubt on the story set-forth by the prosecution that the accused persons had committed murder of the Deceased in his hutment in the intervening night of 26/03/1996 and 27/03/1996. If the above story of the prosecution was correct, then the Deceased would not have been seen along with the above villagers on the next morning i.e. 27/03/1996. 12. That apart, we do not find any nexus with the articles allegedly seized at the discovery made by the Appellants and the cause of death of the Deceased. Out of the above articles, Tangiya was seized from the possession of Arjun (A-2) and blood stains were also found on the Tangiya. According to the discovery statement and seizure of Tangiya, the prosecution wanted to prove that the Deceased was assaulted by said Tangiya by Arjun (A-2), whereas, we do not find any external injury on the dead body of the Deceased, which may be connected with the aforesaid article-Tangiya. So far as clothes (belonging to the Appellant) and bicycle (belonging to the Deceased) are concern, both were seized from open places. Clothes were seized near the field of the Deceased and bicycle was seized from the Ghuruwa (a pit for throwing garbage) near the field of Deceased. Both these places were accessible to all. There was no question of discovery of these articles. Moreover, no blood stains were found on the clothes belonging to the Appellants. We are of the view that in the above facts and circumstances of the case, the alleged seizure made at the instance of the Appellants would not be incriminating against them. 13. The Sessions Judge has held that Arjun (A-2) was telling Bimla Bai (PW-1) that the Deceased had gone to Durg and in this manner, he was trying to mislead her and his above conduct was relevant. 13. The Sessions Judge has held that Arjun (A-2) was telling Bimla Bai (PW-1) that the Deceased had gone to Durg and in this manner, he was trying to mislead her and his above conduct was relevant. It is not a case in which the Deceased was missing since the intervening night of 26/03/1996 and 27/03/1996. In the instant case, according to the prosecution itself, the Deceased was seen alive at about 09:30 a.m., on 27/03/1996 and thereafter, he could not be traced till his dead body was found on 29/03/1996 at 12:00 noon. Therefore, on 27/03/1996, if Arjun (A-2) was telling to the wife of the Deceased that he had gone to Durg may not be a relevant circumstance showing the conduct of Arjun (A-2), because a possibility that Arjun (A-2) may have met the Deceased in the morning and the Deceased may have stated these facts to Arjun (A-2) cannot be fully ruled out. The above circumstance of conduct was capable of being explained and it was not of conclusive nature and tendency. 14. On due appreciation of entire evidence available on record, we find that none of the circumstances were fully established. The circumstances set-forth by the prosecution were not of conclusive nature and tendency, and almost all the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 15. For the foregoing reasons, we are unable to sustain the conviction of the Appellants on the above set of circumstantial evidence and the same deserve to be set-aside. 16. In the result, the appeal is allowed. The conviction and sentences awarded to the Appellants under Sections 302 and 201 IPC are set-aside. The Appellants are acquitted of the charges framed against them. It is stated that the Appellants are on bail. Their bail bonds shall continue for a period of six months in view of Section 437-A Cr. P.C. Appeal Allowed.