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2013 DIGILAW 90 (CHH)

UTTAM KUMAR v. STATE OF C. G.

2013-03-07

RANGNATH CHANDRAKAR, SUNIL KUMAR SINHA

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JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.- 1. This appeal is directed against the judgment dated 31st of October, 2012, passed in ST. No. 84/2011 by the Sessions Judge, North Bastar, Kanker (CG). By the impugned judgment, the appellant has been convicted under Sections 302 and 376 IPC and sentenced to undergo imprisonment for life; and R.I. for 10 years with fine sentences under each count with a further direction to run the sentences concurrently. 2. The facts, briefly stated, are as under:- 2.1. Deceased - Mangaldei @ Mangdei was an old lady, aged about 65 years. She was missing since 1.30 p.m. of 21.3.2011. Her dead body was found in a Dam situated in the outskirts of the village in the morning of 23.3.2011. Ku. Lalita (PW-5) and Ku. Rohni (PW-7) had told the villagers on 22.3.2011 that they had seen the deceased in the company of the appellant in the evening of 21.3.2011, as both were going towards the Dam, clubbing their hands on shoulders of each other. Merg intimation (Ex. P/9) was recorded at about 12.00 noon on 23.3.2011. 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. Post-mortem examination was conducted by Dr. (Smt.) Priti Singh (PW-1). The dead body was in highly decomposed condition. She did not notice any external or internal injury on the dead body of the deceased. However, portions of uterus and anus have come out on account of decomposition. 2 slides from the vaginal swabs of the deceased were prepared and handed over to the concerned Police Officer. The Autopsy Surgeon opined that the cause of death was asphyxia due to drowning. However, mode of death could not be determined. The post-mortem report is Ex. P/1. In further investigation, the appellant was taken into custody and his memorandum statement (Ex. P/3) under Section 27 of the Evidence Act was recorded and a Gamchha (Towel) and an underwear, belonging to the appellant, were seized at his instance vide seizure memo Ex. P/4. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex.P/23) was received. P/3) under Section 27 of the Evidence Act was recorded and a Gamchha (Towel) and an underwear, belonging to the appellant, were seized at his instance vide seizure memo Ex. P/4. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex.P/23) was received. According to the FSL report, semen or human spermatozoa were not found in the slides and the underwear of the appellant, which were sent for examination. 2.2. Admittedly, there was eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge has relied for conviction of the appellant: (i) The deceased was lastly seen in the company of the appellant; (ii) The dead body of the deceased was found in the Dam; (iii) Gamchha (Towel) and underwear were seized on the discovery statement made by the appellant; (iv) The places where the appellant allegedly committed sexual intercourse with the deceased, and the Dam both were situated at a distance of 200 metres; and (v) The deceased was saying that she will disclose the story of forcible intercourse in the village, therefore, the appellant had a 'motive' to commit murder of the deceased. 3. Mr. F.S. Khare, counsel appearing on behalf of the appellant, has argued that the above circumstances were not fully established; 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. 4. On the other hand, Mr. Anant Bajpai, 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. The main circumstance was of 'last seen together'. According to the prosecution, the deceased was seen with the appellant in the evening of 21.3.2011. The prosecution has examined 2 witnesses for proving the circumstance of last seen, they are - Ku. Lalita (PW-5) and Ku. Rohni (PW-7). Both the witnesses have deposed that on 21.3.2011, in the evening, when they were returning to their house, on the way, they saw that the appellant and the deceased were going together, clubbing their hands on shoulders of each other. They were going towards the Dam. Lalita (PW-5) and Ku. Rohni (PW-7). Both the witnesses have deposed that on 21.3.2011, in the evening, when they were returning to their house, on the way, they saw that the appellant and the deceased were going together, clubbing their hands on shoulders of each other. They were going towards the Dam. These witnesses had disclosed this fact on 22.3.2011 to the family members of the deceased. But, no effort was made to search the deceased on their information. However, on 23.3.2011, the dead body of the deceased was found in the Dam. The date of incident i.e. 21.3.2011 was the day of Holi festival. The prosecution came with the case that firstly, the appellant and the deceased took liquor in the house of one Sukkuram and thereafter, they had gone towards the Dam, where the appellant committed sexual intercourse against the deceased. Even if we take that the deceased was seen in the company of the appellant on 21.3.2011, the aforesaid circumstance would hardly be incriminating, as there is a long time gap of about more than 2 days in the deceased allegedly seen alive in the company of the appellant and the dead body found, and a possibility of any third person coming in between cannot be fully ruled out. 7. The Sessions Judge has recorded a finding that firstly the deceased was subjected to forcible intercourse by the appellant and when she threatened the appellant that she would disclose all this in the village, then the appellant committed her murder by drowning her in the water of Dam. We find that there is no material on record to hold that even the deceased was subjected to sexual intercourse. There is also no material to prove that such kind of altercation had taken place between the appellant and the deceased prior to her death. It appears that the Sessions Judge has recorded the above finding on the version of the appellant in the introductory part of the memorandum, which was recorded under Section 27 of the Evidence Act. The above procedure adopted by the Sessions Judge was not correct. 8. It is a settled principle of law that only the discovery part of the memorandum recorded under Section 27 is admissible in evidence and the introductory part thereof can never be used as evidence against the maker of it. The above procedure adopted by the Sessions Judge was not correct. 8. It is a settled principle of law that only the discovery part of the memorandum recorded under Section 27 is admissible in evidence and the introductory part thereof can never be used as evidence against the maker of it. We, therefore, hold that it was not proved by legal evidence that either the deceased was subjected to sexual intercourse by the appellant or the deceased had threatened the appellant in the above manner, therefore, she was drowned in the water by the appellant, and the finding to this effect is perverse. 9. So far as the circumstance of discovery statement and seizure of Gamchha (Towel) and underwear of the appellant is concerned, that would also be not incriminating as neither the blood stains nor semen or human spermatozoa etc. were found on these articles. 10. That apart, we further note that it was not proved by the prosecution that the deceased had died homicidal death. The dead body of the deceased was found in drowned condition in the Dam. It was highly decomposed. Dr. (Smt.) Priti Singh (PW-1), who conducted autopsy, did not find any external or internal injury on the dead body. She only noticed that portions of vagina and anus had come out which must have been on account of high degree of decomposition. She had opined in clear words that the cause of death was asphyxia on account of drowning and the mode of death would depend upon the attaining circumstances. The prosecution has failed to bring on record any attaining circumstance, on which, it may be held that it was a case of drowning by intervention of any third party. 11. It was the day of Holi festival. Usually, after playing Holi (colour) in the day time, the villagers used to go to the Dam or water sources for taking bath. We are of the view that in the above facts and circumstances of the case, a possibility of death by drowning without intervention of any third party or a possibility that the deceased who was aged about 65 years, herself might have drowned accidentally while taking bath in the Dam, cannot be ruled out. 12. We are of the view that in the above facts and circumstances of the case, a possibility of death by drowning without intervention of any third party or a possibility that the deceased who was aged about 65 years, herself might have drowned accidentally while taking bath in the Dam, cannot be ruled out. 12. The prosecution came with the case that firstly, the appellant and the deceased had taken liquor in the house of Sukkuram and thereafter, they had left his house in drunken condition. We note that Sukkuram has not been examined by the prosecution and his non-examination was fatal. 13. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances set-forth by the prosecution were not fully established. The circumstances were not of conclusive nature and tendency and all the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 14. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant under Sections 302 and 376 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in custody since 28.3.2011. He be released forthwith, if not required in any other case. Appeal Allowed.