CIVIL APPEAL None on 28 May 1998

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[c|<i<ff'SII^T^iTct)l'LlFclAJ1T1 +11-4<"iT ^ fs'^1 <F»1-^.|<h-u*9hH\^ 3^1 •yficl311^1 TRiTWHfltT^ svpw sv^v.,DIVISION BENCH:HON'BtjESHR! L.C.BHADOO& HON'SLESHRl DHIRENDRA MISHRA, JJCRIBfliNALAPFEAL N0.1398 of 1988hngluv'RespondentStjate of Madhya PradeshShriR.K.JainwithSmt.l<jiranJain,iearnedcounsel for theappellant.:Shri U.N.S.Deo, learned G.Awith Shri M.P.S. Bhatia, leamed P.L.forthe State/respondent.ORALUDQMEMT(04.104.2006)Per L.C.Bhadoo. JBy this appeal under Ssctit>n 374(2) oftheCriminal ProcedureCode the accused/appellant has qi^estionedthe legality and correctnsssof the judgment of conviction andorder af sentehce dated 28.05.1998pa.ssed by iearned Additional Sessi<|)ns Judge, Baikuntpur, Sarguja in S.T.No. 177/97 wtiereby the learn.ed Ai(iditional Sessions Judge after holdingthe accused/appeliant guilty for cc|mmission of murder of Bharat Singhconvicted him under Section 3021of the iPC and sentenced him to"undergo imprisonment forlife.2,Case ofthe .prosecution, in1 brief, is that deceased Bharat Singhwas residing with his wife, moth^r and children in village —Hathhar,Bhandarpara. On 04.04.1997 wfeof the deceased namely Shyam Bai[TT^^fe^

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lodged a reportin thePolice StiItion —Patna to the effect that on03.04.1997 herhusband;wentforfis|>|iing and she after preparing the meal,went to the forest for collectingwt>od and saw that her husband wasfishing in Hathbar pond.When sh|>^ was retuming at about 1.00 in thenobn, at thattimeshe also saw herfiusband fishing and thereafter she leftfor the house of her eider brotherqhanwar Singh. When she retui-ned toher house in the evening herdaugl|iterBabi informed her that her father(deceased[Bharat][ Singh)][ came][ atj]'about 3.00 O'elock and after takingmea! has again left forfishing and|ie also took avay the axe but he didnot return in the night.On the nextday morning motherofthe deceasedwentto coilect Mahuaand returnedweepiBQ.and on enquiry she did notinform anything. Thereupon, wifeotfthe deceased Shyam Bai went nearthe ppnd and sawthat dead bodycifher husband Bharat was lying in thefieidofManilal. Therewere injuriesi]on theneck, leg and otherparts ofthebody and blood had oozed out oj)? the injuries.Receiying this reportStation House Offlcer, P.S. - Patnaregistered the First Information ReportEx.P-1 andteft forthe scene ofocc|urrence. Atter giving notice Ex.R-2 tothe Panchas, he prepared the Pari)t:hanama Ex.P-3 of the dead body ofdeceasedBharatSingh.Duringlpolicecustody theaccusedgavememoraodum Ex.P-6 and inpursluance of that he got recovered theblQodstalned wooden handte ofth^axe, onebioodstained pant and onebloodstained sl<y biye colour shirtfrom his house and the bloodstainedaxe. The same were takeh into po^;jsession under Ex.P-7. The injuries onthe person of accused were examf|ned by Dr A.K.Sharma (PW-11) whQafter examination ofthe injuries pr^ipared the injuryreport Ex.P-13.Thebody of Bharat Singh Afuas sent for[tostmortemexamination to CommunityHealth Centre, Baikuntpur under E}k.P-14 where Dr. R.N. Rajouriya (PW- [Tff^^r^^

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16) conductedthepostmortem onIjhe body of deceased Bharat Singh andprepared the postmortem report &. P-15. The recoVered axe and woodenhandle of the axe were sent for sei^kirig opinion ofthe doctorunder Ex.P-16 and the doctor gave his opini(|n under Ex.P-16-A, The bloodstainedand ptain soii was taken into pos'iession under Ex.P-17.The site planEx,P-19was prepared.The reci(vered artictes were sent for ohsmicaiexamination to Forensic ScienceLaboratory, Sagar from where reportEx.P-21 .was received.Report P-|22 was received from the Serologists.After compietion of the investigati|;n 'charge sheet was filed against theaccused in the Court of Judicial M;igistrate First Class, Baikuntpur who inturn committed ths case the SessK>ns Judge, Sarguja from where learoedAdditional Sessions Judge receive^the case on transferfortrial.

3. Prosecutioninordertoestabtishtheehargea'gainsttheaccused/appellant exafnined 18 wij:nesses.On the other hand.statementofthe accused was recorded undetSectiori 313 ofthe Cr.P.C. in which hedenied theprosecution evidence ajspearing against him and stated that heis innocent and has been falselimplicated in the erime.LearnedAdditionai Sessions Judge afterh^aringlearned counsel for the respectiveparties,[convicted][ and][ sentenced]he accused/appeilant as mentioned (nparagraph -1 oTthisjudgment.

4. We haveheard Shri R.K.Jaappearing fpr the accused/appeiliwith Shri M.P.S.Bhatia, tearned P.1

n with Smt. Kiran Jain, learne'd counselant andShri U.N.S.Deo, leamed G.A...fortheState.

Homicidal death of deceas^d BharatSingh is not in dispute.

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6. As far as invoivement of thaccused/appeilant in committing thecrime in question is concerned,therfe is no direct or ocuiarevjdence in thiscase. ThewAole case oftheiution rests on circumstantial evidence prose'and. theprosecutionhas triedt{)establishthe chargeagainst theaccused/appellant on the followingliroumstanees;

(i) that the axeanHthe .wooden handie of the axewere recoverectat the instance ofthe accused;that on the dat<of incident deceased was seen(")by PW-10Ball^aran, going on the road whichgoes to thehoulseulseofaccused;that on the dat|^ ofincident PW-5 Subas6 Bai,wife of the accitsed went to the house of PW-7Shanit Bai andlinformed her that her husbandManglu has';'snyched the axe from Bharat andhewas saying(hathe[woyld][ attack][ him;](IV)that the injuriejwere found on the person of.accused.7.As per the settled law, in onlerto restthe conviction based on thecireumstantial evidence the prosecrtion is required toestablish that suchevidence satisfy the following tests:-1)thecircumstanbes from which an inference ofguilt is sQught|tp be drawn, must be cogentlyand firmly esta]ilished; [Trt^^fe^

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custody and on interrogation he gaife information that he has conceatedthe wooden handie ofthe axe in hi^ house,the iron part ofthe axe viasthrotfW) near the Hathbar pond and tl(e clothes he was virearingat the timeof incident, have been left for dfying after washing the same.Inpursuance ofthe said information vfooden handle ofthe axe sriiich wasstained with blood and on which hgir ofthe head were also stuck, onebloodstain&d sky blue colour shirt a^d the axe vrastaken into possessionunder Ex.P-7. Therefo're, in viewofftie above evidenceof PW-3 ShivnathSingh and PW-18 Navneet Patil, th^ Investigatjng Officer, recovery ofthewoodenhandteof axeas wellbs clothes of the accused standsestabllshed.As per the report of!the F.S..L., Sagar, blopdstains werefound on the wooden handle-of thaxe (F), axe (1) and full-pant (G).However,as perthe report of the'S|erologists blood on the axe, fult-pantand handte ofthe axe was disinte^rated, therefore origin coui.Id not bedetermined.|UIoreover,the axe ir| question was put for identificationbefore'PW-1 Shyam Bai, wife ofhe deceased who has categorically.stated that the said axe does not be|tongto them. Therefore, the aecusedcannot be connected with the crimelin question on the basis ofreeoveryof the axe as the recovery itself be|;omes doubtful because the axe hasnot been identifled by wife of the ^ieceased andthe police has tried tocreate evidence but there is no e<ii|idence to show that blood found orithese articjes was ofthe'bkiodgrot|pofthedeceased andthese articlesare common articles which are a|vailable in every house. Therefore,basedon this circumstance theprosecutionhas notbeenable toestablish the crime against the accu^ed/appeilant.

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SIT^I yCTW-'(lf??T•9-chl^Ici41rl ^[^CTI^ f€t<il <i^i^$l<^TsipgtTsn^i10.As far as the secondcircurristanceis concerned, PW-10 Balkaranhas stated that on the date of incjcincjdenthe went to the house of KrishnaBihari who askedhim togofo|ifishing.However,he refused toaccompany Krishna Bihari andaftelrsome time he was going towards thepond to attend the call of naturealfsngwith Jheemal. Atthat time Bharatenquired from Jheemal about theIjiUffatos, on which Jheemal replied thathe has not seen his buffalos and ai|that time Bharat was carrying bambooand axe.it was the evening time.jThereafter, Bharat went on the waywhich goes towards the house ofl|4anglu and next day hecame to knowabout the death of Bharat.Howfever', in paragraph —4 ofthe cross-examination he has stated that he|sawthat Bharat was comingcarryingbamboobuthe could not say|as to whichsideBharat had gonethereafter, Thus, the fact that theIdeceased was seen going on the roadwhich goes to the house ofaccus^dI, does not connect the accused withthe crime in question because iritiefirst instance this .witness had notseen Bharat going to the house o|laecused.Moreover, even thereafterhesawthedeceasedonthelpond,therefore,fromtheabovecircumstance it cannot be held tha|tthis wjtness saw the deceased goingto the house ofaccused.,ln vie[•IKV of theabove, on the basis of thiscircumstance the accused cannoft3|t be held gui!ty of causing death ofBharat Singh.

11. As far as the third.circumstanceis concerned, PW-7 Shanti Baihas stated that onthe date ofincicjent in the evening Subaso Bai came toher house and stated that MangluIhas snatchedthe[axefrom][ Bharatand]he veas preparing to attack Bharatandthereafter SubasOleft her house.On the next day she eame to kiiow that Bharat has been murdered.1-lowever. merelvon the evidencelofthis witness the accused cannot be[Tft^[^Rsi^]

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13. In view ofthe foregojng rea^<that the prosecution has not beensfb ons, we areofthe conskteredopinipnie to establish the invoivement ofthe [^^ ^Rsi^

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accused in the crime in question on|pressed into service by it and theMoreover.the circumstances reiied]stood to the test laid down by the|where conviction rests upon thefinding ofthetrial Court convictingthj'under Se'ction 302 ofthe IPC cannotl Ithe basis of eircumstantial evidenceIsame are not conch4sh/e in riature.upon.by the prosecution have notHon'ble Apex Court in the mattersciifcumstantial evldence, therefore, the<e accused for commissiop ofoffencebe sustained.

14. In the result, the appeai sficceeds and the same is allowed.

Conviction and sentence imposed]upon the accused/appellant underSection 302 ofthe IPCareset asidd. The accysed/appellant is acquittedofthe charge under Section 302 oftfie IPC and he is directed to be set atliberty forthviflth"idf:": if not required in any|~other case.Sd/-DHIRENDRAL.C.BHADOOJudgeJudge !Sd/-DHIRENDRA[MISHRA]Judge [TT^'^f^