HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.860 of 1989
Narhar son of Nankuram Lodhi
...Petitioners
Versus
State of Madhya Pradesh (now CG)
...Respondents
{Criminal appeal under Section 374 (ii) of the Code of
Criminal Procedure, 1973}
! Mr. P.K.C. Tiwari, Senior Advocate with Mr. Shashi Bhushan, Advocate for the appellant
^ Mr. Ravindra Agrawal, Panel Lawyer for the State/respondent
HONBLE MR. T.P. SHARMA,HONBLE MR. R.L. JHANWAR, JJ
Dated:03/12/2009
: Judgment
JUDGMENT
(3rd December, 2009)
The following judgment of the Court was passed by T.P.
Sharma, J: –
1. By this appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 the appellant has challenged
legality & propriety of the judgment of conviction & order of
sentence dated 27-7-1989 passed by the Additional Sessions
Judge, Khairagarh, in Sessions Trial No.26/89, whereby
learned Additional Sessions Judge after holding the appellant
guilty for commission of the offence of murder of Shobha,
convicted him under Section 302 of the I.P.C. and sentenced
him to undergo imprisonment for life.
2. Judgment of conviction & order of sentence is challenged
on the ground that without any chain of circumstances
sufficient for drawing inference that the appellant has
committed the murder of Shobha, the Additional Sessions
Judge, Khairagarh has convicted & sentenced the appellant in
the aforesaid manner and thereby committed illegality.
3. Case of the prosecution, in brief, is that Shobha (since
deceased) was a person of criminal antecedents, his father
Heera Singh was not happy with him and finally, father of
Shobha contacted appellant Narhar & another co-accused
Babulal for committing the murder of Shobha on payment of
Rs.8,000/-. Appellant Narhar & another co-accused Babulal
took Shobha from his house and provided liquor, Shobha
consumed liquor in excess quantity and then the accused
inflicted injury over the body of Shobha and caused his
death. The accused persons removed watch and skin of hands
having tattoo marks and after defacing the body of Shobha,
they thrown it near the road. Beniram (PW-1), Kotwar of
Village Gotia, saw the dead body besides the road. He
intimated the police vide Dehati Nalishi Ex.P-25 and on the
basis of Ex.P-25, F.I.R. was registered vide Ex.P-26 and merg
intimation was also registered vide Ex.P-24. After summoning
the witnesses vide Ex.P-2, inquest over the unknown dead body
was prepared vide Ex.P-3. The Patwari has prepared spot map
vide Ex.P-1. Bloodstained soil & plain soil were recovered
vide Ex.P-4. One stone was recovered vide Ex.P-6 from the
spot. Four pieces of Bidi and burnt match stick were also
recovered from the spot vide Ex.P-8. One empty bottle of
liquor was recovered vide Ex.P-9 from 100 steps away from the
place of incident. Five pieces of glass were also recovered
vide Ex.P-10 from the spot. Dead body was sent for autopsy
to the Assistant Surgeon, Khairagarh vide Ex.P-16 and autopsy
was conducted by Dr. L.C. Madharia (PW-15) vide Ex.P-16A who
found following injuries: –
(i) incised wound of 3 +” x +” x ,” over right parietal
region;
(ii) one stab wound of 3″ x +” x 1″ over forehead;
(iii) one stab wound of 2″ x +” x 1″ over upper part of
left eye causing fracture of internal bone;
(iv) five incised wounds near right ear & right cheek;
(v) one incised wound over lower rib;
(vi) three incised wounds over chin; and
(vii) some abrasion, skin of both the hands were
scratched (removed).
On internal examination, brain was found ruptured.
4. One piece of Desh Bandhu paper was also recovered from
the spot vide Ex.P-7. During the course of investigation, co-
accused Babulal was taken into custody. Co-accused Babulal
made disclosure statement of rod vide Ex.P-18 and the same
was recovered at his instance vide Ex.P-19. One old cycle
and its parts were also seized from Babulal vide Ex.P-20.
Appellant Narhar was also taken into custody on 26-11-88, he
made disclosure statement of barber knife & watch vide Ex.P-
22 and barber knife was recovered from the spot at his
instance vide Ex.P-23. One Camy wrist watch was recovered at
the instance of appellant Narhar from witness Krishna Kumar
vide Ex.P-12. One letter was also seized from the wife of
deceased namely, Rahmatulla Bai (PW-16) vide Ex.P-13.
Statements of the witnesses were recorded under Section 161
of the Cr.P.C. Seized articles were examined by the doctor
and finally sent for chemical analysis vide Ex.P-29.
Presence of blood over rod & barber knife seized from co-
accused Babulal & appellant Narhar was confirmed vide Ex.P-
31.
5. After completion of investigation, charge sheet was
filed before the Judicial Magistrate First Class, Khairagarh
who in turn committed the case to the Court of Sessions,
Rajnandgaon from where the Additional Sessions Judge,
Khairagarh received the case on transfer for trial.
6. In order to prove the guilt of the accused persons, the
prosecution has examined as many as seventeen witnesses.
Accused persons were examined under Section 313 of the
Cr.P.C. in which they denied the circumstances appearing
against them, pleaded innocence and false implication.
7. After affording opportunity of hearing to the parties,
learned Additional Sessions Judge acquitted accused Babulal &
Heera Singh, and convicted & sentenced the appellant as
aforementioned.
8. We have heard learned counsel for the parties, perused
the judgment and record of the trial Court.
9. Learned counsel for the appellant vehemently argued that
the case of the prosecution rests on the circumstantial
evidence of last seen, recovery of articles belonging to the
deceased at the instance of the appellant and identification
of dead body by wife of the deceased Rahmatulla Bai (PW-16),
but the prosecution has not adduced credible and clinching
evidence to connect the appellant with the crime in question.
The evidence adduced on behalf of the prosecution is not
sufficient for drawing inference that the dead body recovered
was the dead body of the deceased. Evidence of
identification of alleged article wrist watch is also of no
use. Learned counsel further argued that conviction can be
based upon the circumstantial evidence, but in case of
circumstantial evidence the prosecution is required to prove
that the circumstances taken cumulatively are forming a chain
of evidence so complete that there is no escape from the
conclusion that in all human probability the crime was
committed by the accused and none else, and that the
circumstances are sufficient to negate the innocence of the
accused and sufficient for drawing inference that only the
accused and none else than the accused has committed the
offence. Learned counsel also argued that according to the
case of the prosecution, two persons were last seen together
with the deceased. He placed reliance in the matter of Sheo
Kumar v. State of C.G.1 in which it has been held by this
Court that in case of evidence of last seen together the
important and strong factor is an element of identification
and in absence of identification of the fact that only the
appellant was seen with the deceased, no conviction could be
possible. Learned counsel further placed reliance in the
matter of Ranvir Yadav v. State of Bihar2 in which the Apex
Court has held that the circumstances appearing against the
accused should be put to the accused under Section 313 of the
Cr.P.C. for obtaining explanation and in absence of such
question, the accused is liable for acquittal. Learned
counsel also placed reliance in the matter of Gamparai
Hrudayaraju v. State of A.P.3 in which the Apex Court has
held in case of circumstantial evidence, all the
incriminating facts and circumstances found to be
incompatible with innocence of accused are sufficient for
drawing inference of guilt of the accused.
10. On the other hand, learned State counsel opposed the
appeal and submitted that the evidence adduced on behalf of
the prosecution is sufficient for drawing inference that the
accused/appellant is the person who has caused homicidal
death of deceased Shobha.
11. In order to appreciate the contentions of the parties,
we have examined the evidence available on record. Case of
the prosecution rests on (a) the circumstantial evidence of
last seen together; (b) discloser statement of the appellant
relating to watch & barber knife and its recovery; (c)
identification of wrist watch recovered at the instance of
the appellant that it belongs to the deceased; and (d)
identification of dead body by Rahmatulla Bai (PW-16), wife
of the deceased.
12. As regards the question of homicidal death of deceased
Shobha, the dead body was examined by Dr. L.C. Madharia (PW-
15) who has deposed that on 9-9-88 he has conducted autopsy
on the dead body of an unknown person vide Ex.P-16A and found
the injuries as mentioned in para 3 of this judgment. The
injuries found over the dead body were sufficient to cause
death and the death was homicidal in nature. Evidence of Dr.
L.C. Madharia (PW-15), autopsy report Ex.P-16A and inquest
Ex.P-3 are sufficient for drawing inference that the cause of
death of the person found on 7th/8th September, 1988 was as a
result of fatal & ante-mortem injuries sufficient for causing
death. At the time of autopsy, the dead body was not
identified by any person.
13. Rahmatulla Bai (PW-16), wife of deceased Shobha, has
deposed in her evidence that before the incident, appellant
Narhar & co-accused Babulal came to her house and took her
husband Shobha with them, thereafter, Shobha did not return
back, they searched for Shobha and after some time they
received one letter and she came to know that her husband
died. She went to Police Station Khairagarh where she saw
the photo of dead body of her husband. In para 15 of her
cross-examination, she has deposed that the police has shown
the photographs of the dead body, she was not in a position
to identify on the basis of photographs of face, but she has
identified on the basis of the photographs of hands & legs.
Tattoo marks were present on the hands of her husband, but
the same were missing in the photographs, somebody has
removed the tattoo marks by scratching the skin from hands
and she has identified the dead body on the basis of
photographs of legs. She has also deposed that she had
compared the photographs of her husband taken from her house
with the photographs of the dead body and on the basis of the
photographs of legs, she had identified that the dead body
whose photographs were shown to her was of her husband. She
had specifically deposed that if the photographs which she
was having in her house were not available, then she would
not be in a position to identify only on the basis of the
photographs shown to her by the police.
14. Rahmatulla Bai (PW-16) has further deposed that
appellant Narhar & one Babulal, the acquitted accused, took
her husband. She has deposed in para 12 of her evidence that
she has not earlier seen the person who was with appellant
Narhar and she has not told the police that Jeevan was
present with appellant Narhar. She has also deposed in para
13 of her cross-examination that she is not in a position to
say whether accused Babulal was with Narhar or not.
15. In the present case, the prosecution has not adduced
definite evidence that as to when the deceased went with
appellant Narhar & another person and as to when the offence
took place. According to the evidence of Rahmatulla Bai (PW-
16), appellant Narhar & one another person came to her house
and her husband went with those two persons. In case of the
deceased last seen alive with more than two persons, in
absence of any cogent and clinching evidence it is difficult
to hold that the deceased was last seen alive with the
accused, before his death.
16. Disclosure statement of the appellant has been recorded
by M.D. Tiwari (PW-14) vide Ex.P-22 relating to one wrist
watch and the wrist watch has been recovered from Krishna
Kumar Verma vide Ex.P-12 at the instance of appellant Narhar.
The seized Camy wrist watch was placed for identification.
G.P. Chaudhary (PW-10), Executive Magistrate/Nayab Tahsildar,
has conducted the identification parade. He has deposed in
his evidence that on 22-12-1988, Camy wrist watch was given
to him by the police for identification, he mixed the Camy
wrist watch with five other wrist watches and out of the
total six wrist watches, Camy wrist watch was identified by
Rahmatulla Bai (PW-16). He has further deposed that other
wrist watches were not of Camy make, they were of HMT,
Allwyn, Hanri Sandeez.
17. Rahmatulla Bai (PW-16), wife of the deceased, has
specifically deposed in her evidence that she has identified
the watch of her husband Article `A’ in the identification
parade. In para 23 of her cross-examination, she has
specifically deposed that before identification of watch, the
police has shown the watch to her, she saw the watch and
after some time she went for identification. The watch which
she has identified was different from other watches put for
identification and on the basis of different size & shape of
watches, she had identified the watch.
18. Except the evidence of Rahmatulla Bai (PW-16), other
witnesses have not supported the case of the prosecution.
The evidence of Rahmatulla Bai (PW-16), wife of Shobha,
reveals that her husband went with appellant Narhar & another
person. She had identified the photographs of dead body on
the basis of photographs of her husband which she was having,
especially on the basis of photographs of leg part of the
dead body and photographs of her husband. She has also
identified the Camy wrist watch which the police has shown
prior to the identification parade and on the basis of such
opportunity, she has identified the wrist watch on the basis
of different size & shape of that watch.
19. Conviction can be based on the circumstantial evidence,
but as held in the case of Gamparai (supra), in case of
circumstantial evidence, inference of guilt can be drawn if
all the incriminating facts and circumstances found to be
incompatible with innocence of accused.
20. While dealing with the same question, the Apex Court in
the matter of Hanumant Govind Nargundkar and Anr. v. State of
Madhya Pradesh4 has observed thus:
“It is well to remember that in cases where
the evidence is of a circumstantial nature,
the circumstances from which the conclusion
of guilt is to be drawn should be in the
first instance be fully established and all
the facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and tendency and they
should be such as to exclude every hypothesis
but the one proposed to be proved. In other
words, there must be a chain of evidence so
far complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and it must be such
as to show that within all human probability
the act must have been done by the accused.”
21. In the matter of Padala Veera Reddy v. State of A.P. and
Ors.5 it was laid down by the Apex Court that when a case
rests upon circumstantial evidence, such evidence must
satisfy the following tests:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a
chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by
the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
innocence.
22. In case of circumstantial evidence chain of
circumstances should be so connected with each other
sufficient for proving the fact that the accused has
committed the guilt and except the accused no one has
committed the offence.
23. In the present case, if the evidence of Rahmatulla Bai
(PW-16) is relied upon, it may be inferred that her husband
went with the appellant & one another person, but it is not
possible to infer that her husband was last seen alive with
appellant Narhar or with other person. She has identified
the photographs of the dead body on the basis of the
photographs of leg after comparing the photographs of leg
with the photographs which she was having. On the basis of
identification of wrist watch and on the basis of the
photographs that too photographs of leg, it is difficult to
hold that the photographs of the dead person was of the
husband of Rahmatulla Bai (PW-16) namely, Shobha. She has
identified the wrist watch which has already been shown to
her by police and which was of different size & shape and on
the basis of different size & shape, she could identify the
wrist watch which was shown to her by the Police just before
the test identification parade. These statements are not
admissible in evidence and even if same are relied upon as
gospel truth, they are not sufficient for completion of the
chain of circumstances to exclude the possibility of
innocence of the accused and to prove the guilt of the
accused that except the accused nobody has committed the
offence.
24. The present case is a case of no evidence against the
appellant. The trial Court has convicted & sentenced the
appellant on the basis of the aforesaid evidence which is not
legal evidence. In absence of any legal evidence against the
appellant, conviction & sentence of the appellant is not
sustainable under the law.
25. For the foregoing reasons, the appeal is allowed.
Conviction & sentence of the appellant under Section 302 of
the I.P.C. are hereby set aside and he is acquitted of the
said charge. The appellant shall be set at liberty forthwith
unless required to be in custody in connection with any other
case.
JUDGE JUDGE