(In JaiD v. Jawahir Singh

from the village. There was injury on her In tum, Dehati Nalishi Ex.P/1 was gwen Station Khadgawaon, based on that first Sarpanch of the village a|i searehing Jagesia in the fotest in the forest at some distahce neck. He informed the vilt^gers. >. by Bilsia Bai in the Poli(te was registered. Merg intimaCon Ex.P/2 was information report Ex.P/1-Q Fhe Station House Officer, Police Station after also given by Bilsia Bai. for scene of occurrence & prepared inquest registering the crime left Ex.P/3 on the body of , }4sia. While in the poltee custody, the accused gave memorandum Ex.P/4 in pureuance of that he got recovered knife 4|, blood stained soil was seized from the place underEx.P/5. Plainsoil Jag^sia 1 'S^ -^iiiw^, 'a-^wiQ, [^vftwy. 1H VWv\\ *Mlcb •W^ 200 3n^?T 'vsiv ('pf^g^sr) sn^i.qiT R-iicb ^qiSIR^I shtll* TOITW^ta 311^1 ^filf<l4^ •4144<lf ^f t^^ {FaJ^K ^aiRpTsn^i body of J^gesia Ceritre of occurrence. The to the Primary HeaNh postmortem on the body of (PW-9). He prepared postm<| death is due to stoppage of vessels) right carotid artery. Ex.P/10 was prepared by thej prepared by Patwari. Knife] examination to the Forensic S|i Ex.P/13 was received. The thedoctor. The doctor aftor Jagesia could be caused by was sent for postmortem examination Khadgawaon under Ex.P/7-A. Trte |Jagesia was conducted by Dr. R.P. Singh 4rtem report Ex.P/14 & opined that cause of |ieaifs action resutting from injury of (large in nature. Site plan investigating officer. Site plan Ex.P/8 was and other articles were sent for chemical Death is homicklal S|cience Laboratory, Sagar, from where report in question was serrt fbr examinaUon to ^xamination opined that injury on the neck of inquesSon. HegavehisreportEx.P/15. After completion of the| the accused in the Court of Jk |investigation, charge sheet was filed against Judicial Magistrate, 1 Class, Manendragarh, ^se to the Sessions Judge, Ambikapur from where teamed Additional Ses^ions Judge receivedthe case on transferfor who in tum committed the c^ trial. The prosecution in accused examined 9 witness^s. (^rder under Section 313 Cr.P.C. in| him in the prosecution evidejnce, implicatwl in a false case. l-t^ to establish the charge against Statement of the accused Was recorded |whteh he denied material appearing against i, stated that he is innocent & has been ^ further stated that witnesses have deposed against him on account <rf ani^nosity GRPRJ—FS/246— iO-000. wwi'ay :»0-HC—7S -^SSf^Wv^!, ^W\<», fa^Krfy ® 3n^T?n'K:]w 'iqi 3WI stiW ^^ffwgfer SII^T •*W[<ri^-( *<|t|dfif_'RIA <l»iWR ^ 3ifii*I •3)1^1 Leamed trial Court ^fter hearing leamed counsel for the respecUve parties, convicted and sen^enced the accused as aforementioned. ' We have heard Misls Minu Banerjee, counsel for the appellant an3 Mr. U.K.S. Chandel. Panel] Lawyer for the State/respondent. Miss Minu Banerje^ Moreover, PW-9 Dr. R.P. body of the deceased, has i poshnortem on ttie body incised wound on neck in has not disputed homteidal death of Jagesia. |Singh,who condudsd the postmortem on the Istated that on 30 October, 2000 he conducted |of the deceased. He tound ttiat there was |the size of 2%" x 1%". Wind pipe & caroBd tnjury was arrte mortem arteiy were cut. There wa^ bleeding from injury. in nature. Cause of death |was on account of cutting of wind pipe. Death in nature. Therefore, in view of the above evidence, it is was homicidal established that death of Jalgesia was homicidal in nature. As far as involveme|nt of the accused in the crime in quesBon is concemed, there is no dir^ct evidence to connect the accused with the crime in question. The wh|ole case rests on the cireumstantial evidence. As per the settled law in|order to convict an accused based on the cireumslantial evklence, jn the matter of Ifie Hon'ble Apex Court Dhananjoy Chatterjee Vs. StateofW.B.1heldthat: "In a case b|ased on circumstantial evidence,the from which the conclusion of guilt is to cireumstance^ bedrawn ha^je not only to be ftjtly established but also Ihat all (He circumstances so estabflshed shouU '(1994) 2 SCC 220 iqm-ay :S3-HC—7E 3:OTr ^TPTRPT, ^>T(1yli^, (strtiyy ^ 3ii^?r ^raw (ijci(^«t<y(; gRST?iI'R;iW a^Ti ST^T 5h+1!cft qiraferih imgf-ifjsi^ tN^R' ^?3iRpi3ii^r be of a conclush|r( hypothesis of circumstances |re nahire and consistent only with the the accused. Those the guilt of should not be capable of being explained by an^ the accused andl complete as not| the belief consli' other hypothesis except the guilt of Ithe chain of the evidence must be so |to leave any reasonable ground fbr Istent with the innocence of accused. It needt no reminder that legally established circumstances not merety indignationof <he court can form the basf isfs of conviction and the more serious the crime, the scrutinize the ofproof." glreater should be the care taken to ev(dence lest suspicton tekes the place The prosecution has accused based on the followin ^ried to establish the crime against cireumstances:- > That Jagesia left along (nth the accused befbre her death, > That knife, weapon (rf ofence»,was recovered at the instance of the SL report human blood was found on Itie accused & as per the knife. Having heard leamed evidence. As far as fir^ cireudstance stated that on the fateftil day dish of fish, therefore, she a mother went to river in order t< ct>unsel for the parCes, we have scnrtinized is concemed, PW-1 Bilsia Bai has •|er father asked them that today he will eat )(ong with her younger sister Jagesia and cateh fish, at that time, the accused came iqWT<Ogl< 3^^ '<ll-i|l^<<, tfTfl'M4!^, (s|<rtl'yy '^ -H^ an^T iraq; (Tjsrf^g^i) sn^r.^ii R-ii* ^'naiK^i •xw ?Igrwgfe[ ati^i -<?)1^T(¥l4ll tTR^Tf "^ f^st Tf^RSR ^siRiHsn^r refused to do so. Thereafter, ^/e water so that they can catch fish but he ttiere. Theyasked him to rem< accused asked them that his sister is nflt (therefore, Jagesia shoukl accompany him well & she is at his residence, sent with the accused. About two hours' to see his sister. Jagesia waa thereafter they went to their hotise was not at their resklence. E' not at the residence of the acclised. at about 4 p.m., they saw that Jagesia ^en enquiries were made but Jagesia was l-1er daughter Hirodi^ Bai was sent to the house of the accused neither the accused nor Jagesia were at the residence of the accused. Thereafter, Sarpanch of the viltage was apprised about the said fact. Jagesia but she could not be was seen by Bansh Kumar in The matter was reported in the A seareh was made about whereabouts of (acated. On the next day, body of Jagesia |the forest. There was injury on her neck. Police StaUon. R/V-2 Rukman Bai, njother of Jagesia, has corroborated the evMence of Bilsia Bai. Sarp^nch of the village has been examined as FW.6. He has steted that Bils|i informed that Jagesia was somewhere & her whereabout^ la Bai and her mother came to his house & wfthj them on the river, from there she has gone could not be fraced out. Next day body of Jagesia was found 400 yards | her neck. away from the place. There was injury on In order to connect the| matter of BODHRAJ ALIAS laccused based on last seen theory, in the ^ODHA AND OTHERS Versus STATE OF JAMMU & KASHMIR2 the Ap4 iCourtheldthat; GRPRJ—F 2 (2002) 8 SCC 45 '2007—50.000. I'sKSI'Hg^ 3:CTT ^iiiii^, dTfly'i<i, fsici'i+<y,< ^W^l shMlcb •^ 200 an^r 'wv (Tpf^g^si) sn^r.^i R-iiif' wnan^i shNJ'* ^grar ^ifer sii^r «bWi<'l'lil-< HIICT'i tf feTft <r»lt$l< ^srRiHSii^T "The last seen time-gap between th^ theo|ry and the deceased w^re comes into play where the point oftime when the accused seen last alwe together and when the deceased posslbility of any being ttie author of th|e would be hazardous in cases where ttierel |is found dead is so small that other than the accused p^raon th|e crime becomes impossible. It ^o come to a condusion of guitt |is no olher positive evidence to adcused and the deceased were conclude that the last seen together." In the matter of Subhash Apex Court has hekl that last seen and time of the incident. Merely, pereon cannot be held guilty. The ^hand Vs. State of Rajasthan [together must be near about the date <^n the basis of last seen, the accused 4pex Court further held that; ".....Toconstitute evidence must definitely drawn that the victim together at the point| the fime and date of evidence of last seen together, the permit an infierence being |ind Uie accused were last seen |of time in close proximity with cbmmission of crime... ." Again in the matter of State of Kamataka Vs. M.V. Mahesh4 tte Apex Court hetd that: 3 "' (2002) 1 Supreme Court Cases 702 (2003) 3 Supreme Court Cases 353 GRPRJ—FS/246—2/2007—50,000. iqCTi'ag<<- / / ^ ^\ :i.-f 3:Eer ^ii<<i</>4|, BTfly'Ko, [si^iyy W^^\ *<41* W^ 200 W^ TRW (lj<<(-j.«l<ff) 3ii^t?a R-ii+ WT3IR?! V^ ^PfeftT •Wq?ff if fS^t tteSR '^'affiTtrgn^r "...... Merely being se< What has to be esteblii definite evidence to ind been done to death must be aware as als<^ 4n tast together is not enough. ed in a case of this nalure is • fcate that the victim Beena had (f which the respondent is or I proximate to the time of being last seen together... ." figam, m the matter of State ()f Goa V. Sanjay Thakran and Anr. the Apex Court held that:- depend upon the evkl "There can be no fixetl or straight jacket formula for ^ap in this regard and it would duration and the time ince led by the prosecution to of any other person meeting tervening period, this is to say, ible to tead such an evidence remove the possibiins< Vhe deceased in the irt if the prosecution is li| that likelihood of any icreon crther than the accused, being the author of V/f e crime, becomes impossible, then the evidence together, although the|i be considered as onl cireumstance of last seen •e is long duration <rf time, can of the circumstances in the chain of cireumstance^ to prove the guilt against such irefore, in view ofthe judgment accused persons. Th( of the Apex Court in t(ie matter of State of Kamataka V. M.V. Mahesh (S^ipra) accused witti the crint in order to connect the e in question, merely seen last •F5 2007 (4)SBR 321 GRPRJ—FS/246—2/2007—50.000. iqnitiy 1 / •'.-.....--.-^-..t.^.sl^.l ~S:E^ ^ww^, •S-iS\W\«,Rlrtiy^ *11*1MI **<lcb •^ 200 an^yr 'q^% (lyf.j.i^CT) 311^1 qn (t;.)ich TOISII^T sbtii* 'roiiwgfeg aii^t chi<iT<n'4ln ^mflf ^ ^^ iPtRtiH: ^?3TRr(i3ii^?i together is not enoug^ the case is definite accused is the author] i. What has to be estabtished in levidence to indicate that the [of the crime in question. Apart there must be other from last seen eviflence, cireumstantial eviderlce and material on record through which an irret that the accused was irre^istibte inference can be drawn ^iuthor of the crime in question." In the light of above legal (»osition, if we look into evidence and facts of the present case, as per fl|ie evidence of Bilsja Bai and Rukman accompanied the accused, next day Bai, at about 2 p.m. the decease(| body of the deceased was found in the forest They have stated that has been examined as PW-6. He Bilsia Bai and Rukman Bai that Jsj Sarpanch of Ihe village was inform^d by them but Sarpanch of the village (las not stated that he was informed by igesia had teft the river along with the iohan Singh (PW-6) does not support accused. Therefore, evidence of the evidence of these two witnes^es. Moreover, the time gap between ith the accused & her body was found when Jagesia teft the river atong w is about one night and hatf day. Moreover, the body was found in the forest. There is no other incrir|iinating circumstance Uirough which accused was author of the crime in inference can be drawn that the question. The accused being mat^mal cousin & there is no evidence or 1 evidence adduced that the accused material on record or circumstanti was having any grudge against <he deceased in order to commit her ttiat the sister of the accused was not murder. The prosecution case is that Jagesia was practicing witehcraft, well & the accused was suspectin^ e on record to show that the accused but there is not an iota of eviden4 c.... FS/246—2/2007—50.000. nwiog^ 3:5ST^ITiTT5!T, tSiTfiy'Ko, fsi<?»IU^< © 10 tllM^I **1|cb •W^ 200 ai^?r iRrat (ijcif^«<<^i) ailiff.w R'fi'fc OTT3IR?! 9t]t<l<* WiiW(fe3ii^?r ch1<4f<n4l'i 'W^ ^f f^^ •(f^'^R ^73TfgtI 311^1 was suspecting that Jagesia was Bai and FW-2 Rukman Bai have| accused was suspecUng that Jag^sia F|racticing wUichcraft. Even PW-1 Bilsia not stated in their evidence that the l^sia was pracBcing witehcraft, that was the reason for the accused to comriiit her murder. Therefore, for the foregoing ] that Jagesia Bai left the river aloi^g |reasons merely on the basis of the fact with the accused wtthout any other corroboration or other material 0(1 accused with the crime in questtenj record, is difficutt to conneet the As far as second cireumstahce said to have been recovered at FSL report, human blood was is concemed, the knife in question instance of the accused, as per the fou^d on the knife, but there is no report tHe that human blood was of the btood merely on the basis of recovery with the crimes in question unless ] the btood which was found on thte group (rf the deceased without which of )<nife the accused cannot be connected ]and until Ihere is posiCve evidence that knife was of the blood group of the evide|ice against the accused to connect him deceased. There is no other with the crime in quesdon. In the circumstances, we ai|e on above circumstantial evidencel with cogerrt, clear and legal doubt that the accused was authctr ai|e of the considered opinion ftat based |the prosecution has faited to establish cireu^nstantial evidence beyond reasonable of the crime in question. Therefore, imposfed upon the accused/appetlant convich'on and serrtence commission of murder of Jagesia Bai cannot be sustained. / GRPRJ—FS/2. n —50,000. iqniflg<r 3^ET'*2ICT^T, gxfly'is, ls(oil<l^< 11 *11*4^1 *NI* •^ 200 an^r ^ra^; ('^crf^a?si) 311^1.^1 R-li* OTI3IR?! **ll<sb T^IIWdfttT 3I)^[ c:hi&il<n41Ti 'HT^tnf'^f fe^ •(.r^-^K ^T 3TfgiT sn^T In the result, the appeal sujxeeds. ConvicUon and sentence Ifthe accused is not requii|ed in any other case, then he should under Section 302 of the I.P.C. are ^nposed upon the accused/appellant ^et aside. |>e set at Ijberty forthwith. 1 Barve Sd/- L.C.BHADOO Judge Sdi- SunU Kumar Sinha Judge GRPRJ—FS/246—2/2007—50.000/ ICTITI^ Y ^ .^l' fCT»*"--y'^ 11:1 -Cl ,:S fi!