Vanshidhar and Another vs State of M.P. (Now C.G.)

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 7th of December, 1995 passed in Sessions Trial No. 70/93 by the First Additional Sessions Judge, Bastar at Jagdalpur. By the impugned judgment, the appellants have been convicted u/ss. 302 & 404/34 IPC and sentenced to undergo imprisonment for life and R.I. for 3 years respectively, with direction to run the sentences concurrently.

The facts, briefly stated, are as under-

Deceased-Kondi Bai @ Jammuna was daughter of Soan Singh (PW-3). On 30.3.92 at about 9.00 a.m., she had gone towards the forest to answer the call of nature. Thakurram saw her dead body in the forest. He intimated Sukruram (PW-1-).- Sukruram (PW-1) and Soan Singh (PW-3) went to the forest and saw the dead body of the deceased. There were multiple serious injuries on the dead body of the deceased. The deceased was wearing a golden chapsi (chain). 3-4 small pieces of chapsi and tumbler of the deceased were lying near the dead body. First Information Report (Ex.-P/1) was lodged by Sukruram (PW-1). The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepaid inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for post-mortem. The postmortem examination was conducted by Dr. K.R. Mourya (PW-6) who found multiple serious injuries on the dead body of the deceased and opined that the cause of death was shock as a result of injuries sustained by her and it was homicidal in nature. The post-mortem report is Ex.-P/16. On 1.4.92 Purshu (PW-2) came as an eye-witness and claimed that he had seen the appellants assaulting the deceased. The appellants were taken into custody and their memorandum statements u/s. 27 of the Evidence Act were recorded and weapons of offence were seized. Appellant-Govind Ram gave discovery statement (Ex.-P/10) u/s. 27 of the Evidence Act that he had taken remaining pieces of golden chapsi and had sold them to a gold-smith namely Prithviram. On the above memorandum, 9 pieces of golden chapsi were seized from the possession of Prithviram vide seizure memo Ex.-P/25. Though seized articles having blood like stains were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide memo Ex.-P/34, but F.S.L. report could not be filed. The case of the prosecution was mainly based on eye-witness account of Purshu (PW-2). Purshu (PW-2), the solitary eye-witness produced by the prosecution, turned hostile. The learned Session Judge even after that, held vide Para-17 of the impugned judgment, that it was proved that the appellants committed murder of the deceased by chhuri & tangia; they took the pieces of her golden chapsi] blood stains were found on the cloths and weapons seized from the possession of the appellants; one of the appellant, boarded a bus after the incident and Vinod Kumar Tiwari (PW-4) saw that there were injuries on his face. Therefore, the appellants were, convicted and sentenced in the above manner.

Mr. Keshav Dewangan, learned counsel appearing for one of the appellants, argued that the sole eye-witness has turned hostile; common articles like chhuri & tangia were seized from the appellants; it was not proved that the above articles were stained with blood, much less human blood; Vinod Kumar Tiwari (PW-4), who saw one of the appellants boarding bus also turned hostile, therefore, finding is perverse and is based on unproved facts.

On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case

Purshu (PW-2) was the solitary eye-witness produced by the prosecution. He completely turned hostile. Nothing material could be elicited even in his cross-examination. The learned Session Judge completely lost sight of these facts and has recorded the finding that Purshu (PW-2) saw that the appellants had assaulted the deceased.

The learned Session Judge further held that blood stains were found on the cloths seized from the possession of the appellants. We find no positive evidence to hold that, in fact, the cloths seized from the possession of the appellants were stained with blood much less human blood. Though the cloths were sent for their chemical examination, but the prosecution could not produce F.S.L. report. Therefore, the above finding is totally perverse.

The same is position with the weapons. The weapons were also sent for chemical examination saying that they were carrying blood like stains, however, as stated above, no report relating to presence of blood over these articles could be filed. Therefore, the above circumstances were not incriminating against the appellants.

The case of the prosecution is that on memorandum statement of Govind Ram (Ex.-P/10), 9 pieces of golden chapsi were seized from gold-smith-Prithviram vide seizure memo Ex.-P/25. We find that Prithviram has not been examined. If Prithviram would have been, examined, he would have told that how those articles came in his possession or who gave them to him. None of the witnesses of the above seizure have been examined to prove that those articles were seized from the possession of Prithviram. Besides the above we also find that the above golden pieces were not identified to be the pieces of the golden chain allegedly worn by the deceased at the time of the incident. The case of the prosecution is that the appellants committed murder of the deceased for getting her golden chain. It appears to be unnatural that after commission of murder, the appellants would take only 9 pieces of golden chapsi (chain) and will leave 3-4 pieces at the place of occurrence. Moreover, there is no material to show that the pieces which were seized from the possession of Prithviram, were of same built and quality which were seized from the place of occurrence. Even there is no independent identification of the above articles.

Vinod Kumar Tiwari (PW-4) was a witness who saw that appellant-Govind Ram boarded the bus in which he was traveling. In the bus he had seen injuries over the face-of appellant-Govind Ram. Vinod Kumar Tiwari (PW-4) has also turned hostile. Though he deposed pointing towards appellant-Govind Ram that he had boarded the bus, but later on he said in clear words that he had not seen the face of the boy. Even in cross-examination by Public Prosecutor, he did not admit that he had seen injury on the face of the boy who boarded the bus. Even if we hold that appellant-Govind Ram boarded a bus, how this circumstance alone would be incriminating.

On appreciation of entire evidence available on record, we are of the view that the learned Session Judge fell into error in convicting the appellants on the above set of evidence. The judgment is based on unproved facts and conjectures & surmises and the same cannot be sustained. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 302 & 404/34 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 are cancelled and sureties stand discharged.