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2003 DIGILAW 126 (CHH)

PRIKSHIT KUMAR SATNAMI v. STATE OF CHHATTISGARH

2003-07-05

K.H.N.KURANGA, L.C.BHADOO

body2003
L. C. BHADOO, J. ( 1 ) ACCUSED! appellant Prikshit Kumar Satnami has preferred this criminal appeal under Section 374 (2) of the Cr. P. C being aggrieved by the Judgment of conviction dated 29th December. 2001 passed. by the learned 2nd Additional Sessions Judge. Baloda Bazar in Sessions Trial No. 38/2001 by which learned Additional Sessions Judge after holding the accused/appellant guilty under section 302 read with 34 of the I. P. C sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo imprisonment of six months. ( 2 ) THE relevant prosecution story for the disposal of this criminal appeal is that on 18th June, 2000 the deceaseds son was suffering from some disease as such he called the accused Bhanu for practicing witchcraft on his son. The accused Bhanu came to the house of the deceased 2-3 times and at that time one Govind was watching T. V. Savitri Bai wife of the deceased and deceased Dwarika asked the accused to practice witchcraft but the accused Bhanu refused to practice witchcraft because Govind was sitting there. When Govind left the house of the deceased, the accused practised witchcraft on the son of deceased Dwarika and at about 11 in the night the accused and Dwarika both left the house with Pooja articles, used in practising witchcraft namely coconut, earthen lamps, incense stick, plate and small metal pot. After sometime the accused came to hand over those article which he had taken with him. He knocked the door and called Savitri Bai. On opening the door, when Savitri Bai had not seen Dwarika she enquired about her husband from Bhanu who informed her that he is sitting near the pond in order to answer the call of nature. When accused Bhanu left the house, Savitri followed him and she saw that one person was standing near the pond. When she asked Bhanu who is this person then Bhanu and the other person ran away. On this, Savitri doubted why her husband is not coming and then she informed her neighbours. The villagers collected and they went to the pond and saw that the body of Dwarika was lying there. Therefore, they reported the matter to the police station Bilaigarh. The police registered the offence and started investigation. On this, Savitri doubted why her husband is not coming and then she informed her neighbours. The villagers collected and they went to the pond and saw that the body of Dwarika was lying there. Therefore, they reported the matter to the police station Bilaigarh. The police registered the offence and started investigation. ( 3 ) DURING the investigation memorandum. Ex. P/3 given by the accused Prikshit Kumar was recorded and after giving, notice (Ex. P/1)T to the witnesses panchnama of the body Ex. P/2 was prepared. Based on the memorandum of accused Prikshit Kumar one empty bottle of country made liquor and clothes of this accused were recovered under Ex. P/5. The blood stained and simple soil were taken in. a black container and seized under Ex. P/6 and Ex. P/7. One earthen lamp one coconut shell, one pair mud smeared black coloured plastic shoes which were lying near the bush of Babool recovered and seized under Ex. P/8. The statements of the witnesses were recorded. Merg intimation Ex. P/12 was entered on the basis of which F. I. R. Ex. P/13 was recorded and body was sent for postmortem under Ex. P/14. The seized articles were sent for chemical examination under Ex. P/15, report of which was received under Ex. P/19. The site map Ex. P/18 was prepared. ( 4 ) AFTER completion of the investigation the challan was filed against the accused/appellant as also against the absconding accused Bhanu for the offence punishable under section 302/34 of the I. P. C. Learned Additional Sessions Judge after perusal of the record framed the charge against the accused persons for commission of the offence under section 302 read with 34 of the I. P. C. The accused/appellant denied the charge and asked for trial. ( 5 ) THE prosecution in order to prove the offence against the accused/ appellant examined 14 witnesses. The statement of the accused was recorded under section 313 of the Cr. P. C. in which he denied the evidence appearing against him and said that he is innocent and has been falsely implicated in the case. Learned Additional Sessions Judge after hearing the arguments of learned counsel for the accused and learned Public Prosecutor convicted and sentenced the accused appellant as mentioned above. ( 6 ) WE have heard learned counsel for the appellant Mr. Y. C. Sharma and learned Panel lawyer Mr. Prafull Bharat. Learned Additional Sessions Judge after hearing the arguments of learned counsel for the accused and learned Public Prosecutor convicted and sentenced the accused appellant as mentioned above. ( 6 ) WE have heard learned counsel for the appellant Mr. Y. C. Sharma and learned Panel lawyer Mr. Prafull Bharat. ( 7 ) AS far as the question of nature of the death of the deceased as homicidal is concerned, learned counsel for the accused/appellant has not disputed this fact. Even otherwise Dr. Narayan Singh (P. W. 9) has stated that on 19th June. 2000 he was posted as Assistant Surgeon at Primary Health Center Bilaigarh and on the requisition of the police station Bilaigarh he conducted the postmortem of the body of the deceased Dwarika. On examination. he found that there was a cut injury on the neck measuring 12 cm x 5 cm x 4 cm and there was a mark of peeling skin around the neck by the rope. The cause of death of the deceased was due to cardiorespiratory arrest on account of cutting of trachea, food pipe and begus artery which control the brain system. The nature of death was homicidal. The postmortem report is Ex. P/14. In view of the above evidence of the doctor as well as the evidence of Investigating Officer S. L. Chouhan and Savitri Bai (P. W. 6), wife of the deceased it stands proved that the nature of death of the deceased was homicidal. ( 8 ) NOW coming to the question of involvement of the accused in the murder of Dwarika is concerned, the whole case rests on the circumstantial evidence and the law on the point is that in a case based on the circumstantial evidence the Court can record conviction but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. ( 9 ) IF we consider the evidence against the prevent accused/appellant, it is admitted fact that in this case the main accused Was Bhanu who went to the house of the deceased Dwarika on the fateful night to practice witchcraft and took Dwarika out of the house along with Pooja items namely coconut, earthen lamp incense stick, plate and small metal pot. After sometime when Bhanu returned and knocked the door of the deceased. Savitri asked about her husband then Bhanu replied that he has gone to attend the call of nature. Savitri Bai followed Bhanu up to the pond and on seeing one person standing near the pound, she asked Bhanu who is the other person then both of them ran away. The time was mid night round about 12 and thereafter she raised alarm and informed the persons of the vicinity and when they came she narrated the whole story to them. Thereafter they went to search Dwarika and ultimately body of Dwarika was found in the field of Rajaram and the matter was reported by Savitri Bat to the police upon which the case was registered and investigation was started. The main accused Bhanu is absconding since then. The present case is only against the accused/appellant Prikshit and. he has been convicted on account of following evidence: (i) That he was seen by Savitri Bai (P. W. 6) with the accused Bhanu. (ii) That pursuant to the Ex. P/3 memorandum given by him to the Investigating Officer S. L. Chouhan (PW 12) recovery of empty liquor bottle and clothes of the accused were made from him. ( 10 ) AS far as the question of the presence of the accused/appellant with the accused Bhanu is concerned, the star witness Smt. Savitri Devi (P. W. 6) after narrating the whole story at the end of para-1 of her evidence stated that when she came out of the house and followed the accused Bhanu she saw one more person standing there. She enquired from Bhanu who is the other person but Bhanu went towards the pond and the other person who was standing ran away towards the village. She enquired from Bhanu who is the other person but Bhanu went towards the pond and the other person who was standing ran away towards the village. She has stated that the person was of short stature and in away to the side where house of the accused Prikshit is situated that is why she is saying that the accused present in the Court was the person who ran away. The person who was standing across on the other corner of the pond ran towards the village. In the cross-examination she has stated that it is true that the time of the incident was night and she could not identify the person, that is why she had not mentioned the name of the accused in the F. I. R and then was no electric pole ,near the pond. First of all she informed Satya Narayan, it is true that police has not got identified the accused Prikshit from her, the adjacent house is of Satya Narayan thereafter the houses of Suresh and Sukhdeo are there the hairs of the accused Prikshit is not curly because he had got his hair cut and in the last line she has stated that it is true that based on the doubt and guess she disclosed the name of the accused. Whereas Satya Naryan (P. W. 3) in his statement has stated that when Savitri Bai informed him that Bhanu took Dwarika, he along with other villagers went to the house of Bhanu and found that nobody was present in the house but there is no mention in his evidence that Savitri told him that the other person was Prikshit. In the evidence of Suresh Kumar (P. W 5) it has not been stated that Savitri Bai told him that accused Prikshit and the other person were there who ran away towards the house of Prikshit. Savitri Bai has stated that merely on doubt and guess she took the name of the accused Prikshit. She has not mentioned his name in the F. I. R. Moreover she disclosed every fact which she saw to Satya Narayan and Suresh but in her evidence nothing has been said about Prikshit. Bagas Ram (P. W. 2) is the witness of memorandum given by the accused Ex. ,p/3 and the recovery of the bottle and clothes under Ex. P / 4 and Ex. p /5. Bagas Ram (P. W. 2) is the witness of memorandum given by the accused Ex. ,p/3 and the recovery of the bottle and clothes under Ex. P / 4 and Ex. p /5. He has stated that Savitri informed him that one more person was standing near the bush of Jamun and when she enquired about the person from Bhanu both of them ran away. They went to the house of Bhanu but he was not in the house. In his cross examination para-5 he has stated that when the police came in the village and enquired as to who was the other person they guessed that Prikshit must be other person. Then the police took Prikshit and thereafter due to fear of the police the recoveries and memorandum were effected by the accused Prikshit. It is true that when the police brought, Prikshit he was handcuffed. S. L. Chouhan (PW 12) Investigating Officer in his evidence in the cross-examination has stated that it is true that the witnesses Savitri, Govind and Hiralal had not said that they r identified the accused Prikshit. It is true that when panchnama of the dead body was prepared Savitri and other witnesses said that they dont know the other person. He has further stated that as per the report Ex. p/19 no blood-stains were found on the clothes of the accused. During the investigation the accused informed that he does not know about Bhanu. He has further stated that witness Bagas Ram informed him that on the date of incident they went to the house of Prikshit and he was present in the house. When they enquired about Bhanu, Prikshit informed that he does not know about Bhanu. ( 11 ) IN view of the statements of the above witnesses, there is no cogent and clear evidence that the accused Prikshit was the other person who was standing or who was with Bhanu at the time of commission of the crime. The prosecution has not been able to prove beyond reasonable doubt that at the time of occurrence the accused Prikshit was with accused Bhanu. ( 12 ) AS far as the question of recovery of empty bottle pursuant to the memorandum Ex. The prosecution has not been able to prove beyond reasonable doubt that at the time of occurrence the accused Prikshit was with accused Bhanu. ( 12 ) AS far as the question of recovery of empty bottle pursuant to the memorandum Ex. P/3 given to the Investigating Officer S. L. Chouhan by the accused is concerned, that recovery was effected from the open place as has been stated by the recovery witness Chagram (PW 13 ). He has stated that it is true that the empty liquor bottle was recovered from the place which is accessible to all the villagers. Moreover, there is nothing in the evidence that some finger prints or anything else which connect the accused with this empty bottle was found. As far as the recovery of clothes is concerned as per the report (Ex, P/19) of forensic science laboratory. no blood was found on these clothes therefore the recoveries are of no use, ( 13 ) IN view of the above, the circumstantial evidence is not up to the expected standard and the level laid down by the Honble Supreme Court to connect the accused/appellant with the murder of Dwarika. Therefore. for the reasons given above the finding of the trial Court holding the accused/appellant guilty of the murder of Dwarika cannot. be sustained and the same is liable to be set aside. ( 14 ) IN the result, the appeal of the appellant is allowed. His conviction and sentence under Section 302 read with Section 34 of the IPC are set aside. The accused! appellant is acquitted of the charge for the offence under Section 302 read with Section 34 of the IPC and he be set at liberty forthwith if not required in any other case. Appeal allowed. --- *** --- .