Research › Search › Judgment

Chhattisgarh High Court · body

2003 DIGILAW 248 (CHH)

JEEVAN v. STATE OF CHHATTISGARH

2003-12-16

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

body2003
L. C. BHADOO, J. ( 1 ) ACCUSED/appellants Maghi, Ramu, Balram, Tekram, Baua alias Mahatma, Chand Kumar, Dma Ram, Dulari and Janak have pre-ferred criminal appeal No. 220 of 2003 and accused/appellants Jeevan and Bhopat have preferred Criminal Appeal No. 485 of 2003 under Section 374 (2) of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 31-1-2003, passed by the learned Third Additional Sessions Judge (Fast Track Court), Bilaspur in Sessions Trial No. 76 of 1997 in which the learned Third Additional Sessions Judge after holding the accused/appellants guilty of the offences punishable under Section 302 read with Section 149 and Section 148 of the Indian Penal Code convicted and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/- in default of payment of fine to further undergo rigorous imprisonment for fifteen days respectively. ( 2 ) THE case of the prosecution in brief, is that in the intervening night of 6/7-11-1996 Ramji alias Ramaih (since deceased) went to watch standing paddy crop in his agricultural field. Normally he used to return to his residence by 10. 00-11. 00 in the night. But on the fateful night he did not return to his house. His son Santram alias Konda Yadav who was sleeping with his children and wife in the room woke up in the wee hours of 07-11-1996 and enquired about his father from his wife. His wife replied that she does not know. On hearing this, Santram left to his agricultural field and there he saw the dead body of his father lying near the pond. The head of his father was separated from the body. He immediately returned to the house and informed his brother Janaku and thereafter both the brothers again went to the field with a torch and saw the dead body of their father lying there. The head was separated from the body and the injuries were present on the palm of both the hands. They came back to the village and informed the Sarpanch and Kotwar of the village and thereafter went to Patharia Police Station to lodge the complaint. The head was separated from the body and the injuries were present on the palm of both the hands. They came back to the village and informed the Sarpanch and Kotwar of the village and thereafter went to Patharia Police Station to lodge the complaint. On receiving the information Assistant Sub Inspector S. P. Singh Baghel (P. W. 14) registered Crime No. 0/96 under Section 302 of the Indian Penal Code as per Ex. P/44, recorded the first information report, took up the investigation and after giving notice (Ex. P/5) to the witnesses prepared the Panchanama of the dead body of the deceased and sent the dead body for postmortem- examination vide Ex. P/2. The Investigating Officer seized the plain soil as well as the blood-stained soil from the scene of the incident. In the course of investigation accused Maghi gave memorandum (Ex. P/8) and in pursuance of that memorandum crowbar was recovered and seized vide Ex. P/9 on the memorandum (Ex. P/10) of accused Nanka a bamboo stick was recovered and seized vide Ex. P/li, on the memorandum (Ex. P/14) of accused Dular an axe was recovered and seized vide Ex. P/15, on the memorandum Ex. P/12 of accused Deena another axe was recovered and seized vide Ex. P/13, on the memorandum (Ex. P/16) of accused Ramu a Lathi was recovered and seized vide Ex. P/17, on the memorandum (Ex. P/18) of accused Bauwa alias Mahatma a bamboo stick was recovered and seized vide Ex. P/19, on the memorandum (Ex. P/20) of accused Chand Kumar a Lathi was recovered and seized, vide Ex. P/21, on the memo-randum (Ex. P/22) of accused Tekram a Lathi was recovered and seized vide Ex. P/23, on the memorandum (Ex. P/24) of accused Bhopat a bamboo stick was recovered and seized vide Ex. P/25, on the memorandum (Ex. P/26) of accused Jeevan a bamboo stick was recovered and seized vide Ex. P/27 and on the memorandum (Ex. P/28) of accused Balram a bamboo stick was recovered and seized vide Ex. P/29. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Sagar and to the Serologist. The FSL report is Ex. P/61 and the report of the Serologist is Ex. P/62. Dr. P. C. Banerjee (PW-13) conducted the autopsy on the dead body of the deceased in the primary Health Centre, Pathariya. The post-mortem report is Ex. P/2a. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Sagar and to the Serologist. The FSL report is Ex. P/61 and the report of the Serologist is Ex. P/62. Dr. P. C. Banerjee (PW-13) conducted the autopsy on the dead body of the deceased in the primary Health Centre, Pathariya. The post-mortem report is Ex. P/2a. ( 3 ) THE Police after completing the investigation filed the charge-sheet against the accused/appellants in the Court of Judicial Magistrate First Class, Mungeli who in turn committed the case to Sessions Court Bilaspur from where the learned Third Additional Sessions Judge (Fast Track Court), Mungeli received the case on transfer. ( 4 ) THE learned Third Additional Sessions Judge after hearing the Additional Public Prosecutor and the counsel for the accused and perusing the records was of the opinion that there was sufficient material to frame charges under Sections 148 and 302 read with Section 149 of the Indian Penal Code against cused/appellants. Accordingly he framed the charges against the accused/appellants for the commission of the aforesaid offences. The charges were read over and explained to the accused/appellants. The accused/appellants denied the charges and claimed to be tried. ( 5 ) THE prosecution in order to prove the charges against the accused/appellants examined in all fourteen witnesses at the trial. The statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure. They denied the evidence of the prosecution witnesses and stated that they are innocent and have been falsely implicated in the case. ( 6 ) AFTER hearing the arguments of the learned Additional Public Prosecutor and the learned counsel appearing for the accused/appellants and after believing the evidence of the prosecution wit-nesses, the learned Third Additional Sessions Judge held that the accused/appellants are guilty of the offences and convicted and sentenced them as mentioned above. ( 7 ) WE have heard Shri G. S. Ahluwalia, counsel for the accused/appellants and Shri Ashok Verma, Dy. Advocate General, for the State/respondent. ( 8 ) AS far as the nature of the death of deceased Ramji alias Ramaih being homicidal is concerned, it is not in dispute. Dr. ( 7 ) WE have heard Shri G. S. Ahluwalia, counsel for the accused/appellants and Shri Ashok Verma, Dy. Advocate General, for the State/respondent. ( 8 ) AS far as the nature of the death of deceased Ramji alias Ramaih being homicidal is concerned, it is not in dispute. Dr. P. C. Banerjee (P. W. 13) in his evidence has stated that on 7-11- 1996 he was working as Assistant Surgeon, Primary Health Centre, Pathariya and on the request of the Police he conducted the autopsy on the dead body of deceased Ramji alias Ramaih. He found that head was separated from the body of the deceased. There was a cut wound on the left side of the temporal region in the size of 2 inch x 1/2 cm. There was also a cut injury on the left palm in the size of 4 inch x 1 inch. There was also a cut wound on the left hand which was in the size of 3 inch x 1 inch. A cut injury was also present on the right wrist measuring 3 inch x 2 inch. The bone of the lower jaw was broken and only six teeth were present in the upper jaw and 8 teeth were present on the lower jaw. Spinal cord was congested. The whole spinal cord was cut. The trachea was also cut. Both the lungs were congested. The food pipe was also cut. In the opinion of the Doctor, the cause of death of the deceased was haemorrhage and shock resulting from cut. The death of the deceased was homicidal. The post-mortem report is Ex. P. 2a. In view of the above evidence of the Doctor, it stands proved that the death of deceased Ramji alias Ramaiah was homicidal. ( 9 ) ON the question of involvement of the accused/appellants in the murder of deceased Ramji alias Ramaih, there is no direct evidence in this case. The whole prosecution case rests on circumstantial evidence. P. 2a. In view of the above evidence of the Doctor, it stands proved that the death of deceased Ramji alias Ramaiah was homicidal. ( 9 ) ON the question of involvement of the accused/appellants in the murder of deceased Ramji alias Ramaih, there is no direct evidence in this case. The whole prosecution case rests on circumstantial evidence. The Honble Apex Court in the case of Nesarahmed v. State of Bihar, has held that in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself that 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. It is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case. ( 10 ) NOW we shall proceed to exa-mine the prosecution evidence in the light of the above principles laid down by the Apex Court. The prosecution has tried to prove the offences against the accused/appellant only on the basis of the circumstances that the weapons of offence were recovered and seized at the instances of the accused/appellants and human blood was found on the crowbar and the axe. Kalyan Singh (PW 1) has turned hostile. He has deposed to the extent stating that there was enmity between the Hindus and the Scheduled Castes in the village since long. PW 2 Mantora, daughter-in-law of the deceased has stated that she did not know as to who committed the murder of his father-in-law. Similar is the evidence of PW 3 Janak, son of the deceased PW-4 Janku, the other son of the deceased has stated that his brother informed about the death of his father. He along with his brother went to the field and saw the dead body of his father. He further stated that there was enmity between the Satnami and Raut. PW 5 Santram, the son of the deceased was the first person who had seen the dead body of his father. He along with his brother went to the field and saw the dead body of his father. He further stated that there was enmity between the Satnami and Raut. PW 5 Santram, the son of the deceased was the first person who had seen the dead body of his father. He has stated that when his father did not return to the house, he went in search of his father to the field and saw the dead body of his father. He immediately returned to the house and he along with his brother Janku went again to the field and thereafter reported the matter to the Police. PW 11 Sukhiram and PW 12 Ghasiram are the witnesses of memoran-dums given by the accused/appellants and the recoveries were made in their presence. PW 12 Ghasiram has turned hostile and not supported the case of the prosecution. The evidence of PW 11 Sukhiram reveals that the prosecution has not been able to prove that the memorandums were given by the accused persons and the recoveries were effected on the basis of the said memoran-dums in the presence because in cross-examination in Para 19 of his evidence PW 11 has specifically stated that when he reached the Police Station the documents were being prepared by the Police. He did not know that how many documents were prepared. He signed all the documents at the Police Station. Regarding the documents namely Ex. P/8 to Ex. P/29 he has deposed that he signed these documents at the Police Chowki. In Para 18 he has stated that it is true that there were swellings on the bodies of the accused persons. Regarding memorandum (Ex. P. 8) and the seizure memo (Ex. P. 9) memorandum (Ex. P. 10) and the seizure memo (Ex. P. 11), Memorandum (Ex. P. 12) and the seizure memo (Ex. P. 13), memorandum (Ex. P. 14) and the seizure memo (Ex. P. 15), P. W. 11 Sukhiram has simply stated that he signed all the above documents. He further stated that Ramu brought the Lathi to the Police Station. Regarding the remaining memorandums and the recoveries, he has stated that all the Lathis were recovered at the Police Sta-tion. P. 13), memorandum (Ex. P. 14) and the seizure memo (Ex. P. 15), P. W. 11 Sukhiram has simply stated that he signed all the above documents. He further stated that Ramu brought the Lathi to the Police Station. Regarding the remaining memorandums and the recoveries, he has stated that all the Lathis were recovered at the Police Sta-tion. Thus, he has not stated that each of the accused persons gave the memo-randum in his presence and thereafter the investigating officer took the accused along with these witnesses to the places of recovery from where the weapons of offence were recovered at the instance of the accused persons. Therefore, on the basis of the evidence of PW 11, the prosecution has not been able to prove that each of the accused gave the memo-randum in his presence and the recove-ries were made in pursuance of the said memorandums. Even the evidence of PW 14 S. P. Singh Baghel, the Investigating Officer, is also of no use for the reason that he has not proved each of the memorandums by giving evidence as to which information was given by which accused. Further, he has not stated that in pursuance of that memorandum each of the accused took him to the site and got the weapon of offence recovered. He has not stated from which place which weapon was recovered. Therefore, the prosecution has utterly failed to prove the recoveries of the weapons of offence at the instance of accused persons. ( 11 ) NOW coming to the recovery of crowbar and one axe which were found stained with human blood, as per the report of the Serologist the human blood was found on these articles. But the report (Ex. P. 62) shows that the blood group could not be ascertained, as no sufficient blood was present. Therefore, there is no evidence to show that the blood, which was found on these weapons of offence, was the blood of the deceased. ( 12 ) IN view of the above, the prosecution has utterly failed to connect the accused appellants with the murder of deceased Ramji alias Ramaih. Virtually there is no evidence on record on which the Court can rest the conviction and hold the accused appellants guilty. ( 12 ) IN view of the above, the prosecution has utterly failed to connect the accused appellants with the murder of deceased Ramji alias Ramaih. Virtually there is no evidence on record on which the Court can rest the conviction and hold the accused appellants guilty. The prosecution has not been able to stand up the test laid down by the Apex Court in Nesar Ahmed (supra) for convicting the accused based on circumstantial evidence. Therefore, the finding of the learned trial Court holding the accused/appellants guilty of the offences under Sections 302 read with Section 149 and Section 148 of the Indian Penal Code is erroneous and incorrect as the same is not based on reliable and cogent circumstantial evidence and therefore the judgment of the trial Court is not sustainable. ( 13 ) IN the result, the appeals preferred by the accused/appellants are allowed. The judgment of conviction and sentences passed by the learned trial Court for the offences under Sections 302/149 and Section 148 of the Penal Code are set aside. The accused/appellants are acquitted of the above charges. They be set at liberty forthwith if not required in any other case Appeal allowed. --- *** --- .