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2004 DIGILAW 131 (CHH)

SANIYA RAM v. STATE OF C. G.

2004-07-08

A.S.V.MOORTHY, L.C.BHADOO

body2004
JUDGMENT L.C. Bhadoo, J. 1. Accused/appellant Saniya Ram has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 15/05/2004, passed by the learned Third Additional Sessions Judge (Fast Track Court), Raigarh in Sessions Trial No. 158 of 2003 by which the learned Additional Sessions Judge after holding the accused/appellant guilty of the offence punishable under Section 302 of the Indian Penal Code convicted and sentenced him to undergo imprisonment for life. 2. Factual scenario giving rise to the present appeal is as follows: On 13/08/2003 when Ghudobai (since deceased) during the day time in between 14-16 hours went towards the vicinity of village- Mudagaon. She was murdered with a sharp edged weapon - axe. The son of the deceased namely, PW -1 Dewar was informed. On receiving this information PW -1 Dewar went to the spot and saw the dead body of his mother lying by the side of the road near a Beshram bush. He saw that there was a cut injury on the neck of Ghudobai. He immediately went to the Police Station Lailunga and lodged the report about the incident. The Police after registering the Case reached the scene of occurrence, prepared the Panchnama of the dead body and the dead body of Ghudobai was sent to Primary Health Centre, Lailunga for post-mortem examination where PW -8 Dr. Sunil Nigam conducted the autopsy on the dead body of Ghudobai. The post mortem report is Ex. P/9 in the opinion of the doctor, the cause of death of deceased Ghudobai was due to haemorrhage and shock as a result of the injury on the neck. The nature of the death was homicidal. The investigating Officer collected the plain soil as well as blood stained soil from the place of the incident. He also recovered and seized the weapon of offence-axe at the instance of the accused appellant. The investigating Officer also seized the blood stained clothes of the accused appellant and the clothes of the deceased. The blood stained clothes were sent for examination to the Forensic Science Laboratory from where the report was received. 3. After completion of the investigation the charge-sheet was filed against the accused/appellant before the Judicial Magistrate First Class. The investigating Officer also seized the blood stained clothes of the accused appellant and the clothes of the deceased. The blood stained clothes were sent for examination to the Forensic Science Laboratory from where the report was received. 3. After completion of the investigation the charge-sheet was filed against the accused/appellant before the Judicial Magistrate First Class. Gharghoda who in turn committed the case to the learned Sessions Judge, Raigarh from where the learned Third Additional Sessions Judge (Fast Track Court), Raigarh received the case on transfer. 4. The learned Third Additional Sessions Judge after framing the charge and recording the evidence of the nine prosecution witnesses recorded the statement of the accused/appellant under Section 313 of the Code of Criminal Procedure in which he denied the evidence of the prosecution witnesses stating that he has been falsely implicated in the crime due to animosity. However, the learned trial Judge after hearing the arguments of the Additional Public Prosecutor and the counsel for the accused/appellant and after relying the evidence of the prosecution witnesses convicted and sentenced the accused/appellant in the manner mentioned above. 5. We have heard Mr. A.N. Bhakta learned counsel appearing for the accused/appellant and Mr. J.D. Bajpai learned Govt. Advocate, appearing for the State/respondent. 6. As far as the nature of the death of deceased Ghudobai being homicidal is concerned, it is not in dispute. Even otherwise PW -8 Dr. Sunil Nigam who conducted the autopsy on the dead body of Ghudobai on 14-08-2003, has stated that he conducted the autopsy on the body of Ghudobai and found incised wound over the right side of the neck up to the back of the neck measuring 12 x 6 x 6 cm Margins were sharp and regular. There was one more incised wound which was above and parallel to injury No. 1 and the size of the injury was 5 x 3 x 3 cm Thyroid cartilage was cut, cervical vertebra was cut at the level. Margins of the wound were having bloodstains. In the opinion of the doctor the cause of death of the deceased was haemorrhagic shock and the nature of the death was homicidal in view of the above evidence, it is proved that the death of Ghudobai was homicidal. 8. On the question of involvement of the accused/appellant in committing the murder of Ghudobai, there is no direct evidence in this case. 8. On the question of involvement of the accused/appellant in committing the murder of Ghudobai, there is no direct evidence in this case. The entire prosecution case rests on the circumstantial evidence. The Hon 'ble Apex Court in the case of Nesar Ahmed Vs. 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. 9. Now we shall proceed to examine the evidence of the present case in the light of the above principle of law. The prosecution has tried to prove the offence against the accused/appellant mainly on the following circumstances : (a) The accused made extra judicial confession before PW-2 Sampatti Bai and PW -6 Rameshchand Patel. (b) Blood stained axe and the clothes of the accused were recovered at his instance. (c) There was some dispute between the deceased and the accused regarding the land and the accused was doubting the deceased as witchcraft. 10. So far as the extra judicial confession made by the accused before PW -2 and PW -6 is concerned, PW -2 Sampatti Bai in her examination in chief in para 5 has stated that when she inquired from the accused, the accused informed her that as he was doubting Ghudobai as witchcraft, therefore, he committed her murder. in the cross examination in pare 8 this witness has categorically stated that the accused disclosed this fact at the time of investigation by the police Similarly PW -6 Rameshchand Patel in examination in chief in para4 has stated that on enquiry from the accused, the accused disclosed that he committed the murder of Ghudobai as he was doubling her to be a witchcraft. But in his cross examination in para-5 this witness has categorically stated that this confession was made by the accused in presence of the police during the investigation. Therefore, it is clear that the extra judicial confession was made by the accused during the investigation in the presence or the police. The confession made by the accused in presence of the police is not admissible in the eyes of law. Therefore, we are of the view that the prosecution has utterly failed to prove this fact that the accused made extra Judicial confession before these two witnesses namely PW-2 and PW-6 and the finding of the learned trial Court to this effect is not based on legal evidence and the same can not be sustained. 11. As far as the recovery of the axe at the instance of the accused and the recovery of the blood stained clothes of the accused are concerned, in the first instance even the prosecution has not been able to examine the investigating Officer inspite of giving reasonable opportunities to the prosecution. Moreover, a perusal of the report of the Forensic Science laboratory reveals that the blood was found on the clothes of the accused as well as on the axe - the weapon of offence. But there is no report of the Serologist to the effect that the human blood was found on the axe and the and the clothes and the blood found was of the same group as that of the deceased. The axe is such an article, which is normally found in every house Even the recovery witness PW -6 has stated that when the accused came to the village along with police he saw that the axe was with the accused. Therefore, the above recovery of the alleged weapon of offence at the instance of the accused and the clothes of the accused does not connect the accused in crime. 12. So far as the question of old animosity between the accused and the deceased is concerned, there is no clear and cogent evidence on this point. Even the First information Report lodged by the son of the deceased namely PW-1 Dewar has not been tendered into evidence. Even otherwise the perusal of the First information Report reveals that PW -1 Dewar reported to the police that he is not aware that who committed the murder of his mother. Even the First information Report lodged by the son of the deceased namely PW-1 Dewar has not been tendered into evidence. Even otherwise the perusal of the First information Report reveals that PW -1 Dewar reported to the police that he is not aware that who committed the murder of his mother. Even the fact of previous enmity between the accused and the deceased has not been mentioned in the First information Report. Even PW1 in the cross examination has stated that his mother (since deceased) informed him that Libin had threatened her to commit her murder. Therefore, regarding the old enmity between the accused and the deceased, the evidence of PW-1 Dewar does not inspire confidence and there is no evidence, which goes to show that there was previous enmity between the accused and the deceased. 13. PW -3 Shaniram in the examination in chief has stated that 4-5 month, prior to recording of his evidence, when he was going towards his field alol1.s with his bullocks he saw the accused/appellant going towards that side having an axe on his shoulder and after some distance near the borewell when Ghudobai came out of her house the accused/appellant entered in a nearby house. He has further stated that while the accused going ahead of him said that he would commit the murder of Gbudobai. But in his cross-examination he has clearly stated that on the way he met so many persons but he had not disclosed this fact to anybody else. Therefore, his evidence in the first instance is not worth inspiring confidence. His evidence is general and does not find corroboration by any of the other circumstantial evidences or otherwise. If he heard the accused saying that he would commit the murder of the deceased, then why he had not informed son of the deceased and others. The evidence of this witness about this fact itself makes his evidence unreliable. Therefore, the finding of the learned trial Court that the accused/ appellant was the person who committed the murder of deceased Ghudobai is not based on any legal cogent and reliable evidence. Therefore, the finding of the learned trial Court cannot be sustained for the reasons mentioned above. 14. In the result, the appeal of the accused/appellant succeeds and the same is allowed. We hereby set aside the conviction and sentence imposed on the accused/appellant. Therefore, the finding of the learned trial Court cannot be sustained for the reasons mentioned above. 14. In the result, the appeal of the accused/appellant succeeds and the same is allowed. We hereby set aside the conviction and sentence imposed on the accused/appellant. The accused/appellant is acquitted of the charge under section 302 of the Indian Penal Code. He be set at liberty forthwith if not required in any other case. Appeal Allowed.