Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 108 (CHH)

AJIT PATEL v. STATE OF C. G.

2008-04-11

L.C.BHADOO, T.P.SHARMA

body2008
JUDGMENT As per Hon'ble Shri T. P. Sharma, J.:- 1. This appeal is directed against the judgment of conviction and order of sentence dated 25.10.2002 passed by the Additional Sessions Judge, Baloda Bazar, District Raipur, in Sessions Trial No. 243/2002 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for commission of the offence under section 302 of the IPC sentenced him to lmdergo imprisonment for life and pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for one year. 2. Case of the prosecution in brief is that deceased Santara Bai was the wife of accused/appellant. She used to sell vegetables to maintain her family. She was not having good relations with her husband. On the fateful day i.e. on 3.5.2002 when Santara Bai left her house with the vegetables at 5 a.m. she was assaulted by the accused/appellant with axe near the field. Dead body of San tara Bai was seen by the Kotwar Premdas (PW-3) who informed the same to the son of accused and deceased namely Dilharan (PW-1) who lodged FIR Ex. P-l and merg intimation Ex. P-2. Investigating Officer left for the scene of occurrence and after giving notice to the witnesses inquest Ex P-8 was prepared on the dead body of Santara Bai. One axe and one shoe were lying near the dead boy which were identified by the witnesses vide Ex. P-3. Accused/appellant was taken into custody and he informed the Police regarding the place where he had kept the other piece of shoe vide memorandum Ex. P-5 which was later recovered at the instance of the accused/appellant and identified vide Ex. P-4. Blood stained clothes of the accused were seized under Ex. P-7. Dead body of Santara Bai was sent to the Government Hospital, Simga for autopsy vide Ex. P-14 where Dr. S. Rai Choudhary (PW -10) conducted the autopsy on the dead body of Santara Bai and vide autopsy report Ex. P 14-A the following ante mortem injuries were found on the dead body of San tara Bai: I. incised wound on neck at trachea region 2 x 2" muscle beneath the injury was cut; II. incised wound on the rightelbow3xlx 1"; III. incised wound on left mandible region, bones fractured; IV. P 14-A the following ante mortem injuries were found on the dead body of San tara Bai: I. incised wound on neck at trachea region 2 x 2" muscle beneath the injury was cut; II. incised wound on the rightelbow3xlx 1"; III. incised wound on left mandible region, bones fractured; IV. incised wound on the neck below right ear 3 x 1 xl"; V. incised wound on right side ofthe back I xl" Clotted blood was present on all the injuries. 3. Seized articles were sent to the Forensic Science Laboratory vide Ex. P-20 and presence of blood on axe, shirt and Dhoti of the accused appellant was confirmed vide Ex. P-22. 4. After completion of the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the case to the Court of Sessions Judge, Raipur, from where learned Additional Sessions Judge, Baloda Bazar received the same on transfer for trial. 5. In order to establish the guilt of the accused/appellant the prosecution h~ examined as many as 11 witnesses. Statement of the accused was recorded under section 313 of the Code of Criminal procedure in which he has denied the material appearing against him in the case of prosecution and pleaded his innocence and false implication in the case. 6. Counsel for the parties are heard and the record of the trial Court is perused. 7. Homicidal death of San tara Bai is not disputed on behalf of the appellant, rather it is established from the post mortem report Ex. P-14-A, and the statement of Dr. S. Rai Choudhary (PW -10) who has stated that on 3.5.2002 he conducted the post mortem examination on the dead body of San tara Bai and noticed the injuries as described hereinabove. Cause of death was shock as a result of excessive bleeding and the death was homicidal in nature. The above medical evidence is supported by the statement of Dilharan (PW -1), Ramswarup (PW -2), Kriparam (PW -4) and Bhukhanlal (PW -6). 8. As far as complicity of the accused in the crime in question is concerned, in this case there is no direct or ocular evidence to connect the accused with the crime in question i.e. the murder of San tara Bai. The whole case rests upon the circumstantial evidence. 8. As far as complicity of the accused in the crime in question is concerned, in this case there is no direct or ocular evidence to connect the accused with the crime in question i.e. the murder of San tara Bai. The whole case rests upon the circumstantial evidence. In order to rest conviction of the accused based on circumstantial evidence, the Hon'ble Apex Court in the matter of Dhananjay Chatteljee Vs. State afWE.1 held that: "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can from the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." 9. In the present case, the prosecution has tried to establish the crime against the accused based on the following circumstances: I'" that the one shoe and the axe of the accused were found at the place of occurrence. Second shoe of the accused was seized at the instance of the accused from a place near road and dam where he concealed the shoe; that the one blood stained Terri cot shirt, one white cotton dhoti stained with blood were seized from the accused. 10. Applying the above principle we have to scrutinize the evidence available on record in order to find out as to whether the prosecution has been able to establish the crime against the accused beyond reasonable doubt based on the above principle. 11. As far as first circumstance is concerned PW -1 Dilharan has stated that his mother used to sell vegetables. On the fateful day she left in the morning with the vegetables in order to sell the same at village Akaltara. 11. As far as first circumstance is concerned PW -1 Dilharan has stated that his mother used to sell vegetables. On the fateful day she left in the morning with the vegetables in order to sell the same at village Akaltara. At about 8-9 a.m. Kotwar of the village informed that the body of his mother was lying near the field. Therefore, he along with his friend went to the place of occurrence and saw that one axe and shoe were lying on the spot near the body. He identified the same to be of his father, therefore, he lodged the report Ex. P-l. He has further stated that' he identified the shoe and axe in the presence of the witnesses and a memo to that effect Ex. P-3 was prepared which bears his signature. Second shoe was recovered from a place near the road and drain at the instance of his father which was seen by him and his brother Hiralal and both of them identified the same. Ex. P-4 identification memo was prepared which bears his signature. PW-2 Ramswarup has stated that the police enquired from the accused during investigation and the accused disclosed that the shoe of his right leg was lying by the side of the road near the Devradih dam. He has stated that he could get the same recovered. Memorandum Ex. P-5 was prepared, the shoe was produced by the accused and seized under Ex. P-6. PW-3 Premdas has also stated that one shoe and axe were lying near the body of San tara Bai. PW -4 Kriparam is another son of the accused. He has tumed hostile and has not supported the prosecution case. PW -6 Bhukhan Lal has also turned hostile and not supported the prosecution case. PW -9 Janaram Dhruv, Sub Inspector has stated that sons of the accused identified the shoe and axe. Identification memos Ex. P-3 andEx. P-4 were prepared in the presence of sons of the accused which bears his signature. He has further stated that the accused gave memorandum Ex. P-5 regarding shoe and based on that shoe was recovered under Ex. P-6. In cross examination, he has stated that identification of the shoe and axe was done without mixing the same with other similar axe and shoe. He has further stated that the accused gave memorandum Ex. P-5 regarding shoe and based on that shoe was recovered under Ex. P-6. In cross examination, he has stated that identification of the shoe and axe was done without mixing the same with other similar axe and shoe. Identification of the second shoe was not arranged because the other shoe was recovered for being matched with the shoe which was found on the place of incident. PW -11 Dr. Radheshyam Lahera has stated that identification memo was prepared under his handwriting. At that time, Dilharan and Hira, the sons of the accused were present. They identified the shoe and axe lying on the spot. In cross examination he has stated that shoe was seized from an open place. 12. Perusal of the above evidence shows that the shoe and axe in question were lying on the spot in an open place and in that position only they were got identified by the Investigating Officer in the presence of the doctor. We are of the opinion that this was not a proper procedure for identification of the seized articles. The proper course for the investigating officer would have been that in the first instance he ought to have seized the shoe and axe and sealed the same on the spot in the presence of the independent witnesses, thereafter, the same must have been placed before the Executive Magistrate or other respectable person. At least 4-5 pieces of shoe and axe similar to the axe and shoe seized from the place of occurrence ought to have been mixed and thereafter sons of the accused ought to have been asked to identify the same. Simply asking sons of the accused to identify axe and shoe lying in an open place at the place of occurrence near the body was not the proper procedure for identification of the articles. Therefore, fair investigation was not conducted and it was conducted without taking precaution and applying the required standard for identification of the articles. Thus, based on this identification, it is unsafe to reach the conclusion that the shoe and axe were correctly identified to be of the accused. The manner in which identification was conducted, vitiated the identification proceeding. 13. Therefore, fair investigation was not conducted and it was conducted without taking precaution and applying the required standard for identification of the articles. Thus, based on this identification, it is unsafe to reach the conclusion that the shoe and axe were correctly identified to be of the accused. The manner in which identification was conducted, vitiated the identification proceeding. 13. As far as recovery of the second shoe at the instance of the accused from the place near the road and dam is concerned, it is not known that why the accused had kept the shoe of his right leg near dam and why he has concealed that shoe there, shoe belongs to him and it is not the case of the prosecution that there were any blood stains on the shoe or there was any other mark on the shoe which could have connected the accused with the crime in question. Had the accused been so vigilant, instead of concealing the second shoe he could have lifted the shoe which was lying on the spot. Moreover, the witnesses have not stated that there was specific mark on the axe and shoe of the accused on the basis of which the sons were able to identify those articles. Therefore, entire investigation regarding recovery of shoe and axe from the place of occurrence as also recovery of the second shoe from a place near the road and dam does not inspire confidence of the Court. Therefore, based on this circumstance it is difficult to connect the accused with the crime in question. Thus, finding of the trial Court to that extent cannot be sustained. 14. As far as recovery of blood stained shirt and Dhoti of accused is concerned, there is no serologist's report to show that human blood was found on the clothes that too of the blood group of the deceased. Therefore, this circumstance is also not clinching in nature. Merely because the blood stains were found on the shirt and Dhoti of the accused, the accused cannot be connected with the crime in question. 15. In this case, prosecution case is that the deceased left the house at about 5 a.m. in the morning in order to go to village Akaltara to sell vegetables. There is no evidence that the accused also left the house in the morning. 15. In this case, prosecution case is that the deceased left the house at about 5 a.m. in the morning in order to go to village Akaltara to sell vegetables. There is no evidence that the accused also left the house in the morning. PW-l Dilharan son of the deceased and the accused has stated that he saw his mother leaving the house at 5 a.m. but he did not see his father leaving the house. The Investigating Agency could have collected this evidence as the accused and the deceased were residing with their son namely Dilharan. Dilharan could have stated that his father also left the house in the early morning. On the contrary, in para 3 of cross examination, he has stated that he did not see his father leaving the house. 16. For the foregoing reasons, we are of the considered opinion that the I prosecution has not been able to bring on record consisting, clinching and legal evidence to complete the chain of circumstances through which an irresistible conclusion can be drawn that there was no possibility of committing the crime by anybody else and the accused was the author of the crime in question. The circumstantial evidence adduced by the prosecution is not clinching. On the contrary. it is shaky and on the basis of circumstances relied upon by the prosecution the accused cannot be connected with the crime in question. 17. In the result, the appeal succeeds. Conviction and sentence imposed upon the accused/appellant under Section 302 of the IPC, are set aside and he is acquitted of the said charge. He be set at liberty forthwith if the is not required in any other case. Appeal Allowed.