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2009 DIGILAW 96 (CHH)

Gajadhar Marar v. State of Chhattisgarh

2009-03-17

D.R.DESHMUKH, DHIRENDRA MISHRA

body2009
JUDGMENT The following judgment of the Court was delivered by Dhirendra Mishra, J. 1. This Criminal Appeal under Section 374 (2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 7th January, 2004 passed in S.T. No.105/03 whereby learned Additional Sessions Judge, Dhamtari, has convicted the appellant under Sections 363, 364 and 302 of the IPC and sentenced him to undergo imprisonment for life & to pay a fine of Rs.1,000/-; R.I. for 7 years & to pay a fine of Rs.1,000/- and to undergo imprisonment for life and to pay a fine of Rs.1,000/- respectively. It has been further directed that on default of payment of fine of Rs.1,000/-, he shall also suffer R.I. for one year on each count. All the three sentences have been directed to run concurrently. 2. The case of the prosecution, as revealed from First Information Report of Ex.-P/11, is that the appellant had illicit relationship with Bena Bai, daughter of the complainant. Bena Bai gave birth to a male child on 16-11-94 through her illegitimate relationship with the appellant. Panchayat was convened in this regard and it was decided that the child shall remain in the custody of his mother for the present and custody shall be handed over to the appellant after the child attains the age of 3 years. Bena Bai is unmarried, who is residing with her father Ram Dayal (PW-2), the complainant. On the date and time of the incident, when the child was sleeping with his maternal grandfather i.e. the complainant, the appellant forcefully took the child and fled away leaving the bicycle in the house of the complainant. The complainant tried to chase the appellant; however, he managed to flee. On 6-10-95, Shiv Prasad (PW-1) gave merg intimation in the Police Station Ranchirai, District Durg informing that the dead body of 1-1+ years' old child is floating in the canal. 3. After registering merg, the Police proceeded to the scene of occurrence and performed inquest over the dead body of unknown child on 6-10-95 in the presence of witnesses. The body was sent for autopsy to the Primary Health Centre, Gunderdehi where Dr. A.P. Sawant conducted postmortem and gave his report of Ex.-P/10. 4. 3. After registering merg, the Police proceeded to the scene of occurrence and performed inquest over the dead body of unknown child on 6-10-95 in the presence of witnesses. The body was sent for autopsy to the Primary Health Centre, Gunderdehi where Dr. A.P. Sawant conducted postmortem and gave his report of Ex.-P/10. 4. On the basis of complaint dated 5-10-95 of complainant Ram Dayal, Crime No.216/95 was registered on 11-10-95 under Section 363 of the I.P.C. against the appellant vide Ex.P/11 in Police Station Arjuni. Further investigation commenced. The decision of Panchayat in the form of agreement was seized from Deen Dayal vide Ex.P/4. One bicycle left by the appellant in the house of the complainant was seized from him vide Ex.P/5. Spot map (Ex.-P/6) was prepared on 11-10-95. Sealed packet containing Shirt and underwear of the deceased was seized on being produced by constable Santosh Singh vide Ex.-P/7. The cloth of the child was identified by the complainant and his daughter Bena Bai vide identification memo of Ex.-P/8. 5. After completing the investigation, charge sheet was filed in the Court of Judicial Magistrate 1st Class, Dhamtari on 2-1-96 showing the appellant absconding. After enquiry, learned Magistrate declared the appellant absconding and issued permanent warrant of arrest against him through Police Station Arjuni. The appellant was arrested on 10-2-2003 and produced before the Judicial Magistrate, who committed the case to the Court of Sessions Judge, Raipur on 7-3-2003, who transferred the case for trial to learned Additional Sessions Judge. 6. During trial, the prosecution examined 12 witnesses in all, thereafter statement of the accused was recorded in which he denied the circumstances appearing against him in the prosecution case. In answer to question Nos.28 and 33, he stated that he did not take the child and further pleaded that he is innocent. The complainant has himself thrown the child for the sake of his honour and to ensure marriage of his daughter. He has been falsely implicated. 7. The trial Court after hearing learned counsel for the respective parties, convicted and sentenced the appellant as mentioned above. 8. The appellant has denied entire case of the prosecution. Learned counsel for the appellant also argued that the prosecution has failed to prove homicidal death of Chetan. 9. There is no eyewitness to the incident. The appellant has been convicted on the basis of circumstantial evidence. 8. The appellant has denied entire case of the prosecution. Learned counsel for the appellant also argued that the prosecution has failed to prove homicidal death of Chetan. 9. There is no eyewitness to the incident. The appellant has been convicted on the basis of circumstantial evidence. To establish homicidal death of infant Chetan, the prosecution has examined Dr. A.P. Sawant (PW-9), who conducted autopsy over the dead body of the child and submitted and proved his report dated 6-10-95 (Ex.-P/10). In his deposition, he has stated that the body was of a healthy child aged about 9- 10 months. Rigor mortis was present in the both the hands and legs. Eyes and mouth were closed. Froth was coming from both the nostrils. Throat and Trachea were filled in with secretion. Both the lungs were ballooned up. Air bubbles came out on applying pressure. Right chamber was full of blood. Left chamber was empty. Major artery was full of blood. Stomach was full of fluids. Liver, spleen and kidney were congested. He was not suffering from any disease or deformity. There was no dislocation or fracture of any bone. He opined that cause of death was asphyxia due to drowning. The death occurred 24 hours before the autopsy. In the cross- examination, he has also admitted that there are no external injuries over the person of the infant. 10. On the basis of evidence of Dr. Sawant, the trial Court has held that the death was not natural. Cause of death is asphyxia due to drowning. Chetan died any time between 5-10- 95 and 6-10-95. There is no finding whether the death was homicidal or accidental. 11. Shri Uttam Pandey, learned counsel for the appellant submitted that conviction of the appellant is based on circumstantial evidence. The circumstances relied upon by the trial Court have not been cogently and firmly established. The motive attributed to the appellant that he killed infant Chetan because he apprehended that the child would succeed his property as shareholder is highly improbable and farfetched. There is inconsistent and contradictory evidence regarding the appellant coming to the house of PW-2 Ram Dayal and taking the child while he was asleep. The conduct of the prosecution witnesses is highly un-natural. There is inconsistent and contradictory evidence regarding the appellant coming to the house of PW-2 Ram Dayal and taking the child while he was asleep. The conduct of the prosecution witnesses is highly un-natural. Registration of the offence after 5 days of the incident on 11-10-95 on the basis of written report dated 5-10-95 creates suspicion regarding veracity of the prosecution case. Written report itself has not been produced and there is overwriting with respect to the date of incident, relevant Roj Namcha Sanha, recorded on the date of the incident, has not been produced. Thus, the prosecution has failed to establish individual circumstances beyond reasonable doubt and the Court below was not justified in convicting the appellant on the basis of unproved circumstances. He further argued that the probable defence of the appellant that the complainant Ram Dayal had himself thrown the infant in the Nala, as his daughter Bena Bai was being defamed due to illegitimate child and he was facing problem in her marriage has been discarded without any proper reason. 12. We have heard learned counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. 13. The trial Court, on the basis of evidence of PW-3 Bena Bai, mother of the child, has held that the deceased was illegitimate child of the appellant and, therefore, he murdered the child so that he does not succeed to his estate and as such, he had a motive to commit the offence. Relying upon the evidence of PW-2 Ram Dayal and PW-3 Bena Bai, it has been held that the deceased was illegitimate child of appellant through Bena Bai. It was decided in the Panchayat that after the child attains the age of 7-8 years, the custody of the child would be handed over to the appellant; on the date of the incident when Bena Bai had gone to work, the deceased was sleeping with Ram Dayal. After the appellant took the child, the above witnesses searched the child in the vicinity. When they did not find him, they informed the village Kotwar and also lodged the report in the Police Station Arjuni. 2 days thereafter the body of the child was discovered in the Nala of village Avari. They identified the child by his clothing and thread tied around his neck and waist. When they did not find him, they informed the village Kotwar and also lodged the report in the Police Station Arjuni. 2 days thereafter the body of the child was discovered in the Nala of village Avari. They identified the child by his clothing and thread tied around his neck and waist. The version of Bena Bai and Ram Dayal is duly corroborated by the evidence of Rajaram (PW-5) and Parasram (PW-6). 14. While abducting the child, the appellant left his bicycle in the house of the complainant, which was seized from the complainant from his house. Shiv Prasad (PW-1), Kotwar of village Avari, gave merg intimation (Ex.-P/1) in the Police Station Ranchirai on 6-10-95 at 11.00 hours informing that the dead body of unknown child aged about 1-1+ years is floating in the canal near Jharmara culvert, Avari. After performing inquest, the body was sent for autopsy. The postmortem was conducted on 6-10-95. PW-1 Shiv Prasad has proved merg intimation (Ex.-P/1) and inquest of (Ex.-P/2) and has stated that he does not recognize Gajadhar. He was informed by the villagers regarding presence of a dead body of a boy aged about 9-10 months. He does not know the parents of the child. In cross-examination, he has further stated that the Police did not record his statement. 15. The crime was registered on 11-10-95 in Police Station Arjuni on the basis of written complaint lodged by Ram Dayal on 5-10-95 under Section 363 of the IPC against the appellant and investigation commenced thereafter. 16. PW-2 Ram Dayal, father of Bena Bai, has deposed that in the Panchayat Bena Bai had disclosed that appellant is father of the child. It was decided in the Panchayat that the custody of the child shall be handed over to the appellant after he attains the age of 7-8 years. On the date of incident, the child was about 7-8 months old. He was sleeping with the child, as his mother had gone to work after feeding him. At that time, the appellant dragged the child with him. He informed Rajaram (Kotwar) and other villagers and also gave written report in the Police Station. After 2 days, Kotwar of village Avari came to him and informed regarding recovery of dead body of an infant. They identified the child by his clothing and thread tied around waist in Police Station Ranchirai. He informed Rajaram (Kotwar) and other villagers and also gave written report in the Police Station. After 2 days, Kotwar of village Avari came to him and informed regarding recovery of dead body of an infant. They identified the child by his clothing and thread tied around waist in Police Station Ranchirai. In para-3, he has stated that he did not give written report in the Police Station and his statement was also not recorded. After few days of the incident, Bena Bai was married to one Rajkumar and she has given birth to 4 children. In para-5, he has admitted that after learning about the incident, on the next day he had gone to the Police Station Ranchirai with Kotwar of the village. However, no proceedings were drawn. The distance of Ranchirai from his village is about 5 Kose. In para-7, he has also admitted that he did not go to the house of Gajadhar for search and he accompanied Kotwar Rajaram to Ranchirai Police Station for identifying the cloths. He has further stated that when his daughter Bena Bai came from the field, he was sleeping. She awoke him and enquired about the child and only then he informed her. However, he has denied suggestion that he had thrown the child in the Nala, as he was being defamed due to illegitimate child and he was also facing problem in the marriage of Bena Bai. They went to Police Station on the next day after receiving information about the recovery of the dead body of a child. He has also admitted that in the earlier statement before the Court, he had deposed that he did not know as to when the appellant came on the date of the incident and he did not see him. He has further stated that after the incident neither he went to the house of Gajadhar nor he enquired from him. It is correct to say that before the incident or thereafter the appellant did not quarrel or misbehave with him. 17. PW-5 Rajaram, Kotwar of village Rawa, has also deposed that Bena Bai gave birth to an illegitimate child through the appellant. It was decided in the village that till the child grows up, he will reside with Bena Bai and thereafter the appellant will take care of him. 17. PW-5 Rajaram, Kotwar of village Rawa, has also deposed that Bena Bai gave birth to an illegitimate child through the appellant. It was decided in the village that till the child grows up, he will reside with Bena Bai and thereafter the appellant will take care of him. The father of Bena Bai informed him that the appellant has taken the child. When the child could not be found on search, report was lodged on the next day. Hero cycle was seized from Ram Dayal by the Police under Ex.-P/5. The Kotwar of Ranchirai Police Station came to him and informed that the dead body of the child was found in Dhamdha Nala, which was taken to Ranchirai Police Station. The child was identified on the basis of clothing and thread tied around his neck and leg. He has admitted in cross- examination that he signed the papers on being asked by the Police without reading the same. He had gone to Police Station Ranchirai with complainant Ram Dayal. The wearing apparels of the child were seized in the Police Station Arjuni in his presence. He did not accompany Ram Dayal to Police Station Arjuni. 18. PW-12 B.R. Singh has deposed that he was posted in the Police Station Arjuni between 1993 and 1996. Applicant Ram Dayal had given an application on 5-10-95 mentioning therein that his daughter Bena Bai had given birth to a child through illegitimate relationship with the appellant. The child was handed over to the mother in the Panchayat. The same child was taken by the appellant. On the basis of written complaint, crime was registered vide Ex.-P/11. During investigation, he had effected seizure of bicycle left by the appellant in the house of the complainant vide Ex.-P/5. He had also seized one agreement written by Gajadhar on 11-10-95 vide Ex.-P/4. He prepared the site plan of the place of incident Ex.-P/6 on 11-10-95. In cross-examination, he has stated that he received information by the complainant on 5-10- 95. He has further stated that he is not in a position to tell as to at what time the complainant lodged the report. He was also not in a position to tell whether he did not take any action after receiving the application or he received the application on 11-10-95 at about 16.30 hours and only thereafter he registered first information report. He was also not in a position to tell whether he did not take any action after receiving the application or he received the application on 11-10-95 at about 16.30 hours and only thereafter he registered first information report. After registering the crime, he proceeded for Rawa. In para-10, he has stated that he received the report from some constable and he is not aware of the name of that constable. He has admitted overwriting in the first information report. He went to obtain documents from Police Station Ranchirai on 12-10-95, however, no document in this regard has been filed. He has further admitted that he did not visit village Avari where the dead body of unknown infant was found. He also admitted that he did not exhume the body or conduct any identification of the dead body and identification was done only on the basis of clothing, though document through which identification was done has not been filed with the charge sheet. He has also admitted that Ram Dayal and Bena Bai did not disclose the fact that the dead body of infant was received on the very next day of lodging the complaint. 19. Kunjlal Chandrakar (PW-7) has proved the seizure memo of Ex.-P/7 whereby clothing of the child was seized. He has admitted his signature over identification memo of Ex.-P/8. However, he has stated that he does not remember whether he conducted identification of the seized cloths that were identified by Ram Dayal and Bena Bai. He has denied the seizure of clothing of the deceased by the Police in his presence and also denied identification of clothing by Bena Bai and Ram Dayal. 20. On close scrutiny of the evidence of the aforesaid witnesses, it is manifestly clear that there is no clinching evidence available on record to establish that the complainant lodged the written complaint on 5-10-95 or 6-10-95 in the Police Station Arjuni. The original complaint has not been produced nor Roj Namcha Sanha, referred in the first information report, has been produced and proved by the prosecution. On the other hand, PW-12 Investigating Officer has given evasive and spacious answers in cross-examination regarding the date and time on which written complaint was received and action taken thereafter. The original complaint has not been produced nor Roj Namcha Sanha, referred in the first information report, has been produced and proved by the prosecution. On the other hand, PW-12 Investigating Officer has given evasive and spacious answers in cross-examination regarding the date and time on which written complaint was received and action taken thereafter. The complainant has admitted that after receiving information that a dead body has been recovered in the Police Station Ranchirai, he went to the Police Station Ranchirai and identified clothes/threads of the deceased child. However, there is no evidence that he disclosed the fact regarding involvement of the appellant to the Police Station Ranchirai or what action was taken by the P.S. Ranchirai thereafter. There is no explanation as to why the dead body was not exhumed and put to identification either by PS Ranchirai or PS Arjuni. The identification of the dead body is solely based on identification of clothing, which was allegedly identified by the complainant and his daughter Bena Bai in the presence of PW-7, though this witness has denied the seizure as well as identification. 21. Bena Bai (PW-3), mother of the deceased and daughter of the complainant has also made similar statement as her father PW-2 regarding the birth of infant and about the incident. She has further stated that according to her understanding the appellant killed the deceased, as the deceased had share in his property. In para-1, she has stated that her father informed that the appellant has taken the child, thereafter they went to the Panch and Sarpanch and searched the child in the vicinity and thereafter, lodged the report. In para-5, she has stated that on the very next day when she learnt that one unclaimed body of child has been found in the canal, she went to Ranchirai. However, she did not disclose the above fact in the Police Station Arjuni. In para-7, she has admitted that she did not disclose the fact to the Police that the appellant murdered the child because he would have share in his property. She has also admitted that after the child was taken by Gajadhar, she did not go to the house of Gajadhar to enquire. 22. The conduct of the complainant and his daughter after the incident is highly unnatural. She has also admitted that after the child was taken by Gajadhar, she did not go to the house of Gajadhar to enquire. 22. The conduct of the complainant and his daughter after the incident is highly unnatural. Firstly, both of them have admitted that they did not make any enquiries immediately after the incident from the appellant regarding whereabouts of the child and secondly, they did not inform P.S. Arjuni regarding recovery of dead body of the child in the Police Station Ranchirai. They also did not intimate PS Ranchirai that they had already lodged report against the appellant in PS Arjuni. 23. From overall evidence available on record, we find that though there is un-contraverted evidence that the appellant and Bena Bai had illegitimate relationship; one child was born through that illegitimate relationship; in the Panchayat, it was decided that the custody of the child will be with the appellant after he attains the age of 7-8 years and at the time of the incident the child was in the custody of his mother Bena Bai, who was residing with the complainant her father. However, the evidence of PW-2 that the appellant took the child while he was sleeping with him does not inspire confidence of the Court for the reasons stated above. The evidence of Bena Bai is also not worth reliance. Apart from this, there is virtually no credible and reliable evidence regarding identification of the child. The motive for commission of crime is also farfetched and it is highly improbable that the appellant would kill infant aged 9-10 months and involve himself in a heinous offence just to ensure that he does not claim share in his property after attaining majority, that too in the absence of evidence that there was any dispute with respect to property between the appellant and mother and maternal grandfather of the deceased in this regard. The trial Court has relied upon recovery of bicycle of the appellant from the house of the complainant, as a material circumstance against the appellant, however, in the absence of any evidence regarding identification of bicycle, the above circumstance against the appellant cannot be held to be established. 24. The trial Court has relied upon recovery of bicycle of the appellant from the house of the complainant, as a material circumstance against the appellant, however, in the absence of any evidence regarding identification of bicycle, the above circumstance against the appellant cannot be held to be established. 24. It is a settled law as held by the Hon'ble Apex Court in plethora of judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 25. Thus, having regard to the entire facts and circumstances of the case and evidence available on record, we are convinced that the prosecution has miserably failed to build up any chain of circumstances which in its totality would point out the guilt of the appellant and considering this aspect alone, we are of the considered opinion that learned Additional Sessions Judge totally misdirected himself in the matter of appreciation of evidence and this wrong appreciation of evidence led to him to hold that the appellant was guilty of murder of the deceased, therefore, we are not in agreement with the view of learned Additional Sessions Judge and in the aforesaid circumstances, the appellant was entitled for benefit of doubt. 26. It is a settled law that suspicion, howsoever, grave may be, cannot take place of proof as there is a long distance between "may be" and "must be" and presumption of innocence is available to the accused. Reliance is placed on the judgment of the Hon'ble Supreme Court reported in (2004) 10 SCC 699 in the matter of Narendra Singh and another Vs. State of M.P. in this regard. 27. Reliance is placed on the judgment of the Hon'ble Supreme Court reported in (2004) 10 SCC 699 in the matter of Narendra Singh and another Vs. State of M.P. in this regard. 27. Thus, in view of the aforesaid discussion and having regard to the evidence available on record, we are of the considered opinion that the judgment of conviction and order of sentence passed by learned Additional Sessions Judge against the appellant cannot be sustained and the same is liable to be set aside. 28. In the result, the appeal succeeds. The appellant is acquitted of the charges leveled against him and he is directed to be set at liberty forthwith, if not required in connection with any other offence.