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2011 DIGILAW 189 (CHH)

HANUMAN DIVEDI v. STATE OF C. G.

2011-05-11

PRITINKER DIWAKER, SUNIL KUMAR SINHA

body2011
JUDGMENT: As per Hon 'ble Shri Sunil Kumar Sinha, J : 1. This appeal is directed against the judgment dated 24th of June, 2906 passed in Sessions Trial No. 417/2005 by the Second Additional Sessions Judge" Bastar at Jagdalpur. By the impugned judgment, appellants 2 to 4 have been convicted u/ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentences of 3-3 months each. Appellants 1 to 3 have been further convicted u/ss 20 I 134 IPC and sentenced to undergo R.I. for 1 year and to pay fine of Rs.500/- with default sentences of 2 months each, with a direction to run the sentences concurrently. 2. The facts, briefly stated, are as under : Deceased- Chotu @ Devendra Pal was husband of appellant- Shiwani, Pal (A-4). The other 3 appellants were neighbour of the deceased. Appellant- Hanuman Divedi (A -1) is husband of appellant- Vimia Divedl (A-3) and appellant-Am it Divedi (A-2) is son of appellant- Hanuman Divedi (A-I). On 17.8.2005 at about 6.30 a.m. Lalji Divedi (PW-6) saw . that the dead body of deceased- Chotu @ Devendra Pal was lying in the plot of Jhitruram. Merg intimation (Ex.-P/15) was lodged by him. The Investigation Officer reached to the place of occurrence and recorded dehatinalishi (Ex.-P/16). Inquest (Ex.-P/11) was prepared. The dead body of the deceased was sent for post-mortem to Maharani Hospital, Jagdalpur vide requisition Ex.-P/12-A. The post-mortem examination was conducted by Dr. K.B. Sharma (PW-2). He noticed following external injuries on the body of the deceased : (i) 'Lacerated wound 4 inch x 2 inch x bone deep on right parieto occipital region; (ii) Depressed fracture of right tempero-parietal bone; (Iii) Laceration of brain 1 1/2 inch x 1/2 inch x 1/2 inch over right tempero-parietal region below the fracture site; (iv) Brain membrane was congested & (v) Effusion of clotted blood over the surface of brain and inter cerebral space. The Autopsy Surgeon opined that the cause of death was shock as a result of depressed fracture, laceration of brain and haemorrhage caused on account of head injuries, and it was homicidal in nature. The postmortem report is Ex.-P/12. The Autopsy Surgeon opined that the cause of death was shock as a result of depressed fracture, laceration of brain and haemorrhage caused on account of head injuries, and it was homicidal in nature. The postmortem report is Ex.-P/12. In further investigation, appellant- Amit Divedi (A-2) was taken into custody and his memorandum statement (Ex.-P/4) U/S 27 of the Evidence Act was recorded and one Baat (a weight to weigh something) of 1 Kg and a piece of half burnt cloth (both having blood like stains) were -seized at his instance vide seizure memo Ex.-P/5. Another memorandum statement (Ex.-P/6) of Amit Divedi was recorded and some half burnt , cloths were further seized at his instance vide seizure memo Ex.-P/7. Apart from the above, one set of salwaar-kurta were seized from the possession of appellant-Shiwani Pal (A-4) and a saree was seized from the possession of appellant- Vimla Divedi (A-3). Seized articles were sent for their examination to Forensic Science Laboratory (F.S.L.), Raipur vide memo Ex.-P/20 and a report (Ex.-P/ 21) was received. According to F.S.L. report, blood stains were found: on almost all the seized articles except the plain soil seized from the place. near the dead body. Though the articles were sent for Serologist examination to Calcutta Laboratory, but no report relating to origin and group of blood stains could be filed. The case of the prosecution was that appellant- Amit Divedi (A2) had illicit relations with appellant- Shiwani Pal (A-4 - wife of the deceased). On this account appellants- Amit Divedi (A-2), Vimla Divedi (A-3) and Shivani Pal (A-4) committed murder of the deceased' by assaulting him by baat (a weight to weigh something) of 1 Kg ,in the house ofShiwani Pal (A-4) and thereafter in the early morning his dead body was thrown in the plot of Jhitruram which was at a distance of 50 ft. from their house. Admittedly there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. from their house. Admittedly there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following were the circumstances on which the Sessions Judge relied to convict the appellants for commission of the aforesaid offences: (A) Appellant- Amit Divedi (A-2) had illicit relations with the wife of the deceased (A-4), therefore, he had a motive to kill the deceased; (B) Seizure of various blood stained articles including baat and half burnt cloths at the instance of appellant- Amit Divedi (A-2) vide his two discovery memos Ex.-P/4 & P/6; (C) Seizure of blood stained salwaar-kurta and saree from the possession of appellants- Shiwani Pal (A-4) and Vimla Divedi (A-3) vide seizure memos Ex.- P/2 & P/3 and (D) Discovery of blood stains on the above articles seized from the possessions of the appellants. 3. Mr. Raghvendra Pradhan, learned counsel appearing on behalf of the appellants, argued that the dead body was found at an open place; seizure of various articles on the discovery statements of appellant- Amit Divedi (A-2) have not been established; seizure of cloths from the possession of other appellants have also not been established; the seized articles were not sealed by police at the time of seizure; though blood stains were found in the F.S.L. report, but origin and group of the blood were not established. He also argued that even the motive suggested by the prosecution was also not established by cogent and reliable evidence, therefore, the conviction based on above set of circumstantial evidence cannot be sustained. 4. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate' appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. In Dhananjoy Chhatterjee Vs.State of W.B. the Supreme Court held "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 form 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." 7. In" Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmi?, the Supreme Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (I) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on' any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 8. We shall firstly consider the evidence of 'motive'. 9. In Dharnidhar Vs. State of Uttar Pradesh and Other;, the Supreme Court, referring to the decisions of Babu Lodhi Vs. State of u.p'4 and Prem Kumar Vs. State of Bihar, held in Para-19, that, in cases entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance (Babu Lodhi and Prem Kumar case). But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. State of Bihar, held in Para-19, that, in cases entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance (Babu Lodhi and Prem Kumar case). But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. Mere absence of motive, even if assumed, will not per-se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence (State of Punjab Vs. Kuljit Singh). 10. In the instant case, the motive suggested was that A-2 had illicit relations with A-4 (wife of the deceased), therefore, they committed murder of the deceased. This was tried to be established by the evidence of Santosh Sharma (PW -1). He stated about such illicit relations in Para-3 of his examination-in-chief. He was witness of memorandum and inquest of the dead body. He denied various facts, therefore, he was declared hostile by the prosecution. In the cross-examination, he also denied various facts. On appreciation of his entire evidence, weare of the view, that he was not a reliable witness. Therefore, evidence of motive, as suggested by the prosecution, was not sufficient in this case. 11. The main circumstances on which the prosecution relied were the circumstances of discoveries and seizure at the instances of the appellants. In fact, this appears to be the only circumstance held to be proved against the appellants. In Sanjay alias Kaka Vs. State (NCT of Delhi) & other connected matters', the Supreme Court relying on the judgment of State of U.P. Vs. Deoman Upadhyaya held that Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a• statement made by a person. in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of 'the maker. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of 'the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. It was further held that as the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion, and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no efforts are made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27. RelIance was placed on the Judgment of Pulukuri Kottaya Vs. Emperor 12. In the instant case, both the witnesses of discovery statements, allegedly made by A-2 (Ex.-P/4 & P/6), "have turned hostile and they have not supported the case of the prosecution. These witnesses are Santosh Sharma (PW-l) and Ajay (PW-5). Santosh' Sharma (PW-l) though admitted that A2 stated to the police' that he along with other appellants committed murder of the deceased assaulting him by a baat, but he did not speak anything about the baat. He further denied seizure of the baat by the police. He made categorical statement that baat was not seized by the police before him. As only the discovery part of the disclosure statement, made and not confessional part thereof, was admissible u/s 27 of the Evidence Act, the outcome of the evidence of Santosh Sharma (PW-I) would be that A-2 did not make any discovery statement before the police '[elating to the baat and the baat was not seized from the possession or at the instance of A-2. The other witness of the discovery memorandum and seizure i.e. Ajay (PW-5) has completely turned-hostile. The other witness of the discovery memorandum and seizure i.e. Ajay (PW-5) has completely turned-hostile. Even on a lengthy cross-examination by the Public Prosecutor nothing material could be elicited in the evidence of Ajay (PW-5); . 13. Now we shall examine the conduct of the Investigation Officer. 14. According to the prosecution, incident took place in the house of deceased in which the deceased and A-4 '(his wife) were residing separately, and there after the dead body was thrown by all the appellants at a distant place in the plot of Jhitryram. The Investigation Officer did not collect any material to show that the incident took place in the house of the' deceased as alleged by them. Blood stained soil and plain soil were seized from the place near the dead body i.e. from the plot of Jhitruram. The Investigation Officer did not try to collect soil or any other evidence from the alleged place of occurrence so as to substantiate the contention that murder took place inside the house of the deceased. The above conduct of the Investigation Officer in light of Sanjay alias Kaka (supra) appears to be unreasonable. It appears that without making any effort to collect cogent and reliable evidence simply two disclosure statements of A-2 were recorded and baat & cloths were seized at his instance. We further note that one saree & one set of salwaar-kurta were also seized from the possession of A-3 and A-4. There is no mention in the seizure memos of cloths (Ex.-P/2, P/3 & P/7) that the articles seized by these seizure memos were sealed by the police. If on the face of this evidence, we appreciate the evidence of memorandum and seizure, we feel that it was not safe to hold them proved only on the basis of evidence of Investigation Officer. We are of the view that the learned Sessions Judge erred in law in holding that the circumstances of discovery and seizure of above articles at the instances of the appellants was established by the prosecution beyond all reasonable doubts. 15. In case on hand. though in F.S.L. report (Ex.P/21) blood stains were found on the articles allegedly seized from the possession of the appellants, the origin and group of blood stains have not been detected. No documents relating thereto have been filed., In State of Rajasthan Vs. Teja Ram and Others 10. 15. In case on hand. though in F.S.L. report (Ex.P/21) blood stains were found on the articles allegedly seized from the possession of the appellants, the origin and group of blood stains have not been detected. No documents relating thereto have been filed., In State of Rajasthan Vs. Teja Ram and Others 10. the Supreme Court held that it cannot be said that in all cases where there was failure of detecting the origin of the blood. the circumstance arising from recovery of the weapon would stand relegated to disutility. The principle is that it would depend on facts and circumstances of each case and the effect of the above circumstance has to be judged in light of the facts situation of each case. In the present case, we have held the discoveries and seizure as doubtful. We have also held that most of the articles seized by police were not sealed by police at the time of the seizure. Therefore. in the facts and circumstances of the case. no benefit can be given to the prosecution only on the solitary circumstance of blood stains found over the articles allegedly seized from the possession of the appellants. 16. For the foregoing reasons. we allow the appeal and set-aside the conviction and sentences awarded to the appellants. The appellants are acquitted of the charges framed against them. It is stated that appellant No.1 and appellant No.3 are on bail. Their bail bonds are cancelled and sureties stand discharge. Appellant No.2 and appellant No.4 are in jail since last about 5 years. They are directed to be released forthwith. if not required in any other case. Appeal Allowed.