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2011 DIGILAW 50 (CHH)

Ramadhar v. State of C. G.

2011-02-08

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21-3-2006 passed by the Additional Sessions Judge, Manendragarh, in Sessions Trial No. 6/2005, whereby & whereunder learned Additional Sessions Judge after holding the Appellant guilty for commission of culpable homicide amounting to murder, criminal house Irespass with intent to commit offence punishable with death and offence of robbery, convicted the Appellant under Sections 449, 302 & 392 of the Indian Penal Code and sentenced him to undergo RI for ten years & pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for five months; to undergo imprisonment for life & pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for one year; and to undergo RI for ten years & pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for five months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the Appellant, and thereby committed illegality. 3. As per case of the prosecution, in the intervening night of 24th & 25th October, 2004, Hirmania @ Bhagmania Bai (since deceased) was present in her house, she was murdered by unknown person and one pair of anklet & Rs. 1,000/- have been stolen from her house. Husband of the deceased namely Bechan Singh (PW-1) was not present in his house, he was informed about the incident, then he went to the police station and lodged FIR vide Ex.P-1 and merg vide Ex.P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses, prepared inquest over the dead body of the deceased vide Ex.P-3. Spot map was prepared vide Ex.P-4. Dead body was sent for autopsy to Government Hospital, Khadgawan. Dr. S.H. Shende (PW-8) conducted autopsy vide Ex.P-10A and found following injuries: (1) incised wound of 9 cm. x 2.5 cm. (2) Buckle cavity and jaw were found cut. (3) Tongue was also cut. Injury was ante mortem and mode of death was shock. Blood stained and plain soil were recovered from the spot vide Ex.P-10. During the course of investigation, the accused was taken into custody, he made discloser statement of pair of anklet, Rs. 1,000/- & bloodstained shirt vide Ex.P-6. Pair of anklet & Rs. (3) Tongue was also cut. Injury was ante mortem and mode of death was shock. Blood stained and plain soil were recovered from the spot vide Ex.P-10. During the course of investigation, the accused was taken into custody, he made discloser statement of pair of anklet, Rs. 1,000/- & bloodstained shirt vide Ex.P-6. Pair of anklet & Rs. 180/- were seized from the Appellant vide Ex.P-7. Bloodstained shirt was seized from the house of Dev Singh at the instance of the Appellant vide Ex.P-8. Rs. 300/- were seized from Shiv Narayan Sahu at the instance of the Appellant vide Ex.P-9. Bloodstained axe was seized from the house of the deceased. Shirt & axe were examined by the doctor vide Exs.P-12A & P-13A and the doctor opined that blood like stains were found on shirt and axe. Sealed clothes of the deceased were seized vide Ex.P-14. Seized articles were sent for chemical examination vide Ex.P-16 and presence of blood was confirmed on shirt of the Appellant by chemical examiner, but same has not been exhibited by the Court. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Manendragarh who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the Appellant as aforementioned. 7. We have heard learned Counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned Counsel for the Appellant vehemently argued that conviction of the Appellant is based on circumstantial evidence. In case of conviction based on circumstantial evidence, the prosecution is required to 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 of a definite tendency unerringly pointing towards the guilt of the accused; 3. In case of conviction based on circumstantial evidence, the prosecution is required to 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 of a definite tendency unerringly pointing towards the 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; an 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. 9. Learned Counsel for the Appellant further argued that in the present case, the prosecution has collected evidence and has tried to prove the following facts: (1) Earlier the Appellant has committed theft of property from the house of the deceased. (2) On the basis of discloser statement of the Appellant, one pair of anklet and some currency notes have been recovered from him. (3) Anklet was identified by husband of the deceased Bechan Singh (PW-1) as his wife's anklet. (4) The Appellant has not offered any explanation that how he was in possession of such anklets. (5) Bloodstained shirt has been recovered at the instance of the Appellant and presence of blood was confirmed on the same by the FSL in its report. However, the prosecution has not proved the aforesaid facts. Even otherwise, these circumstances are not sufficient for drawing inference that only the Appellant has committed the offence and except the Appellant no other person has committed the offence. 10. On the other hand, learned State counsel vehemently opposed the appeal and submitted that the prosecution has proved the circumstances sufficient for drawing inference that only the Appellant has committed the offence and except the Appellant, no person has committed the offence, and same is sufficient for excluding innocence of the Appellant. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of the deceased as a result of single fatal injury found over vital part of body has not been substantially disputed on behalf of the Appellant, otherwise also, it is established by the evidence of Dr. S.H. Shende (PW-8) and autopsy report Ex.P-10A that death of Hirmania @ Bhagmania Bai was homicidal in nature. 13. As regards complicity of the Appellant in the crime in question, conviction is substantially based on circumstantial evidence. In order to convict an accused on the basis of circumstantial evidence, as held by the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P. AIR 2008 SCW 4669 in case of conviction based on circumstantial evidence, the prosecution is required to satisfy the following circumstances, (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; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) 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. 14. In the present case, as argued above, the prosecution has examined Shanti Bai (PW-5) - younger sister of deceased, who has deposed that at the time of Dashera festival she went to the house of deceased Hirmania who requested her to stay on which she told that she will not stay where upon the deceased told her that earlier, the Appellant has committed theft from her house and the Appellant used to tell her that she told him 'thief, therefore, he will cut her i.e. he will kill her. As per her evidence, this discussion took place probably in the month of August. 15. As per her evidence, this discussion took place probably in the month of August. 15. As per evidence of Bechan Singh (PW-1) - husband of the deceased, on the fateful night he was not present in his house, he was informed by other persons on which he came to his house where he saw the injured dead body of his wife Hirmania, he also searched his house, Rs. 1,000/- & one pair of anklet were found missing, he went to the police station and lodged FIR (Ex.P-1) & merg (Ex.P-2). In para 5 of his cross-examination, he has admitted that the anklet was shown to him by the police inspector in the house of the Appellant. His wife has purchased the anklet from Chirmiri market. 16. As per evidence of Pawan Singh (PW-2), the Appellant has made discloser statement of anklet and currency notes vide E-x.P-6 and same were recovered at the instance of the Appellant vide Ex.P-7. Rs. 300/- have been recovered from another person. Sheo Narayan (PW-3) has deposed that police has seized Rs. 300/- from him. Factum of discloser statement and recovery has also been corroborated by the evidence of Mahipal Singh (PW-6). 17. S.N. Tripathi (PW-7) - Investigating Officer has deposed that he has interrogated the Appellant who made discloser statement of Rs. 1,000/-and one pair of anklet which was recorded as Ex.P-6. Rs. 180/- and one pair of anklet of ten tola were seized from the Appellant. He has also deposed that Rs. 300/-have been seized from Sheo Narayan at the instance of the Appellant and he has also seized bloodstained shirt at the instance of the Appellant. 18. The trial Court has arrived at finding relating to presence of blood stained shirt of the Appellant on the basis of report of FSL which has been received by the Court on 9-3-2006 before examination of the accused, but the aforesaid facts have not been asked to the Appellant in his examination under Section 313 of the Code of Criminal Procedure. Other evidence relating to presence of blood is not of conclusive nature. In absence of any question put to the Appellant relating to presence of blood on shirt of the Appellant, as held in the case of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 this circumstance cannot be taken into consideration against the Appellant. 19. Other evidence relating to presence of blood is not of conclusive nature. In absence of any question put to the Appellant relating to presence of blood on shirt of the Appellant, as held in the case of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 this circumstance cannot be taken into consideration against the Appellant. 19. Evidence of Shanti Bai (PW-5) relating to previous incident of theft by the Appellant is of no use in the present case. As per evidence of the prosecution witnesses, one pair of anklet has been recovered at the instance of the Appellant on the basis of his discloser statement and he has explained relating to Rs. 1,000/-. Rs. 180/- have been recovered from the Appellant. 20. As regards recovery of Rs. 300/- at the instance of the Appellant from Sheo Narayan (PW-3), Sheo Narayan (PW-3) has specifically deposed that the police has seized his money, inter alia, not the money of the deceased. 21. Factum of recovery of pair of anklet at the instance of the Appellant from his possession remains for consideration. Mere recovery of anklet or any article by itself is not incriminating evidence unless it is proved that same has been stolen from house of the deceased or that the Appellant is not owner of the said article, inter alia, the complainant is owner of such article. Although the prosecution has not conducted any identification parade of such article, but Bechan Singh (PW-1) - husband of the deceased, has deposed in para 5 of his cross-examination he has identified the anklet in the house of the Appellant when it was shown by the police inspector. This evidence is not admissible in evidence for identification of the article. Even otherwise, as per case of the prosecution, for commission of robbery the Appellant has committed murder and committed robbery of one pair of anklet often tola & Rs. 1,000/- from the house of the deceased. But as per inquest report Ex.P-3, silver chain of ten tola was found over the body of the deceased which was easily available to the Appellant for commission of robbery/ theft, but he has not taken the said article which clearly goes against case of the prosecution. 22. 1,000/- from the house of the deceased. But as per inquest report Ex.P-3, silver chain of ten tola was found over the body of the deceased which was easily available to the Appellant for commission of robbery/ theft, but he has not taken the said article which clearly goes against case of the prosecution. 22. In the present case, the prosecution has not proved the fact that pair of anklet recovered at the instance of the Appellant has been stolen or robbed by the Appellant from the house of the deceased. Presence of blood upon shirt of the Appellant cannot be taken into consideration in the light of dictum of the Supreme Court in the matter of Sharad Birdhichand2 (supra). The prosecution has not proved any other fact to prove commission of offence by the Appellant. 23. In these circumstances, virtually, this is case of no evidence and while convicting the Appellant, the trial Court has not considered the aforesaid aspects and the fact that the prosecution has not proved any circumstance against the Appellant sufficient for his conviction. 24. For the foregoing reasons, the appeal is allowed. Conviction & sentences of the Appellant under Sections 449, 302 & 392 of the Indian Penal Code are hereby set aside and the Appellant is acquitted for the said charges. He be set at liberty forthwith, if not required in any other case.