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2012 DIGILAW 128 (CHH)

TEJRAM DEEWAN v. STATE OF C. G.

2012-05-02

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal is directed against the judgment dated 5th of November, 2008, passed in S.T.No.45/2008 by the Sessions Judge, Mahasamund (CG). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- with default sentence of R.I. for 1 year. 2. The facts, briefly stated, are as under: Deceased - Bhukhanlal was grand-father of the appellant. The appellant, deceased and other family members were jointly residing in village Telibandha. On 13.6.2008, at 7.30 a.m., deceased- Bhukhanlal had gone to the fields to answer the call of nature. When he did not return for a long time, a search was made and his dead body was found in a field. He had sustained multiple injuries. Devaklal (PW-3), brother of the appellant, lodged merg intimation (Ex.P/5) and First Information Report (Ex.P/6) at about 13.45 hrs. The Investigating Officer reached to the place of occurrence and after giving notice (Ex.P/1) to the Panchas, prepared inquest (Ex. P/2) on the dead body of the deceased. The dead body of the deceased was sent for postmortem to Community Health Centre (CHC), Mahasamund. The postmortem examination was conducted by Dr. Lekharam Chandrakar (PW-7). He noticed multiple injuries on the skull of the deceased and opined that the cause of death was coma due to head injuries leading to cardio respiratory failure and the death was homicidal in nature. The postmortem report is Ex. P/9. The case of the prosecution is that on 14.6.2008, in the evening, Sevakram (PW6) met the appellant, who made extra judicial confession before him. Sevakram (PW-6) disclosed these facts to the Police on 15.6.2008. The appellant also made extra judicial confession before Rupendra (PW-9) and Bhavsingh (PW-1). Bhavsingh (PW-1) did not depose about the extra judicial confession and Rupendra (PW-9) turned hostile. However, Sevakram (PW-6) deposed about the extra judicial confession made by the appellant. 3. The learned Sessions Judge relying on the extra judicial confession and further relying on the circumstance of abscondance of the appel1ant and seizure of shirt at the instance of the appel1ant on his disclosure statement, held the appellant guilty of the offence punishable under Section 302 IPC and sentenced him as aforementioned. 4. 3. The learned Sessions Judge relying on the extra judicial confession and further relying on the circumstance of abscondance of the appel1ant and seizure of shirt at the instance of the appel1ant on his disclosure statement, held the appellant guilty of the offence punishable under Section 302 IPC and sentenced him as aforementioned. 4. Shri Awadh Tripathi, learned counsel appearing on behalf of the appellant, argued that out of 3 witnesses of extra judicial confession, i.e. Sevakram (PW -6), Rupendra (PW -9) and Bhavsingh (PW -1), Rupendn (PW9) and Bhavsingh (PW -1) did not depose against the appellant; evidence of Sevakram (PW-6) was not reliable, as there are many discrepancies in his evidence; no inference could be drawn on account of abscondance as according to Sevakram (PW-6), the appel1ant had gone to Mahasamund for bringing some medicine. His submission is that none of the circumstances were firmly established against the appellant; the circumstances pressed into motion by the prosecution were capable of being explained; and the chain of circumstances was also not complete. 5. On the other hand, Shri N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. 7. In Dhananjoy Chhatterjee Vs. State of W.B. (1994) 2 SCC 22, it is 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 form the basis of conviction and the more serious the crime, the greater should the care taken to scrutinize the evidence lest suspicion takes the place of proof." 8. In Bodh Raj alias Bodha and others Vs. 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 the care taken to scrutinize the evidence lest suspicion takes the place of proof." 8. In Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir AIR 2002 SC 3164, 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 : (1) 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. 9. In the instant case, the main circumstance, held incriminating against the appellant, is the extra judicial confession, which he allegedly made before Sevakram (PW -6). Sevakram (PW -6) deposed that on the next day of the incident i.e. on 14.6.2008, he was working in his field. The appellant got down from a Bus on the road; he came to him and said that he had gone to purchase medicines. Sevakram (PW-6) said the appellant that his grand-father has been murdered. Thereafter, the appellant told him that he had committed murder of his grand-father. After saying this, he went away from that place. In cross-examination, Sevakram (PW-6) admitted that he did not disclose this fact to anybody else and he disclosed this fact to the Police on third day of the incident. He admitted in cross-examination that when he met the appellant, the appellant was carrying medicines. He cannot tell the colour of the cloths, the appellant was wearing. In cross-examination, Sevakram (PW-6) admitted that he did not disclose this fact to anybody else and he disclosed this fact to the Police on third day of the incident. He admitted in cross-examination that when he met the appellant, the appellant was carrying medicines. He cannot tell the colour of the cloths, the appellant was wearing. In para 7 of the cross-examination, he admitted that the appellant had made confession in the morning of 14.6.2008, which in turn, he disclosed to the Police in the evening of 15.6.2008. 10. Shri Tripathi has argued that in Police statement Sevakram (PW6) had stated that he met the appellant in the evening of 14.6.2008. Apart from the above, he also argued about the other discrepancies. We have considered the evidence of Sevakram (PW-6). If the appellant had made extra judicial confession before Sevakram (PW-6) in the morning of 14.6.2008, in normal human conduct, when Police was conducting investigation on 14th and 15th June, 2008, he should have disclosed the above fact to the Police, either on the same day or on any later point of time prior to the evening of 15th June, 2008 when his 161 Cr.P.C. statement was recorded. 11. That apart, there is ambiguity about the time at which, the appellant allegedly made extra judicial confession before Sevakram (PW -6). The evidence of Sevakram (PW-6) is shaky on this account. We are of view that in light of the above discrepancy in the evidence of Sevakram (PW-6), the circumstance of extra judicial confession, was not conclusively proved on the solitary evidence of Sevakram (PW-6). 12. In Sk. Yusuf Vs. State of West Bengal AIR 2001 SC 2283, the Supreme Court held that the evidence of extra judicial confession is very weak type of evidence. It must be established to be true and made voluntarily, in the fit state of mind. Words of witness to whom extra judicial confession was made must be clear, unambiguous and clearly convey that accused is perpetrator of the crime. 13. So far as the circumstance of abscondance is concerned, it was held in Sk. It must be established to be true and made voluntarily, in the fit state of mind. Words of witness to whom extra judicial confession was made must be clear, unambiguous and clearly convey that accused is perpetrator of the crime. 13. So far as the circumstance of abscondance is concerned, it was held in Sk. Yusuf (supra) that it is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of Police arrest and harassment. Reliance was placed on Matru @ Girish Chandra Vs. The State of U.P. AIR 1971 SC 1050; Paramjeet Singh @ Pamma Vs. State of Uttarakhand AIR 2011 SC 200; and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India (2011)2 SCC 490. 14. In the instant case though the appellant came to the village on 14.8.2008, but it was not proved as to whether he was present in the village on 13.6.2008. This would be an additional factor for not giving importance to the circumstance of abscondance of the appellant on the above principles laid down by the Supreme Court. We are of the view that in light of the above facts and circumstances, the circumstance of abscondance was not incriminating against the appellant. 15. So far as the circumstance of seizure of shirt on the disclosure statement of the appellant under Section 27 of the Evidence Act is concerned, we find that no report from any Laboratory has been filed by the prosecution to show that bloodstains etc. were found over the seized shirt, which was admittedly belonging to the appellant. In absence of any report to the above extent, the above circumstance would also not be incriminating against the appellant. 16. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. 17. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 15.6.2008. 17. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 15.6.2008. He be released forthwith, if not required in any other case. Appeal Allowed.