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2012 DIGILAW 91 (CHH)

PUNNI BAI KANOJE v. STATE OF CHHATTISGARH

2012-03-23

MANINDRA MOHAN SHRIVASTAVA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. [1] These appeals are directed against the judgment dated 31-1-2009 passed in Sessions Trial No. 5/2008 by the First Additional Session Judge, Baloda Bazar, District Raipur (C.G.). By the impugned judgment, the appellants have been convicted u/S. 302/34, IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentence of R.I. for 2 months. The facts, briefly stated, are as under:-- Deceased- Sangeeta, aged about 25 years, was a deserted lady. She was residing with her father, Sriram Verma (PW-1) in village Latuwa. The dead body of the deceased was seen by the villagers in the bayara (badi) of accused - Khamhan Singh on 23-10-2007. It was in highly burnt condition. Babulal (PW-12- village Kotwar) lodged the merg intimation (Ex. P/19). The Investigation Officer reached to the place of occurrence, gave notice (Ex. P/1) to the Panchas and prepared inquest (Ex. P/2) on the dead body of the deceased. The dead body was identified by Shriram Verma (PW-1). It was sent for postmortem to Govt. Hospital, Baloda Bazar vide requisition Ex P/20-A. The post-mortem examination was conducted by Dr. Pramod Kumar Tiwari (PW-13) who prepared his report Ex. P/20. He found that the dead body was in extensive burnt condition; the burns were skin deep; hairs were completely burnt; tongue was protruded; only the sole of the foot was not burnt; and smell of kerosene was coming out from the body. The Autopsy Surgeon opined that the deceased died due to asphyxia caused by 100% partial to full thickness burn (whole body); duration was 6-12 hours. However he could not give any opinion as to whether the death was homicidal or suicidal. Pieces of liver, spleen, kidney, lungs and stomach were preserved for chemical analysis, but no report relating thereto could be filed. In further investigation, the appellants were taken into custody and their memorandum statements u/S. 27 of the Evidence Act were recorded. Momorandum statement of accused Khamhan (Ex. P/7) was recorded on 26-10-2007 and a plastic jerry-cane having 2 & 1/2 liters of kerosene was seized at his instance vide seizure memo Ex. P/8. A mobile set of phone No. 99268-86190 was also seized from the possession of accused Khamhan Singh on 25-10-2007 vide seizure memo Ex. P/15. Another mobile-set of phone No. 99778-74188 was seized from the possession of Shriram (PW-1) vide seizure memo Ex. P/8. A mobile set of phone No. 99268-86190 was also seized from the possession of accused Khamhan Singh on 25-10-2007 vide seizure memo Ex. P/15. Another mobile-set of phone No. 99778-74188 was seized from the possession of Shriram (PW-1) vide seizure memo Ex. P/6. Another mobile set of phone No. 99772-10203 was seized from the possession of accused No. 3, Hemant Kumar, vide seizure memo Ex. P/16. Further another mobile set of phone No. 97542-14120 was seized from the possession of Dushyant Yadav (PW-7) vide seizure memo Ex. P/14. Call details of these mobile sets were also taken out vide Ex. P/23. The case of the prosecution was that Khamhan Singh (A-1) had illicit relations with the deceased; Khamhan Singh was talking to the deceased on mobile-set prior to the incident; a quarrel had taken place between the deceased and the accused persons 3-4 days prior to the incident; a report of the said quarrel was also lodged in the police station; and for all these reasons, the deceased was called in the bayara (badi) of accused Khamhan Singh and she was burnt by accused persons by pouring kerosene on her. [2] Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the learned Session Judge relied and held that it was proved beyond all reasonable doubts that the appellants committed murder of the deceased by putting her on fire after pouring kerosene on her body:-- (i) Khamhan Singh (A-1) had illicit relations with the deceased. (ii) 4 days prior to the date of incident, a quarrel and marpit had taken place between the accused persons and the deceased and a report was lodged. (iii) Khamhan Singh (A-1) and Hemant Kumar (A-3) had talked with the deceased on mobile-sets prior to the date of the incident. (iv) The dead body of the deceased was found in burnt condition in the bayara (badi) of Khamhan Singh (A-1). (v) Huge quantity of kerosene was spread near the dead body in the bayara (badi) of Khamhan Singh (A-1) and leaves of Lady's finger plants of badi were found in burnt condition. (vi) There is no evidence that the deceased committed suicide; & (vii) The accused persons were present in the village in the fateful night. [3] Mr. Ranbir Singh Marhas and Mr. (vi) There is no evidence that the deceased committed suicide; & (vii) The accused persons were present in the village in the fateful night. [3] Mr. Ranbir Singh Marhas and Mr. J.R. Verma, learned counsel appearing on behalf of the appellants, argued that the above circumstances set-forth by the prosecution, were not of conclusive nature and tendency; they were capable of being explained; in fact, the above circumstances were not fully established against the appellant; and the chain of circumstantial evidence was not complete and it was not established that the deceased died homicidal death. They further argued that bayara (badi) was an open place, accessible to all, therefore, even if the dead body was found in the bayara (abdi) of Khamhan Singh (A-1) it would hardly be incriminating against the appellants. [4] On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General 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] It is well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established i.e. the circumstances concerned 'must' or 'should' and not 'may' be established. The circumstances so established must point towards the guilty of the accused and they should not be capable of being explained. The circumstances must be of a conclusive nature and tendency and there must be a chain of circumstantial evidence so complete as not to leave any reasonable grounds for the conclusion consistent with innocence of the accused and must show that in all human probability the offence must have been committed by the accused. See Dhananjoy Chhatterjee v. State of W.B., 1994 2 SCC 220 ; Bodh Raj alias Bodha and others v. State of Jammu and Kashmir, 2002 AIR(SC) 3164 Birender Poddar v. State of Bihar, 2011 6 SCC 350 . See Dhananjoy Chhatterjee v. State of W.B., 1994 2 SCC 220 ; Bodh Raj alias Bodha and others v. State of Jammu and Kashmir, 2002 AIR(SC) 3164 Birender Poddar v. State of Bihar, 2011 6 SCC 350 . [7] So far as circumstance of illicit relations between Khamhan Singh (A-1) and the deceased & prior incident of marpit, i.e. circumstances (i) & (ii) are concerned, Sriram Verma (PW-1- father of the deceased) deposed that on 18-10-2007 when he returned to his house from his duty, deceased Sangeeta told him that Punni Bai (A-2) quarreled with her on the pretext that she had illicit relations with her husband. Maankumari (PW-2) is cousin sister of deceased Sangeeta. She deposed that prior to her death, Sangeeta had told her that Punni Bai (A-2) and her family members had assaulted her. She had told the names of Punni Bai (A-2), Mukeshwari and Golu. Deceased Sangeeta, in the said quarrel, had received injury on her thigh and lip Ram Kumar Verma (PW-8) is cousin brother of deceased Sangeeta. He also deposed that 2 days prior to the date of incident Punni Bai (A-2). Mukeshwari, Thitheshwari, Digeshwari and their family members had quarreled with, the deceased. Though it is said that a report of the above quarrel and marpit was lodged by Sangeeta in police station, but no such report has been proved on record by the prosecution. Ram Kumar (PW-8) admitted in the cross-examination that he had not seen the above quarrel and he had only expressed his suspicion against the above persons who may have assaulted the deceased in the prior incident. Maankumari (PW-2) was having no personal knowledge of the prior incident and according to her, she was told by Sangeeta about all that. Shriram Verma (PW-1) was also not a witness to the said incident, as according to him, he was also briefed by Sangeeta about prior incident of 18-10-2007. [8] On due appreciation of evidence of above witnesses, we find that the above 2 circumstances, i.e. (i) & (ii), were not fully established by the evidence of above witnesses. There is absolutely no legal evidence to show illicit relations between Khamhan Singh (A-1) and the deceased. The prosecution has tried to prove this circumstance to show that the appellants had 'motive' to commit murder of the deceased, which we do not find to be proved. There is absolutely no legal evidence to show illicit relations between Khamhan Singh (A-1) and the deceased. The prosecution has tried to prove this circumstance to show that the appellants had 'motive' to commit murder of the deceased, which we do not find to be proved. [9] This is a case of circumstantial evidence and motive has greater relevancy. The alleged motive has to be proved like any other circumstantial evidence which we do not find to be proved in this matter. Therefore, finding of the Session Judge that on account of illicit relations between accused No. 1 (A-1) and the deceased and the prior quarrel the appellants committed murder of the deceased, cannot be sustained as the above circumstances were not established by cogent and reliable evidence. [10] So far as circumstance No. (iii) is concerned, call details of seized mobile-sets of phone Nos. 99268-86190, 97542-14120, 99772-10203 & 99778-74188 have been proved as Ex. P/23. According to the prosecution, mobile-set of phone No. 99778-74188 was seized from the possession of father of the deceased saying that the deceased was using that mobile number. Mobile-set of phone No. 99268-86190 was seized from the possession of Khamhan Singh (A-1). According to call details of mobile-set of phone No. 99268-86190, no call was made by this cell-phone to cell-phone No. 99778-74188, therefore, it was not established that Khamhan Singh (A-1) had talked with the deceased by cell-phone No. 99268-86190. The other call details would show that from cell-phone No. 97542-14120, 3 calls were made to cell-phone No. 99778-74188 and the last call was made on 22-10-2007. Mobile-set of cell No. 97542-14120 was seized from the possession of Dushyant Yadav (PW-7). He had a S.T.D.-P.C.O. Dushyant Yadav was declared hostile. He did not explain about the calls connecting the appellants. Even if there had been a talk on the cell-phone which was seized from the possession of father of the deceased from the P.C.O., that by itself would hardly be incriminating against the appellants. cell-phone No. 99772-10203 was seized from the possession of Hemant Kumar (A-3). According to its call details of 21-10-2007, a call was made from this cell-phone to the cell-phone seized from the possession of father of the deceased. cell-phone No. 99772-10203 was seized from the possession of Hemant Kumar (A-3). According to its call details of 21-10-2007, a call was made from this cell-phone to the cell-phone seized from the possession of father of the deceased. Merely on the proof of a talk by this mobile set to the mobile set which was seized from the possession of the father of the deceased, nothing incriminating would be established against the appellants. Moreover, nobody knows as to what conversation took place in the above calls and who, in fact, talked through the above numbers as per the said call details. Therefore, the said circumstance was capable of being explained and was not conclusive and it would hardly be incriminating against the appellants in the present facts and circumstances of the case. [11] Now we shall consider the other circumstances, i.e. circumstances (iv) to (vii). [12] The dead body of the deceased was found in bayara (badi) of appellant- Khamhan Singh (A-1). The prosecution has led evidence to the effect that the bayara (badi) was under cultivating possession of father of appellant Khamhan Singh namely Chheduram. Khasra Panchsala of the bayara (badi) has been filed and marked as Article A. Map of the bayara, Ex. P/4, has been prepared. Panchnama (Ex. P/13) has also been prepared by the police after inspection of the bayara. It appears from the above documents that it was an open place and various plants of lady's finger were grown up therein. It also appears that huge amount of kerosene was found spread in the bayara. This is not a case in which the incident took place at the house of the appellants. If the dead body was found in the bayara which was accessible to all, how the appellants can be made liable for the same. In such cases in absence of any other evidence, owner of the land cannot be held to be liable. Even in such situation, the owner or the possession holder of the land would not be required to offer explanation as to how the dead body was found in his land because he may not be having personal knowledge about all this. The houses of the appellants are at different places. In the above facts and circumstances of the case, we do not find the present circumstance to be incriminating against the appellants. The houses of the appellants are at different places. In the above facts and circumstances of the case, we do not find the present circumstance to be incriminating against the appellants. We are of the view that the learned Session Judge erred in treating the above circumstance as incriminating against the appellants. Even if huge amount of kerosene was found spread in the bayara and the leaves of the plants of lady's finger were found in burnt condition, they may only lead to the conclusion that burning had taken place in the bayara and kerosene was used for burning. But how the deceased received burn injuries, who caused her burn injuries, whether they were self-inflicted, all this cannot be proved by the above circumstances. It is not the case of the prosecution that the appellants were seen in their bayara in the fateful night. There is no evidence to the effect that even they were seen near the bayara in the night. Therefore, on the above circumstances alone, they cannot be held responsible for the incident of death of the deceased. [13] The learned Session Judge has held that the appellants were present in the village in the fateful night. How this would be incriminating. If the appellants are residents of the same village and they are having their landed property in the village, they are bound to remain present in the village and this cannot be read against them. [14] The learned Session Judge has surprisingly held that since it was not proved that the deceased committed suicide, therefore, it was also an incriminating circumstance against the appellants. Learned counsel for the appellants have argued that the prosecution has utterly failed to prove that it was a case of homicidal death. When the accused persons were facing the charge of murder, this was an important circumstance to be proved by the prosecution. The prosecution has examined Dr. Pramod Kumar Tiwari (PW-13) to prove the above circumstance. Dr. Tiwari (PW-13) deposed that the deceased had sustained skin deep burns all over the body; hairs were completely burnt; only the soles of the legs were not burnt. In internal examination, he found small carbon particles in the trachea. Other organs were congested. Therefore, he opined that the cause of death was asphyxia on account of 100% burn. Dr. Tiwari (PW-13) deposed that the deceased had sustained skin deep burns all over the body; hairs were completely burnt; only the soles of the legs were not burnt. In internal examination, he found small carbon particles in the trachea. Other organs were congested. Therefore, he opined that the cause of death was asphyxia on account of 100% burn. He deposed in clear words that he was not able to ascertain as to whether it was a homicidal death or it was a suicidal death and for this reason, he preserved pieces of liver, spleen, kidney, lungs & intestine and has advised for their further examination. No other material, except the above, was filed by the prosecution to prove that it was a homicidal death. [15] The learned Session Judge has concluded that it was homicidal death taking ground that it was not proved that the death was suicidal. The Session Judge has assigned vague reasons to rule-out the possibility of suicidal death. In a case of murder, in usual manner, the burden lies on the prosecution to prove by leading positive evidence that the death was homicidal. In the instant case, the Autopsy Surgeon could not establish that the death was homicidal. Therefore, the finding of the Session Judge that the death of the deceased was homicidal is baseless and the same cannot be upheld. [16] For the foregoing reasons, we are unable to sustain the conviction of the appellants on the above set of circumstantial evidence. The appeals, therefore, are allowed. The conviction and sentences awarded to the appellants u/Ss. 302/34. IPC are set aside and they are acquitted of the charges framed against them. Appeal allowed.