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2014 DIGILAW 325 (CHH)

Bhaghwat Kosaley v. State of C. G.

2014-08-28

GOUTAM BHADURI, NAVIN SINHA

body2014
JUDGMENT Navin Sinha, J. 1. The appellant stands convicted for the homicide of two persons separately to life imprisonment under Section 302 I.P.C. along with fine of Rs. 2000/- each failing which he would have to undergo further one year of rigorous imprisonment and further to three years of rigorous imprisonment under Section 201 I.P.C. along with fine of Rs. 500/- failing which he would have to undergo further six months of rigorous imprisonment. The sentences have been directed to run concurrently by the Second Additional Sessions Judge, FTC, Mungeli, Bilaspur in Sessions Trial No. 33 of 2008 dated 30.10.2010. Co-accused Shatruhan Dhuri tried under Section 120-B only has been acquitted. Jarhagaon P.S. Case No. 49 of 2008 was lodged on 27.5.2008, by Mirza Hafiz Baig, PW 1, a Lawyer by profession, under Section 302 I.P.C. against unknown persons, marked; Exhibit 1. The informant stated that the previous evening his mother, Rabia Begum (deceased) left home at 6:00 PM stating that she was going to the house of her daughter Parveen Begum, PW 17, at Loharkapa. The latter confirmed her arrival and also told the informant ' that the mother had gone out after a call received from the appellant, Pargania and Guru Bachan who were all brick kiln owners. His brother Mirza Hasim @ Jaan (deceased) also arrived. At about 7:30 PM he left to look for his mother. Both did not return home. On 27.5.2008 at about 7, PW 17 inquired from the informant the whereabouts of her mother and brother. The informant found the dead bodies of his mother and brother on the way to the brick kiln. He suspected the appellant, his friends Pargania Satnami, Guru Bachan, Shatruhan Dhuri, Resham Lal Satnami, Khushwaha Satnami, Ram Lal Satnami, Shyam Lal Khande and their friends of having killed the two deceased as they had earlier threatened to kill because of land dispute. 2. The postmortem of the two deceased was done on 27.5.2008 by PW 16, Dr. V.V. Gadliv. A total of 18 injuries were found on deceased, Rabia Begum. Two punctured wounds were caused by hard pointed object, one incised wound caused by sharp instrument and the others by hard blunt substance. Death was opined due to cardio pulmonary failure caused by hemorrhage, shock and injury caused by sharp object to the brain marked as Exhibit 22. A total of 18 injuries were found on deceased, Rabia Begum. Two punctured wounds were caused by hard pointed object, one incised wound caused by sharp instrument and the others by hard blunt substance. Death was opined due to cardio pulmonary failure caused by hemorrhage, shock and injury caused by sharp object to the brain marked as Exhibit 22. The other deceased had 13 injuries on his person of which three were caused by sharp instrument incised in nature, one punctured wound by pointed object and the rest by hard blunt substance marked as Exhibit 23. The appellant was taken into custody on 31.5.2008 at 12:15. His confession was recorded under Section 27 of the Evidence Act on 31.5.2008 at 10 o'clock, marked Exhibit 15, on the basis of which the "Tabbal" alleged to have been used for assault and its wooden handle were recovered from the river, marked Exhibit 16. A wooden plank with blood stain was also recovered from the place of occurrence. 3. The material witnesses were, PW 1 Mirza Hafiz Baig, PW 17 Shabana Praveen, PW 20 Mirza Hafiz Baig @ Raju all relatives of the two deceased. PW 14 Ram Milan, was the Dog Instructor and PW 22, the Investigating Officer, Smt. Toppo. 4. PW 1 deposed that PW 17 had informed over mobile phone that deceased Rabia Begum had left on a call received from the appellant. He suspected the appellant, Shatruhan Dhuri, Resharn Lal, Khushwaha Satnami and others as being the assailants because of a land dispute and the threats held out in this regard earlier. He had seen the appellant and Shatruhan Dhuri crossing his house at Takhatpur about 5 in the evening on 26.5.2008. His younger brother PW 20 had also informed of the threat given by the appellant and Shatruhan Dhuri on 22.5.2008. 5. PW 17, deposed that her mother told her that a person had called her from the KuranKapa brick kiln and left home. Her deceased brother left home to look for the mother with a wooden plank in his hand. The appellant and Shatruhan Dhuri always quarreled with her mother and brother. A police complaint had also been lodged but no action had been taken. But no such evidence in support was brought on record. On 22.5.2008 the appellant and Shatruhan Dhuri had threatened to kill his brother. The appellant and Shatruhan Dhuri always quarreled with her mother and brother. A police complaint had also been lodged but no action had been taken. But no such evidence in support was brought on record. On 22.5.2008 the appellant and Shatruhan Dhuri had threatened to kill his brother. Two days prior to the incident, Kalla Yadav, Shatruhan Dhuri, Resham Jangde, Khushwaha Satnami and the appellant had threatened her mother. The other brick kiln owners had been paying for using their lands as a passage except for the appellant, Shatruhan Dhuri, Murtaza and Pargania who refused to pay and had threatened to kill. She further stated that in statement u/s. 161 Cr.P.C. she had specifically named Kalla and Mannu Kewat, and that the latter had entered their house two days earlier to the occurrence with "Tangi" threatening to kill her brother. She further stated that the appellant, Murtza and their associates had threatened earlier also. 6. PW 20 Mirza Hafiz Baig @ Raju, the son of deceased Rabia Begum deposed that he learnt on 27.5.2008 at Bhilai of the death of his mother and brother. Previous dispute on 22.5.2008 with regard to passage was reiterated and that they had abused and threatened to kill. He had met the appellant two/three days after occurrence at village Jarhagaon. He denied that he disclosed the names of four suspects including the appellant in his statement u/s. 161 Cr.P.C., but that he had named only appellant and Shatruhan Dhuri. 7. PW 14 Ram Milan, the Dog Instructor deposed that on the scent from the wooden plank found at the place of occurrence, the dog went to the house of the appellant and then to his brick kiln and returned to his house. The sniffer dog did not apprehend any suspect at the house of the appellant or any other place. The report Exhibit 20 additionally states that the dog upon return from the brick kiln went to two more houses the details of which have neither been mentioned in the deposition of the witness or the report. 8. PW 22 Investigating Officer Smt. Toppo, proved the confession of the appellant u/s. 27 of the Evidence Act recorded on 31.5.2008 marked as Exhibit 15 and the seizure marked as Exhibit 16 for recovery of "Tabbal" and the wooden bait of the "Tabbal". 8. PW 22 Investigating Officer Smt. Toppo, proved the confession of the appellant u/s. 27 of the Evidence Act recorded on 31.5.2008 marked as Exhibit 15 and the seizure marked as Exhibit 16 for recovery of "Tabbal" and the wooden bait of the "Tabbal". She further acknowledged having made inquiry from all the persons named as suspects but did not remember whether she had recorded their statements. The dog was stated not to have gone upto the appellant even though he was present at his house when the sniffer dog came there on the date of occurrence itself. 9. PW 10 Bhagat Ram, acknowledged his signature on the confession of the appellant, Exhibit 15 and the consequent seizure memo Exhibit 16 but denied that it was recorded in his presence and the seizure made stating that he had signed on pre-written documents. Similarly PW 21, Naresh Patel, Sarpanch, acknowledged his signature on Exhibits 15 and 16 but denied that any confession was recorded or recovery made in his presence having signed on pre-written documents. 10. Charge-sheet was submitted on 22.8.2008 under Sections 302, 120-B, 201, 34 IPC only against the appellant. 11. Learned counsel for the appellant submitted that the entire case of the prosecution is based on circumstantial evidence common to the appellant and the acquitted accused Shatruhan Dhuri. There is no material to distinguish the case of the appellant and put it on a higher pedestal of circumstantial evidence. The appellant was taken into custody on 31.5.2008 at 12:45 pm. His confession under Section 27 of the Evidence Act is stated to have been recorded before custody at 10.00 am and is therefore inadmissible. The sniffer dog coming to the house of the appellant cannot be substantive evidence in a case of circumstantial evidence. The dog did not go near the appellant even though he was present at home. The alleged dispute regarding passage may provide motive, but alone it was not sufficient to return finding of guilt in a case based on circumstantial evidence. No evidence was placed with regard to any earlier police complaint of any alleged threats held out by the appellant. The alleged dispute regarding passage may provide motive, but alone it was not sufficient to return finding of guilt in a case based on circumstantial evidence. No evidence was placed with regard to any earlier police complaint of any alleged threats held out by the appellant. PW 17 Shabana Parveen, who had received phone call of an unnamed person specifically named Kalla Yadav, Shatruhan Dhuri, Resham Jangde, Kushwaha Satnami apart from the appellant and the acquitted accused and further alleged that Mannu Kewat had entered their house two days prior to the occurrence with "Tangi" threatening to assault. The deposition of PW 1 that PW 17 informed him that the appellant alone had called after which his mother left home is therefore not correct and contrary to the evidence on record. The Sessions Judge committed serious error of law and fact by improper appreciation of evidence that it was the appellant alone who had called the deceased Rabia Begum over phone. PW 14, the dog instructor stated that the wooden plank seized was blood stained while PW 22, the Investigating Officer made no such statement. In a case of circumstantial evidence, the conduct of the accused is a very important and relevant circumstance. If the appellant had committed the offence, he would not have come back his house and been present when the sniffer dog was brought risking his own involvement. A guilty mind would have forced him to flee in an effort to exculpate himself. Apart from the confession being inadmissible having been made even before arrest, the Investigating Officer did not depose the name of any river from which the recovery was alleged to have been made. According Jo the confession, the "Tabbal" and its wooden handle were thrown in the river, but Exhibit P/16 does not state that the recovery was made from the riverbed. PW 21 Naresh Patel, who admitted having signed the confession and the seizure memo were suggested to be known to the appellant which he sought to deny. Likewise PW 10 Bhagat Ram, witness to Exhibit 15 and Exhibit 16 was also known to PW 1 from earlier. If the two deceased had 13 and 18 injuries respectively it could not have been caused by the appellant single handedly and simultaneously. Likewise PW 10 Bhagat Ram, witness to Exhibit 15 and Exhibit 16 was also known to PW 1 from earlier. If the two deceased had 13 and 18 injuries respectively it could not have been caused by the appellant single handedly and simultaneously. The learned Sessions Judge posed to himself the wrong question at paragraph 24 of the judgment with regard to circumstantial evidence by complete misappreciation of facts with regard to the appellant having allegedly called the deceased and recovery of the "Tabbal" on his confession. The appellant is, therefore, entitled to benefit of doubt as not being assailant and deserves to be acquitted. 12. Learned counsel for the State sought to persuade us that complaint was lodged with the police earlier regarding the threats given by the appellant and co-accused Shatruhan Dhuri which was filed with the police challan. But the seal of the police reveals it was received on 1.10.2008 while the F.I.R. was lodged on 26.5.2008 and the challan had been submitted on 22.8.2008 itself. Similarly learned counsel for the State was unable to address us that if the appellant allegedly threatened witnesses during the trial if any complaint was lodged before the trial court and what action was taken by the Court. Even if an alleged complaint by PW 1 dated 17.1.2007 is noticed it only states of abuse and no threat for fatal assault. Lastly it was submitted that the appellant was refusing to pay for passage while others were paying. The judgment under appeal based on circumstantial evidence therefore called for no interference. 13. The informant, PW 1 Mirza Hafiz Baig, a Lawyer by profession appearing in person stressed personal trauma which he had undergone by reason of the killing of his mother and brother. It was submitted that the appellant was named by him both in the F.I.R. and statement u/s. 161Cr.P.C. The trauma being deep he was not in a position to make proper statements at the time of lodging of the F.I.R. or during investigation. In any event, the F.I.R. was only the first report of a cognizable offence which did not constitute substantive evidence by itself. During investigation, the appellant was taken into custody and his confession recorded leading to the recovery of the weapon of assault. The sniffer dog going to the house of the appellant again may not be substantive evidence by itself. During investigation, the appellant was taken into custody and his confession recorded leading to the recovery of the weapon of assault. The sniffer dog going to the house of the appellant again may not be substantive evidence by itself. But coupled with the confession and seizure, all of them corroborating each other, with the previous enmity regarding the land dispute completes the chain of circumstances and the appellant cannot have the benefit of any alleged minor discrepancy. The confession and the consequent seizure have sufficiently been proved to be valid by PW 10 and PW 21 acknowledging their signatures on it, the latter, Sarpanch being public authority. The assault was gruesome with "Tabbal" which is very sharp with pointed ends on both edges and has a long wooden bait which facilitated repeated assaults with no danger to the safety of the appellant. Blood marks obviously could not be found on the "Tabbal" or the wooden bait as they were recovered from the river bed. 14. We have considered the submissions on behalf of the parties and evidence available on record also. No appeal has been filed against the acquittal of co-accused Shatruhan Dhuri. 15. Two persons are stated to have been done to death. There is no eyewitness to the occurrence. There is no other incriminating circumstance directly pointing to the guilt of the appellant, forensic or otherwise. The entire case of the prosecution rests on circumstantial evidence. The law of circumstantial evidence is one of the methods evolved in criminal jurisprudence to ascertain the guilt of an accused against whom direct evidence may not otherwise be available. But, the Court has to be circumspect while examining the circumstantial evidence and proceed with caution. In a case of circumstantial evidence, motive, events and supporting materials may form evidence. But they alone cannot form the basis for guilt. These must constitute a chain of links with one merging into the other and there must be no break in link or chain. This chain of circumstances, events and links must lead to only one conclusion for the guilt of the accused. There must be no intervening events to disturb this link of circumstances which must inevitably lead to the only reasonable hypothesis for the guilt of the accused and incompatibility of his innocence. This chain of circumstances, events and links must lead to only one conclusion for the guilt of the accused. There must be no intervening events to disturb this link of circumstances which must inevitably lead to the only reasonable hypothesis for the guilt of the accused and incompatibility of his innocence. If any link in this chain of circumstance be compatible with the innocence of the accused, the benefit of doubt has to be given to him. 16. PW 1 deposed that the name of the appellant as the person who had called the deceased Rabia Begum was disclosed by his sister PW 17. But, the latter in her deposition stated that one person had called her mother without disclosing the name of the appellant. PW 1, a Lawyer by profession named the appellant and seven others apart from other unknown persons as suspects in the F.I.R. Yet the F.I.R. was registered against unknown persons. No protest petition was stated to have been lodged. PW 22, Investigating Officer, acknowledged having interrogated all the named suspects during investigation but gave no answer why the F.I.R. was registered against unknown persons or their statements not documented. The evidence of PW 1, PW 17 and PW 20 read together reveals that the appellant who was also the owner of a brick kiln was not the only person with whom the deceased had a dispute with regard to passage of lands from the brick kiln. At one time or another, different persons have been named as harassing the deceased and having threatened them earlier also with regard to assault. No explanation has been put forth why charge sheet was submitted only against two suspects when the witnesses had named several persons as suspect both in the F.I.R. and statements u/s. 161 Cr.P.C. There is no explanation if any protest petition was filed or not. The sniffer dog came on the day of occurrence itself. Undoubtedly it went to the house of the appellant. But it also went to the house of two others whose names have not been disclosed. Significantly the appellant was present in his house when the sniffer dog came there, but it did not go up to him. If he was the perpetrator of the crime, surely he would not have gone back to his house and waited to be arrested. Significantly the appellant was present in his house when the sniffer dog came there, but it did not go up to him. If he was the perpetrator of the crime, surely he would not have gone back to his house and waited to be arrested. His conduct is also incompatible with the guilt attributed to him. The sniffer dog cannot be substantive evidence by itself, but only an aid in investigation to be corroborated by other materials. In the present case, the mere fact that the sniffer dog went to the house of the appellant in the absence of any corroborative material cannot be of much help to the prosecution and the benefit of doubt must go to the accused. 17. That the sniffer dog had been to the house of the appellant earlier will not lend extra credibility to his confession under Section 27 of the Evidence Act with regard to recovery of the weapon of assault as a substantive piece of evidence for conviction to be based on it. The confession can be stated to be based on pre-disclosed information with regard to the appellant. Even otherwise, the independent witnesses of the confession and consequent seizure have both stated that it was not recorded and effected in their presence, but that they had signed on pre-written papers. The mere fact that they admitted their signatures does not lead to proof of the contents especially when no questions were put in this regard to the Investigating Officer PW 22. Additionally, according to Exhibit 17, the appellant was arrested on 31.5.2008 at 12.15 p.m. The memorandum was recorded on 31.5.2008 before the arrest at 10.00 a.m. and the recovery shown at 12.00 p.m. The confession and recovery being earlier to the custody of the appellant vitiates itself completely, even as a piece of corroborative evidence. 18. The evidentiary value of a sniffer dog in a case of circumstantial evidence was considered in Dinesh Borthakur Vs. State of Assam (2008) 5 SCC 697 observing as follows:-- 39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra stated the law, thus: (SCC p. 239, para 11) "11. ... State of Assam (2008) 5 SCC 697 observing as follows:-- 39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra stated the law, thus: (SCC p. 239, para 11) "11. ... There are three objections which are usually advanced against the reception of [the evidence of dog tracking.] First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-examination, the dog's human companion must go into the box and report the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences." 40. Yet again in Gade Lakshmi Mangaraju v. State of A.P. this Court opined: "There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. ... The possibility of a misrepresentation or a wrong inference from the behavior of the dog could not be ruled out. Last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. ... Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them." The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused." 19. The two deceased had 18 and 13 injuries on them respectively. It cannot be said with certainty that one person could have caused so many injuries singularly to either of them with a wooden plank and "Tabbal" allegedly recovered on the confession of the appellant. On the contrary, it can safely be said that the assailant was more than one. 20. The evidence of PW 1 and PW 17 evidently reveals use of mobile phone communications to call the deceased. Mobile forensics was completely ignored by the Investigating Officer which otherwise could have been valuable in a case of circumstantial evidence. On the contrary, it can safely be said that the assailant was more than one. 20. The evidence of PW 1 and PW 17 evidently reveals use of mobile phone communications to call the deceased. Mobile forensics was completely ignored by the Investigating Officer which otherwise could have been valuable in a case of circumstantial evidence. Despite, PW 1 naming more than one suspect in the First Information Report, PW 22 lodged it against unknown persons. During investigation she acknowledged interrogating the suspects and then stating that she did not record their statements to decide their guilt and submitted charge-sheet against two persons only. One was charged with conspiracy only and has been acquitted. The investigation was so shoddy that it compels us to observe that it has rendered criminal jurisprudence a complete mockery and an abuse of the principle of beyond reasonable doubt. 21. In conclusion, previous enmity was not exclusive to the appellant and it cannot be said with certainty that the appellant alone had called the deceased over phone to come to the brick kiln. The prosecution witnesses during deposition named several suspects notwithstanding which the police registered the F.I.R. against unknown and effectively submitted charge-sheet against one person only. The number and nature of injuries found on the two deceased cannot be attributable to an assault by a single person. It therefore cannot be said with certainty that the chain of circumstances was complete incompatible with the innocence of the appellant that he was the sole perpetrator of the crime to deny him the benefit of reasonable doubt incompatible with his innocence to hold him guilty. 22. In a case of circumstantial evidence if two views are possible the benefit of doubt must be given to the accused was considered in Kali Ram Vs. State of H.P. (1973) 2 SCC 808 as follows:-- "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt........" 23. The law with regard to circumstantial evidence as a basis for conviction was again noticed from earlier precedents in Snjit Biswas Vs. State of Assam (2013) 12 SCC 406 observing as follows:-- "18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused." 24. The Trial Court at paragraph 24 of the judgment misdirected itself in appreciation of evidence by holding that the appellant alone had previous enmity and that he was the person who had called the deceased over phone to come to the brick kiln corroborated by his confession and recovery of the weapon of assault. 25. Two persons have been done to death. Suspects were named in the F.I.R. Yet they were not made accused and a novel method of investigation by questioning them without custody, in a very serious offence was invented. Even their statements were not recorded by the Investigating officer who further stated that she does not remember if their statements were recorded or not. Mobile forensics was completely ignored. Suspects were named in the F.I.R. Yet they were not made accused and a novel method of investigation by questioning them without custody, in a very serious offence was invented. Even their statements were not recorded by the Investigating officer who further stated that she does not remember if their statements were recorded or not. Mobile forensics was completely ignored. The manner in which the police investigated the case, more importantly in case of circumstantial evidence, leaves us thoroughly dissatisfied as done with a deliberate design to botch up and help and save the real assailants. The statutory power to investigate and the responsibility for enforcing rule of law vested in the police was abused to the hilt. We therefore direct the Director General of Police, Chhattisgarh, to examine issues in his administrative jurisdiction and take appropriate action against the concerned in accordance with law. A copy of this order be sent to the Director General of Police for the needful. We are unable to uphold the conviction of the appellant as having been proved beyond all reasonable doubt compatible only with the guilt of the accused. The judgment of conviction dated 30.10.2010 in Sessions Trial No. 33/2008 by the Second Additional Sessions Judge, FTC, Mungeli is set-aside. The appellant is acquitted. He is directed to be released from custody forthwith unless wanted in any other case.