Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 43 (CHH)

Ramanand Pandey v. State of C. G.

2014-02-04

INDER SINGH UBOWEJA, SUNIL KUMAR SINHA

body2014
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 28th of July, 2001, passed in Sessions Trial No. 364/1999 by the 4th Additional Sessions Judge, Link Court, Pendra Road, Bilaspur. By the impugned judgment, appellant No. 1-Ramanand Pandey (A-1) has been convicted under Section 302 IPC and appellant No. 2-Smt. Asha Devi alias Guddi (A-2) has been convicted under Sections 302/34 IPC and both have been sentenced to undergo R.I. for life and to pay fine of Rs. 1000/- with default sentences of R.I. for 6 months. The facts, briefly stated, are as under:-- 1.1. Deceased-Naresh Pandey was a Mechanic in Railways. Appellant - Ramanand (A-1) was also a worker in Railways. Appellant - Smt. Asha Devi alias Guddi (A-2) is wife of the deceased. Deceased-Naresh Pandey and appellant-Smt. Asha Devi alias Guddi (A-2) were residing together in Railway Quarter No. 36/1, situated in Railway Colony, Pendra Road, Bilaspur. Appellant - Ramanand (A-1), being friend of the deceased, was also residing with them in their Railway Quarter since last 21 days, as he had vacated his rented premises on account of request of his landlord-Gunnu Nayak (PW-8). 1.2. On 1st August, 1999 at about 6.00 am, Brijchand (PW-9), who was a Chabidar (Key-man) of the Railways, saw the dead body of the deceased near the old Cabin. Merg Intimation (Ex. P/2) was lodged by him. Panchanama (Ex. P/20) was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. R.C. Mishra (PW-21). He found 3 abrasions on different parts of the dead body of the deceased. There was also a contusion of 6 x 4 cm on the occipital region. Besides the above injuries, there was a transverse ligature mark of 28 x 0.5 cm on the neck. It was brownish in colour. The ligature mark had gone towards the back of the neck, but it was not on that portion. On internal examination, it was found that clotted blood was present beneath the injury on the occipital region. According to the Autopsy Surgeon, the cause of death was asphyxia due to strangulation and it was homicidal in nature. The postmortem report is Ex. P/23. 1.3. On 03.08.1999, appellant - Ramanand (A-1) was taken into custody and his memorandum statement (Ex. On internal examination, it was found that clotted blood was present beneath the injury on the occipital region. According to the Autopsy Surgeon, the cause of death was asphyxia due to strangulation and it was homicidal in nature. The postmortem report is Ex. P/23. 1.3. On 03.08.1999, appellant - Ramanand (A-1) was taken into custody and his memorandum statement (Ex. P/6) was recorded under Section 27 of the Evidence Act and 1 empty bottle of liquor and a piece of electric wire were seized from the bushes near the old Cabin vide seizure memo Ex. P/7. 1.4. On 10.08.1999, Ramesh Pandey (PW-7), brother of the deceased, found a letter (Ex. P/11) in the Almirah of appellant-Smt. Asha Devi alias Guddi (A-2). According to him, it was a letter written by Smt. Asha Devi alias Guddi to her parents, in which, it was mentioned that she was fed-up with the conduct of the deceased (her husband) and she would get him killed. This letter was produced before the Police by Ramesh Pandey (PW-7) on 09.09.1999 and was seized vide seizure memo Ex. P/8. The letter was sent for Expert examination and a report of Handwriting Expert (Ex. P/37) was received. The handwriting of the letter (Ex. P/11) was matching with the specimen handwriting of appellant-Smt. Asha Devi alias Guddi (A-2). Though the Expert report was filed by the prosecution, but the Handwriting Expert was not called to prove the said report. 1.5. In further investigation, case-diary statements of Ramnath (PW-2) and Abdul Rasid (PW-25) were recorded. They stated that the deceased was lastly seen in the company of appellant-Ramanand (A-1) at about 10.30 pm on 31st July, 1999. Evidence of other witnesses were also recorded, who stated that appellant-Smt. Asha Devi alias Guddi (A-2) had developed illicit relations with appellant - Ramanand (A-1). According to them, these 2 appellants were seen together at many places. 1.6. The prosecution came with the case that since appellant - Smt. Asha Devi alias Guddi (A-2) had developed illicit relations with appellant - Ramanand (A-1), the deceased was murdered by Ramanand (A-1) by strangulating him in the night on 31.07.1999. 1.7. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. The prosecution came with the case that since appellant - Smt. Asha Devi alias Guddi (A-2) had developed illicit relations with appellant - Ramanand (A-1), the deceased was murdered by Ramanand (A-1) by strangulating him in the night on 31.07.1999. 1.7. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge has relied and convicted and sentenced the appellants as above: i. The deceased died homicidal death; ii Appellant-Ramanand (A-1) and the deceased were 'last seen together' at about 10.30 pm on 31.07.1999; iii Appellant - Ramanand (A-1) gave disclosure statement under Section 27 of the Evidence Act and 1 empty bottle of liquor and a piece of electric wire were seized at his instance; iv. Appellant - Smt. Asha Devi alias Guddi (A-2) had written a letter (Ex. P/11), in which, she had expressed that she would get the deceased killed; and v. Appellant - Smt. Asha Devi alias Guddi (A-2) had developed illicit relations with appellant - Ramanand (A-1), therefore, they had 'motive' to commit murder of the deceased. 2. Mr. Surendra Singh, learned Senior counsel appearing on behalf of the appellants, has argued that the circumstances set-forth were not fully established; they were not of conclusive nature and tendency; the circumstances were insufficient and capable of being explained; the alleged circumstance of 'last seen' was not relevant because admittedly, appellant-Ramanand (A-1) was residing with the deceased in his house; and it was not established that the letter (Ex. P/11) was written by appellant - Smt. Asha Devi alias Guddi (A-2) as the Expert Report was not proved. 3. On the other hand, Ms. Pushpa Dwivedi, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 4. We have heard counsel for the parties. 5. So far as the circumstance of homicidal death is concerned, there is admittedly any doubt. Dr. R.C. Mishra (PW-21) had conducted autopsy on the dead body of the deceased and had found the above injuries. He had found a deep ligature mark on the neck of the deceased. It was horizontal, He had also noticed other symptoms of strangulation and had opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. He had found a deep ligature mark on the neck of the deceased. It was horizontal, He had also noticed other symptoms of strangulation and had opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. Therefore, it was rightly held that the deceased had died homicidal death. 6. Ramnath (PW-2) and Abdul Rasid (PW-25) were the witnesses of 'last seen'. Ramnath (PW-2) has deposed that in the fateful night at about 10.30 pm, he had seen that appellant Ramanand (A-1) and the deceased were standing together at the door of the house of the deceased. He had a talk with the deceased. In cross-examination, he admitted that appellant Ramanand (A-1) and the deceased were good friends and they were the staff in the same office. 7. Abdul Rasid (PW-25) has also deposed that on 31.07.1999 at about 10.30 pm, when he had gone to the Railway Station, he met Ramnath (PW-2), and when they were returning back, they had seen that the deceased and Ramanand (A-1) both were standing near the boundary of the house of the deceased. 8. The case of the prosecution is that appellant Ramanand (A-1), was residing in the house of the deceased since last 20 days. Prior to this, he was residing on rent in the house of Gannu Nayak (PW-8). This fact has been proved by the evidence of Gannu Nayak (PW-8). According to him appellant Ramanand (A-1) was working as a Gangman in the Railways. Ramanand (A-1) was residing as his tenant. However, when marriage of Gannu Nayak (PW-8) was settled, he had requested him to see some other accommodation, on which, the deceased had asked Ramanand (A-1) to live in his quarter. Thereafter, since 15-20 days, Ramanand (A-1) was living in the quarter of the deceased. If appellant Ramanand (A-1) and the deceased both were residing together in the quarter of the deceased, then seeing them together on the door of the quarter would not be incriminating. We are of the view that in the above facts situation, the learned Sessions Judge was not justified in holding that it was an incriminating circumstance against the appellants. 9. About the letter (Ex. P/11), Mr. Singh has argued that it was a planted document. We are of the view that in the above facts situation, the learned Sessions Judge was not justified in holding that it was an incriminating circumstance against the appellants. 9. About the letter (Ex. P/11), Mr. Singh has argued that it was a planted document. We note that according to Ramesh Pandey (PW-7), brother of the deceased, this letter was found by him on 10.08.1999 while he was searching the Almirah of appellant Smt. Asha Devi alias Guddi (A-2). This letter was handed over to the Police on 09.09.1999. That is to say that he kept this letter in his possession for about 1 month and thereafter, he handed over it to the Police. He has not given any explanation as to why such a letter was kept by him for a period of 1 month. This letter was sent for Expert examination along with the specimen handwriting of appellant Smt. Asha Devi alias Guddi (A-2). The handwritings were matching. A report (Ex. P/37) was filed by the prosecution. But, the Handwriting Expert was not examined. We find from the contents of Exhibit P/37 that the Expert was an Additional State Examiner of Questioned Documents, Government of Madhya Pradesh, Bhopal. 10. We note from the contents of Section 293(4) of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.') that the said expert was not mentioned in this sub-section so as to get exemption from his personal examination. Thus, if the prosecution was relying on the said letter (Ex. P/11) and the Expert report, it was incumbent upon them to examine the said State Examiner, who had given his opinion (Ex. P/37). When this ground was raised before the trial Court, the trial Court, took the view vide para 43 of the judgment that if the accused persons wanted to take any advantage, they would have called the expert for cross-examination, which they did not do, therefore, they were estopped from challenging the expert report (Ex. P/37) and the said report was admissible in evidence under Section 293(4) Cr.P.C. The above finding was totally incorrect in light of the provisions of Section 293 Cr.P.C. for the reasons that the expert who examined the handwriting of the letter was not included in the list mentioned in Section 293(4) Cr.P.C. 11. P/37) and the said report was admissible in evidence under Section 293(4) Cr.P.C. The above finding was totally incorrect in light of the provisions of Section 293 Cr.P.C. for the reasons that the expert who examined the handwriting of the letter was not included in the list mentioned in Section 293(4) Cr.P.C. 11. On due consideration of the entire material in this regard, we find that evidence of Ramesh Pandey (PW-7) was suspicious as he did not submit the letter to the Police immediately. However, even if his evidence is held to be correct, it was not proved that the said letter was written by appellant Smt. Asha Devi alias Guddi (A-2). Therefore, this circumstance was also not established against the appellants, particularly, against appellant Smt. Asha Devi alias Guddi (A-2). 12. As far as the circumstance of memorandum and seizure of the articles is concerned, they would not be of much importance in the facts and circumstances of the case. These articles were seized from an open place near old Cabin No. 2, which was accessible to all. It is not the case of the prosecution that those articles were kept in hidden condition. The empty bottle of liquor was seized on the pretext that according to the prosecution, the deceased was taken towards old Cabin No. 2. by appellant Ramanand (A-1), where they had consumed liquor and when the deceased became semiconscious on account of heavy drinking, appellant Ramanand (A-1) took advantage of that situation and commit murder of the deceased by throttling with the help of an electric wire, We note that in the postmortem examination, the Autopsy Surgeon had not found liquor in stomach or intestine of the deceased. It is mentioned in the relevant column of the postmortem report that the stomach was congested and was containing rice particles and semi-digested food. There is no mention that it was also containing liquor contents or smell of liquor was coming out from the above semi-digested material found inside the stomach. That apart, the prosecution has not taken care to examine the finger prints on the empty bottle of the liquor so as to connect appellant Ramanand (A-1) or the deceased that they had consumed the liquor of the said bottle. Therefore, the circumstance of memorandum and seizure of the above articles were not incriminating as they were capable of being explained. 13. Therefore, the circumstance of memorandum and seizure of the above articles were not incriminating as they were capable of being explained. 13. Much emphasis was given on the circumstance of illicit relations between the 2 appellants, saying that this was the 'motive' for commission of murder of the deceased in the above manner. The learned Panel Lawyer has referred to the evidence of Phoolbai (PW-3) in this regard. Phoolbai (PW-3) was kept as a mistress by the deceased. She deposed in para 2 that the deceased has kept her as his wife. However, she denied to say anything about the relations between the deceased and his wife. In para 3 of her evidence, she deposed that one day she had visited the house of the deceased, where, she saw that Smt. Asha Devi alias Guddi (A-2) was giving food to Ramanand (A-1). On this, she had commented upon Smt. Asha Devi alias Guddi (A-2) that why she was not giving food to her husband (deceased). On her such comment, Smt. Asha Devi alias Guddi (A-2) had replied that she was giving food to the person, who was maintaining her. In para 9 of her examination-in-chief, she deposed in clear words that she was not knowing what was the relation between Ramanand (A-1) and Smt. Asha Devi alias Guddi (A-2). She used to see Ramanand (A-1) in the house of Smt. Asha Devi alias Guddi (A-2). Ramanand (A-1) had told her that he was the friend of Naresh Pandey (deceased). 14. Kamlesh (PW-4) is son of Phoolbai (PW-3). He was a witness of memorandum. He deposed in para 6 that once when he had gone to see a film in Jeet Talkies, Bilaspur, there he had seen the appellants (A-1 and A-2) outside the Film Hall. A girl was also accompanying them. 15. On due appreciation of the above evidence, we find that though it was established that appellant Ramanand (A-1) and the deceased were good friends and they were residing together, but it was not established beyond all doubts that appellant Smt. Asha Devi alias Guddi (A-2) had developed illicit relations with appellant Ramanand (A-1), and thus, it was a 'motive' for the appellants to commit murder of the deceased. 16. In Ramesh Baburao Devaskar and others Vs. 16. In Ramesh Baburao Devaskar and others Vs. State of Maharashtra (2007) 13 SCC 501 , it was held that suspicion against accused on the basis of 'motive' to commit the crime cannot by itself lead to his conviction. Proof of motive by itself may not be a ground to hold the accused guilty. Similar view was taken by the Supreme Court in Sampath Kumar Vs. Inspector of Police, Krishnagiri AIR 2012 SC 1249 , that presence of the strong 'motive' by itself would not be enough to support a conviction especially in a case where the sentence can be capital punishment. Reference was made to the case of N.J. Suraj Vs. State represented by Inspector of Police (2004) 11 SCC 346 . Reference was also made to the decision of Sunil Rai alias Paua and Ors. Vs. Union Territory, Chandigarh AIR 2011 SC 2545 , in which, it was held that "In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof." 17. Therefore, even if it is held that the appellants (A-1 and A-2) had developed illicit relations and there may be a 'motive' for them to commit murder of the deceased, in absence of any other circumstance that by itself would not be sufficient to hold them guilty of an offence like murder. 18. In a case based on circumstantial evidence, the basic principles are that the circumstances set-forth by the prosecution should be folly established. The circumstances so established should be of conclusive nature and tendency and none of the circumstances should be capable of being explained and the chain of circumstantial evidence also must be complete. 19. In the instant case, the circumstances set-forth by the prosecution were not fully established; they were not of conclusive nature and tendency; almost all the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 20. We are of the view that the learned Sessions Judge has erred in law in resting the conviction of the appellants on the above set of circumstantial evidence and the same deserves to be set-aside. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellants under Sections 302 and 302/34 IPC are set-aside. 20. We are of the view that the learned Sessions Judge has erred in law in resting the conviction of the appellants on the above set of circumstantial evidence and the same deserves to be set-aside. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellants under Sections 302 and 302/34 IPC are set-aside. They are acquitted of the charges framed against them. It is stated that they are on bail. Their bail bonds shall continue for a period of 6 months in view of Section 437-A Cr.P.C.