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2015 DIGILAW 97 (CHH)

Prakash v. State Of Chhattisgarh

2015-03-13

INDER SINGH UBOWEJA, T.P.SHARMA

body2015
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19.02.2003 passed by the 1st Additional Sessions Judge, Raipur in S.T. No. 116/02, whereby & whereunder the trial Court after holding the appellants herein guilty for causing homicidal death of deceased Rampyare Satnami, amounting to murder, in sharing common intention and for concealing the evidence of a criminal case, convicted them under Sections 302/34 & 201 of the Indian Penal Code (for short 'the IPC) and sentenced each of them to undergo rigorous imprisonment for life & fine of Rs. 5,000/-, in default to undergo additional R.I. for 02 years and R.I. for 02 years and fine of Rs. 2,000/-, in default to undergo additional R.I. for 06 months respectively. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 14.10.2001 unfortunate deceased Rampyare had gone to village Abhanpur to attend "Mahila Sammelan" but he did not return till 9.00 p.m. to his house situate at village Thelkabandh, Police Station Abhanpur, District Raipur. Vishal Ram (PW-5) noticed presence of co-accused Resham & appellant No. 1-Prakash near the canal road and on the same day, he noticed dead body of deceased Rampyare lying in the barn of one Barodawale. Bicycle of the deceased Rampyare lying in the barn of one Barodawale. Bicycle of the deceased was also lying near the place of incident. Co-accused Resham was also found standing near the place of incident. Death was informed to Fanesh (PW-3), son of the deceased, who after seeing the dead body went to the Police Station Abhanpur and lodged FIR (Ex. P-7). Merg was also recorded vide Ex. P-28. After some time Bhagelu (PW-9) noticed that the accused persons were dragging the dead body of deceased Rampyare. The Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-8, inquest over the dead body of the deceased was prepared vide Ex. P-9. Earlier deceased Rampyare had also lodged report of Ex. P-10 on 9.10.2000 against appellant Prakash, Ramkali & Sitaram relating to his suspicion. Bloodstained soil and plain soil recovered from the spot vide Ex. P-16. Dead body was sent for autopsy to the Medical College, Raipur vide Ex. P-9. Earlier deceased Rampyare had also lodged report of Ex. P-10 on 9.10.2000 against appellant Prakash, Ramkali & Sitaram relating to his suspicion. Bloodstained soil and plain soil recovered from the spot vide Ex. P-16. Dead body was sent for autopsy to the Medical College, Raipur vide Ex. P-29 where Dr. Ulhas Gonnade (PW-17) conducted autopsy vide Ex. P-36 and noticed following injuries & symptoms:-- "• Cut wound present above thyroid cartilage of 10.5 cm x cervical vertebra deep. • Incised wound at the back & right sternoclavicular of 3.5 x 1cm. • Incised wound on the lateral aspect of shoulder of 2.3 x 0.5 cm x muscle deep. • Two superficial cut marks of 8cm x 6cm each. • Stab wound of 2 x 0.5cm x muscle deep on the shoulder. • 12 chop wounds present on the right half of skull. • One chop wound just above alabella upto to skull. • Chop wound of 6 x 0.4cm x skin deep on the medial margin." Clothes of the deceased were sealed and seized vide Ex. P-11. During the course of investigation, co-accused Resham was taken into custody, he made disclosure statement of Gandasa, bicycle of the deceased and his motorcycle vide Ex. P-1. Gandasa & Motorcycle were recovered at the instance of co-accused Resham vide Ex. P-3. Clothing of co-accused Resham were seized vide Ex. P-4. Appellant Prakash was also taken into custody, he made disclosure statement of one iron sattu & his clothing and the same were recovered at his instance vide Ex. P-5. One bicycle was also recovered from co-accused Resham vide Ex. P-6 from the pond under the water. Seized articles were sent for examination to the Forensic Science Laboratory vide Ex. P-13. Patwari prepared spot map vide Ex. P-17. The Investigating Officer prepared the spot map vide Ex. P-18. Statement of witnesses were recorded under Section 161 of Cr.P.C. Statements of some witnesses were also recorded under Section 164 of Cr.P.C. 4. After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate 1st Class, Raipur who, in turn, committed the case to the Court of Sessions from where the Additional Sessions Judge received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 17 witnesses. After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate 1st Class, Raipur who, in turn, committed the case to the Court of Sessions from where the Additional Sessions Judge received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 17 witnesses. Statements of the accused persons were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence & false implication in the crime in question. They have examined defence witnesses namely Disheshwar (DW-1) & Madanlal (DW-2) who have deposed that villagers noticed dead body of deceased Rampyare. 5. After providing opportunity of hearing to the parties, the trial Court has convicted and sentenced the appellants as mentioned above. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of Vishal Ram (PW-5) & Bhagelu (PW-9) but their evidence does not inspire confidence and trustworthy. As per evidence of Vishal (PW-5), he has noticed dead body in the barn and also noticed that co-accused Resham was standing at a distance of 25-30 feet from the dead body of the deceased. Bhagelu (PW-9), whose statement under Section 164 of Cr.P.C. has been recorded on 7.11.2001 i.e. after 21 days of the incident, has deposed that he has seen all the appellants dragging the dead body of the deceased. These evidences clearly reveal that the deceased was not seen alive last time in the company of the appellants and at the worse, they were present near the dead body of the deceased. Statement of Bhagelu (PW-9) under Section 161 of Cr.P.C. has also been recorded after 21 days of incident, but he has not offered any explanation about such delay. Except the aforesaid evidences, the prosecution had not collected any other evidence to connect the appellants in crime in question. FIR (Ex. P-7) has been lodged against the aforesaid appellants and one Shiv Bhagat but Shiv Bhagat has not been impleaded as accused inter alia appellant No. 3 Sitaram was impleaded as accused. Evidence of prosecution witnesses are full of loopholes and it would be difficult to hold that what was the actual incident and who had caused the incident. FIR (Ex. P-7) has been lodged against the aforesaid appellants and one Shiv Bhagat but Shiv Bhagat has not been impleaded as accused inter alia appellant No. 3 Sitaram was impleaded as accused. Evidence of prosecution witnesses are full of loopholes and it would be difficult to hold that what was the actual incident and who had caused the incident. In these circumstances, the appellants are entitled for benefit of doubt. Reliance is placed in the matter of Sangili @ Sanganatha v. State of Tamil Nadu (2014) 10 SCC 264 in which the Supreme Court has held that motive based on hearsay- recovery of dead body, murder weapon by itself is not enough to complete the chain of events, therefore, conviction is not sustainable under the law. Further placed reliance in the matter of Ramreddy Rajesh Khanna Reddy & another v. State of Andhra Pradesh 2006 STPL (LE) 36771 SC in which the Supreme Court has held that in case where the prosecution story is full of loopholes, the conviction is not sustainable. Reliance is also placed in the matter of Chamar Singh & others v. State of C.G. 2012 (1) CGLJ 126 (DB) in which this Court has held that recording of statements of eyewitnesses after considerable delay without explanation and without further explanation that how the police came into knowledge that alleged witnesses had witnessed the incident, is fatal to the prosecution. 8. On the other hand, learned Panel Lawyer for the State opposed the appeal and argued that evidence of Bishal Ram (PW-5) & Bhagelu (PW-9) are sufficient to prove the guilt of the appellants. The appellants were found near the dead body of the deceased, the death of deceased was homicidal in nature and no explanation has been offered by the appellants about their presence near the dead body of the deceased. Therefore, by convicting and sentencing the appellants as above the trial Court has not committed any illegality. 9. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 10. In the present case homicidal death of deceased Rampyare Satnami as a result of fatal injuries found on the dead body of the deceased has not been substantially disputed on behalf of the appellants. Even otherwise from the evidence of Fanesh (PW-3), Bishal (PW-5), Bhagelu (PW-9). FIR (Ex. P-7), Merg (Ex. 10. In the present case homicidal death of deceased Rampyare Satnami as a result of fatal injuries found on the dead body of the deceased has not been substantially disputed on behalf of the appellants. Even otherwise from the evidence of Fanesh (PW-3), Bishal (PW-5), Bhagelu (PW-9). FIR (Ex. P-7), Merg (Ex. P-28), Dr. Ulhaas Gonnade (PW-17) and autopsy report (Ex. P-36), it is established that the death of the deceased was homicidal in nature. 11. As regards the complicity of the appellants in crime in question, conviction is based on the evidence of Vishal Ram (PW-5) & Bhagelu (PW-9). As per evidence of Vishal Ram (PW-5), he was informed by the villagers, especially Milan that some sound of quarrel is coming from the barn of the house of Bhuneshwar (PW-7), then, they went towards that side with torch and saw the dead body of the deceased inside the barn of Barodawale. Wall of the barn was broken, bicycle was lying near the place of incident and in the light of torch he has seen that co-accused Resham is standing at a distance of 25-30 feet from the dead body. When he flashed torchlight upon Resham, he abused him. After some time they saw the dead body near the house of Gangaram Rawat. 12. Bhagelu (PW-9) has deposed that at about 8.00 p.m. while he was going to the shop of Dharmendra for purchasing bidi & matchbox, he saw that appellants were dragging dead body of Rampyare Satnami near the barn of Jethu and when he flashed torchlight upon them then appellant Resham abused him and then he fled from the spot. As per evidence of Vishal (PW-5), he has seen appellant Resham standing 25-30 feet away from the dead body but the dead body was found inside the barn and co-accused Resham was not standing inside the barn. This witness has not seen the deceased alive last time in the company of the appellant but he has seen dead body of the deceased and that co-accused Resham was standing 25-30 feet away from dead body of the deceased. Likewise, statement of Bhagelu (PW-9) has been recorded after 21 days of the incident i.e. on 7.11.2011 although he was present in the village and the prosecution had failed to offer any explanation. 13. Likewise, statement of Bhagelu (PW-9) has been recorded after 21 days of the incident i.e. on 7.11.2011 although he was present in the village and the prosecution had failed to offer any explanation. 13. As held in the case of Chamar Singh 2012 (1) CGLJ 126 (DB) (supra), in case of unexplained considerable delay in recording statement of eyewitnesses and further if it is not explained that how the police came to know that alleged witnesses have witnessed the incident, the appellants are entitled for acquittal. In the present case, the Investigating Officer failed to offer any explanation that as to how statement of Bhagelu (PW-9) has been recorded after 21 days of the incident. Even otherwise, they have not witnessed the deceased alive last time in the company of the appellant but one has seen co-accused Resham standing near the dead body of the deceased and other has seen that the appellants were dragging the dead body of the deceased that too after noticing the fact of death of the deceased by other villagers, which does not appear to be natural. 14. As held in the case of Ramreddy Rajesh Khanna Reddy 2006 STPL (LE) 36771 SC(supra), in the present case the prosecution story has a large numbers of loopholes, therefore, it became doubtful. As held in the case of Sangili alias Sanganathan (2014) 10 SCC 264 (supra), the prosecution has failed to prove the complete chain of events. 15. Considering the evidence in totality, we do not find any credible and clinching evidence against the appellants for sustaining their conviction. While convicting and sentencing the appellants, as above, the trial Court has not considered the aforesaid facts & circumstances and insufficiency of evidence and thereby committed illegality. 16. Consequently, the appeal is allowed. Conviction and sentence of appellants under Sections 302/34 & 201 of the IPC are hereby set aside. They are acquitted of those charges. They be set at liberty forthwith if not required in any other case. 17. Certified copy as per rules. Appeal Allowed. Sections 302/34 & 201 of the IPC are hereby set aside.