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2016 DIGILAW 261 (CHH)

Manharan v. State of Chhattisgarh

2016-08-02

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

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JUDGMENT : Pritinker Diwaker, J. This appeal arises out of judgment of conviction and order of sentence dated 14.01.2002 passed by Second Additional Sessions Judge. Raipur In Session Case No.426/2001, convicting the appellants under Sections 302/34 and 201/34 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay fine of Rs.3000/-, in default of payment of fine, to further undergo RI for one year, and to undergo RI for three years and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months, respectively, with a direction to run the sentences concurrently. 2. In the present case, name of the deceased is Atmaram. As per the prosecution case, on 10.09.2001 at about 2.00 a.m. missing report (Ex.-P/1 C) was lodged by Chowaram Dewangan (PW-3), cousin brother of the deceased, alleging therein that Atmaram is missing since 06.30 p.m. This missing report was entered into rojnamcha sanha. On 11.09.2001, memorandum (Ex.-P/3) of appellant No.1 Manharan was recorded at 09.30 a.m. wherein he has stated that on account of previous dispute regarding cutting of fallen tree he and co-accused Radhelal have', killed J-re deceased. Based on this memorandum dehati nalishi (EX:- P/15) was recorded against the appellants on 11.09.2001. Inquest (Ex.-P/5) on the dead body was prepared and the dead body was sent for postmortem which was conducted on 11.09.2001 vide Ex.-P/28 by Dr. Ajay Khandekar (PW-12) and the autopsy surgeon noticed following injuries on the body of the deceased:- (1) Body - incised wound on the right thenar eminence above 7 cm x 2cm. Margin an B regular, presence of blood on both margins horizontal in direction, (2) incised wound on the left hypothenar eminence of 2cm x 1cm (3) Neck -incised wound present on right side of the neck in the middle portion. One incised wound present size 7cm x 3cm. x 2cm, margin regular direction horizontal main blood vessels are cut. (4) Head - incised wound 4 in number in scalp (5) multiple blunt injurt on the chest (6) multiple abrasions on the right whole back & upper part of left back (7) multiple abrasion on both lower legs on aneterior aspects As per the postmortem report, death of the deceased was due to syncope because of haemorrhage on account of injury to head neck, chest, heart and the nature of death is homicidal. On 11.09.2001 First Information Report (Ex.-P/24) and merg intimation (Ex.-P/25) were also recorded. Vide EX.-P/8 to P/14 following seizure were effected. (1) one satka from appellant Radhelal, vide Ex- P/8. (2) from the place of incident, one full pant and one slipper of the deceased, vide Ex-P/9. (3) from the place of incident, one black colour Bi-cycle, one spray machine and one plastic container, vide Ex-P/10. (4) from the place of incident, blood stained soil and plain soil, vide Ex-P/11. (5) from appellant Manharan one axe, vide Ex-P/12. (6) from appellant Manharan one white baniyan with blood stains and one tericot lungi with blood stain, vide EX.-P/13. (7) from appellant Radhelal one shirt and one full pant, vide Ex-P/14 (8) blood stained clothes of the deceased, vide EX.-P/19 3. After completion of investigation, charge was sheet against the accused/appellants. The trial Judge framed the charges under Sections 302/34 and 201/34 IPC against them. 4. So as to hold the appellants guilty, the prosecution examined as many as 12 witnesses, Statement of the accused/appellants were also recorded under Section 313 of the Cr.P.C., in which they denied the Circumstances appear-against them in the prosecution case, pleaded innocence and false implication in the case. 5. The trial Court after hearing counsel for respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellants as mentioned in para-1 of the judgment. 6. Counsel for the appellants, submits that: 1. the accused/appellants have been convicted solely on the basis of circumstantial evidence, but nature of the circumstantial evidence is not as such which, call, be made basis to hold them guilty for commission of murder of the deceased, 2. that though certain seizures have been effected by the prosecution based on the memorandum, but those seizures are of no consequence in absence of FSI report. 3. That witness of last seen has not supported the prosecution’s case, Even assuming that the appellants are last seen in the company of the deceased, that itself is not sufficient to hold the appellants guilty for commission of the crime. 7. On the other hand, while supporting the impugned judgment, it has been argued by the State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in it. 8. Heard counsel for the parties and perused the material available on record. 9. 7. On the other hand, while supporting the impugned judgment, it has been argued by the State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in it. 8. Heard counsel for the parties and perused the material available on record. 9. Sahnu Ram Tandi, Head Constable (PW- 1) has proved the lodging of the missing report. Kishan Singh Dhruw (PW-2), Patwari prepared spot map (Ex.-P/2). Chowaram Dewangan (PW-3) is the lodger of the missing report. Koushik Ram Dewangan (PW-4) and Kushal Ram (PW-. 5) are the witnesses of seizure and memorandum (Ex.-P/3). Kashi Bai (PW-6) is the wife of the deceased who has stated that there was a previous quarrel between the accused/appellants and deceased. However, she stated that only on the basis of suspicion she has deposed the name of the accused persons. Diamond (PW-7) is the witness of the last seen who has turned hostile. Firthuram Kanwar (PW-8) who is a witness of inquest (Ex.-P/5) has also been declared hostile. Ramuram Dewangan (PW-9) has been examined to prove quarrel between the appellants and the deceased and he has also been examined as witness of last seen of the deceased along with the appellants. He further stated that after the quarrel, the deceased and accused/appellant Manharan left for their respective houses. Bahur Singh (PW-10) has proved seizure of Ex.-P/8 to P/14. PS Bais, Station House Officer (PW- 11) is the Investigating Officer. Dr. Ajay Khandekar (PW-12) is autopsy surgeon who gave his report (Ex-P/28) opining the cause of death of the deceased as syncope due to haemorrhage ort account of injury to head, neck, chest, heart and the nature of death is homicidal. 10. Close scrutiny of the evidence makes it clear that on the basis of memorandum of the accused/appellant No.1 certain seizure have been effected and as per the police blood stains were found on some of the articles seized but in absence of FSL report it cannot be said that those articles were bloodstained. The accused/appellants cannot be convicted solely on the basis of their memorandum and the so called seizure. Likewise, the prosecution has failed to prove beyond reasonable doubt that the deceased was seen last in the company of the accused/appellants. The accused/appellants cannot be convicted solely on the basis of their memorandum and the so called seizure. Likewise, the prosecution has failed to prove beyond reasonable doubt that the deceased was seen last in the company of the accused/appellants. Also the circumstance of last seen together does not by itself and necessarily lead to the inference that it were the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellants, in our considered opinion, by itself cannot be taken as proof of guilt against the appellants. Moreover, the evidence adduced by the prosecution is a weak type of evidence and it would not be safe for this Court to hold the conviction of the appellants on the basis of the evidence so adduced by the prosecution. 11. Taking into consideration the entire facts and circumstances of the case, we are of the view that the prosecution has utterly failed to bring home the guilt of the accused/appellants beyond reasonable doubts and therefore they are entitled to be acquitted of the charges under Sections 302/34 and 201/34 IPC by extending them benefit of doubt. 12. In the result, the appeal succeeds and the impugned judgment of conviction and order of sentence is hereby set aside. The appellants are acquitted of the charges levelled against them by extending them benefit of doubt. The appellants are reported to be on bail, they need not surrender and their bail bonds shall continue for further period of six months from today as per requirement of Section 437A of the Cr.P.C.