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2017 DIGILAW 288 (CHH)

Shobharam, S/o. Bhuka v. State of Chhattisgarh

2017-07-04

PRITINKER DIWAKER, RAM PRASANNA SHARMA

body2017
JUDGMENT : P. DIWAKER, J. This appeal arises out of judgment and order dated 16.11.2005 passed by the Second Additional Sessions Judge, Bastar, District Jagdalpur in S.T. No. 340/2004 convicting the accused/appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine of Rs. 200/- with default stipulation. 2. In the present case, name of the deceased is Sujab Dhakad. As per prosecution case, about 7-8 years prior to the date of incident Sujab Dhakad had committed murder of father of the accused/appellant and to settle the malice, in the intervening night of 27-28.08.04 accused/appellant committed the murder of deceased by causing several injuries on his head with a small wooden stool (low stool). FIR Ex.P-1 was lodged on 28.08.04 at 10.00 a.m. by village Kotwar Kapur Chand (PW-1) against the accused/appellant under Section 302 IPC. Immediately thereafter merg intimation Ex.P-13 was registered at the instance of Kapur chand (PW-1). Inquest of the body of the deceased was prepared vide Ex.P-9. Post-mortem of the dead body was conducted by Dr. K.S.Paikra PW-6 who opined that the cause of death is coma due to injury on head and death was homicidal in nature. On the memorandum of accused/appellant Ex.P-7 club and gamchha were seized whereas from the spot one small wooden stool was seized and as per un-exhibited FSL report blood has been found on the gamchha and stool (Article C and B) however the origin of blood has not been proved by the prosecution as in the serological report blood has been found to be disintegrated. After filing of the charge sheet, trial judge has framed charge against the accused/appellant and the acquitted accused Man Singh, brother of the accused/appellant under Sections 302, 341 and 342 IPC. 3. So as to hold the accused persons guilty, prosecution has examined 07 witnesses in support of its case. Statement of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has has acquitted the co-accused Man Singh of all the offences but has convicted and sentenced the present appellant for the offence as mentioned above. Hence the present appeal. 5. 4. After hearing the parties the trial Court has has acquitted the co-accused Man Singh of all the offences but has convicted and sentenced the present appellant for the offence as mentioned above. Hence the present appeal. 5. Counsel for the appellant submits as under : (i) that there is no eye-witness count to the incident. (ii) the appellant has been convicted solely on the basis of circumstantial evidence but the nature of circumstantial evidence collected by the prosecution is very weak and the chain of circumstantial evidence is not complete. (iii) that the dead body of the deceased has been found in front of the house of the appellant and not inside the house and the said place was open and thus it cannot be said that it is the appellant who committed the murder of the deceased. (iv) Kapur chand (PW-1) lodger of the FIR and the so called witness to oral dying declaration has not supported the prosecution case. (v) that the important witness of the prosecution (PW-3) Bharat has also not fully supported the prosecution case. (vi) that on the memorandum of the accused/appellant seizure of club, gamchha was made and as per FSL report (un-exhibited) blood has been found on the said gamchha and wooden stool which was seized from the spot but the origin of blood has not been proved as in the serological report blood was found disintegrated. (vii) that the appellant has already remained in jail for about 4 years; he is a rustic tribe resides in the remote village and has been falsely implicated. 6. On the other hand supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellants is strictly in accordance with law and there is no infirmity in the same. 7. Heard counsel for the parties and perused the material available on record. 8. Kapur chand (PW-1) is a village Kotwar who lodged the FIR Ex.P-1 and merg intimation Ex.P-13. He has stated that on the date of incident at about 1.00 p.m. when he was returning from his field he was informed by one Lala and Malsai that someone has entered his house and when he asked as to who was inside his house, the said person came out, he was injured and blood was oozing out from his head. On being asked he disclosed his name as Sujab Dhakad from vilage Pallibhata and he informed him that he had come to the village just to visit his maternal uncle and the accused/appellant had given a club blow on his head. He has further disclosed him that about 3-4 years prior to the incident, said Sujab Dhakad had committed the murder of the father of the accused persons as a result of which he was beaten by Shobharam. This witness has further stated that he asked one Bharat (PW-3) to drop him to the house of his uncle and thereafter he is not aware as to what had happened. He has further stated that on the next morning acquitted accused Man Singh informed him that accused/appellant had committed the murder of Sujab and gone to the police station to lodge the FIR and merg intimation. In cross-examination he has stated that in connection with the murder of the father of accused/appellant, deceased (Sujab Dhakad) remained in jail for about three years. He had not seen the accused/appellant near his house or even in the village. Ban Singh (PW-2) has been examined by the prosecution as a witness before whom the extra judicial confession was made by the accused/appellant. He however has not supported the prosecution case. In the examination in chief he has stated that the accused/appellant made extra judicial confession before him but in para 13 he has stated that no such statement was made by the accused/appellant. Bharat (PW-3) is a witness who was asked by the village kotwar (PW-1) to drop the injured Sujab Dhakad at hisuncles's home, has also been declared hostile. Jeenbandhu Baghel (PW-4) is the patwari who prepared spot map Ex.P-3. As per spot map dead body of the deceased was found in an open place in front of the house of accused/appellant and the said place is accessible to everyone. D.S.Thakur (PW-5) is the Investigating Officer who has done the investigation. Dr. S.Paikra (PW-6) is the doctor who conducted postmortem examination on the body of deceased vide Ex.P-24 and according to him cause of death is coma due to injury on head and death was homicidal in nature. Mithilesh Prasad (PW-7) is a witness to inquest Ex.P-9 and memorandum of the acquitted accused Man Singh Ex.P-17. 9. Dr. S.Paikra (PW-6) is the doctor who conducted postmortem examination on the body of deceased vide Ex.P-24 and according to him cause of death is coma due to injury on head and death was homicidal in nature. Mithilesh Prasad (PW-7) is a witness to inquest Ex.P-9 and memorandum of the acquitted accused Man Singh Ex.P-17. 9. A close look at the evidence makes it clear that there is no clinching evidence against the accused/appellant showing his direct involvement in the commission of the offence. Kapurchand (PW-1) village Kotwar who lodged the FIR and merg intimation appears to be a hearsay witness, has not stated anything conclusive about the second part of the incident where the deceased was killed. Prior to the incident he had seen the deceased Sujab Dhakad in the injured condition and had asked Bharat (PW-3) to drop the injured at his maternal uncle's house and thereafter what had happened is neither known to this witness nor to Bharat. It is no where proved by the prosecution that the deceased had gone to the house of accused/appellant and that it is the appellant alone who was the inmate of the house and that he committed the murder of the deceased. 10. True it is that dead body of the deceased has been found in front of the house of accused/appellant but the same has been found in an open place accessible to every one and thus it cannot be said that it is the accused/appellant who committed the murder of the deceased and threw the dead body. On the memorandum of accused/appellant Ex.P-7 club and gamchha has been seized and as per FSL report (unexhibited) blood has been found in the gamchha and like wise one small wooden stool was seized from the spot which also contained blood but there is no report that it was human blood and the origin of the blood has not been proved by the prosecution. 11. Taking the cumulative evidence we are of the view that appellant is entitled for benefit of doubt. It is a settled position of law that merely on the basis of memorandum of the accused and seizure effected in pursuance thereof the accused cannot be held guilty. 11. Taking the cumulative evidence we are of the view that appellant is entitled for benefit of doubt. It is a settled position of law that merely on the basis of memorandum of the accused and seizure effected in pursuance thereof the accused cannot be held guilty. In the present case, even the witnesses to memorandum and seizure have not supported the case of the prosecution and the recovery of the articles were made from an open place. As already stated, there is no direct evidence against the accused/appellant for committing the murder of the deceased and the circumstantial evidence collected by the prosecution is not strong enough to uphold his conviction and therefore, the appellant deserves to be acquitted by extending benefit of doubt. The conviction of the appellant under Sections 302 is set aside. He is acquitted of the charges framed against him. Accused/appellant is reported to be on bail and therefore no further order is required. 12. Accordingly the appeal is allowed.