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2017 DIGILAW 61 (CHH)

Deli Ram v. State of C. G.

2017-02-03

PRITINKER DIWAKER, RAJENDRA CHANDRA SINGH SAMANT

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JUDGMENT : Pritinker Diwaker, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 29.10.2004 passed by the First Additional Sessions Judge, Balouda Bazar in ST No. 194/2004 convicting the appellant under Sections 392/397 & 302 of IPC and sentencing him to undergo RI for seven years, to pay a fine of Rs.2000/- and imprisonment for life, pay a fine of Rs.4000/- with default stipulations respectively. 2. As per the prosecution case, on 28.1.2004 deceased Bindabai had gone to guard her field and when she did not return till 6 pm, her family members searched her and ultimately found her dead on the bund of the field. The slippers and utensils of the deceased were also lying near the dead body. The relatives of the deceased informed about the said incident to the villagers and in turn, merg intimation (Ex.P/1) was lodged on 28.1.2004 at 11 pm by PW-1 Hemant. Inquest over the dead body was conducted on 29.1.2004 vide Ex.P/4 and thereafter FIR (Ex.P/14) was registered on 29.1 2004 at 5.20 pm on the basis of merg enquiry under Section 302 of IPC against unknown person. The dead body was sent for postmortem which was conducted on 30.1.2004 by PW- 15 Dr. Y.K. Shammi vide Ex.P/18A who noticed contusions over left eye, swelling in left fronto-parietal region and reddishness on face. In his opinion, the cause of death was asphyxia due to strangulation and the death was homicidal in nature. After more than three months of the incident on 8.5.2004 memorandum of the accused/appellant (Ex.P/9) was recorded, based on which silver waistband, anklets, chain were seized vide Ex.P/10. Vide Ex.P/6 seizure of receipt of tops was effected and the said receipt is Ex.P/6A and as per Ex.P/11 bunch of hair of the accused was got cut before witnesses and seized. As per test identification parade (Ex.P/7) conducted by PW-16 A.S. Rana, Naib Tehsildar, PW-2 Keshav (husband of the deceased) and PW-3 Bhanupratap have identified the seized articles to be of the deceased. According to FSL report (Ex.P/21), though Article-A (hair seized from sari of the deceased) and Article-C (hair of the accused) are of human head but no definite opinion could be given about their origin as to whether they are of one and the same person. According to FSL report (Ex.P/21), though Article-A (hair seized from sari of the deceased) and Article-C (hair of the accused) are of human head but no definite opinion could be given about their origin as to whether they are of one and the same person. After investigation, charge sheet was filed against the appellant under Sections 302 & 397 of IPC, and the trial Court framed charge against the accused/appellant under Sections 392/397 & 302 of IPC. 3. So as to hold the accused/appellant guilty, the prosecution examined 16 witnesses in all. Statement of the accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined one Kanhaiyalal Soni as DW-1. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned above. 5. Counsel for the appellant submits as under: (i) That there is no ocular evidence available on record and the appellant has been convicted solely on the basis of circumstantial evidence but its nature is not as such which can be made basis for his conviction. (ii) That the memorandum of the appellant itself has been recorded after more than three months of the incident, based on which certain silver ornaments are alleged to have been seized. As per the prosecution case itself, these articles have been seized from the field of one Bhukhan i.e. an open place and it is highly improbable that such ornaments would remain intact and concealed at such a place for more than three months. (iii) That the seizure memo relating to alleged recovery appears to be nothing but a created document by the prosecution to falsely implicate the appellant. (iv) As the recovery itself is doubtful on the basis of belated memorandum of the appellant, identification of the same by relatives of the deceased hardly makes any difference. (v) That FSL report also does not lend corroboration to the prosecution version. 6. On the other hand, State counsel supporting the impugned judgment has submitted that the judgment impugned is strictly in accordance with law and there is no scope for any interference by this Court. 7. Heard counsel for the respective parties and perused the material on record. 8. 6. On the other hand, State counsel supporting the impugned judgment has submitted that the judgment impugned is strictly in accordance with law and there is no scope for any interference by this Court. 7. Heard counsel for the respective parties and perused the material on record. 8. PW-1 Flemant Kumar, brother-in-law of the deceased has stated that on 28.1.2004 at about 8 am the deceased had left for guarding her field and when she did not return by night, he along with other relatives and villagers went in search of her and found her lying dead on the bund of the field and at that time, the ornaments worn by the deceased were found missing. On his information, merg intimation (Ex.P/1) was recorded. In cross-examination he states that though he had disclosed the police about the ornaments worn by the deceased and if the same has not been recorded in his diary statement, he could not tell the reason. PW-2 Keshav Venna, husband of the deceased, has made almost similar statement as has been made by PW-1 in relation to discovery of dead body of the deceased and missing of ornaments from her body. He is also a witness of inquest Ex.P/4, seizure of slippers, utensils, towel etc. from the spot Ex.P/5, receipt of jewelery Ex.P/6A and test identification parade Ex.P/7. PW-3 Bhanupratap, father-in-law of the deceased is a witness of test identification parade Ex.P/7 and spot map Ex.P/8. PW-4 Virendra Sai, a witness of memorandum of the appellant (Ex.P/9) and seizure made in pursuance thereof (Ex.P/10), has supported the prosecution case. He is also a witness of seizure of bunch of hair of the accused/appellant Ex.P/11. He however states that the articles were recovered from the open field which were buried near the tree. He states that the articles were taken out without digging the field as there was a hole which appeared to be of some animal and therefore, the articles were extracted by inserting hand in that hole. The hole was about 9-10 inch in diameter and was fully covered with dry leaves. Almost similar statement has been made by PW-12 Bishat Ram, another witness to memorandum and seizure. 9. PW-5 Anandram is a witness of test identification parade. The hole was about 9-10 inch in diameter and was fully covered with dry leaves. Almost similar statement has been made by PW-12 Bishat Ram, another witness to memorandum and seizure. 9. PW-5 Anandram is a witness of test identification parade. PW-6 Lakhanlal has stated that while he was searching for leaves for his goat, the deceased call out him and informed that the accused/appellant had passed by from there carrying a club and therefore, she is getting afraid. PW-10 Suresh Tiwari, investigating officer, has supported the prosecution case. PW-11 Ramdaval, Patwari, prepared the spot map Ex.P/8. PW-13 Make Kumar Yadav saw the accused/appellant coming from the field and going towards his house. PW-14 Santosh Kumar gave a weighment certificate Ex.P/22 of some of the ornaments. 10. PW-15 Dr. Y.K. Sharnmi conducted postmortem on the body of the deceased on 30.1.2004 vide Ex.P/18 and noticed following injuries: (i) contusion 1" x 1" over left eye and just below eye, reddish blue colour of skin over contused area. Sub-conjunctival hemorrhage present in left eye. Ligature material present of saree encircled around neck and two knots present in right side of anterior aspect of neck. Lingature mark around neck and knot mark present in anterior aspect of neck about 2" right to midline, face congested. (ii) soft tissue swelling (contusion) size 2" x 2" anteriorly in left fronto-parietal region. Clots present in underlying subcutaneous tissues and muscles. In his opinion, the cause of death was asphyxia due to strangulation and the death was homicidal in nature. 11. PW-16 A.S. Rana, Naib Tehsildar, conducted test identification parade Ex.P/7 of the ornaments. According to him, the articles were duly identified by Keshav Verma (PW-2) and Bhanupratap (PW-3). 12. DW-1 Kanhaiyalal Soni has stated that if some silver ornaments are left idle in a pit for four months, it would lose its shine and the thread attached to it would also rot. 13. Admittedly, there is no direct evidence against the appellant to show his complicity in the crime in question and his conviction rests upon circumstantial evidence, main being the recovery of ornaments of the deceased made pursuant to his memorandum. 14. 13. Admittedly, there is no direct evidence against the appellant to show his complicity in the crime in question and his conviction rests upon circumstantial evidence, main being the recovery of ornaments of the deceased made pursuant to his memorandum. 14. It is by now well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 15. In the present case, the incident took place on 28.1.2004 whereas memorandum of the appellant was recorded on 8.5.2004 i.e. almost after a period of more than three months. The FIR was lodged on 29.1.2004 after merg enquiry against unknown person. There is no evidence on record to show as to how the police came to know about the involvement of the accused/ appellant. Lakhanlal (PW-6) has stated that on the date of incident at about 10 am he was called out by the deceased who informed him that the accused/ appellant has just moved away from there carrying club in his hand and therefore, she was in fear. PW-2 Bhaupratap has stated that he came to know about the said fact through PW-6. However, according to PW-13 Make Kumar Yadav, on the of incident he saw the appellant at about 3 pm coming from the field of the deceased carrying a bundle in his hand and going towards his house. Statements of the aforesaid witnesses were never recorded by the police and for the first time they stated before the Court they had seen the appellant on the date of incident coining from the field of the deceased etc. Statements of the aforesaid witnesses were never recorded by the police and for the first time they stated before the Court they had seen the appellant on the date of incident coining from the field of the deceased etc. The police had recorded statement under Section 161 of Cr.P.C. (Ex.D/1) of PW-1 Hemant Kumar only wherein no such fact has been disclosed. In these circumstances, we fail to understand as to on what oasis the police suspected the appellant to be the perpetrator of the crime. This appears to be a fatal lacuna in the case of the prosecution. 16. Yet another important aspect of the case is that the recovery has been effected from the open place i.e. near the bund of the field. Although the witnesses (PWs-2 & 3) have identified the ornaments to be of the deceased but merely on that basis it would not be safe to uphold conviction of the appellant under Sections 392/397 and 302 of IPC. PW-2 Keshav, husband of the deceased, in para-5 of his Court statement has stated that when he saw the dead body, except tops there were no ornaments on the body of the deceased whereas as per inquest (Ex.P/4), there were 13 number of red coloured bangles and one golden bracelet in her left hand and 10 number of bangles and one golden bracelet in her right hand. This apart, the deceased was wearing ring in both the little fingers. PW-2 is also a signatory of the inquest Ex.P/4. Likewise, PW- 1 Hemant Kumar and PW-3 Bhanupratap have stated that when they saw the dead body, the deceased was wearing only tops and there were no other ornaments on her body. Thus, in view of description of the ornaments noticed on the dead body, evidence of these witnesses become doubtful. It is very surprising as to how certain other ornaments, as mentioned above, were noticed on the dead body at the time of inquest when according to the witnesses for the first time when they saw the dead body, except tops no other ornaments were there on the person of the deceased. Furthermore, PW-2 Keshav has stated that other ornaments mixed with the seized ornaments were brought by himself from his neighbourhood whereas according to PW-16 Naib Tehsildar who conducted test identification, those ornaments were brought from Kasdol basti. Furthermore, PW-2 Keshav has stated that other ornaments mixed with the seized ornaments were brought by himself from his neighbourhood whereas according to PW-16 Naib Tehsildar who conducted test identification, those ornaments were brought from Kasdol basti. In this view of the matter, recovery of the ornaments at the instance of the appellant as well as its identification become doubtful. The precaution that ought to have been taken to ensure fair identification was not taken by the prosecution and therefore, no weight can be attached to the evidence of identification of property. 17. As regards seizure of certain number of hair from body of the deceased, even as per FSL report (Ex.P/21), no definite opinion could be given whether Article-A (hair seized from sari of the deceased) and Article-A (hair of the accused) are of one and the same person. Hence this circumstance is also of no help to the prosecution. 18. Keeping in mind the aforesaid principles of law relating to circumstantial evidence, on close scrutiny of the entire evidence it emerges that there is no legally admissible evidence against the appellant unerringly pointing towards his guilt. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. Being so, the findings of guilt recorded by the trial Court are liable to be set aside and the appellant is entitled to be acquitted of the charges by giving him benefit of doubt. 19. In the result, the appeal is allowed. The impugned judgment is hereby set aside and the appellant is acquitted of charges under Sections 392/397 and 302 of IPC. He is reported to be on bail, therefore, his bail bonds stand discharged and he need not surrender.