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2023 DIGILAW 433 (CHH)

Anand Ram S/o Bhadau Ram v. State of Chhattisgarh

2023-08-24

RADHAKISHAN AGRAWAL, SANJAY K.AGRAWAL

body2023
JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 04.08.2015 passed by Sessions Judge, Bilaspur (C.G.) in Sessions Trial No. 47/2015 by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine amount, additional S.I. for one month. 2. Case of the prosecution, in short, is that on 17.02.2015, near Bharatmata School, Tarbahar, the appellant herein caused the death of Chotu @ Omprakash by strangulation and thereby committed the offence. Further case of the prosecution is that, PW-1, Vinod Kumar Suryawanshi, Police Constable No. 1233, Police Station: Tarbahar was on duty on 17.02.2015 at night and at 01:00 PM, he noticed that the appellant was carrying a body of a person and after seeing the body, he inquired from the appellant and then the appellant informed his name to him and also disclosed the name of the person to whom he was carrying and stated his name as Chotu. He also informed that they used to do the work of collection of scraps and also informed that they both consumed liquor and nitra drug in front of Bharatmata School and they slept there and after sometime, he saw that froth was coming out from the mouth of Chotu, therefore, he picked him up and was proceeding towards Durga Pandal to make him sleep. Thereafter, ambulance was called and the deceased was taken to the Hospital, where he was declared dead. On the basis of aforesaid, Merg Intimation Ex.P/1 was registered. FIR was registered vide Ex.P/19 and Ex.P/20. Inquest was conducted vide Ex.P/13. The dead body of the deceased was sent for autopsy. Post Mortem was conducted by Dr. P.C. Banerjee (PW-4) and his report is Exhibit-P/11 wherein, he has opined the death of the deceased as homicidal which was due to strangulation. Pursuant to the memorandum statement of the appellant vide Ex.P/17, steel cap was recovered from his possession. 3. The dead body of the deceased was sent for autopsy. Post Mortem was conducted by Dr. P.C. Banerjee (PW-4) and his report is Exhibit-P/11 wherein, he has opined the death of the deceased as homicidal which was due to strangulation. Pursuant to the memorandum statement of the appellant vide Ex.P/17, steel cap was recovered from his possession. 3. After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence. 4. In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 22 documents. The defence has examined none and not exhibited any document. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of I.P.C. and sentenced as above against which the present appeal has been preferred. 6. Learned counsel for the appellant submits that the recovery of dead body from the possession of the appellant in absence of other incriminating circumstances would not lead to the conviction of the appellant and the appellant could not have been convicted by the trial Court for the offence under Section 302 of the Indian Penal Code and as such the appellant deserves to be acquitted. 7. Per contra, learned State counsel, would support the impugned judgment and submit that learned trial Court has found 6 circumstances which have been proved against the appellant and cataloged in Para 13 of the judgment, therefore, the learned Trial Court is absolutely justified in convicting the appellant under Section 302 of IPC, therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration is, whether the death of deceased Chotu @ Omprakash was homicidal in nature ? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex.P/11) proved by Dr. P.C. Banerjee which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex.P/11) proved by Dr. P.C. Banerjee which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question would be whether the appellant is the author of the crime in question for which the trial Court has relied upon the circumstantial evidence by delving into the incriminating evidence which has been found to be proved by the trial Court resulting into conviction of the appellant. 12. Admittedly, the present case is based on circumstantial evidence. The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , in which it was observed in paragraph 153 as under : “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 13. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 14. The trial Court has found six circumstances to convict the appellant for crime in question. The first circumstance that the deceased did not reach to the house of his father on the date of offence is not of much relevance and similarly the appellant and deceased both were engaged in the work of collecting scrap is also not to much of relevance. Further, the motive of the offence is the dispute with regard to money which they have obtained after selling the scrap also may not be of much relevance except the statement of PW-1, Vinod Kumar Suryawanshi, Police Constable to whom the appellant had informed about the deceased, on that basis, the motive cannot be said to have been proved by the prosecution. 15. Now, the two of the most incriminating circumstances found is that the dead body of the deceased was recovered from the possession of the appellant as he was carrying Chotu @ Omprakash (deceased) on his shoulders and pursuant to the memorandum statement of the appellant, the steel cap has been recovered which was used for commission of offence of murder of the deceased. 16. Admittedly, the steel cap was seized from the possession of the appellant pursuant to the memorandum statement vide Ex.P/17 which has been proved by PW-6, Rajesh Kumar Dewangan, but in absence of human blood on the steel cap it cannot be held that it was used by the appellant for the commission of the offence. 16. Admittedly, the steel cap was seized from the possession of the appellant pursuant to the memorandum statement vide Ex.P/17 which has been proved by PW-6, Rajesh Kumar Dewangan, but in absence of human blood on the steel cap it cannot be held that it was used by the appellant for the commission of the offence. Furthermore, there is no query report obtained from the doctor who had conducted the postmortem of the deceased, whether the injury suffered by deceased could have been caused by the steels caps recovered from the possession of the appellant pursuant to his memorandum statement. As such, in absence of human blood from the steel cap and in absence of query report, the recovery of the seized articles is of no use to the case of prosecution. 17. Admittedly, from the possession of the appellant, dead body of the deceased Chotu @ Omprakash was recovered which has been proved by PW-1 Vinod Kumar Suryawanshi and PW-6 Rajesh Kumar Dewangan. In that view, this is the most relevant incriminating circumstance which has been found proved by the trial Court and the trial Court has also found that the appellant has given extra-judicial confession to PW-1 Vinod Kumar Suryawanshi, who was the police officer, which is inadmissible in evidence in view of Section 25 of the Indian Evidence Act, 1872. However, the question would be whether mere recovery of dead body from the possession of the appellant would necessarily lead to the conclusion of the offence of murder. This question has been answered by their Lordships of the Supreme Court in the matter of Kanbi Karsan Jadav v. State of Gujarat reported in AIR 1966 SC 821 , wherein, it has been held in Paragraph 9 and 10 as under: “9. The mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. But there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder. “10. Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder. “10. Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence. His pointing out the dead body, his pointing out the silver buttons of the deceased which were stained with human blood and the presence of his hairs on a pania (scarf) on which there were the hairs of the deceased also. In our opinion this would be sufficient evidence in the circumstances of the present case to connect the appellant with the commission of the offence.” 18. Their Lordships of the Supreme Court have clearly held in Kanbi Karsan Jadav (supra) that mere fact that the dead body discovered from the statement of accused would not lead to the conclusion of the offence of murder unless there are other circumstances implicating the accused. In the instant case, it has already been pointed out that there are no other incriminating circumstances proved by the prosecution to hold the appellant guilty for the offence of murder. Concludingly, it is held that though the death of the deceased Chotu @ Omprakash was homicidal in nature and prosecution has also duly proved that the appellant was found carrying the dead body of the deceased but in absence of other incriminating circumstances as held by the Supreme Court in Kanbi Karsan Jadav (supra), the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 19. Consequently, the conviction of the appellant for the offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set-aside. He is acquitted of the said charge. Since the appellant is in jail from 18.02.2015, we direct that he be released from jail forthwith, if not required in any other matter/case. 20. Accordingly, this criminal appeal is allowed. 21. Let a certified copy of this judgment along with the original record and copy of judgment also be transmitted to the trial Court concerned and Superintendent of Jail concerned for necessary information and action, if any.