Chattisgarh High Court
Ram Prasad @ Nanhe Guddoo vs State Of Chhattisgarh on 4 August, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.380 of 2012
Ram Prasad @ Nanhe Guddoo S/o Brisingh Gond, aged about
32 years, Resident of VillageMaateen Hathimari, Bango,
DistrictKorba (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police Station Bango,
Katghora, District Korba (CG)
Respondent
For Appellant: Mr.Vikas Pandey, Advocate
For Respondent/State: Mr.Sudeep Verma, Dy.G.A. and
Mr.Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(4.8.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 28.3.2012 passed by the Additional Sessions Judge, Katghora, in Sessions Trial No.41/2011, whereby the learned Additional Sessions Judge has convicted the appellant herein for offence under Section 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.500/, in default of payment of fine to further undergo simple imprisonment for six months.
2. The case of the prosecution, in brief, is that on 5.12.2010 in between 9 a.m. to 14 p.m. the appellant 2 caused murder of Ramgopal @ Gopi at village Matin in the bank of Matindai tank and thereby committed the offence punishable under Section 302 of the IPC. It is further case of the prosecution that the deceased had evil eye on the appellant's sister and he had administered some medical herbs to the appellant by which he has become weak and on that count the appellant on 5.12.2010 in between 9 a.m. to 14 p.m. caused murder of Ramgopal @ Gopi. The matter was reported by Kamlesh Kol (PW8) to the police station Bando, pursuant to which, dehati nalishi was registered vide Ex.P15 and on the basis of dehati nalishi, FIR was registered vide Ex.P14. Inquest was conducted in the presence of panchas. Dead body of the deceased was sent for postmortem to Community Health Center, Podi Uproda, where Dr.G.S.Jatra (PW10) conducted postmortem vide Ex.P12 and opined that cause of death was neurogenic shock and haemorhagic shock due to rupture of spinal cord and bleeding from injured parts. After more than two months from the date of offence i.e. on 13.2.2011 memorandum statement of the appellant was recorded vide Ex.P1 and on that basis, bloodstained axe was recovered from Dhourabar forest vide Ex.P2, which was sent to FSL after more than one month on 26.3.2011 (Ex.P22) and FSL report has been received after more than seven months on 28.10.2011 (not exhibited) in which in fullpaint and axe recovered from the appellant, blood was found, but whether it was 3 human blood and blood group could not be ascertained though it was sent for Serologist for chemical examination. The appellant was chargesheeted in the Court of Judicial Magistrate First Class, Katghora, who in turn, committed the case to the Court of Session, Korba, from where the Additional Sessions Judge, Katghora, received the case on transfer for trial.
3. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 24 documents Exs.P1 to P24. Statement of the accused/appellant under Section 313 of the CrPC was recorded, in which he denied guilt and entered into defence stating that he has not committed the offence and he has falsely been implicated in offence in question. However, the accused examined none in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.3.2012 convicted the appellant for offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against which, this appeal has been preferred by the appellant herein.
5. Mr.Vikas Pandey, learned counsel for the appellant, would submit that the appellant herein has been convicted only on the basis of his memorandum statement (Ex.P1), which has been made after two months from the date of incident on 13.2.2011 (Ex.P1) and recovery has 4 been made from open place accessible to one & all and that too it was sent to FSL after more than one month and FSL examination was made after more than seven months on 28.10.2011, which has even not been exhibited as a document and as such, merely on the basis of recovery, which is a weak piece of evidence, the appellant cannot be convicted and as such, conviction and sentence of the appellant deserve to be set aside.
6. On the other hand, Mr.Sudeep Verma, learned Deputy Government Advocate for the respondent/State, would submit that though recovery of axe has been made with some delay, but it has been seized from the possession of the appellant duly proved by Lalchand Kol (PW1) witness to memorandum and seizure and even in the FSL report dated 28.10.2011 (not exhibited), blood was found on axe and fullpaint recovered from the appellant and as such, the appellant is fully connected in offence in question and the appeal deserves to be dismissed.
7. We have heard the learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. The first question for consideration would be, whether death of deceased Ramgopal was homicidal in nature ?
9. The trial Court has recorded a finding in affirmative by holding that death of the deceased was homicidal in 5 nature relying upon postmortem report (Ex.P12) which has been proved by Dr.G.S.Jatra (PW10). The said finding recored by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. We hereby affirm that finding.
10. The next question for consideration would be, whether it is the appellant who has committed the offence in question and whether the the trial Court has rightly held that it is the appellant who has caused death of the deceased.
11. The trial Court has found the following three circumstances proved against the appellant:
(i) That, motive of offence is established as the deceased used to have had evil eye on the appellant's sister and has also administered some medical herbs by which the appellant was feeling impotent, which is apparent from his memorandum statement (Ex.P1).
(ii) That, pursuant to memorandum statement of the appellant vide Ex.P1, bloodstained axe was seized from his possession vide Ex.P2 and in FSL report (not exhibited), blood was found on axe though origin and blood group could not be ascertained.
(iii) That, immediately after the incident the accused absconded from village.
12. The abovestated three circumstances relied upon by the the prosecution have been found proved by the trial Court, which have been assailed on behalf of the 6 appellant.
Motive of the offence
13. The trial Court has found the motive of the appellant for the offence in question proved as the deceased was having evil eye on the appellant's sister and he has administered some medical herbs to the appellant which is evident from memorandum statement of the appellant (Ex.P1) in which the appellant has stated that the deceased few years prior to the date of incident has administered some medical herbs to him by which he has become weak and feeling himself like impotent and further stated that he used to have had evil eye on his sister. There is no other evidence available on record to hold so and no other piece of evidence has brought on record that the deceased has administered some medical herbs making the appellant impotent and further he used to have had evil eye on his sister.
14. It is well settled law that the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence.
7
15. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P. 1 with reference to the word "fact" employed in Section 27 of the Evidence Act has held that the facts need not be selfprobatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor2 observed as under: "13. It is a settled legal position that the facts need not be selfprobatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra 3, in particular, paragraphs 23 to 29 thereof. The same read thus:
"23. While accepting or rejecting the factors 1 AIR 2018 SC 5264 2 AIR 1947 PC 67 3 (2015) 1 SCC 253 8 of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) "... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
xxx xxx xxx xxx xxx xxx xxx xxx xxx"
16. The Supreme Court in the matter of Arvind Singh v. State of Maharashtra4 repelling the argument that the disclosure statement was not recorded in the exact language of the accused and the manner of killing is not recorded in such disclosure statement held that in terms of Section 27 of the Evidence Act, the discovery 4 (2021) 11 SCC 1 9 of facts alone is admissible evidence when the accused is in police custody. Their Lordships further held that the manner of killing is inculpatory and, therefore, it is not admissible in evidence.
17. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in the abovestated judgments (supra), it is quite vivid that memorandum statement (Ex.P1) made by the accused that since deceased Ramgopal had administered some medical herbs to him and since he had evil eye on his sister, therefore, he has murdered Ramgopal by axe would be inadmissible in evidence and therefore, the trial Court could not have held the motive of the appellant to be proved on the basis of disclosure statement for commission of offence. Even otherwise, it is very weak piece of evidence. Accordingly, it is held that motive for commission of offence is not proved by the prosecution.
18. The next circumstance that has been found proved by the trial Court is recovery of axe from the appellant. It is the case of the prosecution that incident happened on 5.12.2010 and FIR was registered on 6.12.2010 vide Ex.P14 and accused's memorandum statement was recorded on 13.2.2011 i.e. [after a period of two months] and axe was recovered from the appellant at Dhourabar forest in lower part of canal below mountain and it was sent to FSL and in FSL report dated 28.10.2011 (not 10 exhibited), blood was found on axe and the said fact has been found proved by the trial Court.
19. Admittedly, incident happened on 5.12.2010, memorandum statement of the appellant has been recorded on 13.2.2011 vide Ex.P1 and recovery of axe has been made on 13.2.2011 vide Ex.P2. The aforesaid recovery made after a period of two months has been challenged by the learned counsel for the appellant on the ground that conviction is exclusively based upon the disclosure statement of the appellant and since it is belated recovery of objectionable material, therefore, it is shrouded with elements of doubt.
20. The Supreme Court in the matter of Bijender alias Mandar v. State of Haryana 5 has held that the court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material, but in order to sustain the guilt of such accused, the recovery should be unimpeachable and held as under: "16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.6 We may hasten to add that circumstances such as: (i) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market;
(iii) nature of the object and its relevance to 5 (2022) 1 SCC 92 6 Vijay Thakur v. State of H.P., (2014) 14 SCC 609 11 the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu v. State 7; Pancho v. State of Haryana8; State of Rajasthan v. Talevar9 and Bharama Parasram Kudhachkar vs. State of Karnataka10)
17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer"11. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
Thereafter, their Lordships also took the note of delay in recovery and observed as under: "19.5. Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the complainant.
19.6. Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the appellant. "
21. Reverting to the facts of the present case in light of aforesaid principle of law laid down by the Supreme Court in Bijender alias Mandar (supra), it is quite vivid that though in the instant case, the period of 7 AIR 1954 SC 1 8 (2011) 10 SCC 165 9 (2011) 11 SCC 666 10 (2014) 14 SCC 431 11 W. Blackstone, Commentaries on the Laws of England, Book IV, c. 27 (1897), p. 358. Ed.: see R. v. John Paul Lepage, 1995 SCC OnLIne Can SC 19 12 interval between the date of offence and recovery of axe is more than two months as the date of offence is 5.12.2010, whereas memorandum statement has been made on 13.2.2011 and axe has been recovered on the same day, which is easily available in villages, particularly in rural area it is not uncommon to have an axe. Furthermore, recovery has been made vide Ex.P2 from Dhourabar forest near lower part of canal. It is not stated either in seizure memo of the appellant (Ex.P2) or by Lalchand Kol (PW1), who is witness to memorandum and seizure that it was concealed place, it was kept by the appellant and it was not visible and accessible to all. It was incumbent on part of the prosecution to prove that recovery was made from concealed place.
22. The Supreme Court in the matter of Trimbak v. The State of Madhya Pradesh12 has held in that case that when the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. Their Lordships further held that the fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession 12 AIR 1954 SC 39 13 of these articles.
23. As such, recovery of bloodstained axe has been made from Dhourabar forest near canal i.e. a place visible and accessible to all. The prosecution has failed to prove that the place from where axe was recovered was exclusively in possession of the appellant and as such, the fact of recovery cannot be regarded as conclusive proof that the accused was in possession of that article. Furthermore, in Bijender alias Mandar (supra), it has been held by their Lordships of the Supreme Court that in order to sustain the guilt of the accused, recovery should be unimpeachable and not be shrouded with elements of doubt, which in the instant case, the prosecution has failed to prove the recovery to be unimpeachable and furthermore, recovery, if any, by itself in absence of other evidence on record pointing towards guilt of the accused cannot be termed as sufficient to hold the accused guilty of the offence beyond reasonable doubt. (See Yogesh v. State of Haryana13) (para28).
24. The next incriminating circumstance that has been found proved by the trial Court is that immediately after the incident the appellant absconded from village.
25. The trial Court has found that immediately after the incident, the appellant absconded from village and that is the additional circumstance available against the accused. The Supreme Court in Durga Burman Roy v. State 13 (2021) 5 SCC 28 14 of Sikkim14, relying upon the decision in the matter of Sunil Kundu v. State of Jharkhand 15 held that absconding by itself does not prove the guilt of a person. A person may run away due to fer of false implication or arrest. It has been observed as under: "13."To abscond" means, go away secretly or illegally and hurriedly to escape from custody or avoid arrest. It has come in evidence that the accused had told others that they were going from their place of work at Gangtok to their home at New Jalpaiguri. They were admittedly taken into custody from their respective houses only, at New Jalpaiguri on the third day of the incident. Therefore, it is difficult to hold that the accused had been absconding. Even assuming for argument sake that they were not seen at their work place after the alleged incident, it cannot be held that by itself an adverse inference is to be drawn against them...."
26. Similarly, in Sunil Clifford Danial v. State of Punjab16, the Supreme Court has held that the mere act of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panicstricken and try to evade arrest, when suspected wrongly of committing a grave crime; such is in the instinct of selfpreservation. As such, mere abscondance of the appellant from village will not implicate him in offence in question. It is held so accordingly.
27. The next circumstance that has been proved by the prosecution is FSL report dated 28.10.2011 (not 14 (2014) 13 SCC 35 15 (2013) 4 SCC 422 16 (2012) 11 SCC 205 15 exhibited).
28. Bloodstains was found on axe and fullpaint seized from the appellant and on shirt seized from the deceased. True it is that blood was found on axe and fullpaint of the appellant in FSL report dated 28.10.2011. However, it is pertinent to mention here that incident is of 5.12.2010, memorandum statement of the accused was made on 13.2.2011 with a delay of two months and bloodstained axe was recovered on same day i.e. on 13.2.2011 and it was sent to FSL on 26.3.2011 vide Ex.P22, which was examined by FSL and sent with a delay of ten months on 28.10.2011 in which blood was found in fullpaint of the appellant and shirt of the deceased, but in absence of any other piece of evidence available on record connecting the appellant in offence in question, in the considered opinion of this Court, merely on the basis of FSL report, no conviction can be recorded. As such, it is held that motive of the offence is not proved and recovery was made after a period of two months and that too from open place accessible to all. It is well settled that merely on the basis of recovery in absence of other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the prosecution has proved its case beyond reasonable doubt.
29. In view of aforesaid discussion, we are unable to hold 16 that the trial Court is justified in convicting and sentencing the appellant for offence under Section Section 302 of the IPC. We hereby set aside the impugned judgment of conviction and order of sentence dated 28.3.2012 passed by the Additional Sessions Judge, Katghora in Sessions Trial No.41/2011. The appellant is acquitted of the charge under Section 302 of the IPC. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
30. The criminal appeal is allowed to the extend indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/