Chattisgarh High Court
Ajay Diwakar vs State Of Chhattisgarh on 16 April, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:13454-DB
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1459 of 2017
(Arising out of judgment dated 31.07.2017 passed in Sessions
Trial No.100/2017 by learned Additional Sessions Judge,
(Special Judge of Special Court for trial of CBI cases), Raipur,
Chhattisgarh
Ajay Diwakar S/o Rewa Ram Diwakar, Aged About 27
Years, R/o Village Tulsi, In front Of Motor Garage, Police
Station Newara, District Raipur, Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh Through Its Police Station
Newara, District Raipur, Chhattisgarh.
---Respondent
For Appellant :- Ms. Pooja Loniya, Advocate
For State-Respondent :- Mr. Ashish Shukla, Addl. A.G.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(16.04.2024)
Sanjay K. Agrawal, J.
1. This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 31.07.2017, passed by learned Additional Sessions Judge (Special Judge of Special Court for trial of CBI cases), Raipur (C.G.) in Sessions Trial No.100/2017, whereby the appellant has been convicted for offence Neutral Citation 2024:CGHC:13454-DB 2 punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.100/- and, in default of payment of fine, to undergo additional rigorous imprisonment for one month.
2. The case of prosecution, in short, is that on 03.02.2017 at around 2:30 p.m., in village Tulsi, Police Station Newara, District Raipur, the appellant is alleged to have strangulated his wife Jyoti to death by hands and the scarf/Chunri of the deceased, thereby committed the offence of murder punishable under Section 302 of IPC. Further case of the prosecution is that on 04.02.2017, at about 8:30 a.m., the appellant appeared at Police Station Newara and informed that he has strangulated his wife Jyoti to death, pursuant to which Rojnamcha Sanha (Ex.P-9C) and Merg (Ex.P-10) were recorded and FIR (Ex.P-11) was registered. Inquest proceeding was conducted vide Ex. P/5 and the dead body of deceased Jyoti was subjected to postmortem which was conducted by Dr. Uma Paikra (PW-9) who proved the post-mortem report (Ex.P/7), in which the cause of death is opined to be asphyxia due to strangulation which was homicidal in nature. Memorandum statement of the appellant was recorded vide Ex. P/14, pursuant to which, pillow and clothes of the deceased were seized vide Ex.P/15 which were sent for chemical examination to the FSL and as per FSL report (Ex. P/20) human blood was found on A, C1 & C4 i.e. on pillow and the Kurti & Bra of deceased.
3. After completion of investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law, in which the appellant abjured Neutral Citation 2024:CGHC:13454-DB 3 his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.
4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 23 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has neither examined any witness nor exhibited any document.
5. After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offence punishable under Section 302 of I.P.C. and sentenced him as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellant.
6. Mr. Pooja Lunia, learned counsel for appellant, would submit that there is no eye witness to the incident and the appellant has been convicted on the basis of weak circumstantial evidences. He would submit that the prosecution has not been able bring home the offence beyond reasonable doubt, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.
7. On the other hand, Mr. Ashish Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home Neutral Citation 2024:CGHC:13454-DB 4 the offence beyond reasonable doubt and the conviction of the appellant for the offence under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
9. The trial Court has convicted the appellant by finding 8 circumstantial evidences proved against the appellant recorded in para-26 of the impugned judgment which are as under:
1. मृि का का शव ि नांक 04 फरवरी 2017 को सुबह 08.00 बजे के पचा आरोपी के िनवास ्थान मं िब् र पर प़ा िमला था ।
2. मग) इंटीमेशन संबंधी रारंि/क जांच मं /ी इस बा का सा्य रात हुआ था िक मृि का ्योि ि वाकर की ह्या के ्य आरोपी के वारा ी गई सूचना के आधार पर पाये गये थे ।
3. आरोपी के वारा ी गई सूचना के आधार पर ही रथम सूचना िरपोट) ज) कर रकरण की िववेचना की गई था संपूण) िववेचना, ्याियकेतर सं्वीकृि एवं पिरि्थि ज्य सा्य के आधार पर, ी गई सूचना को रमािण कर े हं ।
4. शव परीषण रि वे न र श) पी-7 मं मृ्यु के जो कारण िश िकये गये, उसके संबंध मं िवशेषञ के समष र् ु िकया एवं पु टा आि के संबंध मं िवशेषञ के समष र् ु िकया एवं पु टा आि के संबंध मं गला घंटकर मृ्यु कािर करने के बाब ् र श) पी-8 का अि/म रात िकया गया ।
5. आरोपी के िनवास ्थान से िकया, पु टा एवं सूचना ेने मं रयुत मोबाईल एवं टू टे हुए सीम की जती था उत संबंध मं र श) पी-20 की ्यायालियक िवञान रयोगशाला की िरपोट) मं मानव रत होने के बावजू आरोपी वारा इन पिरि्थि यं का कोई ्पटीकरण नहं ि या गया ।
6. ि नांक 03 फरवरी 2017 के ि न मं अंि म बार मृि का ्योि ि वाकर के साथ होने के पचा ् ि नांक 04 फरवरी 2017 के सुबह 08.00 बजे की िकसी पिरि्थि का आरोपी ने ्पटीकरण नहं ि या ।
Neutral Citation 2024:CGHC:13454-DB 5
7. शव परीषण के िचिक्सकीय पिरसा्य से यह रमािण पाया जाना िक ह्या रनग समय के /ी र म घुटने से हुई थी था गले पर पाई गई चोटं के िनशान की पुिट आरोपी वारा की गई ्वे्छया ्याियकेतर सं्वीकृि से हो ी है ।
8. आरोपी वारा ी गई सूचना के आधार पर हे ुक के ह यह ्पट है िक मृि का के िववाहेतर संबंधं के आधार पर आरोपी वारा उसकी ह्या की गई ।
10. In the instant case, there is no direct evidence available on record and the case of prosecution is solely based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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 2 where the following observations were made:
1(1984) 4 SCC 116 2(1973) 2 SCC 793 Neutral Citation 2024:CGHC:13454-DB 6 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."
11. Now we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). The first and foremost circumstance for consideration is whether the death of deceased Jyoti was homicidal in nature?
12. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-7 proved by Dr. Uma Paikra (PW-9) that the death of the deceased was homicidal in nature, which is a correct 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.
Neutral Citation 2024:CGHC:13454-DB 7
13. Next circumstance that the trial Court has found proved is that pursuant to the information given by appellant to the Police that he has murdered his wife, Rojnamcha Sanha (Ex.P-9C) was recorded, based on which, FIR (Ex.P-11) was registered and thereafter the dead body was recovered, which is one of the circumstances connecting the appellant to the crime. In this regard, the decision of the Hon'ble Supreme Court in the case of Aghnoo Nagesia v. State of Bihar 3, may be noticed in which their Lordships have clearly held that the recovery of dead body from the place concealed by the appellant herein is not sufficient to convict the appellant/accused under section 302 of IPC and held in para-21 as under:
"Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody. On the question whether a person directly giving to a police officer information which may be used as evidence against him -may be deemed to have submitted himself to the custody of the police officer within the meaning of s. 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman Upadhyaya(1). For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the
3. AIR 1966 SC 119 Neutral Citation 2024:CGHC:13454-DB 8 appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code."
14. In that view of the matter, the recovery of dead body pursuant to the information given by appellant to the Police would not connect the appellant to the offence in question.
15. The further circumstance that has been found proved by the Trial Court is that pursuant to the information given by the appellant to the Police, the dead body of deceased was found in the house of appellant and he has not given any explanation in this regard in his statement made under Section 313 CrPC, therefore, he has been convicted for the offence under section 302 of IPC. However, careful perusal of the evidence would show that the prosecution has not brought on record the fact that the appellant and the deceased both were seen together on the date and time of offence i.e. on 03.02.2017 at night and subsequently, the dead body of deceased was found in the morning of 04.02.2017. Further, in 313 CrPC statement, no specific question has been put to the appellant as to how and what circumstances his wife Jyoti died in the house when on the date of incident, they were together and in the morning her dead body was found. Except the fact that the dead body of the deceased was found in the house of Neutral Citation 2024:CGHC:13454-DB 9 appellant, there is no direct evidence to the incident showing that it is the appellant who has committed murder of his wife Jyoti (deceased), more particularly when no specific question regarding how and what circumstances his wife Jyoti died in the house has been put to the appellant in his statement recorded under Section 313 of CrPC. Thus, this circumstance cannot be taken against the appellant for his conviction under Section 302 of IPC.
16. Similarly, the appellant is said to have made extra judicial confession before Kumari Seema Dhidhi (PW-5) and Deepchand Dhidhi (PW-8) i.e. sister and father of the deceased though mobile but neither the call details nor the handset have been brought on record to prove that the appellant had given extra judicial confession to them. Even otherwise it is a weak piece of evidence and unless it is corroborated by further evidences it cannot be made basis of conviction and in present case there is no such corroborating piece of evidence available on record.
17. Next circumstance that has been found by the trial Court proved is that the relationship of appellant and deceased was not cordial because of extra marital relationship of the deceased with other person. However, there is no evidence on record that the deceased had any extra marital relationship with any other person which led to the commission of the offence except the statement of the appellant recorded in Rojnamcha Sanha. Therefore, this circumstance is also of no use.
18. The last incriminating circumstance that the trial Court has found proved is that on Articles A, C1 & C4 i.e. pillow and the Kurti & Bra of deceased seized from the Neutral Citation 2024:CGHC:13454-DB 10 spot, human blood was found. The incident is of 03.02.2017, the articles were seized on 04.02.2017 which were received by the State Forensic Science Laboratory on 28.03.2017 vide Ex.20C but there is no evidence on record that whether the seized articles were kept between the date of seizure in safe custody and it was received by FSL. As such, the chances of manipulation cannot be ruled out. Even otherwise, on the basis of FSL evidence conviction under section 302 of IPC cannot held.
19. In that view of the matter, we find that as per the principle of 'Panchsheel' given by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of evidences are not so complete in which the appellant can be held guilty for the incident. Consequently, we are unable to uphold the conviction of the appellant for offence under Section 302 of the IPC and the appellant is entitled for acquittal on the basis of the principle of the benefit of doubt.
20. Accordingly, the impugned judgment dated 31.07.2017 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of benefit of doubt. Appellant is reported to be in jail since 05.02.2017. He be released from jail forthwith, if his detention is not required in connection with any other offence.
21. This criminal appeal, accordingly, stands allowed.
22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and the Superintendent of Jail where the Neutral Citation 2024:CGHC:13454-DB 11 appellant is lodged and suffering jail sentence, for information and necessary action, if any Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai