Chattisgarh High Court
Ramkumar vs State Of Chhattigarh on 8 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 479 of 2012
Ramkumar S/o Maniram, Caste Gond, Aged about 25
years, R/o Village Champajhar, Police Station
Patna, Distt. Koriya, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Patna, Distt. Korea,
Chhattisgarh.
Respondent
For Appellant : Mr. D.N. Prajapati, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
08/09/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC is preferred by the appellant/accused against the impugned judgment dated 30/04/2012 passed by learned First Additional Sessions Judge, Manendragarh at Baikunthpur, Distt. Koriya in Sessions Trial No. 82/2011 whereby he has been 2 convicted for offences punishable under Sections 302, 201 and 177 of the IPC.
2. Case of the prosecution, in brief, is that on 03/05/2011 at about 08:00 PM, the appellant herein assaulted his wife Smt. Seeta Bai on her head with a wooden stick at their home in Village Champajhar due to which she suffered grievous injury and succumbed to death on 20/05/2011 and the appellant, in order to screen himself, gave false information to the Police and thereby, committed the aforesaid offences.
3. Further case of the prosecution is that appellant as well as deceased, both being husband and wife, used to live at Village Champajhar and on 03/05/2011, they got into a quarrel on the pretext of going to see the baraat of one Lakhan of their village and the appellant assaulted the deceased with hands and fists as well as wooden stick and thereafter, pushed her due to which appellant's head dashed on the door frame and she fell unconscious. She was taken to the Hospital at Baikunthpur wherein she remained hospitalized till 17/05/2011. Pursuant thereof, father of the deceased, Heeravan (P.W.13), sought discharge from the Baikunthpur Hospital and took the 3 deceased to her parental home at Village Temri. Again on 20/05/2011, deceased became seriously unwell and while she was being escorted to the Hospital, she succumbed to death. After being informed about the incident, merg intimation was registered by the Police vide Ex. P/27 and thereafter, FIR was registered against the appellant vide Ex. P/28, summons were issued to the witnesses vide Ex. P/1 and after conducting inquest vide Ex. P/2, dead body of Smt. Seeta Bai was sent for postmortem, which was conducted by Dr. A.K. Sharma (P.W.5) and as per the postmortem report (Ex. P/8), the cause of death is said to be coma due to head injury and nature of death is said to be homicidal. After taking the appellant/accused into custody, his memorandum statement was recorded vide Ex. P/4 and on that basis, wooden stick was seized vide Ex. P/5. After recording the statements of the witnesses and after due investigation, the appellant was chargesheeted for offences punishable under Sections 302, 201 and 177 of IPC. The appellant abjured his guilt and entered into defence.
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4. In order to bring home the offence, prosecution examined as many as 18 witnesses and brought into record 29 documents. Statement of the appellant was recorded under Section 313 of CrPC wherein he denied guilt and though examined none his defence, however, exhibited the statement of Atar Sai (P.W.15) as Ex. D/1.
5. Learned trial Court, after appreciating the oral and documentary evidence on record, proceeded to convict the appellant/accused for the offences punishable under Sections 302, 201 and 177 of IPC and sentenced as aforesaid.
6. Mr. D. N. Prajapati, learned counsel for the appellant, would submit that there is no direct evidence available on the face of the record and the case is based on circumstantial evidence. He would further submit that trial Court is absolutely unjustified in convicting the appellant/accused for the aforesaid offences only on the basis of subsequent conduct of the appellant/accused particularly when memorandum and seizure has not been found proved by the trial Court, as such, the conviction recorded and sentenced awarded to the appellant/accused by the impugned judgment is liable to be set aside. 5
7. Per Contra, Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that prosecution has proved the offence against the appellant beyond reasonable doubt and learned trial Court is absolutely justified in convicting the appellant for the aforesaid offences as even though memorandum and seizure have not been found proved but on the basis of other evidence available on record, the appellant/accused has rightly been convicted, as such, the instant 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 Smt. Seeta Bai was homicidal in nature ?
10. It is not in dispute that deceased received injury on 03/05/2011 at about 08:00 PM and she was taken to Baikunthpur Hospital wherein she remained hospitalized till 17/05/2011 but against the medical advice, her father Heervan (P.W.13) took her to her parental house at Village Temri. 6 Thereafter, on 20/05/2011, she became seriously unwell and while she was being escorted to the hospital, she succumbed to death. Learned trial Court after relying upon the medical opinion of Dr. A.K. Sharma (P.W.5) who has conducted postmortem of the deceased and has clearly stated in the postmortem report (Ex. P/8) that cause of death is coma due to head injury and the nature of death is homicidal, has held the death of deceased Smt. Seeta Bai to be homicidal in nature. Taking consideration of the entire evidence available on record as well as looking to the injury sustained by the deceased on her head and relying upon the medical opinion of Dr. A.K. Sharma (P.W.5) as well as postmortem report (Ex. P/8), we are of the considered opinion that learned trial Court has rightly held the death of deceased Smt. Seeta Bai to be homicidal in nature. Moreover, the fact that death of the deceased was homicidal in nature has not even been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Smt. Seeta Bai is homicidal in nature.
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11. The next question for consideration is whether the trial Court is justified in holding that appellant is the perpetrator of the crime in question ?
12. From a careful perusal of the record, it is evident that there is no direct evidence available in the instant case. After taking the appellant/accused in custody, memorandum statement was recorded under Section 27 of the Evidence Act vide Ex. P/4 and on that basis, recovery of wooden stick was made vide Ex. P/5.
13. Though pursuant to the memorandum statement of the appellant/accused, recovery of wooden stick was made, but in paragraph 22 of the judgment, the trial Court has held that the seized wooden stick was neither produced before the Court nor it was subjected to chemical examination and no FSL report is available on record. Moreover, the seized wooden stick was sent for query to Dr. A.K. Sharma (P.W.5) and though he has stated that the injury suffered by the deceased could have been caused by the said wooden stick but there were no blood stains found on the said wooden stick and even though the appellant/accused has admitted to commission of 8 offence in his memorandum statement, but it is inadmissible in evidence, which has rightly been held by the trial Court and the said finding has attained finality as the same has not been questioned by the respondent/State by way of appeal.
14. The circumstance that has been relied upon by the trial Court to convict the appellant/accused is his subsequent conduct after commission of the alleged offence stating that at the time of the incident, other than the appellant and the deceased, no other person was present in their house and it is the appellant who assaulted the deceased with hands and fists and thereafter pushed her due to which her head got dashed with the door frame and she became unconscious. Thereafter, the appellant took her to the Baikunthpur Hospital wherein she remained hospitalized till 17/05/2011 and on the pretext of taking her to better hospital, she was discharged from the hospital and thereafter, she was taken to her parental home at Village Temri and no treatment was provided to her and ultimately, on 20/05/2011 when she became seriously unwell, she succumbed to death while 9 she was being taken to the Hospital. When Police asked the appellant, he concealed true facts and falsely informed that deceased suffered injuries by falling on the ground.
15. In the matter of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)1, their Lordships of the Supreme Court have held as under : "232. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In this regard, it is useful to refer Anant 2 Chintaman Lagu v. State of Bombay :
"68. Circumstantial evidence in this context means a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.
X X X
76. ... This conduct [of the accused] was so knit together as to make a network of circumstances pointing only to his guilt.... His method was his own undoing; because even the long arm of confidence [could not] explain the multitude of circumstances against him, and they destroy the presumption of innocence with which law clothed him."
233. Thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is very 1 (2010) 6 SCC 1 2 AIR pp. 523 & 526-27, paras 68 & 76 10 relevant conduct under Section 8 of the Evidence Act."
16. It is well settled law that in order to invoke Section 106 of the Evidence Act, prosecution is bound to discharge its initial or general burden or primary duty of proving the offence beyond reasonable doubt. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all.
17. In the instant case, prosecution has failed to prove the offence beyond reasonable doubt. The only circumstance that has been found proved by the prosecution is that the death of deceased Smt. Seeta Bai was homicidal in nature and the subsequent conduct of the appellant/accused wherein he did not inform the Doctor and the Police about the true version of the incident. The memorandum and seizure have not been found proved and moreover, though Asha, who is an eye witness, was produced before the Court but on account of her incapability, she was not examined. As such, merely on the basis of 11 subsequent conduct of the appellant/accused, though it is admissible under Section 8 of the Evidence Act, his conviction for offence punishable under Section 302 cannot rest.
18. In conclusion of the aforesaid discussion, we are of the considered opinion that learned trial Court is absolutely unjustified in convicting the appellant/accused for offences punishable under Sections 302, 201 and 177 of the IPC. As such, the impugned judgment of conviction recorded and sentence awarded against the appellant/accused is hereby set aside and he is acquitted of the charges levelled against him. Since the appellant is already on bail, he need not surrender. However, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
19. Accordingly, the instant appeal stands allowed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet