Chattisgarh High Court
Brizlal Vaishnav vs State Of Chhattisgarh on 7 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 374 of 2011
Brizlal Vaisnav S/o Dwarika Prasad Vaisnav, Aged about 22
years, R/o Village Limha, Thana Ratanpur, Distt. Bilaspur,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Police Station Sipat, Distt.
Bilaspur, Chhattisgarh.
---Respondent
For Appellant :- Mr. Dheerendhra Pandey, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A. and
Mr. Arijit Tiwari, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
07/11/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against the impugned judgment dated 30/10/2010 passed by learned 3rd Additional Sessions Judge Bilaspur in Sessions Trial No. 77/2010 whereby the appellant has been convicted and sentenced as under :-
2
Conviction Sentence
U/s 302 of IPC Life imprisonment with fine of
Rs. 100/-, in default of
payment of fine, additional R.I.
for 1 month.
U/s 397 of IPC R.I. for 7 years with fine of Rs.
100/-, in default of payment of
fine, additional R.I. for 1
month.
U/s 201 of IPC R.I. for 3 years with fine of Rs.
100/-, in default of payment of
fine, additional R.I. for 1
month.
2. Case of the prosecution, in brief, is that on 12/01/2010 at about 09:30 PM at village Machkhanda, P.S. Seepat, Distt. Bilaspur, the appellant herein, with the intention of causing death of one Chhatlal and stealing his mobile and motorcycle, strangulated him and caused his death and thereafter, in order to screen himself from the offence, he burnt the clothes of the deceased near Karma School and threw his dead body in a field in village Machkhanda and thereby, committed the aforesaid offences.
3. Further case of the prosecution is that on 11/01/2010, deceased Chhatlal went outside his house for a ride on his motorcycle and thereafter, he did not return to his house. On 15/01/2010, Amar Singh Maravi (P.W.-4) informed at the Police Station that a dead body of an unknown person is lying in open at village Machkhanda and on that basis, merg intimation was registered vide Ex. P/8 and the Police, after reaching the spot, conducted inquest vide Ex. P/5 and 3 thereafter, on the recommendation of the Panchas, in order to ascertain the cause of death, the dead body of the deceased was subjected to postmortem, which was conducted by Dr. R.S. Maravi (P.W.-1) and as per the postmortem report (Ex. P/1), cause of death is said to be cardiorespiratory arrest, however, nothing about the nature of death has been stated in the postmortem report. Thereafter, vide Ex. P/6, a pair of slippers lying near the dead body of the deceased were seized and from the hands of the deceased, one bracelet and one ring were also seized vide Ex. P/7. In the presence of the witnesses, identification was conducted vide Ex. P/3 and the dead body was identified to be that of the deceased Chhatlal Kaiwartya. On 18/02/2010, the memorandum statement of appellant was recorded vide Ex. P/14 and on that basis, one Hero Honda motorcycle owned by the deceased, one mobile phone owned by the deceased as well as one motorcycle dikki (storage box) was seized at his instance vide Ex. P/15. Purusant thereof, first information report was registered against the appellant for offences punishable under Sections 302, 397 and 201 of IPC vide Ex. P/24 and he was arrested vide Ex. P/18. After due investigation, the appellant was charge- sheeted for offences punishable under Sections 302, 397 and 201 of IPC which was filed before the Court of Judicial Magistrate First Class, Bilaspur which was committed to the Court of Sessions for hearing and disposal in accordance 4 with law. The appellant abjured his guilt and entered into defence.
4. In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 26 documents on record. The statement of the appellant/accused was recorded wherein he denied guilt and exhibited 3 documents, however, he did not examine any witness.
5. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for offences punishable under Sections 302, 397 and 201 of IPC and sentenced him as aforesaid.
6. Mr. Dheerendhra Pandey, learned counsel for the appellant, would make the following submissions :-
i) that, prosecution has failed to prove the death of deceased to be homicidal in nature which is sine qua non for convicting an accused person for offence punishable under Section 302 of IPC. In absence of the proof that the death of deceased was homicidal in nature, conviction of the appellant/accused for offence punishable under Section 302 of IPC deserves to be set aside.
ii) that, only on the basis of recovery of motorcycle and mobile made from the appellant vide Ex. P/15, he has been convicted for offence punishable under Section 302 of IPC which cannot sustain in light of the decision rendered by 5 the Supreme Court in the matter of Joga Gola v. State of Gujarat1.
iii) that, even if memorandum and seizure, which has been found proved by the trial Court, is affirmed by this Court, at the most, the appellant can be convicted for offence punishable under Section 404 of IPC and since the appellant has already remained in jail for a period of 2 years, therefore, the instant appeal deserves to be allowed in full or in part by setting aside the judgment of the trial Court.
7. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for the aforesaid offences as other than memorandum and seizure, the circumstance of last seen together has also been found proved by the trial Court, therefore, 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. Upon hearing learned counsel for the parties and after going through the record, the following two questions arise for consideration :-
i) Whether the prosecution has been able to prove the death of deceased Chhatlal to be homicidal in nature ?
1 AIR 1982 SCC 1227 6
ii) Whether the appellant is the perpetrator of the crime in question ?
Answer to question No. 1 :-
10. The appellant has been convicted by the trial Court for offence punishable under Section 302 of IPC holding that the death of deceased was culpable homicide under Section 299 of IPC which amounted to murder under Section 300 of IPC and is punishable under Section 302 of IPC. For holding an accused guilty of murder, prosecution has first to prove that it is a culpable homicide. An accused will come under the mischief of Section 299 only when the act done by him has caused death.
11. At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :-
"299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
12. Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of IPC and murder under Section 300. Halsbury classifies homicide as follows :-
"The term "homicide" is used to describe the killing of a human being by a human being. Such a killing 7 may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide."
13. "Homicide", as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See: Chenda @ Chanda Ram v. State of Chhattisgarh2)
14. In the matter of Reaz-ud-din Shaikh v. Emperor3, it has been explained by Shuarf-ud-din J, as under :-
".... all murder is culpable homicide, but all culpable homicide is not murder... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder."
15. It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect 2 2014 CrLJ 172 3 (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235 8 to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See : Madho Singh v. State of Rajasthan4 and Chandrapal v. State of Chhattisgarh5)
16. Similarly, in the matter of Shobhau alias Shubhau v. State of M.P.6, it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See: The State Government of M.P. v. Ramkrishna Ganpat Rao 7, The State of Punjab v. Bhajan Singh8)
17. The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others 9, has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the 4 (2010) 15 SCC 588 5 2022 SCC Online SC 705 6 1998 CrLJ 3934 7 AIR 1954 SC 20 8 AIR 1975 SC 258 9 (2018) 16 SCC 475 9 death. In the matter of M.B. Suresh v. State of Karnataka10, it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death.
18. Reverting to the facts of the present case in light of the aforesaid requirement of law, in order to prove the offence of murder and convict an accused for offence punishable under Section 302 of IPC, first and foremost, it has to be established by the prosecution by laying legal evidence that the death of the deceased was homicidal in nature and if the evidence adduced by the prosecution falls short of establishing that the death of the deceased was homicidal in nature, benefit of doubt has to be extended to the accused. In the instant case, postmortem of deceased Chhatlal was conducted by Dr. R.S. Maravi (P.W.-1) and in his statement before the Court, he has clearly stated in paragraph 4 that on external examination, he found that eyes of the deceased were closed, his tongue was protruding from his mouth and his body was infected all over and it was decomposing. He also found that there was no injury on his head and even upon internal examination, he found that every organ was normal and none of his bones had been fractured. 10 (2014) 4 SCC 31 10 Thereafter, in paragraph 6 of his statement, Dr. R.S. Maravi (P.W.-1) has stated that according to him, cause of death was cardiorespiratory arrest and he had succumbed to death nearly 68 hours ago. Being subjected to cross- examination, in paragraph 9, he has then stated that he had not found any ligature mark on the neck of the deceased and the deceased had possibly died from heart attack, but he did not dwell upon the point as to whether the death of the deceased was natural or homicidal in nature.
19. The trial Court, while relying upon the postmortem report (Ex. P/1), though noticed the statement of Dr. R.S. Maravi (P.W.-1), but held that since the dead body of deceased Chhatlal was found in a naked condition in an open field, his death cannot be natural rather it is homicidal in nature.
20. As noticed herein-above, merely because the dead body of deceased Chhatlal was found in an open field in a naked condition, it cannot be assumed his death was homicidal in nature without there being any statement of this sort made by Dr. R.S. Maravi (P.W.-1) and since he had only stated that deceased died because of cardiorespiratory arrest and there were no injuries on his body, either external or internal, in such a case, prosecution was obliged to prove that the death was homicidal in nature and since the prosecution has failed to prove that appellant had caused the death of the deceased, which would come under the 11 mischief of Section 299 of IPC and therefore, he could not have been convicted by the trial Court for offence punishable under Section 302 of IPC. As such, we are of the considered opinion that prosecution has failed to prove that the death of the deceased was homicidal in nature. Answer to Question No. 2 :-
21. With regard to this question, as to whether the appellant is the author of the crime in question, learned trial Court has found the circumstance of last seen together proved against the appellant stating that the appellant and deceased were last seen together by Chandabai (P.W.-13) on 12/01/2010 at about 9 PM. In her statement before the Court, Chandabai (P.W.-13) has stated that on 12/01/2010, at 9 PM, deceased came to her house and asked for shawl since he was feeling cold. When Chandabai (P.W.-13) asked him to stay at her house till morning, the deceased refused stating that he was along with one other person and he would go to his home. Thereafter, Chandabai (P.W.-13) went to see off the deceased and also saw the appellant standing near their motorcycle. The deceased left along with the appellant and went towards Seepat and pursuant thereof, his dead body was recovered by the Police on 15/01/2010 at the information given by Amar Singh Maravi (P.W.-4) on the basis of which merg intimation (Ex. P/8) was registered.
22. The question that requires consideration herein is whether the trial Court has rightly found the circumstance of last 12 seen together proved against the appellant and whether the appellant has rightly been convicted for offence punishable under Section 302 of IPC on the basis of the circumstance of last seen together ?
23. In the matter of Arjun Marik v. State of Bihar11, it has been held by their Lordships of the Supreme Court have held that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
24. Likewise in the matter of State of Goa v. Sanjay Thakran 12 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :-
11 1994 Supp (2) SCC 372 12 (2007) 3 SCC 755 13 "34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. "
25. Similarly, in the matter of Kanhaiya lal v. State of Rajasthan13, their Lordships of the Supreme Court have 13 (2014) 4 SCC 715 14 clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :-
"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan14.
16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."
26. In the matter of Anjan Kumar Sarma v. State of Assam15 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of 14 (2010) 15 SCC 588 15 (2017) 14 SCC 359 15 explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.
27. Finally in the matter of Navneethakrishnan v. State by Inspector of Police16, their Lordships of the Supreme Court have clearly held that evidence of last seen is an important piece of evidence, but accused cannot be convicted solely on the basis of evidence of last seen together and it requires corroboration and held as under :-
"18. ... It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."
28. In the matter of State of Goa v. Sanjay Thakran and another17, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last 16 (2018) 16 SCC 161 17 (2007) 3 SCC 755 16 seen together, even if proved, cannot clinchingly fasten the guilt on the accused.
29. In the instant case also, the appellant and the deceased were last seen together on 12/01/2010 at 9 PM and the dead body was recovered on 15/01/2010 i.e. after a gap of 65 hours, as such, there is a considerable time gap between the time when the appellant and deceased were last seen together and the time when the dead body was recovered. Moreover, the appellant and deceased were last seen together on 12/01/2010 at 9 PM by Chandabai (P.W.-13) whereas her statement under Section 161 of CrPC was recorded on 18/02/2010 i.e. with a delay of more than 1 month and there is no plausible explanation for recording her statement with delay. Therefore, it cannot be held that only the appellant is the perpetrator of the crime in question in absence of any other corroborating evidence available on record.
30. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in Anjan Kumar Sarma (supra), it is quite vivid that prosecution has failed to prove that the death of deceased was homicidal in nature and the theory of last seen together has also not been duly established. Even if, the testimony of Chandabai (P.W.-13) is relied upon to establish that appellant was last seen together with the deceased, then also no other connecting links have been 17 satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant/accused has been proved.
31. The next circumstance that has been found proved by the trial Court is recovery of mobile, motorcycle and dikki (storage box) from the house of the appellant vide Ex. P/15.
32. Learned trial Court has found proved that pursuant to the memorandum statement of the appellant vide Ex. P/14, recovery of mobile phone, motorcycle and dikki (storage box) has been made from his house vide Ex. P/15. The seizure of the mobile phone has been found proved vide its receipt Ex. P/19 which shows that mobile bearing IMEI No. 353043030354115 was purchased by the deceased, which has been proved by the Investigating Officer K.M.S. Khan (P.W.-18). Similarly, motorcycle Hero Honda Splender Plus bearing registration No. CG12-N2049 also belonged to the deceased which has been proved by the insurance cover at the instance of Investigating Officer K.M.S. Khan (P.W.-18). As such, the circumstance of seizure of mobile and motorcycle of the deceased have rightly been found proved against the appellant by the trial Court.
33. In the matter of Joga Gola (supra), wherein the accused was found in possession of stolen property belonging to deceased, however, there was no evidence to show that accused murdered the deceased, their Lordships of the Supreme Court held that the accused cannot be convicted 18 for murder although, he cannot escape conviction under Section 411 and held in paragraph 4 as under :-
"4. There may be no doubt, however, that the buffaloes did belong to the deceased and there is sufficient evidence to show that the two deceased had gone to the fields with the buffaloes and did not return. It is also found from the evidence that buffaloes also did not return but were seized from the possession of accused Nos. 1 and 2. It has also been proved from the evidence of PWs 15 and 17 that the buffaloes belonged to the deceased persons. In these circumstances, therefore, although there is no evidence to support the conviction of the appellant u/ss. 302/34, 396 and 412 of Indian Penal Code, but the prosecution has undoubtedly proved that the appellant was in possession of stolen property namely the buffaloes belonging to the deceased persons. In these circumstances, therefore, the appellant cannot escape conviction u/s. 411 of I.P.C. It appears that the appellant was not granted bail when this appeal was filed in this Court and has already served term of more than five years. For these reasons, therefore, we allow this appeal to this extent that the appellant is acquitted of all the charges except that u/s. 412 which is altered to that u/s. 411 and the sentence is reduced to the period already served. The appellant will now be released forthwith."
34. Reverting to the facts of the present case in light of the aforesaid principle of law laid down in Joga Gola (supra), it is quite vivid that since recovery of mobile and motorcycle belonging to the deceased have been made from the house of the appellant at his instance which have also been identified to be appellant's as per identification proceeding (Ex. P/12) which has been duly proved by the prosecution as the appellant has also not claimed that the articles belong to him and no explanation has been given by him in his statement under Section 313 of CrPC, the appellant is 19 liable to be convicted for offence punishable under Section 404 of IPC. As such, after taking consideration of the entire evidence available on record, we are of the considered opinion that prosecution has failed to the prove that the appellant is indeed the perpetrator of the crime in question and in that view of the matter, the trial Court has erred in convicting the appellant for offence punishable under Section 302 of IPC.
Conclusion :-
35. In view of the aforesaid analysis, we are of the considered opinion that prosecution has miserably failed to prove that the death of the deceased was homicidal in nature and further failed to prove that the appellant is the perpetrator of the crime in question. As such, the conviction of the appellant for offences punishable under Sections 302, 397 and 201 of IPC as well as the sentence awarded accordingly is hereby set aside. However, since the appellant has been found in possession of the mobile phone as well as motorcycle belonging to the deceased, he is convicted for offence punishable under Section 404 of IPC and since he has already remained in jail for more than 2 years, he is sentenced for the period already undergone. Since the appellant is already on bail, he need not surrender.
However, his bail bonds shall remain in force for a period of six months in view of Section 437A of CrPC. 20
36. The instant appeal is allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet