Chattisgarh High Court
Narayan Prasad And Ors vs State Of Chhattisgarh on 27 March, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.01
14:56:55 +0530
2025:CGHC:14768-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1196 of 2014
1. Narayan Prasad S/o Holiram Dansena Aged About 33
Years, Occupation Agriculturist R/o Kunkuri, PS Kharsiya,
Civil And Rev. Distt. Raigarh, C.G.
2. Pawan Kumar @ Kirtan S/o Holiram Dansena Aged About
28 Years, Occupation Agriculturist and Rajmistry, R/o
Kunkuni, PS Kharsiya, Civil And Rev. Distt. Raigarh, C.G.
3. Holiram Dansena S/o Gunaram Dansena, Aged About 70
Years, Occupation Agriculturist, R/o Kunkuni, PS
Kharsiya, Civil And Rev. Distt. Raigarh C.G.
... Appellants
versus
State Of Chhattisgarh Through Distt. Magistrate, Raigarh,
Distt. Raigarh C.G.
... Respondent
For Appellants : Smt. Indira Tripathi, Advocate
For Respondent : Shri Ashutosh Shukla, Panel Lawyer
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
2
Judgment On Board
(27.03.2025)
Sanjay K. Agrawal, J.
1. These three appellants herein have jointly preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 12.11.2014, passed by the 2nd Additional Sessions Judge, Raigarh (C.G.) in Sessions Trial No.114/2014, whereby the appellants have been convicted and sentenced in the following manner :-
Conviction Sentence
U/s 302/34 of IPC Life Imprisonment and fine of
Rs.5,000, in default of fine, 5
months additional R.I.
U/s 201 of IPC R.I. for 1 year and fine of Rs.1,000,
in default of fine, 1 month
additional R.I.
2. The case of prosecution, in nutshell, is that from 15.01.2014 at about 8:00 p.m. to 17.01.2014 at about 7:00 a.m, in village Kunkuni, PS Kharsiya, District Raigarh, the Appellants herein, in furtherance of their common intention, committed murder of Dukalu Rathiya (now deceased) and in order to screen themselves from the crime, threw the dead body in the well of Baghpathra canal, thereby committed the aforesaid offence. The matter being reported to the Police by Manohar Rathiya (PW-1), Merg Intimation was recorded vide Ex.P-1 and FIR was registered vide Ex. P-
18. Inquest was conducted vide Ex. P-3 and the dead body of deceased Dukalu was subjected to postmortem which was 3 conducted by Dr. Sajan Kumar Agrawal (PW-11), who proved the post-mortem report (Ex.P-13), according to which, cause of death was asphyxia due to strangulation and mode of death was homicidal. Pursuant to memorandum statement of appellant No.1 (Ex.P/7), a bamboo stick was seized vide Ex.P-/9 and on memorandum statement of appellant No.2 (Ex.P/8), a small piece of stone and a nylon rope were seized vide Ex.P-/10. The seized articles were sent for chemical examination to FSL but the FSL report has not been brought on record for the reason best known to the prosecution. After completion of investigation, the appellants were charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law.
3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 31 documents. The statements of appellants / accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellants in support of their defence have neither examined any witness nor exhibited any document.
4. Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellants / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.
45. Smt. Indira Tripathi, learned counsel for the appellants, would submit that though bamboo stick and nylon rope were seized pursuant to the memorandum statements of appellants No. 1 & 2, but the memorandum and seizure witnesses Ghurau Ram (PW-6) and Ramlal Chauhan (PW-7) have not supported the case of prosecution and turned hostile. She further submits that the seized articles were sent for chemical examination to FSL but the FSL report has not been brought on record by the prosecution. Thus, it has not been proved that the said bamboo stick and nylon rope were used in commission of the offence. She also submits that as per the statement of Gangaram Rathiya (PW-5)- the brother of the deceased, sometime after the altercation between the appellants and the deceased, the deceased left the house saying that nothing would happen to him and he would come back after walking around but he did not return and on the third day of the incident, his dead body was found in Baghpathra canal well. As such, there is no evidence against the appellants for conviction under section 302/34 and 201 of IPC. She submits that the prosecution has not been able to bring home the offence beyond reasonable doubt and the appellants are entitled for acquittal on the basis of benefit of doubt.
6. On the other hand, Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence. As such, the appeal deserves to be dismissed.
57. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
8. The case of the prosecution is not based on any direct evidence. It is based solely 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:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict
1. (1984) 4 SCC 116
2. (1973) 2 SCC 793 6 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."
9. Now we will consider the incriminating 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).
10. The first and foremost circumstance for consideration is as to whether the death of deceased Dukalu Rathiya was homicidal in nature?
11. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-13 proved by Dr. Sajan Kumar Agrawal (PW-11), according to which, cause of death was asphyxia due to strangulation and mode of death was homicidal, which is a finding of fact 7 based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.
12. Other incriminating circumstances, which the Trial Court has recorded in para-11 of its judgment for convicting the appellants, are as follows:
1. In the night of the incident i.e. 15.01.2014, there was a quarrel between the appellants and the deceased and the appellants assaulted the deceased and also threatened him.
2. Pursuant to the memorandum statements of the appellants, the weapon of offence i.e. bamboo stick and nylon rope were seized.
13. Now, we will consider the correctness of both the circumstances independently to examine whether the trial Court is justified in convicting the three appellants for the aforesaid offence based on these two circumstances.
First Circumstance
14. The brother of the deceased, Gangaram Rathiya (PW-5) has stated before the Court that on the date of occurrence i.e. on 15.01.2014, appellant Narayan Prasad who lived in the neighbourhood came to his house and asked for water to do Gudaku but his elder brother i.e. the deceased refused to give him water. Angered by this, appellant Narayan Prasad threatened to kill the deceased and went back. After sometime, he returned along with other two appellants and assaulted the deceased with stick and hands and fists. Deceased's wife Dujmati (PW-8) and younger brother 8 Ramkumar tried to intervene and stop the quarrel. Deceased Dukalu was rescued from the appellants and brought home and the appellants went to their house. After sometime, the deceased left the house saying that nothing would happen to him and he would come back after walking around but he did not return and on the third day of the incident his dead body was found in the well of Baghpathra canal. The wife of the deceased, Dujmati (PW-8) and mother Bal Kunwar (PW-12) have also given similar statements as that of Gangaram Rathiya (PW-5). It is evident from their statements that after altercation, the deceased himself left the house in the night of 15.01.2014 and thereafter his dead body was found on 17.01.2014. As such, it is not a case where after altercation, the appellants strangulated the deceased to death as according to PM report Ex. P-13, the cause of death was asphyxia due to strangulation. As per the statement of Gangaram Rathiya (PW-5), deceased Dukalu left home alive on 15.01.2014 and thereafter on 17.01.2014 his dead body was found in Baghpathra canal well. Though there was a quarrel between the appellants and the deceased and the appellants assaulted the deceased, it is not a case where the assault caused the death of Dukalu. As per the PM report Ex.P-13, his death was due to strangulation whereas the case of the prosecution is that the deceased was assaulted by the appellants by bamboo stick and with hands and fists. As such, the first circumstance is of no assistance to the prosecution.
Second circumstance
15. Next circumstance that has been found proved by the trial Court is that pursuant to the memorandum statements of 9 appellants No.1 & 2, bamboo stick, stone & nylon rope were seized vide Ex.P-/9 & Ex.P-/10 respectively. In this regard, the Hon'ble Supreme Court in the matter Mustkeem alias Sirajudeen v. State of Rajasthan 3, has clearly held that discovery of object at the disclosure of accused alone would not automatically lead to the conclusion that the offence was also committed by the accused and the burden lies on the prosecution to establish a close link between discovery of object and its use in the commission of offence. In Paragraphs 25 to 27 of the said judgment it has been observed as under:
"25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
26. If the recovery memos were prepared at the Police Station itself then the same would lose its sanctity as held by this Court in Varun chaudhary Vs. State of Rajasthan reported in AIR 2011 SCC 72.
27. The scope and ambit of Section 27 were also illuminatingly stated in AIR 1947 PC 67 Pulukuri Kotayya & Ors. Vs. Emperor reproduced hereinbelow:-
"...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 3 (2011) 11 SCC 724 10 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."
The same were thereafter restated in another judgment of this Court reported in 2004 (10) SCC 657 Anter Singh Vs. State of Rajasthan.
16. Coming to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that though the said seized articles i.e. bamboo stick, stone & nylon rope were sent for chemical examination to FSL but the FSL report has not been brought on record for the reason best known to the prosecution. Ghurau Ram (PW-6) and Ramlal Chauhan (PW-7) are the witnesses to memorandum statements Exs.P- 7 & P-8 and the seizure Exs. P-9 & P-10. But both the witnesses have not supported the case of prosecution and turned hostile. They have stated that the Police did not ask any question to the appellants in their presence nor the seizure proceedings Exs. P-9 & P-10 were conducted in their presence. They put their signature on Exs. P-7 to P-10 as per the instructions of the Police personnel. As such, the memorandum and the seizure have not been established by the prosecution. Moreover, there is no evidence on record to hold that the said articles were used by the appellants in 11 commission of the offence. As such, this incriminating circumstance cannot be used against the appellants.
17. In view of the aforesaid discussions, we find that as per the principle of 'Panchsheel' laid down by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances are not so complete in which the appellants can be held guilty for the said offence. Consequently, we are unable to uphold the conviction of the appellants for offence punishable under Sections 302/34 & 201 of IPC and the appellants are entitled for acquittal on the basis of the principle of benefit of doubt.
18. Accordingly, the impugned judgment dated 12.11.2014 passed by the Trial Court convicting and sentencing the appellants for offence under Sections 302/34 & 201 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellants are acquitted of the said charges. The appellants are on bail. They need not surrender in this case. However, their bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC.
19. This criminal appeal, accordingly, stands allowed.
20. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai