Chattisgarh High Court
Kaushal @ Diamond vs State Of Chhattisgarh on 24 January, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
AFR
1
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1468 of 2023
Kaushal @ Diamond S/o Punau Ram Sahu Aged About 29 Years R/o Village
Nayapara Tekari Mandhar, Dharsiwa, District - Raipur (C.G.)
---- Appellant
Versus
State Of Chhattisgarh Through Police Station Dongargarh, District -
Rajnandgaon (C.G.)
---- Respondent
_______________________________________________________________ For Appellant : Mr. Awadh Tripathi., Advocate For Respondent : Mr. Nitansh Jaiswal, P.L. _______________________________________________________________ Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, J Judgment on Board Per Ramesh Sinha, Chief Justice 24/01/2024 Heard.
1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 23/06/2023 passed in Special Criminal Case No. 19/2021 by the learned Special Judge, Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, Rajnandgaon, District- Rajnandgaon, whereby the appellant has been convicted under Sections 302 and 201 of the IPC and sentenced to undergo Life imprisonment with fine of Rs. 10,000/-, in default of payment to further undergo rigorous imprisonment for 1 AFR 2 year and RI for 5 years with fine of Rs. 5000/-, in default of payment to further undergo RI for 6 months, respectively.
2. The case of the prosecution in brief is that in the year 2019 Avinash Ramteke (henceforth referred to as 'Deceased') married with Sushmita Ramteke and start to reside at Dongargarh. Sushmita Ramteke remained at her matrimonial home for one year as she got an employment at Raipur. She used to travel from Dongararh to Raipur for her employment. In the year 2020 she was blessed with a daughter and started to reside in a rented house at Raipur. On 01.02.2021, first birthday of the daughter of Sushmita Ramteke was celebrated at Dongargarh and in the aforesaid function, present appellant along with his friends came to celebrate the birthday. After the birthday celebration, Sushmita Ramteke again returned back to the Raipur.
3. On 23.03.2021 at about 6:30 p.m. the Deceased was not present in the home and on this his father asked whereabouts of Deceased and in reply her daughter namely Yamini Ramteke informed that his brother received a phone call of the appellant and had gone to meet him. After a long time, when the Deceased did not return back to the home, his father went along with his neighbor namely Chandrashekhar to search the Deceased, but they could not trace him. So, they called over the mobile phone of the Deceased, but the said phone was found switched off. Subsequently, they also went to the "Shende Lodge' to search the AFR 3 Deceased, but in that place also they did not find the Deceased Thereafter, at about 11:00-12:00 a.m. father of the Deceased talked with wife of the Deceased, but she was also not able to tell the whereabouts the Deceased as the mobile phone of the Deceased was switched off.
4. Subsequently, the father asked about the phone number of appellant and then talked with the appellant, but he was also not able to tell anything about the Deceased. Thereafter, the father of the deceased told his daughter-in-law and suspected upon the present appellant. Thereafter, the wife of the deceased told her father-in-law that she will come to Dongargarh, but the father-in-law of Sushmita Ramteke restrained her to come at night from Raipur to Dongargarh. On next date i.e. 24.03.2023, when the father of the deceased went to search his son, at that juncture friend of deceased informed that the dead body of the Deceased was lying near the village Karrubhatha Pipariya turning, then they rushed to the spot along with the friend of the Deceased namely Ashish Dongre and Vinayak Meshram.
5. Vinayak Meshram informed the police of P.S. Dongargarh.
Investigating Officer Alekjendar Kiro (PW15) (for short 'IO') reached to the spot and based on the information, registered Merg Intimation and Dehati Nalsi in zero. At that time, spot map (Ex.P/16) was prepared in front of the witnesses and the IO seized blood stained soil 100 gram and simple soil 100 gram, one blood stained soil and two slippers in front of the witness Vinayak Meshram and Ashish Dongre.
AFR 4 He further, in front of the above witnesses, seized blood stained fencing wire piece and simple fencing wire, empty bottle of beer, 20 pieces of broken glass of beer and a swift car bearing registration No. CG08 AL 0634. Subsequently, based on zero Merg Intimation, Merg no. 31/2021 was registered and based on zero Dehati Nalsi, Crime No. 166/2021 was registered and subsequently, FIR (Ex.P/19) under Section 302 of the IPC was registered.
6. On 24/03/2021, Investigating Officer, after preparing Naksa Panchnama (Ex.P/2) in front of witnesses sent the dead body of the Deceased for postmortem. Dr. Shashank Bais (PW4) conducted the postmortem of the Deceased. The postmortem report is Ex.P/15.
7. The police of police station Dongargarh after receiving the information police started investigation and registered Dehati nalsi (Ex.P/5) in zero. Subsequently, the police prepared the spot map (Ex.P/16) in presence of the Vinayak Meshram and Ashish Dongre and seized the incriminating article whatsoever found near the dead body and also seized the white swift car belonging to the Deceased i.e. C.G.-08-AL-0634. Crime no. 166/2021 was registered against the unknown persons. On 24.03.2021 Naksa panchnama (Ex.P/2) was prepared and the dead body was sent for postmortem. Dr. Shashank Bais (PW4) has conducted the postmortem and submitted the postmortem report (Ex.P/15). The Doctor has opined that the death was homicidal in nature.
AFR 5
8. During the course of investigation statements of Nirmal Das Ramteke, Vinayak Meshram, Dileshwar Ramteke, Onkar Singh, Mamta Jambulkar, Yamini Ramteke, Chandrashekhar Borkar, Ravi Chandwani, Roshan Dewangan, Devnath Aghor Badal Balde, Shubham Khorhagarbe and Rajesh Rewannath were recorded under Section 161 of the Cr.P.C. On 25/03/2021, memorandum (Ex.P/14) of appellant- Kaushal @ Diamond was recorded in which the police has recovered pant, shirt, knife, car, battery of the mobile and one SIM at the instance of the appellant and after due investigation, the police has seized the caste certificate of the deceased and then filed the final charge sheet with the allegation that the wife of the Deceased with the help of present appellant and others committed murder of the deceased Avinash Ramteke and accordingly the offence u/s 302, 120-B, 201, 34 of Indian Penal Code and section 3(2)(v) Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act was registered.
9. The learned trial judge has framed the charges against the appellant and 3 others, but they have denied the charges and claimed to be tried. In order to prove its case, the prosecution has examined as many as 15 prosecution witnesses. The learned trial Court, after due appreciation of evidence acquitted the other co-accused persons from the charges and also acquitted the appellant from the charges u/s 3(2)(v) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, but held guilt of the appellant under Sections 302 and 201 of IPC and sentenced as AFR 6 above. Hence this appeal.
10. Mr. Awadh Tripathi, learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubts. The motive and intention which is the essential ingredient to prove an offence under Section 302 IPC has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on circumstantial evidence. Merely on the basis of suspicion and in absence of any direct evidence, conviction of the appellant under Sections 302 and 201 IPC cannot be sustained as there is no direct evidence or last seen evidence against the appellant. Even the circumstantial evidence has not been proved beyond reasonable doubt. He submits that the seizure of SIM card which the prosecution has relied on, has not been duly proved that it was belonging to the Deceased. The trial Court has not found any motive of offence and therefore, in absence of such motive, conviction of the appellant is bad in the eyes of law. He would further submits that other three co-accused persons have already been acquitted by the trial Court. He prays for acquittal of the appellant from the aforesaid charges.
11. On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer for the State supported the impugned judgment stating that the prosecution has been able to bring home the offence and there is sufficient evidence AFR 7 available on record to hold him guilt and he has rightly been convicted.
12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
13. Admittedly, there is no eye-witnesses to the incident and the case of the prosecution is based on circumstantial evidence and memorandum statement of the appellant. It is also an admitted fact that co-accused persons have already been acquitted by the trial Court on the basis of lack of evidence.
14. Nirmal Das Ramteke (PW1) father of the Deceased has deposed in his statement that on 23/03/2021, after returning from a walk, he had his meal and subsequently he asked about Avinash (Deceased) from his wife, but she did not tell anything. He further alleged that her daughter Yamini (PW6) told him that a phone call was received by the Deceased alleging name Diamond, and the Deceased was called to "Shende Lodge". Thereafter, he along with one Chandrashekhar went to the Shende Lodge to search the Deceased, but they could not find him and returned to the house. At about 12:00 O'clock in night, he called to his daughter-in-law over mobile phone and told her that on contacting to the Deceased over mobile phone, his mobile number was showing switched off. He further alleged that thereafter, he asked the phone number of accused/appellant Diamond and called him over mobile AFR 8 phone and after three attempts in 20 minutes, Diamond picked up the call, on which he asked why he was not picking up the phone. In reply, Diamond said, he was busy in marriage of his sister. He alleged that Diamond had told him that the Deceased had gone on booking and he had some dispute with one truck driver. On the next day, the deceased was found dead.
15. Yamini Ramteke (PW6) in her statement has stated that on 23/03/2021 one call from unknown number was received by his brother Avinash (Deceased) and the person told his name to be Diamond. She further stated that the person called his brother to "Shende Lodge," thereafter, his brother had gone to meet him in his car. She further stated that on the next day, it was informed that her brother was killed. This witness in her cross-examination has admitted the fact that she has no knowledge that who called his brother over mobile phone and what was the mobile number. She further admitted the fact in her cross- examination that she has no knowledge, where his brother had gone.
16. Alekjendar Kiro (PW15) in his statement has stated that on 25/03/2021, memorandum statement of the accused/appellant was recorded and at the instance of the appellant, one battery of Vivo Company Mobile which was in molded condition, one sim card, blood stained blue jeans of accused, shirt of accused and one knife were recovered. These seized articles were sent for FSL examination along with the articles seized from the spot of incident. The FSL report is inconclusive about AFR 9 the group of blood which could establish the chain of evidence.
17. After perusal of the above evidence, it is apparent that the statement of Yamini (PW6) itself shows that the Deceased received the phone call from one unknown number and who called him over mobile phone. There is no disclosure of the fact that who called the Deceased; from which number the call was made. In fact, there have been no call details proved in the present case. Therefore, it is well established that in absence of any call details or last seen theory, the evidence of this witness Yamini (PW6) is not at all sustainable in the eyes of law as it is apparent that there is no witness of last-seen and the entire statement is hearsay and as such, the theory of last seen together itself is being superseded by the own opinion of the prosecution.
18. Further, the prosecution has come up with the case that on the memorandum statement of the accused/appellant, one Sim Card was seized which was alleged to belong to the deceased Avinash, but it is the case of the prosecution itself that the said Sim card was found from an open place. The call details has not been proved in light of Section 65 (B) of the Evidence Act. The Hon'ble Supreme Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantya reported in 2020 7 SCC 1 held that the certificate under Section 65 (B) of the Evidence Act is necessary for proving the electronic evidence and without it the Electronic evidence cannot be admitted as a evidence.
AFR 10
19. It is evident from the FSL report that the blood which was found in the seized articles does not match with the blood of the Deceased as the FSL report suggests that the blood group cannot be ascertained and matched with the blood group of the Deceased. In such a circumstances, the said evidence does not indicates towards guilt of the accused/appellant. It is a settled proposition that when two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to accused must be adopted.
20. The prosecution in the present case has been unable to collect any material evidence, which proves that the appellant travelled by a car from Raipur to Dongargarh because in the map location, the appellant was showing at Raipur. Even the prosecution was unable to trace out from which number, the appellant called the Deceased and the said number was belonging to the appellant. Thus, there is no material on record to indicate that accused was involved in the commission of said crime.
21. For convicting the accused/appellant, the circumstances indicating towards guilt of accused "must be" proved and not "may be" proved and should be of conclusive nature and they should exclude every possible hypothesis except the one which indicates towards the guilt of the accused/appellant.
22. The Supreme Court in the matter of Jagroop Singh Vs. State of Punjab AFR 11 {(2012) 11 SCC 768} has held thus in paragraphs 12, 13, 14 & 15 which is reproduced hereunder:-
"12.In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra [1973 2 SCC 793], it was opined that 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. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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.
13. In Padala Veera Reddy v. State of Andhra Pradesh and others [1989 Supp (2) SCC 706], this Court held that when a case rests upon circumstantial evidence,the following tests must be satisfied:
"10.........(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the AFR 12 accused but should be inconsistent with his innocence."
A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P.[(2006) 10 SCC 172].
14. In Balwinder Singh v. State of Punjab [1995 Supp(4) SCC 259], it has been laid down:
"4. ........that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
15. In Harishchandra Ladaku Thange v. State of Maharashtra [(2007) 11 SCC 436], while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
23. Further the Supreme Court in the matter of Pradeep Kumar Vs. State of Chhattisgarh {(2023) 5 SCC 350} has observed thus in para 27:-
27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to accused must be adopted.
AFR 13
24. When the case is entirely based upon the circumstantial evidence, the chain of such circumstantial evidence in all probabilities 'must' indicate towards guilt of accused and circumstances 'must be' and not 'may be' lead towards guilt of accused.
25. Applying the aforesaid principles to the facts of this case, we are of the view that the prosecution has failed to prove the guilt of accused/appellant - Kushal @ Diamond beyond the reasonable doubt and the case of the prosecution itself has negated the theory by their own evidence on record. Hence the conviction under Section 302 & 201 of IPC deserve to be set aside.
26. For the foregoing reasons, criminal appeal filed on behalf of appellant-
Kaushal @ Diamond is allowed and his conviction and sentence under Sections 302 and 201 of the IPC are hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case.
27. Keeping in view the provisions of Section 437-A of the CrPC, the accused-appellant, namely Kaushal @ Diamond is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant AFR 14 judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
28. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Rahul