Chattisgarh High Court
Ravi Kumar Dhruv And Anr vs State Of Chhattisgarh 58 Mac/731/2011 ... on 16 January, 2018
Author: P. Diwaker
Bench: Pritinker Diwaker, Sanjay Agrawal
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 664 of 2014
1. Ravi Kumar Dhruv And Anr. S/o Bashant Dhruv Aged About 26 Years R/o
Orana Camp Adawal Ps Bodhghat Jagdalpur Rev. And Civil Distt. Bastar
C.G. , Chhattisgarh
2. Dayaram S/o Ganpat Muriya Aged About 21 Years R/o Taraigudapara
Dhaniyalur Ps Parpa Rev. And Civil Distt. Bastar C.G. , District :
Bastar(Jagdalpur), Chhattisgarh
---- Appellants
Versus
• State Of Chhattisgarh Through PS Jagdalpur, Distt. Bastar C.G.,
Chhattisgarh
---- Respondent
For Appellants : Shri Malay Shrivastava & Shri A. Choubey, Advocates For Respondent : Shri Ravindra Agrawal, G.A. Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice Sanjay Agrawal Judgement P. Diwaker, J 16/01/2018
1. The appellants have preferred this criminal appeal being aggrieved with the judgment dated 25.6.2014 passed by the learned 1 st Additional Sessions Judge, Bastar at Jagdalpur in S.T. No.87/2013 whereby they have been convicted for the offence punishable under Section 302/34 (on two counts) of the Indian Penal Code (for short 'the IPC') and each of them has been sentenced to undergo life imprisonment and to pay a fine of Rs.100/-, in default of find to further undergo additional RI for 1 year.
2. The prosecution case, in short, is that in the night intervening 17 th & 18th May, 2013 the accused/appellants entered the premises of Jaya Printing Press, owned by Vimal Das (deceased) with intention to commit loot. They had covered their face by gamchha (a piece of cloth). While they were committing loot, Vimal Das, who was residing in the said premises, came there and a grappling took place between him and accused persons as a result of which face of accused/appellants got uncovered. Since said Vimal Das had identified accused/appellant No.1-Ravi, they got apprehensive of the case being exposed and for that they committed her murder by strangulating his neck. At the relevant time, Smt. Lavanya, wife of Vimal Das, also reached there and the accused/appellants committed her murder by strangulating her neck by means of her saree. She was also subjected to knife injuries by accused/appellant No.1 Ravi. It is further case of the prosecution that while fleeing from the spot, the accused/appellants took the mobile phone of deceased Vimal Das along with them and the same has been sold by them to one Benuram Yadav (PW-5) for a consideration of Rs.1800/-. On 18.5.2013 dead bodies of both the deceased were noticed by Padam (PW-1), employee of deceased Vimal Das and at his instance dehati merg (Ex.P-23 & P-24) were recorded on 18.5.2013. Immediately thereafter merg intimation (Ex.P-26 & P-27) were recorded. Inquest (Ex.P-6 & P-7) were conducted over the body of both the deceased. Dead bodies were sent for post- mortem examination which was conducted by Dr. Pawan Tekade (PW-11) vide Ex.P-28 & Ex.P-29 and he noticed following injuries on the body of both the deceased;-
Injuries of Deceased Vimal Das:
◦ Ligature mark present over neck corresponding to ligature material. ◦ Multiple crecentic abrasions over nose, above upper lip, right submandibular region, left side of lower jaw & left submandibular region varying in size from 1.5 cm to 0.5cm to 0.5 cm to 0.5cm. ◦ Multiple petechial haemorhhages over right shoulder and inner aspect of right arm.
◦ Contusion present over left arm of the size of 7x4.5cm. ◦ Graze abrasions present over back of each shoulder directed upward and rightward ◦ Contusion present over left popliteal fossa 2.5cm x 2cm ◦ Multiple petechial haemorrhages present over back . According to doctor, the cause of death was asphyxia due to ligature strangulation and the death was homicidal in nature. Injuries of Deceased Smt. Lavanya:
• incised wound over right parieto temporal region, anterio posterior, 8cm x 1cm , bone deep.
• stab wound present over outer end of right eyebrow extending downward and laterally, 1.5cm x 0.3cm. Both angles accute and margins clear cut, bone deep.
• contusion present over left ear.
• Contusion present over right thigh of 1.5x1.5cm.
• ligature mark present over neck corresponding to ligature material
removed.
According to doctor, the cause of death was asphyxia due to ligature strangulation and the death was homicidal in nature.
3. On 19.5.2013 FIR (Ex.P-33) was registered under Section 302 of IPC against unknown persons. On 31.5.2013 memorandum of accused/ appellant No.1 was recorded vide Ex.P-11 whereas memorandum of accused/ appellant No.2 was recorded vide Ex.P-12. From the possession of accused/appellant No.1, his blood stained clothes, sandal were seized vide seizure memo of Ex.P-17. Likewise, at the instance of accused/appellant No.2, his clothing which he was wearing at the time of incident were seized. At the instance of accused/appellant No.1, mobile phone of the deceased was recovered vide Ex.P-20 from PW-5. Spot panchnamas were prepared vide Ex.P-31 & P-32 at the instance of accused/appellant No.2. Dried blood has been seized from the spot vide seizure memo Ex.P-8. As per report of FSL, shirts, sandals & sleepers of accused/appellants were found stained with blood, however, there is no report of Serologist to confirm the origin and group of the blood.
4. After investigation, charge sheet was filed by the police against the accused/appellants under Section 302/34 of IPC (on two counts) followed by framing of charge by the Court below under that section. In order to prove its case the prosecution has examined 13 witnesses in support of its case. Statements of accused/appellants were also recorded under Section 313 of the CrPC in which they denied their guilt and pleaded innocence and false implication in the case.
5. After hearing the parties, the trial Court, by the impugned judgment, has convicted and sentenced both the accused/appellants as described above.
6. Counsel for the appellants submit as under:-
• That there is no eyewitness to the incident and the entire case of the prosecution is based on the circumstantial evidence. • That, none of the circumstances speaks of direct involvement of the accused/appellants in the murder of both the deceased but even then the trial Court has held them guilty for the same which is palpably illegal.
• Though certain articles were seized on the basis of memorandum of the appellants but the witnesses to memorandums and seizures did not support the prosecution case and turned hostile. • That, even seizure of cell phone allegedly belonging to the deceased has no evidentiary value for the reason that there is no documentary evidence to show that the said mobile belonged to the deceased.
• Recovery of bloodstained clothings at the instance of appellants is also of no consequence in view of the fact that there is no serological report confirming that the blood so found was of human being that too of the blood group of any of the deceased. • Spot panchnamas (Ex.P-31 & P-32) allegedly prepared at the instance of appellants has no evidentiary value because it was made in presence of the police.
7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the trial Court convicting and sentencing the accused/appellants as described above are strictly in accordance with law and there is no illegality or infirmity in the same.
8. Heard counsel for the parties and perused the evidence available on record.
9. Padam Sethiya (PW-1), employee of deceased Vimal Das, is the first person who noticed dead bodies and at his instance Dehati Merg (Ex.P-2 & Ex.P-3) & Merg Intimations (Ex.P-26 & P-27) were recorded. This witness has not stated anything incriminating against the accused/appellants.
10. Shanti Ranjan Sarkar (PW-2) is the son-in-law of the deceased and reached the spot next day of the incident. In Para-4 he has deposed that accused/appellant No.1 Ravi Kumar, who is next door neighbour, had disclosed to him that he does not know under what circumstances he had consumed poison. It is relevant to note this part of the statement of this witness is nothing but improvement for the reason that he has deposed this fact for the first time in the Court and therefore the trial Court has disbelieved his statement to the said extent.
11. Smt. Jaya Sarkar alias Devrani Sarkar (PW-3) is the daughter of both the deceased. She has stated that she took the suitcase, cash, cheque book and ornaments of both the deceased on suprudnama, which were seized by the police from the spot.
12. Kamal Chakravarti (PW-4) is the witness of inquest (Ex.P-6 & P-7).
13. Benuram Yadav (PW-5) is the person from whose mobile phone was seized vide seizure memo Ex.P-10. He has stated that accused Ravi had sold the said mobile phone to him by saying that said mobile is of his wife and as he is in need of money, therefore, he is selling the same.
14. Kapil Bharti (PW-6) is the witness of memorandum (Ex.P-12), baramdgi memos Ex.P-13 to P-16 and seizure memos Ex.P-17 to 20. However, this witness did not support the prosecution case and turned hostile.
15. Tanveer Bharti (PW-7) did not support the prosecution case and turned hostile.
16. Lakhmu Yadav (PW-8) is the witness of seizure memo Ex.P-10 and he has stated that the police had seized one mobile from his brother Benuram (PW-5).
17. Dr. Pawan Tekade (PW-11) is the witness who conducted post-mortem examination on the body of both the deceased and gave his reports Ex.P-28 & Ex.P-29 respectively. This witness has opined that cause of death of both the deceased was asphyxia due to ligature strangulation and the death was homicidal in nature.
18. Vishwas Chandrakar (PW-13) is the investigating officer who has duly supported the prosecution case.
19. Close scrutiny of the evidence on record makes it clear that there is no eyewitness to the incident and the entire case hinges on the circumstantial evidence, however, the circumstances relied upon by the trial Court to base its conviction are not such as to indicate that it is the accused/appellants who committed the offence in question. True it is that the spot panchnamas (Ex.P-31 & P-32) were prepared at the instance of accused/appellants but the same do not have any evidentiary value for the reason that they have been prepared in the presence of police. That apart, out of two panch witnesses to these spot panchnamas, one has not been examined by the prosecution for the reasons best known to it and another did not support the prosecution case and turned hostile. Therefore, it cannot be held that the facts disclosed by accused/appellants in these spot panchnamas have been duly proved by the prosecution.
So far as the recovery of mobile phone belonging to the deceased is concerned, there is nothing on record to show that at the time of incident the deceased was possessing that mobile. No document regarding its purchase or ownership was produced before the Court. The mobile in question did not have any specific description or mark of identification and similar mobiles are easily available in the market. Even no steps have been taken to conduct identification parade. Moreover, the seizure of mobile having been made in the police station has no value in the eye of law as it is a very weak type of evidence and unless corroborated from some other independent source, it is not sufficient to entail conviction. Thus, we are of the view that the prosecution has failed to beyond doubt that the mobile phone recovered at the instance of accused concerned was infact of the deceased and that at the time of alleged incident of murder the deceased was carrying the same. Therefore, we are of the view that recovery of mobile phone allegedly belonging to the deceased is most uninspiring.
As far as the fact that blood was found on the clothes of accused/appellants is concerned, in the circumstances, if the blood group any of the deceased and the blood found on the clothes of the accused/ appellants is not same, it can not connect the accused with the murder of the deceased. In the present case also, there is no report that the blood found on the clothes of accused/appellants were of the same blood group of the deceased. Therefore, the recovery of bloodstained clothing of the accused persons are also of no help to the prosecution and this can not connect the complicity of the accused/appellants with the crime.
20. In view of the above, the prosecution has not been able to brought home the guilt against the accused/appellants. The circumstantial evidence adduced by the prosecution to connect the accused/appellants with the murder of both the deceased does not stand up to the standard prescribed by the Apex Court and the circumstantial evidence can not be relied upon to connect the accused/appellants with the murder of both the deceased. Therefore, the judgment of the learned trial Court after placing reliance on the above circumstantial evidence convicting the accused/appellants cannot be sustained and the same is liable to be set aside.
21. In the result, the appeal of accused/appellant is allowed. The judgment of conviction and sentence passed by the trial Court is set aside and the accused/appellants are acquitted of the charges under Section 302/34 IPC by extending him benefit of doubt. Appellants are reported to be in custody. They be released forthwith if not required to be detained in connection with any other offence.
Sd/- Sd/-
(P. Diwaker) (Sanjay Agrawal)
Judge Judge
roshan/-