Aneshwar vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) In this criminal appeal preferred under Section 374(2) of Cr.P.C. the accused-appellants are calling in question the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 28.01.2014, passed by the Court of learned Addl. Sessions Judge, Khairagarh, District Rajnandgaon (C.G.) in Sessions Trial No.09/2012 (State of Chhattisgarh vs. Aneshwar and 02 others), whereby they have been convicted and sentenced as under:

For Appellant No.1- Aneshwar:

Conviction

Sentence

U/s. 302 of IPC

Imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine, additional R.I. for 01 year.

U/s. 201 of IPC

R.I. for 03 years with fine of Rs.1,000/- and, in default of payment of fine, additional R.I. for 06 months.

For Appellants No. 2- Naresh Kumar and No.03- Smt. Devaki Bai :

Conviction

Sentence

U/s. 302 r/w 34 of IPC

Imprisonment for life with fine of Rs.5,000/- each and, in default of payment of fine, additional R.I. for 01 year each.

U/s. 201 r/w 34 of IPC

R.I. for 03 years with fine of Rs.1,000/- each and, in default of payment of fine, additional R.I. for 06 months each.

(2) The case of the prosecution, in short, is that in the night of 20.12.2011 at about 12:00 AM, at Village Fatehpur within the ambit of Police Station Khairagarh the appellants herein committed murder of Mamta Lodhi (hereinafter referred to as “deceased”) by strangulation and, further in order to screen/escape from the said offence and to make it a suicidal case, the appellants hanged the dead-body of deceased in her room and thereby committed offence under Sections 302, 201 & 34 of IPC. Further, as the death of the deceased occurred within seven years of her marriage under abnormal circumstances and she was subjected to cruelty for or in connection with demand of dowry, offence under Section 304-B of IPC was also added/charged against the accused-appellants.

(3) It is the further case of the prosecution that marriage of deceased was solemnized with appellant No.01 on 02.04.2009 and, as such, the appellants No.02 and 03 are her father-in-law and mother-in-law respectively. On 21.12.2011 at about 08:00 AM, appellant No.02 lodged marg intimation (Ex.P/15) with regard to death of his daughter-in-law (deceased) by stating that on 20.12.2011, after having food, all the family members went for sleep in their respective rooms. In the night, deceased s daughter started crying, upon which, they went in the room of deceased and saw deceased hanging. Thereafter, vehicle was called to take her to the hospital, but before she could be taken to the hospital, she died. On the date of offence, deceased was carrying pregnancy of 03 months. Pursuant to lodging of said marg intimation (Ex.P/15), police reached to the spot and notice under Section 175 of CrPC was sent vide Ex.P/01 and the matter was informed to the Executive Magistrate, Khairagarh. Inquest proceedings were conducted vide Ex.P/02 and nazari naksha was also prepared vide Ex.P/14. FIR was registered vide Ex.P/17. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/10), conducted by Dr. P.S. Parihar (PW-09) it was opined that the cause of death of deceased is due to strangulation and nature of death is homicidal. Pursuant to memorandum statement of appellant No.01 recorded vide Ex.P/05, broken bangles were seized vide Ex.P/06 and further from the place of incident plastic pipe was seized vide Ex.P/03. The aforesaid seized articles were sent for FSL examination vide Ex.P/22, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded under Section 161 of CrPC and, after due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Khairagarh and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 23 documents, whereas the appellants-accused in support of their defence have examined 03 witnesses and exhibited 03 documents.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record though acquitted the appellants for offence under Section 304-B/34 of IPC but proceeded to convict them for offences under Sections 302, 201 & 34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Shashi Bhushan Tiwari, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for the aforesaid offences, as the learned trial Court has not proved the offences beyond reasonable doubt. He further submits that the prosecution has failed to prove any evidence to connect the appellants in crime in question. The conviction of the appellants is premised only on the basis of medical evidence, which does not inspire confidence. Dr. P.S. Parihar (PW-09) has deposed that there was positive symptom of hanging as well as strangulation, therefore, the appellants are entitled for benefit of doubt. The appellants No.2 & 03 have been convicted only on the ground that they were residing in the same house, although the other persons who were residing in the same house were not convicted by the learned trial Court. Thus, the conviction of the appellants is not well founded, therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and appellants are liable to be acquitted/discharged from the said offences.

(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for aforesaid offences, as the accused-appellants have caused murder of deceased by strangulation and further in order to escape from committing said offence, hanged her dead-body. Thus, the present 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 original records with utmost circumspection.

(9) The first question would be whether the death of the deceased is homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/10) conducted by Dr. P.S. Parihar (PW-09), wherein it has been opined that the cause of death of deceased is strangulation and nature of death is homicidal. Accordingly, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(10) Now, the next question would be, whether the accused-appellants herein are the perpetrators of the crime in question, which the learned trial Court has answered in affirmative on the basis of following incriminating circumstances, which have been relied upon by the prosecution and found proved by the learned trial Court:

(i) the appellant No.01 had motive to commit murder of deceased, as he was having illicit relationship with one Radhika Satnami, on account of which, there was dispute between the appellant No.01 and the deceased, and further appellant No.01 want to continue aforesaid illicit relationship with said Radhika Santmai;

(ii) pursuant to memorandum statement of appellant No.01 recorded vide Ex.P/05, broken bangles belonging to the deceased were seized vide Ex.P/06;

(iii) the subsequent conduct of the appellants i.e. in order to screen/escape from the offence of committing murder of deceased and to make it a suicidal case, the appellants hanged the dead-body of deceased in the room and it was brought down by the appellants before police could reach to the spot;

(iv) the appellants No.02 & 03 have been implicated as they have assisted the appellant No.01 in committing murder of deceased, as without their help, commission of murder of deceased was not possible;

(v) it is a case of house murder and the appellants have not explained how it happened.

As such, it is a case based on circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 which constitute the panchsheel of proof of a case based on circumstantial evidence and same reads as under:

“153. …. (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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 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 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.”

(11) We will consider the above-stated incriminating circumstances in light of the above-quoted five golden principles one by one.

(12) As regards incriminating circumstance No. (i): the learned trial Court has found proved and attributed motive for committing offence on the appellant No.01 on the basis that he was having illicit relationship with one Radhika Satnami (not examined), on account of which there was dispute between the appellant No.01 and the deceased and that appellant No.01 wants to continue the aforesaid relationship with said Radhika Satnami. In order to establish the said fact, the prosecution has taken support of document (Ex.P/07), which is a written complaint filed by the father of the deceased, namely, Tarachand Lodhi (PW-04) and also the statements of Shriram (PW-03), who is witness to memorandum statement (Ex.P/05) and C.L. Kosre (PW-11), who is investigating officer in the case and on the basis of which the learned trial Court has found proved the motive, but surprisingly said Radhika Satnami has neither been cited as witness nor she has been examined by the learned trial Court to prove the said fact that she was having illicit relationship with the appellant No.01 (husband of the deceased). It is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124). In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P. (2022) 7 SCC 157 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly.

(13) As regards incriminating circumstance No. (ii): the next circumstance that has been found proved by the learned trial Court is recovery of pieces of broken bangles of green colour vide Ex.P/06 pursuant to memorandum statement of appellant No.01 recorded vide Ex.P/05. However, no identification was conducted to hold that the pieces of said broken bangles were wore by deceased at the time of offence, which fact has been clearly admitted by the investigating officer, namely, C.L. Kosre (PW-11) in Para-15 of his statement before the Court. Further, it is also not brought on record that said seized broken bangles are of such unique design that it is not ordinarily or usually available in the market. As such, recovery of said broken bangles pursuant to memorandum statement of appellant No.01 will not connect the appellant with the offence in question in any manner, more particularly when, it was seized in an open public place and as per statement of Dr. P.S. Parihar (PW-09) neither any blood stains nor dust has been found on it. We hereby hold accordingly.

(14) As regards incriminating circumstance No. (iii): the next incriminating circumstance that has been found proved by the learned trial Court is that the dead-body of deceased was found in hanging condition and it was brought down by the appellants before police could reach to the spot and, as such, it is subsequent conduct relevant under Section 8 of the Indian Evidence Act, 1872. True it is that subsequent conduct of the appellants is relevant fact under Section 8 of the Indian Evidence Act, 1872, but merely on the basis of subsequent conduct, the appellants cannot be convicted that too for offence under Section 302 of IPC (See: Subramanya vs. State of Karnataka AIR 2022 SC 5110). We hereby hold accordingly.

(15) As regards incriminating circumstance No. (iv): the appellants No.02 & 03 have been convicted by the learned trial Court, at our surprise, merely on the ground that murder of deceased could not have been committed only by the appellant No.01 and he must have taken the aid and assistance of appellants No.02 & 03. It is old cardinal principle of criminal jurisprudence that “it is better that ten guilty persons escape, than that one innocent suffer [W. Blackstone, Commentaries on the Laws of England, Book IV, c.27 (1897), p.358. Ed.: see R. v. John Paul Lepage, 1995 SCC Online Can SC 19.]”. The Supreme Court in the matter of Bijendra v. State of Haryana (2022) 1 SCC 92 relying upon the aforesaid principle has held that doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that “the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent”.

(16) Reverting to the facts of the present case in light of principle of law laid down by their Lordships of the Supreme Court in the matter of Bijendra (supra), it is quite vivid that the conviction of the appellants No.02 & 03 is only based on suspicion without there being any legally admissible evidence available on record, which is unsustainable and bad in law. We hereby hold accordingly.

(17) As regards incriminating circumstance No. (v): the last incriminating circumstance that the learned trial Court has found proved is that it is a case of house murder and the appellants have not explained how it happened. Admittedly, as per statement of Maniklal (DW-01), in the house of the deceased and the appellants, more than 10 persons including Maniklal (DW-01) were residing at the time of commission of offence, as such, it is not a case of house murder. Further, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and merely on the basis of proving the death of the deceased to be homicidal in nature and motive of the offence, Section 106 of the Indian Evidence Act, 1872 cannot be invoked, thus, the appellants cannot be held guilty for offence under Section 302 of IPC (See: Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681 and Gurcharan Singh v. State of Punjab AIR 1956 SC 460). We hereby hold accordingly.

(18) In that view of the matter, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the panchsheel of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the appellants are entitled to benefit of doubt. Consequently, the impugned judgment of conviction and order of sentence passed by the learned trial Court in convicting the appellants for the aforementioned offences is not sustainable.

(19) Accordingly, the conviction of the appellants for offences punishable under Sections 302, 201 & 34 of IPC as well as the sentence imposed upon them by the learned trial Court is hereby set aside. They are acquitted of the said charges. Since, appellant No.01 is in jail, he be released forthwith, if not required in any other matter/case. The appellants No.02 & 03 are already on bail, they need not surrender before the learned trial Court. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of CrPC.

(20) This criminal appeal is allowed.