Bhawani Shankar Sahu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 23.12.2015 passed by First Additional Sessions Judge, Raigarh in Sessions Case No.27/2013, by which the appellant  has  been  convicted  and  sentenced  in  the following manner:-

Conviction

Sentence

Under Section 364 of IPC

R.I.  for  10  years  and  fine  of Rs.2000/-    and    in    default whereof,   additional   R.I.   for five months.

Under Section 302 of IPC

Life   Imprisonment   and   fine of  Rs.5000/-  and  in  default whereof,   additional   R.I.   for five months.

Under Section 201 of IPC

R.I.  for  one  year  and  fine  of Rs.1000/-    and    in    default whereof,   additional   R.I.   for one month.

All sentences have been directed to run concurrently.

Case of the prosecution, in nutshell, is that between the period from 14.11.2012 at 12:00 p.m. to 18.11.2012 at 4:40 p.m. in village Malda, the appellant deceptively took Shyam Kumar Sao to Kadamghat forest and killed him by cutting his neck with knife and crushing his head with stone and further, in order to screen himself from legal punishment and to hide evidence, he set the dead-body of Shyam Kumar Sao on fire after pouring petrol on him; thereby committed the aforesaid offences.

Further case of the prosecution is that on 14.11.2012, the appellant in a motorcycle took Shyam Kumar Sao (hereinafter shall be called as ‘deceased’) to Kadamghat forest where they both consumed liquor and when the deceased got completely drunk, taking the advantage of his inebriated condition the appellant cut his neck with knife and thereafter also crushed his head with stone on account of which, he sustained grievous injuries and died. Further, the appellant in order to hide evidence, set the dead-body of deceased on fire after pouring petrol on him.

FIR regarding the incident was registered vide Exhibit P-21. Dead-body recovery/identification panchnama was prepared vide Exhibit P-4. Spot Map was prepared vide Exhibit P-5. Merg was registered vide Exhibits P-20 & P-21. Inquest proceeding was conducted vide Exhibit P-3 and the dead-body of deceased was subjected to post-mortem which was conducted by Dr. G.K. Patel (PW-12). The post-mortem report is Exhibit P-29. Pursuant to memorandum statement (Exhibit P-8) of the appellant, recovery of a knife, clothes and mobile phone of the deceased, a plastic bottle containing petrol, a liquor bottle, a lighter including other articles was made vide Seizure Memo (Exhibit P-9) and the recovery of stone, clothes, mobile, earth, motorcycle including other articles were also made vide Exhibits P-10, P-11 and P-12. Statements of the witnesses were recorded under Section 161 of CrPC. Appellant was apprehended vide Arrest Memo (Exhibit P-26).

After completion of the investigation, the appellant was charge-sheeted for the aforesaid offences before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Sessions and after committal, the matter was received by the Court of First Additional Sessions Judge, Raigarh for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 29 documents. In defence, Naveen Das and Bhawani Shankar Sahu have been examined as DW-1 and DW-2 and five documents have also been exhibited as Exhibits D-1 to D-5. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence, pleaded innocence and false implication.

After conclusion of the trial, the Trial Court, by impugned judgment dated 23.12.2015, on appreciation of oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in para-1 of this judgement, against which the present appeal has been preferred by the appellant calling in question the legality, validity and correctness of the impugned judgment.

It would be relevant at this juncture to mention that the FSL report, which is one of the incriminating piece of evidence against the appellant, was brought on record during pendency of this appeal and this Court by its order dated 24.6.2019 had directed the Trial Court to give an opportunity to the appellant in terms of Section 313 of CrPC to explain and state regarding his defence, if any, in respect of the FSL report. Accordingly, on 3.8.2019, the appellant was examined in terms of Section 313 of CrPC by the Trial Court in respect of the FSL report. The FSL reports supported with its covering and receipt memos have been brought on record in an additional paper-book as Exhibits P-30, P-31, P-32 & P-33, along with the statement of the appellant recorded in terms of Section 313 of CrPC.

Mr. Arvind Shrivastava, learned counsel appearing for the appellant, would submit that the recovery of dead-body pursuant to the memorandum statement of the appellant has not been proved beyond reasonable doubt as the police party and the villagers have already recovered the dead-body prior to the reaching of the appellant, Shivnath Sao (PW-2), Bhuneshwar Sao (PW-3) and Ganpat Sao (PW-4) at the spot. He would further submit that though human blood has been found on the knife and the clothes of the appellant and the deceased, but the said recovery is of no use to the prosecution in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781. Furthermore, the motorcycle involved in the offence belongs to Naveen Auchar (PW-8), which also makes the prosecution case doubtful. Similarly, Shivnath Sao (PW-2) and Bhuneshwar Sao (PW-3), being father and brother of the deceased and Ganpat Sao (PW-4) being a closely related witness to the deceased, their testimonies cannot be said to be trustworthy and reliable. Therefore, according to learned counsel for the appellant, in absence of corroboration, it would be unsafe to maintain the conviction of the appellant for the said offences and he is liable to be acquitted on the basis of benefit of doubt, as he is in jail since 19.11.2012 i.e. for about 11 years, and the appeal deserves to be allowed accordingly.

On the other hand, Mr. Sameer Oraon, learned Government Advocate, would support the impugned judgment and submit that the recovery of the dead-body has been proved by Shivnath Sao (PW-2), Bhuneshwar Sao (PW-3) and Ganpat Sao (PW-4) and merely because they are interested and related witnesses, their testimonies cannot be thrown out outrightly. He would further submit that the medical evidence also supports the case of prosecution and the motorcycle involved in the crime was also found in possession of the appellant. As such, the prosecution has been able to bring home the offences beyond reasonable doubt and the appeal deserves to be dismissed.

We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

The question as to whether the death of deceased Shyam Kumar Sao was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. G.K. Patel (PW-12) who has proved the postmortem report (Exhibit P-29) in which the cause of death has been opined to be shock due to cardio-respiratory arrest on account of extensive hemorrhage and the nature of death was homicidal, which, in our considered opinion, is a correct finding of fact based on the evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court.

The case of the prosecution is based on circumstantial evidence, therefore, it would be appropriate to notice the most celebrated judgement of the Supreme Court rendered in the matter of Sharad Birhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence, have been catalogued in para-153 which 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 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.”

Now, we will consider the following incriminating circumstances on which the conviction of the appellant has been based by the Trial Court:-

(i) recovery of dead-body pursuant to the memorandum statement of the appellant;

(ii) seizure of knife on which human blood has been found in FSL report; and

(iii) appellant was found in possession of the motorcycle belonging to PW-8 Naveen Auchar.

We will consider the aforementioned incriminating circumstances one by one:-

(i) Recovery of dead-body:-

It is the case of the prosecution that the dead-body of deceased Shyam Kumar Sao was recovered pursuant to the memorandum statement (Exhibit P-8) of the appellant, in presence of PW-2 Shivnath Sao (father of deceased), PW-3 Bhuneshwar Sao (brother of deceased) and PW-4 Ganpat Sao, one of the close relative of the deceased, vide dead-body recovery/identification panchnama (Exhibit P-4). Since Shivnath Sao (PW-2), Bhuneshwar Sao (PW-3) and Ganpat Sao (PW-4) are very close relatives of the deceased, their statements have to be scrutinize with care and caution, as held by their Lordships of the Supreme Court in various judgments pronounced with regard to the appreciation of the statements of the witnesses when they are closely related to the deceased.

PW-2 Shivnath Sao, father of the deceased, is the first witness. In his statement before the Court, he has stated that he has signed in the dead-body recovery/ identification panchanama (Exhibit P-4) and has identified the dead-body and at that time PW-3 Bhuneshwar Sao (brother of the deceased) and Ganpat Sao (close relative of the deceased) were also present and further he has only stated that at the time of the recovery of dead-body, the appellant was present. He did not say in clear terms that the dead-body was recovered pursuant to the memorandum statement given by the appellant or pursuant to the place indicated by the appellant. However, in para-29, he has also stated that along with them, 150-200 persons had also gone to Kadamghat forest where the dead-body was recovered and that he did not know the reason for not choosing any independent witness to the incident and it is for the police to describe the said reason. As such, according to PW-2 Shivnath Sao, along with them, there were about 150-200 other persons also had gone to the place of incident. Thus, this witness is of no use to the prosecution.

Similarly, PW-3 Bhuneshwar Sao, brother of the deceased, has clearly stated in para-6 of his statement that before his reaching to the place of incident, the police party had already reached to the spot and the general public of adjoining locality, about 10-20 in numbers, were also present there. He has further stated that the appellant had not gone along with him in his vehicle and the appellant was in the other vehicle which was moving in front of his vehicle and Ganpat Sao (PW-4) was sitting in the vehicle in which he (PW-3) was travelling. In para-9, he has clearly stated that prior to his and the appellant reaching the place of incident, the police party and the other persons had already reached there. He has also stated that at the instance of police, he had gone to Kadamghati where the dead-body was recovered.

Likewise, PW-4 Ganpat Sao, has also not supported the case of the prosecution and has only stated that he did not know as to what proceeding was done by the police vide Exhibit P-4 (dead-body recovery/identification panchnama) and vide Exhibit P-5 (Spot Map) and that he had made his signature on those documents at the instance of the police. He has also stated that when he reached Kadamghati i.e., the place of incident, the police party had already reached there.

As such, from the statements of PW-2 Shivnath Sao, PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao, though they are closely related witnesses to the deceased, it is quite established that when these witnesses had reached the spot, the police party had already reached there and number of persons residing in the locality had also already gathered at the place of incident. The statements of PW-2 Shivnath Sao, PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao do not clearly disclose anywhere that the dead-body was recovered at the instance of the appellant and that they were present when the dead-body was recovered at the instance of the appellant. According to PW-2 Shivnath Sao, along with them, about 150-200 persons were also present at the place of incident. As per PW-3 Bhuneshwar Sao, the appellant did not accompany them and PW-4 Ganpat Sao was travelling along with him and the appellant was moving in the other vehicle. As such, PW-2 Bhuneshwar Sao and PW-4 Ganpat Sao are not real witnesses of the recovery of the dead-body and that at the place where the dead-body was recovered, the villagers residing around there had already reached the spot and the dead-body appears to have been recovered before PW-2 Shivnath Sao, PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao reached there. As such, the recovery of dead-body is prior to the reaching of these witnesses and the appellant at the place of incident. Thus, the recovery of dead-body pursuant to the memorandum statement of the appellant is of no use to the prosecution and it cannot be held to be one of the incriminating circumstances. We decline to accept the testimonies of PW-2 Shivnath Sao, PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao relied upon by the Trial Court.

(ii) Weapon of the offence with human blood:-

The weapon of offence is knife. Vide FSL report (Exhibit P-32), human blood has been found in earth (Article ‘B’), stone (Article ‘C’), knife (Article ‘D’) and on the clothes of the appellant and the deceased (Articles E1, E2 & F1, F2). In earth (Article ‘B’) and stone (Article ‘C’), blood of ‘A’ Group has been found. This Court, finding the fact that the said incriminating piece of evidence has not been put to the appellant to explain, by its order dated 24.6.2019, had directed the Trial Court to give the appellant an opportunity to explain regarding the said incriminating circumstance under Section 313 of CrPC. Accordingly, examination of the appellant under Section 313 of CrPC was conducted by the Trial Court on 3.8.2019 in which only four questions were put to the appellant, which read as under:-

A careful perusal of the aforementioned questions put to the appellant would show that the questions put to the appellant to explain were only to the extent that vide Exhibits P-30, P-31, P-32 & P-33 FSL report and memos have been received and that vide Exhibit P-31, particles of petrol has been found on Article ‘A’ and further that vide Exhibit P-32, the seized articles were sent for chemical examination to the State Judicial Science Laboratory, Raipur and the receipt of which is Exhibit P-33. Whereas, Exhibit P-32 is the report of the State Judicial Science Laboratory, Raipur in which human blood has been found in earth (Article ‘B’), stone (Article ‘C’), knife (Article ‘D’) and on the clothes of the appellant and the deceased (Articles E1, E2 & F1, F2) and in the two articles i.e. earth (Article ‘B’) and stone (Article ‘C’), blood of ‘A’ Group has been found. However, no question has been put to the appellant to explain in this regard in his examination under Section 313 of CrPC. As such, the aforesaid questions put to the appellant to explain were totally unclear and the Trial Court has not given real opportunity to the appellant to explain as to how on the weapon of offence and on the clothes of the appellant and the deceased, human blood has been found so also in Articles ‘B’ and ‘C’ in which blood of ‘A’ Group has been found. Thus, in order to explain, the Trial Court itself has not put clear questions to the appellant under Section 313 of CrPC which has denied him the real opportunity to explain the said incriminating piece of evidence appearing against him.

As is well settled, questioning an accused under Section 313 of CrPC is not an empty formality. Accused must be explained the circumstances appearing against him in the evidence so that he can offer an explanation. In this regard, para-145 of the decision of the Supreme Court rendered in Sharad Birhichand Sarda (supra) needs to be noticed pertinently in which their Lordships of the Supreme Court have clearly held that the circumstances which were not put to the accused in his examination under Section 313 of CrPC have to be completely excluded from consideration. The said decision has been followed recently in the matter of Kalicharan & Ors. v. State of Uttar Pradesh 2022 LiveLaw (SC) 1027 : (2023) 2 SCC 583 in which the Supreme Court in para-22 has observed as under:-

“22. …Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself. In paragraph 21 of the decision of this Court in the case of Jai Dev v. State of Punja b [(1963) 3 SCR 489], it was held thus:-

“21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060 : AIR 1953 SC 468]. In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material.” (emphasis added)

In paragraph 145 of the well known decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held thus:

“145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.” (emphasis added)”

In that view of the matter, since the fact that finding of human blood on the weapon of offence and on the clothes of the appellant and the deceased was not clearly put to the appellant requiring him to explain, the FSL report cannot be taken into consideration and it has to be excluded from consideration as an incriminating piece of evidence. As such, the FSL report also is of no use to the prosecution as an incriminating circumstance to base conviction.

(iii) Recovery of motorcycle:-

The last incriminating circumstance which the Trial Court has relied upon is that from the possession of the appellant, a motorcycle belonging to PW-8 Naveen Auchar, neighbour of the appellant and the deceased, was recovered. In this regard, PW-8 Naveen Auchar has deposed that after dropping him at station, the appellant was having his motorcycle and the seizure of his motorcycle is Exhibit P-12. Even if from the possession of the appellant the motorcycle in question was seized vide Exhibit P-12, it nowhere implicate him for the offence punishable under Section 302 of IPC. Thus, this incriminating piece of evidence is also of no use to the prosecution so as to base the conviction of the appellant for the offences in question.

Concludingly, the prosecution has been able to establish the fact that the death of deceased Shyam Kumar Sao was homicidal in nature. However, the recovery of dead-body at the instance of the appellant has not been established beyond reasonable doubt, as per the statements of PW-2 Shivnath Sao, PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao. The dead-body was recovered prior to the reaching of PW-3 Bhuneshwar Sao and PW-4 Ganpat Sao at the spot. Therefore, it could not be established that the dead-body was recovered pursuant to the memorandum statement of the appellant. Furthermore, though vide FSL report (Exhibit P-32) human blood has been found on the knife which was seized as a weapon of offence as well as on the clothes of the appellant and the deceased, but since it was not put to the appellant in clearer terms in his examination under Section 313 of CrPC, the FSL report has to be excluded from consideration. Moreover, the fact that the appellant was found in possession of the motorcycle belonging to PW-8 Naveen Auchar itself would not implicate him for the offences in question. Thus, these incriminating circumstances are of no use to the prosecution. The chain of circumstances and the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence, as per Sharad Birhichand Sarda (supra), are not established beyond reasonable doubt.

In the circumstances, we are unable to uphold the conviction of the appellant herein for the offences punishable under Sections 364, 302 & 201 of IPC, holding him to be entitled for acquittal from the said offences on the basis of benefit of doubt.

Accordingly, the impugned judgment dated 23.12.2015 passed in Sessions Case No.27/2013, convicting and sentencing the appellant for the offences punishable under Sections 364, 302 & 201 of IPC, is hereby set-aside/quashed and the appellant is acquitted from the said offences. Appellant is stated to be in jail since 19.11.2012. He be set at liberty forthwith, if not required to be detained in connection with any other offence.

This criminal appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court as well as to the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence, for necessary information and action, if any.