Birbal Sahu And Ors vs State Of Chhattisgarh

Pritinker Diwaker, J

This appeal arises out of the judgment of conviction and order of sentence dated 6.1.2012 passed by the Additional Sessions Judge, Balod, Distt.

Durg (CG) in ST No.98/2011 convicting each of the appellants under Sections 302/120B & 201 of IPC and sentencing them to undergo imprisonment

for life, to pay a fine of Rs.100/- and RI for one year plus fine of Rs.100/- with default stipulations respectively.

As per prosecution case, deceased Bhagwat, uncle of accused/appellant Birbal had taken Rs.8500/- from Birbal and was not returning the same.

Sometime in April, 2011 when appellant Birbal again demanded his money back, he was abused by deceased Bhagwat as a result of which Birbal got

annoyed with him. Further case of the prosecution is that appellant Birbal hatched a criminal conspiracy with other accused/appellants. They went to

post office where the deceased was working, however, the deceased was not found there and therefore, they left the said place after getting their

mobile number written on the register of the office. It is alleged that on 27.5.2011 the accused/appellants took the deceased to jungle, committed his

murder by strangulation and they burnt his dead body so that it could not be identified by anyone. On 30.5.2011 one dead body was found in the jungle

by Forest Guard PW-1 Ravindra Nath Singh Yadav and his colleague Sanjay Kumar and at the instance of PW-1 merg intimation Ex.P/1 was

registered on the same day. On 31.5.2011 the dead body was identified by father of the deceased PW-2 Ganesh Ram vide Ex.P/5. Inquest on the

dead body was conducted on 30.5.2011 vide Ex.P/3 and thereafter the body was sent for postmortem which was conducted on 31.5.2011 vide

Ex.P/10 by PW-5 Dr. SK Soni who noticed that the dead body was highly decomposed, bones were visible, muscles and skin of both hands, legs,

waist region, abdomen & chest were destroyed by wild animals; tongue, eye and viscera were putrefied; 3rd & 4th right side ribs and 5 th & 6th left

side ribs were taken out by wild animals; both foot not burnt; and all the internal organs were burnt. Some part of the skin, muscles, right femur bone,

skull and right hand fingers were sent to FSL for ascertaining nature of burn, age and sex of the deceased. Since the body was highly decomposed, no

opinion regarding cause and nature of death could be given.

Memorandum of appellants Devraj Thakur, Birbal & Rupesh Kumar were recorded on 25.6.2011 vide Ex.P/6, P/7 & P/8 respectively. Pursuant to the

memorandum of Birbal, one plastic jerrican and one nylon rope were seized vide Ex.P/9 and under Ex.P/10 one mobile of Micromax company was

also seized. From the spot also certain articles were seized vide Ex.P/20. Documents of the vehicle allegedly used in commission of the crime were

seized vide Ex.P/16 from accused/appellant Rupesh Kumar. While framing charges, the trial Judge charged the appellants under Sections 302, 120B

& 201 of IPC.

So as to hold the accused/appellants guilty, the prosecution examined 09 witnesses in all. Statements of the accused were also recorded under

Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false

implication.

The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment

convicted and sentenced the appellants as mentioned above.

Counsel for the appellants submits as under:

(i) that there is no eyewitness account to the incident and conviction of the appellants is based on circumstantial evidence but none of the

circumstances from which inference of guilt of the appellants could be drawn has been proved beyond reasonable doubt and therefore, there can be

no inference that it were the appellants who committed murder of the deceased.

(ii) that the appellants have been convicted solely on the basis of their memorandum statements and seizure made in pursuance thereof, however, none

of the seizure has been connected by the prosecution with the crime in question. Even there is no FSL or any other report in respect of the seized

articles.

(iii) that present is in fact a case of no legally admissible evidence, yet the appellants have been convicted by the trial Court.

On the other hand, State counsel supporting the impugned judgment submits that conviction of the accused/appellants is strictly in accordance with

law and there is illegality or infirmity in the judgment impugned requiring any interference by this Court.

Heard counsel for the respective parties and perused the material on record.

PW-1 Ravindra Nath Singh Yadav is the Forest Guard at whose instance merg intimation Ex.P/1 was recorded. He is also a witness to inquest

and spot map. PW-2 Ganesh Ram, father of the deceased, identified the dead body vide Ex.P/5. He has not made any specific allegation against the

accused persons. PW-3 Ramprasad Sahu is a witness to memorandum (Ex.P/6 to P/8), seizure (Ex.P/9 & P/10), Panchanamas (Ex.P/11 & P/15) and

arrest memos (Ex.P/12 to P/14). PW-4 Shantilal is a witness to seizure Ex.P/9. He has turned hostile. PW-5 Dr. SK Soni conducted postmortem on

the body of the deceased and noticed injuries as mentioned above. He states that some part of the skin, muscles, right femur bone, skull and right hand

fingers were sent to FSL for ascertaining nature of burn, age and sex of the deceased. Since the body was highly decomposed, no opinion regarding

cause and nature of death could be given.

PW-6 Manish Dubey was Data Entry Operator in the post office where the deceased was working and it is the person to whom cell number was

allegedly given by the accused persons when they had gone there in search of the deceased. He states that he had noted down the cell number in a

register and subsequently the said register was seized by the police vide Ex.P/12. PW-7 Radhelal is a witness to memorandum of the appellants

(Ex.P/8 to P/9), Panchanamas (Ex.P/11 & P/15) and arrest memos (Ex.P/12 to P/14). In cross- examination he admits that suggestion that he signed

all these documents at the instance of police, neither the police read over the contents of the documents to him nor did he read the same. PW-8 RD

Singh, Sub Inspector, did part of investigation. PW-9 KK Kushwaha, investigating officer, has supported the prosecution case.

Admittedly, there is no direct evidence against the appellants to show their complicity in the crime in question and their conviction rests upon

circumstantial evidence, main being their disclosure statements and seizure effected in pursuance thereof.

It is by now well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have

not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the

hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the

accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the

accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the

more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.

Keeping in mind the aforesaid principles of law relating to circumstantial evidence, on close scrutiny of the entire evidence it emerges that there is

no legally admissible evidence against the appellants unerringly pointing towards their guilt. Though disclosure statements of the appellants were

recorded and pursuant to the memorandum of Birbal, one plastic jerrican, one nylon rope and one mobile of Micromax company were seized vide

Ex.P/9 & P/10, however, the prosecution could not establish any nexus of these articles with the crime in question as there is no FSL or any other

report in respect of the seized articles. Even the prosecution could not ascertain the nature and cause of death of the deceased. The circumstantial

evidence in this case falls short of the required standard on all material particulars. Though these circumstances raise an accusing finger at the

appellants but suspicion howsoever strong cannot take the place of proof and the prosecution is required to prove its case by leading cogent and

trustworthy evidence. It has to be extra- cautious while dealing with cases of circumstantial evidence, however, in the present case, the evidence led

by the prosecution is not of such a degree and quality which could bring home the charges leveled against the appellants. Being so, the findings of guilt

recorded by the trial Court are liable to be set aside and the appellants are entitled to be acquitted of the charges by giving them benefit of doubt.

In the result, the appeal is allowed and the impugned judgment is hereby set aside acquitting the appellants of all the charges levelled against them

by extending them benefit of doubt. They are reported to be on bail, therefore, their bail bonds stand discharged and they need not surrender.