Deveshdatt Tandon vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 01.10.2012 passed in Sessions Trial No.81/2011 by the Sessions Judge, Mahasamund, C.G., by which the appellant stands convicted & sentenced as under:-

Conviction

Sentence

Under Section 302 of Indian Penal Code (for short, ‘IPC’)

Imprisonment for life and fine of Rs.5,000/-, in default of payment of fine additional simple imprisonment for one year

Under Section 201 of IPC

Rigorous Imprisonment for five years and fine of Rs.5,000/-, in default of payment of fine additional simple imprisonment for six months

(Both sentences were directed to run concurrently)

Case of the prosecution, in brief, is that in between 10.09.2011 and 13.09.2011, appellant herein assaulted the deceased Ku. Pratibha Koshriya with surgical blade and committed her murder. Appellant in order to conceal the evidence, threw the dead body of the deceased in a dense forest and thereby committed the offence. Further case of the prosecution is that at the time of incident, deceased was aged about 22 years and was pursuing B.A at Raipur. The deceased was missing since 10.09.2011 and on 13.09.2011, her dead body was found in highly decomposed condition having many injuries over her body. Pursuant to this on 13.09.2011, PW-17 Ajay Kumar Sahu registered Dehati merg intimation Ex.P-14 stating that he was informed by the villagers of Sirgidi that a dead body of an unidentified girl is lying in the forest, pursuant to which Dehati Nalishi Ex.P-15 and merg intimation Ex.P-28 were recorded. Identification panchnama & inquest proceedings were conducted vide Ex.P-2 & Ex.P-8 respectively, whereby dead body of the deceased girl was identified. On the recommendation of the panchas, dead body was sent for postmortem examination which was conducted by PW-15 Dr. Girdhari Chandrakar, who has proved the postmortem report Ex.P-17. In the postmortem report, no definite opinion was given as body was highly decomposed. Thereafter, appellant was arrested vide Ex.P-19. Memorandum statement of the appellant was recorded vide Ex.P-5 consequent to which two surgical blades were seized at his instance vide Ex.P-6 in presence of two witnesses i.e. PW-7 Rajesh Kumar Jangde and PW-16 Kaliram. Vide Ex.P-7 clothes, motorcycle and other articles were also seized. Seized articles were sent to FSL for chemical examination but no FSL report has been brought on record.

After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

The prosecution in order to bring home the offence, examined as many as 17 witnesses in support of its case and exhibited 30 documents Exs.P-1 to P-30 and other articles i.e. Art-1 to Art-I. However, the appellant in support of his defence has neither examined any witness nor exhibited any document.

The trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the CrPC.

Learned counsel appearing for the appellant submits that only on the basis of memorandum statement of the appellant (Ex.P-5), the appellant has been convicted which is absolutely illegal and bad in law. He further submits that neither there is motive proved nor human blood was found on the alleged articles and, therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charges.

Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offence.

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.

The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-17) proved by Dr. Girdhari Chandrakar (PW-15) which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question would be whether the appellant is the author of the crime in question ?

It is an admitted fact on record that there is no eye-witness in the instant case and there is no evidence against the appellant which would show that the appellant and deceased were seen together lastly before commission of the offence and the conviction of the appellant is mainly based on the memorandum statement of the appellant vide Ex.P-5 pursuant to which two surgical blades used as a weapon vide Ex.P-6 have been recovered from the possession of the appellant, proved by PW-16 Kaliram.

The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, in which it was observed in paragraph 153 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 (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]

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, the question is, whether the prosecution has been able to bring home the offence and prove the conditions laid down in Sharad Birdhichand Sarda (supra)?

The trial Court has clearly recorded a finding that though it is the case of the prosecution that the deceased was the daughter of appellant's maternal uncle and they were close relatives and the same is proved but the fact that since PW-4 Manoj Kumar Jangde developed intimacy with the deceased and had made physical relations also, the appellant had motive to commit the murder, is not established. It has also been recorded that the deceased was not seen together lastly with the appellant but further only on the basis of the memorandum statement Ex.P-5 and recovery of the articles vide Exs. P-6 and P-7, appellant has been convicted.

True it is that pursuant to the memorandum statement of the appellant vide Ex.P-5, two surgical blades Ex.P-6 were seized from the possession of the appellant and as per query report Ex.P-30, injury found on the body of the deceased could have been caused by the seized articles. Though as per query report of Ex.P-20, the seized articles should have been sent to FSL for chemical examination which were sent to FSL but no FSL report has been brought on record.

The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another (2019) 7 SCC 781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

Further, the Supreme Court in the matter of Mani v. State of Tamil Nadu (2009) 17 SCC 273, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matters of Balwan Singh (supra) and Mani (supra), it is quite vivid that there is no evidence available on record to show that human blood was found on the two surgical blades seized pursuant to the memorandum statement of the appellant and on the other hand, Ex.P-6 seizure memo shows that surgical blades were stained with rust. Moreso, one of the star witnesses of memorandum PW-7 Rajesh Kumar Jangde has turned hostile and the other witness namely Kaliram PW-16 has partly supported the memorandum of the appellant and the recovery of surgical blade. Since human blood is not proved to have been found on the seized surgical blades in absence of FSL report and in view of the decision of Hon'ble Supreme Court in the matter of Mani (supra), recovery is a weak piece of evidence, in our considered opinion, mere recovery of surgical blade as a weapon of offence would be of no help to the prosecution and it cannot be held that the surgical blade was used by the appellant in the crime in question.

In view of the aforesaid discussion, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of the 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 appellant is entitled to the benefit of doubt. The learned trial Court is unjustified in convicting and sentencing the appellant for offence under Sections 302 & 201 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 01.10.2012, passed by the learned trial Court is not sustainable.

Consequently, the conviction of the appellant for offence punishable under Sections 302 & 201 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set aside. He is acquitted of the said charges. The appellant is reported to be on bail, therefore, his bail bonds shall continue for a period of six months from today in view of the provisions contained in Section 437-A of Cr.PC.

In the result, the criminal appeal is allowed.