Dharam Das vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal preferred by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30.11.2016, passed by 2nd Additional Sessions Judge, Sakit, District Janjgir-Champa, in Sessions Case No.122 of 2015, whereby he has been convicted and sentenced as under:

Conviction

Sentence

U/s. 302 of IPC

Imprisonment for life with fine of Rs.2,000/-and, in default of payment of fine, additional R.I. for 06 months.

U/s. 498-A of IPC

R.I. for 02 year with fine of Rs.1,000/- and, in default of payment of fine, additional S.I. for 03 months.

[All the sentences are directed to run concurrently]

(2) The case of the prosecution, in a nutshell, is that the appellant and Smt. Purnima Bai (for short the “deceased”) both were living together outside the marriage and they were not legally wedded husband and wife. The appellant and his mother (acquitted co-accused) both used to commit cruelty on the deceased for or in connection with demand of dowry and, on account of which, on 16.09.2014, in the morning at about 06:00 AM, at Village Kalamideeh, within the ambit of Police Station Jaijaipur, District-Janjgir-Champa, the deceased committed suicide by pouring kerosene oil on her body and setting herself ablaze, due to which she suffered deep burn injuries to the extent of 90% and died on the same day under unnatural circumstances. As such, the appellant is said to have committed offences under Sections 498-A, 304-B and 302 read with Section 34 of IPC.

(3) It is further case of the prosecution that immediately after the incident, the deceased was escorted to the Community Health Center, Jaijaipur for treatment, however, during the course of her treatment she succumbed to the injuries. Upon which, information with regard to sudden and unnatural death was sent to the police by the hospital, upon which, marg intimation (Ex.P/22) and FIR (Ex.P/26 & 26A) were registered by the police and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/07 and inquest proceedings were also conducted vide Ex.P/08. Nazari naksha and panchnama were prepared vide Ex.P/02 & Ex.P/03 respectively. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/09), conducted by Dr. Shashiprabha Banjare (PW-05), it was opined that the cause of death of deceased is asphyxia as a result of burn injuries. Thereafter, the accused-appellant was arrested vide Ex.P/16. From the dead-body of the deceased, her burnt hairs, clothes and skin were preserved and seized vide Ex.P/15. The said parts of the dead-body of the deceased were also sent for chemical examination vide Ex.P/19 and as per FSL report (Ex.P/21) it has been opined that kerosene oil has been found on the said articles (i.e. burnt hairs, clothes and skin of the deceased). Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against all the accused persons in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 15 witnesses and exhibited 27 documents apart from Final Report, whereas the appellant-accused in support of his defence, has neither examined any witness nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record, though acquitted the appellant for offence under Section 304-B of IPC, but proceeded to convict him for offences under Section 302 & 498-A of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Rishi Rahul Soni, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 302 & 498-A of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the circumstances culled out by the learned trial Court in Para-53 of the impugned judgment is based on surmises and conjunctures and there is no evidence available on record to connect the appellant herein with the aforesaid offences. Learned counsel also submits that the marg inquiry conducted vide Ex.P/22 is not a substantive piece of evidence and there is no evidence available on record to show that the appellant and the deceased both were living/residing together in one house on the date and time of the offence and further to hold that the appellant has committed cruelty upon the deceased, because of which she committed suicide and, thus, motive of the offence is also not established. The inference drawn by the learned trial Court that though the dead-body of the deceased was found in burned condition to the extent of 90%, but some parts of her body i.e. hairs etc. were not burnt, and, therefore, its a case of homicidal death and not suicidal, is also not correct for the simple reason that there is no iota of evidence available on record to show that the deceased have not committed suicide and it is a case of homicidal death. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offences under Section 302 & 498-A of IPC and, therefore, 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 records with utmost circumspection.

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has been opined that cause of death of deceased is asphyxia due to burn injuries, which is duly proved by the statement of Dr. Shashiprabha Banjare (PW-05). Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. Shashiprabha Banjare (PW-05), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the 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-appellant herein is the author of the crime, which the learned trial Court has recorded in affirmative by relying upon following 03 circumstantial evidence, as culled out in Para-53 of the impugned judgment, which reads under:

(11) Since the present case is based on circumstantial evidence, 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 read 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.”

(12) We shall now consider each of the incriminating circumstances one by one.

As regards incriminating circumstance No.01:

(13) The first incriminating circumstance that has been found proved by the learned trial Court is that the appellant and the deceased both were living/residing together. It is apparent from the record that the appellant and the deceased both were not legally wedded husband and wife and, as per the case of the prosecution, they both were living together outside the marriage. The learned trial Court has held that the appellant admitted that he was living alongwith the deceased, for which, the learned trial Court has relied upon the marg intimation (Ex.P/22), wherein the appellant has stated that he was staying with the deceased. However, no evidence has been brought on record by the prosecution that on the date and time of the offence the appellant and the deceased both were living together in the house of the appellant. It has to be proved by the prosecution by leading clinching evidence beyond reasonable doubt that the appellant and the deceased both were living together on the date and time of the offence, which the prosecution has miserably failed to do. Since, the learned trial Court has relied upon the marg intimation (Ex.P/ 22), which was recorded under Section 174 of CrPC, to hold the instant incriminating circumstance to be proved/established, at this stage it would be appropriate to notice Section 174 of CrPC, which reads thus:

“174. Police to enquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.”

(14) The Supreme Court in the matter of Pedda Narayana and Others v. State of Andhra Pradesh (1975) 4 SCC 153 considered the nature and purpose of report under Section 174 of Cr.P.C. and held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 and held in Para 11 as under

“11. A perusal of this provision would clearly show that the object or the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows "The learned Sessions Judge bad also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now, found recorded under Section 174 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11 (a) shows that Al to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove' away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from under Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt-acts and the statements now produced are those of the witnesses which were taken later.”

(15) The contents of the inquest report cannot be treated as evidence but can be looked into to test veracity of witness/witnesses as rendered in the decision of the Supreme Court in the matter of Kuldip Singh v. State of Punjab 1992 Supp. 3 SCC 1.

(16) Similarly, in the matter of Yogesh Singh v. Mahabeer Singh and Others (2017) 11 SCC 195, it has been held that the inquest report is not a substantive piece of evidence and it can be looked into for testing the veracity of witness of the inquest and has held in Para 41 as under:

“41. Further, the evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has also been long settled through a series of judicial pronouncements of this Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted.”

(17) Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments and the ambit and scope of Section 174 of CrPC, it is quite vivid that the marg inquiry conducted vide Ex.P/22 is not a substantive piece of evidence and it can only be looked into for testing the veracity of the witnesses of the inquest and considering the object of looking such report is only to ascertain the apparent cause of death and stating in what manner and with that weapon or instrument, the injuries on body appear to have been caused. The finding of the learned trial Court holding and accepting the merg inquiry conducted vide Ex.P/22, as a substantive piece of evidence to base a finding that the appellant and the deceased both were staying together on the date of ofence, in our considered, is a finding which is contrary to law. Thus, the fact of deceased living together with the appellant on the date and time of the offence, has to be recorded on the basis of evidence available on record, which in the present case is completely missing. As such, the finding of the learned trial Court that the appellant and the deceased both were living together on the date of offence is not found proved beyond reasonable doubt. We hereby hold accordingly.

As regards incriminating circumstance No.0 2:

(18) The next incriminating circumstance that has been found proved by the learned trial Court is that the appellant has motive to commit the offence, as the appellant and the deceased both were residing together in the house of the appellant outside the marriage and the appellant used to commit cruelty on the deceased for or in connection with demand of dowry. 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 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.

As regards incriminating circumstance No.0 3:

(19) The third and last incriminating circumstance that has been relied upon by the learned trial Court is that though the dead-body of the deceased was found in burnt condition to the extent of 90%, but some parts of her body i.e. hairs etc were not burnt and, therefore, drew inference that it is not a case of suicidal death. It appears that the learned trial Court after holding the death of the deceased to be homicidal has arrived to such a finding from the appearance of the dead-body of the deceased, which was burnt to the extent of 90% but some parts of it were not burnt. However, the fact remains that it is not established beyond reasonable doubt that it is the appellant who has caused murder of the deceased, which is very much necessary to be established for convicting an accused for offence under Section 302 of IPC, even if the death of the deceased is held to be homicidal in nature. Therefore, in our considered opinion, the learned trial Court is absolutely unjustified in drawing such a inference and arriving to a finding that it is not a case of suicidal death. We hereby hold accordingly.

(20) In view of foregoing analysis, 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 the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offences under Sections 302 & 498-A of IPC in light of incriminating circumstances as culled out in Para-53 of the impugned judgment and same are liable to be set aside.

(21) Accordingly, the conviction and sentences of the appellant for offences punishable under Sections 302 & 498-A of IPC, as imposed upon him by the learned trial Court, are hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is in jail from 30.05.2015, we direct that he be released from jail forthwith, if not required in any other matter/case.

(22) This criminal appeal is allowed.

Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.