Gopi Kishan @ Gopi vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.08.2017 passed by learned Sessions Judge, Balodabazar, in Sessions Trial No.68/2016, by which, the appellant herein has been convicted for offence under Sections 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.100/-, in default of payment of fine, 1 year additional imprisonment.

Case of the prosecution, in short, is that on 24.09.2016, at about 5:20 p.m., at village Amlidih, the appellant herein assaulted Manoj Kumari (now deceased) by hammer (ghan), by which, she suffered grievous injuries and died; thereby offence has been committed. On being informed, father of the deceased Prahlad (PW-1) reported the matter to the police, pursuant to which, merg intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, inquest was conducted vide Ex.P-5 and dead body of deceased Manoj Kumari was subjected to post-mortem, which was conducted by Dr. A.L.Banjare (PW-6), who proved the post-mortem report Ex.P-17, according to which, cause of death was stated to be shock due to excessive bleeding from brain and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-11, hammer was seized vide Ex.P-12, which was sent for chemical analysis to FSL and as per the FSL report (Ex.P-32), blood was found on the seized hammer. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 33 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment, against which the present appeal has been preferred.

Mr. Sunil Sahu, learned counsel for the appellant would submit that the incriminating circumstances which have been culled out by the trial Court in paragraph 20 of its judgment are not established beyond reasonable doubt and even if it is held to be established, the appellant cannot be convicted that too for offence under Section 302 of I.P.C. and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

Mr. Ashish Shukla, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed.

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

The first question for consideration as to whether the death of deceased Manoj Kumari was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-17, proved by Dr. A.L. Banjara (PW-6), according to which, cause of death was stated to be shock due to excessive bleeding from brain and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the case of the prosecution is based on circumstantial evidence, as direct evidence is missing; therefore, the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 deserves to be noticed :-

“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:

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.”

The trial Court has culled out the following six incriminating circumstances in paragraph 20 of its judgment, which states as under :

Incriminating circumstances No.1 & 2 : The trial Court has held that the appellant was found going towards the place of incident and thereafter coming from the place of incident by travelling to the same route, this may be correct but that would not implicate the appellant in the offence in question, as in a particular route nobody is barred from travelling to and fro and merely because the appellant has travelled to and fro on the same route where the incident occurred, the same cannot be held to be incriminating circumstances to implicate the appellant in the offence in question. Therefore, if these two incriminating circumstances are taken as it is, they cannot be held to be incriminating circumstances to convict appellant.

Incriminating circumstances No.3 & 4 : That, while returning from the place of occurrence, the appellant was in abnormal condition and he has also stated to Kumari Mamta Kenwat (PW-3) and Kumari Ekta Kenwat (PW-4) co-student of the deceased that he has gone mad and, as such, he was in agitated state of mind, which may be taken as subsequent conduct of the accused and may be relevant under Section 8 of the Indian Evidence Act for convicting the appellant for offence under Section 302 of I.P.C., but in the matter of Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :

“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

In that view of the matter, the appellant cannot be convicted on the basis of his subsequent conduct.

Incriminating circumstance No.5 : The trial Court has found proved that pursuant to memorandum statement of the appellant, hammer was seized, but in FSL report (Ex.P-32), only blood has been found on the seized hammer, no human blood was found and even otherwise recovery is a weak piece of evidence unless corroborated by other evidence.

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, 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.”

Furthermore, the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (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, even though the blood group is not proved because of disintegration of blood and held in Para-23 & 24 as under:

“23. From the aforementioned discussion, we can summarise 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. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.

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.”

Thus, in view of the decisions of the Supreme Court in Mani (supra) and Balwan Singh (supra), recovery is of no use to the prosecution.

Incriminating circumstance No.6 : This is the last incriminating circumstance whereby the trial Court has found proved that 15 days prior to the date of incident, the appellant has scolded the deceased’s father, that may be a relevant fact but that could not be a ground to convict the appellant for the offence under Section 302 of I.P.C. and in that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt.

Accordingly, the impugned judgment of conviction and order of sentence dated 23.08.2017 is set aside. The appellant stands acquitted giving him benefit of doubt of the charge framed against him for the offence punishable under Section 302 of I.P.C. Consequently, the appellant is directed to be released forthwith from jail, unless he is required in any other offence.

In the result, the appeal is allowed.

Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.