Hari Shankar Sahu 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 07.12.2015 passed by the First Additional Sessions Judge, Sakti, District Janjgir-Champa, in Sessions Trial No.165/2014, by which, the appellant herein has been convicted for the offences under Sections 302 & 201 of Indian Penal Code and sentenced as under with a direction to run both the sentences concurrently :-

CONVICTION

SENTENCE

U/s. 302 of IPC

Life imprisonment and fine of Rs.10000/-, in default of payment of fine, 6 months additional rigorous imprisonment.

U/s. 201 of IPC

Rigorous imprisonment for 5 years and fine of Rs. 2000/- in default of payment of fine, 3 months additional rigorous imprisonment.

Case of the prosecution, in short, is that in the intervening night of 22.03.2014 to 23.05.2014, at village Raipura, Police Station- Baradwar, District Janjgir-Champa, the appellant assaulted his wife Tarabai (now deceased) by hand & fist and strangulated to death and thereafter, buried the dead body of deceased along-with other articles in order to screen himself from legal punishment and thereby, the offence has been committed. Thereafter, on 23.03.2014, the appellant lodged a missing report vide Ex.P-14 to Police Station Baradwar that his wife is missing and paper publication was also made vide Ex.P-26 and thereafter, Jaggu Sidar (PW-1) informed that near his field, he found that one part of the field has been dug and thereafter, it has been filled by mud and on being informed, the exhumation panchnama Ex.P-18 was registered and dead body of woman in naked condition was recovered, which was identified by the appellant and dehati merg intimation Ex.P-1 was registered, FIR was registered vide Ex.P-23, inquest was conducted vide Ex.P-16 and dead body of deceased Tarabai was subjected to post-mortem, which was conducted by Dr. Smt. Seemanandani Chaudhary (PW-6), who proved the post-mortem report Ex.P-11, in which, cause of death was stated to be asphyxia due to strangulation and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-17B, wooden stick, old saree, blouse, petticoat, silver anklets, pickaxe and spade were recovered vide Ex.P-19 and slides of the victim was also taken as Article A, in which human sperm was found as per FSL report (Ex.P-27). 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 23 witnesses and exhibited 29 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 Sections 302 & 201 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

Mr. Shrawan Kumar Chandel, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant by recording a finding, which is perverse to the record. The appellant has rightly reported the matter to the Police Station Baradwar vide Ex.P-14 and thereafter, dead body of the deceased was recovered on 23.03.2014 and only on the basis of certain recoveries of wooden stick, old saree, petticot, silver anklets, pickaxe and spade, the appellant has been convicted, which is not of such special quality, which is not available in the market and in the slides of the victim, human sperm was found, which is also of no use to the prosecution as deceased was the wife of appellant. He further submits that motive, which has been found established by the trial Court is based on memorandum statement of the appellant, which is inadmissible in evidence and, therefore, the conviction of the appellant is liable to be set aside and the appeal deserves to be allowed.

Mr. Ashish Tiwari, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that the incriminating circumstances which culled out by the trial Court in para 21 & 22 of its judgment have been found proved 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 Tarabai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-11 proved by Dr. Smt. Seemanandani Chaudhary (PW-6), according to which, cause of death was stated to be asphyxia due to strangulation 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.

The case of the prosecution is based on circumstantial evidence and the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. Paragraph 153 of the report 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 (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 incriminating circumstances found proved in paragraph 21 & 22 of its judgment, which states as under :

Now, we will consider the correctness of the aforesaid findings of the trial Court to find out whether the trial Court is justified in convicting the appellant for the offence under Section 302 & 201 of I.P.C.

The first incriminating circumstance, which the trial Court found proved is that the appellant lodged a missing report of the deceased on 23.03.2014 at 4:30 p.m. and the dead body was extracted and shav-panchnama was recorded on 23.03.2014 at 4:25 p.m. vide Ex.P-2 and the memorandum statement was recorded much later on 25.03.2014 at 4:00 p.m. and, as such, it is not the case of the prosecution that the dead body was recovered after recording of memorandum statement. The dead body was recovered on 23.03.2014 much prior to recording of the memorandum statement and, as such, even the dead body was found pursuant to missing report lodged by the appellant in shape of Rojnamcha Sanha (Ex.P-14), recovery of dead body would not implicate the appellant for offence in question.

The next incriminating circumstance found proved by the trial Court is that pursuant to memorandum statement of the appellant Ex.P-17B, wooden stick, old saree, silver anklets, pickaxe and spade were recovered vide Ex.P-19. However, so far as the wooden stick, pickaxe and spade are concerned, they have not been subjected to FSL and no bloodstain was found, much less human blood and therefore, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, even if, the recovery is proved beyond reasonable doubt and human blood was not found, recovery is of no use to the prosecution. So far as the silver anklets and old saree is concerned, they have not been identified to be of deceased and these are not of the unique quality, which are not easily available in the market and, therefore, in that view of the matter, the circumstance No.2 cannot be held to be incriminating circumstance and on that basis the appellant cannot be held guilty of offence.

The next circumstance is that the appellant and deceased both were residing together at the time and date of offence. There is no evidence at all for this finding recorded by the trial Court and even in Section 313 Cr.P.C. statement, the appellant has not been put to a question that on the date & time of offence, appellant & deceased both were residing in the house and immediately thereafter the dead body was found pursuant to Rojnamcha Sanha (Ex.P-14). The further incriminating circumstance that as per FSL report (Ex.P-27), on the slides of deceased, human sperm was found. Since the appellant and deceased both were married together, therefore, even on the slides of the victim, human sperm was found, it will not implicate the appellant for the offence in question.

The last incriminating circumstance that has been found proved by the trial Court, which is recorded in para 22 of the judgment that since the deceased refused to have intercourse with the appellant, therefore, the appellant has assaulted her, but it has been stated on the memorandum statement of the appellant (Ex.P-17B) and that part of evidence is inadmissible, therefore, that would not constitute a motive for commission of offence in absence of any evidence available on record.

In that view of the matter, the prosecution has failed to bring home the offence beyond reasonable doubt and the five golden principles as held in Sharad Birdhichand Sarda (supra), which constitute the panchsheel of the proof of a case based on circumstantial evidence would not complete and therefore, we are unable to maintain the conviction of the appellant for offence under Section 302 & 201 of I.P.C.

In that view of the matter, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offence under Sections 302 & 201 of I.P.C. is hereby set aside. The appellant is acquitted of the charge under Section 302 & 201 of I.P.C. He shall be forthwith set at liberty, unless he is required in connection with 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 trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.