Harishankar @ Sanjay and Another vs State of Chhattisgarh

L.C. Bhadoo, J.

The accused/appellants have preferred this criminal appeal u/s 374(2) of the Cr.PC being aggrieved by the judgment dated 27-12-2001 passed by the 5th Additional Sessions Judge, Bilaspur in ST. No. 267/2001 by which the learned Additional Sessions Judge after holding the accused/appellants guilty of the offences punishable under Sections 302 read with Section 34 and 201 read with Section 34 of the IPC sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each, in default of payment of fine to further undergo R.I. for 1 month each and to undergo imprisonment for 1 year and to pay a fine of Rs. 100/- each, in default of payment of fine to further undergo R.I. for 1 month each respectively.

The prosecution case, in brief is that on 16-2-2001 Bhagwati Prasad (P.W. 2) gave merg intimation to the Police Station, Ratanpur to the effect that a dead body of an unknown person was lying on the road of Khutaghat Dam. On receiving this report G.S. Rajput (P.W. 17), Assistant Sub Inspector registered the merg intimation No. 672001 (Ex. P-2). After registering this intimation he reached the scene of occurrence, prepared Panchnama (Ex. P-4) of the dead body and on the advice of the Panchas the dead body was sent to Government Hospital, Ratanpur under Ex. P-19 for post-mortem examination, and in the presence of the witnesses he seized the plain soil and blood stained soil under Ex. P-5. On 17-2-2001, a sealed packet of clothes of the deceased was seized under Ex. P-26 which was produced by the sweeper of the hospital. The site map (Ex. P-28) was prepared. The identification of the dead body was got done on the basis of missing report registered at Police Chowki, Kumhari, Bhilai regarding missing of Harideo Mishra. In the missing report it was stated that Harideo Mishra went along with driver Harishankar @ Sanjay and helper Lakheshwar @ Lakhoo in his truck bearing registration No. M.P.-23D/4362. According to the prosecution, on the intervening night of 15/16 February, 2001 deceased Harideo Mishra along with truck driver Harishankar @ Sanjay and helper Lakheshwar @ Lakhoo started for Durg from Dhelwadih after loading coal from Dhelwadih Colliery and during the night, at the scene of occurrence, both the accused persons committed, the murder of Harideo Mishra by first assaulting him with an iron road and thereafter crushing his body under the tires of the truck. During the investigation, while in police custody accused Harishankar @ Sanjay gave memorandum (Ex. P-7) and in pursuance of the said memorandum he produced the documents of the truck, iron rod and the clothes of the deceased stained with blood. While in custody, accused Lakheshwar @ Lakhoo also gave memorandum (Ex. P-15) and in pursuance of that memorandum he got recovered one bag containing the clothes and one jack rod from the hill of Khutaghat Dam. The clothes were seized under Ex. P-16. After completion of the investigation the accused persons were got identified by Sushila Mishra (P.W. 7) wife of the deceased before the Tehsildar/Executive Magistrate. The clothes of the deceased were also identified by Sushila Mishra before the Tehsildar/Executive Magistrate. The seized articles were sent for chemical examination and from the chemical examiner the report (Ex. P-25) was received. After completion of the investigation the charge-sheet was filed against the accused/appellants in the Court of Chief Judicial Magistrate, Bilaspur who in turn committed the case to the Sessions Court, Bilaspur, from where the learned 5th Additional Sessions Judge received the case on transfer.

The learned Additional Sessions Judge after hearing the arguments of Additional Public Prosecutor and the Counsel for the accused persons and after perusal of the records was of the opinion that there was sufficient material for framing charges under Sections 302 read with Section 34 and 201 read with Section 34 of the IPC against the accused persons. Accordingly, he framed the charges. The charges were read over and explained to the accused persons. They denied the charges and claimed to be tried.

The prosecution in order to prove the offences against the accused persons examined in all 18 witnesses. The statements of the accused persons were recorded u/s 313 of the Cr.PC in which they denied the prosecution evidence and the alleged circumstances appearing in the evidence against them. The learned Additional Sessions Judge after hearing the arguments of the Counsel for the accused and the learned Additional Public Prosecutor and after believing the circumstantial evidence adduced by the prosecution, convicted and sentenced the accused/appellants in the aforesaid manner.

We have heard Shri Atul Pandey, Counsel for appellant No. 1, Shri Rajeev Shrivastava, Counsel for appellant No. 2 and Shri Ranbir Singh, Government Advocate for the State/respondent.

As far as the nature of the death of deceased Harideo Mishra being homicidal is concerned, it is not in dispute. Dr. N.K. Samdaria (P.W. 15) has stated in his evidence that on 16-2- 2001 at about 2:30 p.m. he conducted the post-mortem on the dead body of an unknown person and found that his head was crushed. The skull bone was broken into pieces. The brain was also crushed. Jaw and mouth were also crushed. The spinal cord and ribs were protruding out of the body. On account of the crush injuries the body became flat like a sheet. Liver, Kidney, intestine, back bone and pelvis bone were totally crushed. In his opinion, the cause of the death was shock and excessive haemorrhage. The above injuries were caused on account of crushing the body under the truck. According to the doctor the death of the deceased was homicidal. His report is Ex. P-19. In view of the above evidence of the doctor, it stands proved that the death of the deceased was homicidal in nature.

Now, coming to the question of involvement of the accused persons in committing the murder of deceased Harideo Mishra, there is no direct evidence in this case. The whole case of the prosecution rests upon the circumstantial evidence.

The law on the point is that in a case based on the circumstantial evidence the Court can record conviction but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.

Now, we shall proceed to examine the evidence adduced by the prosecution in the light of the law laid down by the Hon''ble Apex Court. The case of the prosecution rests on the following circumstances :--

(i) The deceased left Kumhari Village with the accused persons on the night of 5th February, 2001, in a truck, as stated by Sushila Mishra (P.W. 7), wife of the deceased.

(ii) The iron rod and the clothes of the deceased were recovered at the instance of the accused persons.

(iii) Extra judicial confession made by the accused/appellant Harishankar before Manohar Singh (P.W. 13).

(iv) The accused persons left the truck and absconded without reporting to the family of the deceased.

As far as circumstance No. 1 is concerned, Sushila Mishra (P.W. 7) wife of the deceased Harideo Mishra has stated that on 5th February, 2001, her husband left the house saying that he was going along with the driver and conductor in the truck to Bilaspur. After two days her husband telephoned her and told her that the goods had been delivered at Bilaspur and he was then going from Mungeli to Korba to deliver rice and he would arrive in Durg after 2-3 days, after loading the goods from Durg. On 29th February, 2001 driver Harishankar @ Sanjay came to her residence and said that the tyre of the truck had burst, therefore, he had come to take another tyre. She handed over the tyre to him and when she enquired about the truck, Harishankar informed that the truck was at Tatibangh, Raipur and her husband was also in the truck. The next day morning Harishankar again came to her and on enquiry about her husband he informed her that her husband had gone to collect payment from Champa. On this enquiry, the accused became perturbed. She told him that the previous day he was telling that Mishrajee was in truck and the next day he was telling that he had gone to collect payment. When she asked him whether she can contact her husband then Harishankar replied that no contact can be established with her husband. Thereafter, her husband had not returned and one day a person from Indian Goods Transport came and informed that this goods were not delivered. After enquiring, she lodged the missing report of her husband in the Police Chowki, Kumhari. After three days thereof Ratanpur Police came and enquired from her about her husband. After seeing the clothes, she identified the dead body as that of her husband. Therefore, there is no evidence that this witness had, in fact, seen her husband alive along with the accused persons just before his death. On 5th February, 2001 when her husband left his house, the accused persons were not with him. Therefore, in fact, she had not seen her husband with the accused persons. So the prosecution has not been able to establish the first circumstance against the accused persons.

Manohar Singh (P.W. 13) has stated that round about 8 months back Harishankar came to his residence at about 9 p.m. and stated that the diesel of his truck had exhausted, therefore, he was asking for Rs. 1,000/- for which he had expressed his inability to advance the money. The accused also informed him that the death which had taken place near the Dam was caused by him along with the helper by crushing the deceased under the truck. Harishankar asked him that it should not be disclosed to anyone and then he left. In the cross-examination, this witness has stated that on 16-2-2001 the accused came to his house. In Para 7 of his cross-examination he has further stated that accused Harishankar had not disclosed the name of the person whom they had killed and when Harishankar was talking to him no third person was present. The evidence of this witness does not inspire confidence in the mind of the Court. If the accused came to him for taking money to purchase the diesel and if he refused to give him money, then where was the occasion for the accused, that too without enquiring by this witness to say that they have murdered a person. Moreover, this witness has stated that the name of the deceased was not disclosed by the accused.

When the accused made extra judicial confession before Manohar Singh (P.W. 13), it is not known, why he had not reported the matter to the police or disclosed this fact of such a serious crime to anyone else. Therefore the evidence of this witness is not trustworthy, reliable and does not inspire confidence in the mind of the Court. In this connection one more witness Anil Sheetlani (P.W. 8) has been examined by the prosecution who is the owner of a Dhaba. He has stated in his evidence that he knows accused Harishankar, Lakheshwar Patle @ Lakhoo and deceased Harideo Mishra. All of them used to come to his hotel for taking meal. In Para 3 of his evidence he has stated that on 15th February, 2001 somebody murdered Harideo Mishra. On 16th February, 2001 the accused came to his Dhaba and he demanded Rs. 1,000/- which he refused to give him. When he enquired from the accused about the truck, he informed that the truck was at Simga near Raipur. He asked him as to why he had come from such a long distance to take money. Again on 26-2-2001 the accused came along with the truck and said that he is hungry, and asked for food. He enquired from him about the owner of the truck and on his enquiry accused Harishankar replied him that the owner was in the truck. He immediately rushed towards the truck and found that the owner was not present in the truck. Accused Harishankar became perturbed and nerves. He took the accused to his Dhaba by catching hold of the collar of the shirt and asked him whether they had murdered their owner. The accused did not say anything. He further told the accused that the dead body was found near the Khutaghat Dam looked like the owner of their truck. He himself went to see the dead body at the place of the incident. He has further stated that thereafter the accused ran away with the truck. The evidence of this witness also does not inspire confidence. As per his evidence, on 26th February, 2001 when the accused came to him and made a false statement before him that his owner was in the truck, and when the owner was not found in the truck and further he was aware that the body which was found near the Khutaghat Dam looked like that of the owner of the truck, then why he allowed the accused to escape and why he had not reported the matter to the police ? This creates serious suspicion about reliability of the evidence of this witness. Therefore, the evidence of Manohar Singh (P.W. 13) and Anil Sheetlani (P.W. 8) also are of no assistant to the prosecution and on the basis of their evidence the accused persons can not be connected with the murder.

Now coming to the recovery of the clothes and iron rod at the instance of accused Harishankar, this recovery was effected after about one and half months after the incident, i.e., on 21st March, 2001. Moreover, no blood was found as per the chemical examination report (Ex. P-25). Moreover, blood was also not found on the clothes which were recovered from the possession of the accused. The iron rod is normally found in every truck which is used to operate the jack of the truck. Nothing special has come in the evidence which connects accused Hari Shankar with the crime on the basis of recovery of iron rod and clothes. Therefore, on the basis of this recovery, accused Harishankar can not be connected with the murder of the deceased.

As far as the recovery at the instance of accused Lakheshwar @ Lakhoo is concerned, based on his memorandum (Ex. P-15), a bag and rod were recovered under Ex. P-16 on 19-8-2001, i.e., about six months after the incident and that too from an open place near the Khutaghat Dam, and no blood was found on these clothes. As such, on the basis of the recovery of the bag and rod from an open place it is not possible to connect the accused with the murder of Harideo Mishra.

Now coming to the point that the accused persons were absconding after the incident and that they had not reported the matter to the police or to the wife of the deceased and no explanation is forthcoming from the accused persons, they have simply denied the case of the prosecution. The prosecution has not been able to connect the accused/appellants with the murder of deceased Harideo Mishra based on any other circumstantial evidence. The prosecution has also not been able to establish that the deceased left his place Dhelwadi with the accused persons. Therefore, merely on the ground that the accused person were not found after the incident and they had not made any report to the police or the wife of the deceased, the accused/appellants can not be held guilty of the charges alleged against them. It is true that the accused persons have not explained their conduct but at the same time it is the duty of the prosecution in the first instance to discharge the burden of proving its case beyond reasonable doubt. There is not an iota of evidence which the prosecution has been able to adduce to connect the accused/appellants with the murder of Harideo Mishra and in the absence of that no inference can be drawn that the accused persons were missing only because they had murdered the deceased. Possibility can not be ruled out that when the deceased was not contactable to them and the accused persons might have come to know that Harideo Mishra is missing, so out of fear they might have abandoned the truck and disappeared so that they should not be implicated in the crime.

In view of the above, the prosecution has not been able to prove on the guilt against the accused/appellants. The prosecution has also not been able to lead the evidence upon which the reliance can be placed or inference can be drawn that the accused persons are the only persons who committed the murder of Harideo Mishra and that there is no other possibility that someone else might have committed this heinous crime which is lacking in this case. Therefore, for the foregoing reasons the conviction recorded by the Trial Court can not be sustained as the circumstances upon which the Trial Court has placed reliance while convicting the accused/appellants are not established and proved to connect the accused/appellant with the murder of Harideo Mishra and the learned Trial Court has not been able to appreciate the evidence in a proper manner.

In the result, the appeal of the accused/appellants succeeds and the same is allowed. The conviction and sentences passed against the accused/ appellants by the Trial Court are set aside. The accused/appellants are acquitted of the charges under Sections 302 read with Section 34 and 201 read with Section 34 of the IPC. They be set at liberty forthwith if not required in any other case.