Shivkumar Deshmukh vs State Of Chhattisgarh

Rakesh Mohan Pandey, J

This criminal appeal under Section 374(2) of the Cr.P.C. has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 18.04.2013 passed by VIth Additional Sessions Judge, Bilaspur, District – Bilaspur, C.G. in Sessions Trial No.05/2013 whereby the appellant has been convicted and sentenced as under :-

Conviction

Sentence

U/s 302 of IPC

Life Imprisonment with fine of Rs.500/- and in default of payment of fine, additional R.I. for 03 months.

U/s 201 of IPC

R.I. for 5 years and fine amount of Rs.500/- and in default of payment of fine additional R.I. for 03 months.

Both the sentences to run concurrently

The case of the prosecution, in brief, is that information was given on 03.09.2012 regarding recovery of dead body of unknown lady which was referred to the G.R.P., Bilaspur, C.G. vide Ex-P/23 and consequently a merg intimation (Ex-P/24) was registered.

The Investigating Officer, Assistant Sub Inspector, G.R.P. Bilaspur Anup Ram Sahu (PW13) prepared the inquest. Spot map was prepared vide Ex.-P/18. From the place of incident, a steel knife, broken bangles, saree pin, hair pin, blood stained soil and plain soil were seized vide Ex-P/26. Photograph of the deceased was taken and same was published vide Ex.P/28. The inquest was conducted by Additional Tahsildar, Smt. Lata Urvasha (PW14) vide Ex.-P/17. Thereafter, dead body was sent for postmortem and it was conducted by Dr. Ajay Tawadkar (PW11) vide Ex.-P/19. Viscera and clothes of the deceased was preserved vide Ex-P/27 and sketch of spot map was prepared vide Ex.-P/30. During the investigation, Gyan Das (PW4) lodged a written report (Ex.P/7) to the effect that her daughter namely Purnima had performed inter-caste love marriage with Shiv Kumar Deshmukh, Son of Daman Lal Deshmukh, and they were residing in a rented house in Tedesara, where her daughter was being assaulted by Shiv Kumar Deshmukh, her husband. On 03.09.2012 at about 08.00 PM, he was informed by Shiv Kumar (present appellant) that Purnima has gone to somewhere without informing him. Shiv Kumar was taken to the police station where he informed that the deceased was taken to the Bilaspur Railway Station and near railway yard, she has been murdered using a small knife, hands and fists. Shiv Kumar further stated that he left the knife on the spot. The deceased was identified on the basis of tattoo (her name Purnima) and consequently, Crime No.64/2012 for offence punishable under Section 302 of the IPC was registered vide Ex.P/8 against the appellant and he was arrested. The clothes and photograph of the deceased were identified vide Ex.P/3 and Ex.P/9. The memorandum statement of appellant was recorded vide Ex.P/12 and pursuant thereto, clothes worn by him and stones were seized vide Ex.P/13-14 and the same were sent for FSL vide Ex.P/32-33. The FSL report is Ex.P/39 and Ex.P/40. The Police after completion of the investigation, filed charge-sheet before the Special Railway Magistrate on 10.12.2012 and the case was committed to the learned Sessions Court for hearing and disposal in accordance with law.

The learned trial Court framed charges for offence punishable under Sections 302 and 201 of the IPC against the appellant. The appellant abjured the charges and pleaded not guilty. In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 38 documents and FSL report also. The appellant exhibited Ex.D/1 which is statement of Sheru Khan recorded under Section 161 of Cr.P.C.

Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for offence punishable under Sections 302 and 201 of IPC and sentenced him as aforesaid.

Learned counsel for the appellant submits that the appellant has falsely been implicated in the case, there is no eye witness and his conviction is based upon the circumstantial evidence. He further submits that the chain of the circumstances is not complete and there is no seizure on instance of the appellant. The FSL report does not support the case of the prosecution and the last seen theory is also not proved beyond reasonable doubt. He lastly prays for acquittal of the present appellant.

On the other hand, learned counsel for the State opposes the submissions made on behalf of the appellant and submits that the trial Court has rightly convicted the appellant for the aforesaid offence as other than memorandum and seizure, the circumstance of last seen together has also been found proved by the trial Court, therefore, the instant appeal deserved 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.

Upon hearing learned counsel for the parties and after going through the record, the following two questions arise for consideration:-

i) whether the prosecution has been able to prove the death of deceased Purnima to be homicidal in nature

ii) whether the appellant is the perpetrator of the crime in question?

Answer to Question No. 1 :-

The learned trial court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/19) wherein Dr. Ajay Tawadkar (PW 11), who has conducted the postmortem along with Dr. Rukmani Tekam, has clearly stated that the cause of death was excessive bleeding and shock owing to injuries suffered by the deceased on her neck and the nature of death is said to be homicidal. After hearing learned counsel for the parties and after going through the evidence of Dr. Ajay Tawadkar (PW 11) and postmortem report (Ex. P/19), we are satisfied that learned trial court was absolutely justified in holding the death of deceased Purnima to be homicidal in nature.

Answer to Question No.2 :-

Coming to the next question as to whether the appellant is author of the crime in question. The learned trial Court has relied upon the following circumstances enumerated in Para 11 of its judgment which reads thus :-

The learned trial Court while deciding the circumstances no.1 held that the evidence of Kera Bai (P.W.-1) and Gyan Das (P.W.-4) and the admission of the appellant reflect that there was love marriage between the appellant and deceased and the same has not been disputed by the appellant. Regarding the second circumstance, the learned trial court has recorded the finding that only Gyan Das (P.W.-4), father of the deceased has stated that last year when he visited her daughter; it was informed by her that she is four months pregnant and the appellant used to assault her. It is also the finding of the court below that in the statement recorded under Section 161 of the Cr.P.C, Gyan Das (PW 4) has stated that on account of love marriage, the appellant and the deceased were residing separately from their families. He has also admitted that the fact of assault has not been stated in his statement recorded under Section 161 of the Cr.P.C. vide Ex.P/10. As Gyan Das (PW4) has elaborated the incident which had taken place one year prior to date of incident, however, no complaint was made either by the deceased or by her father Gyan Das (PW4), therefore, it can’t be presumed that deceased was being subjected to cruelty by the present appellant, and hence, the finding recorded by the learned trial Court with regard to circumstance no. 2 is erroneous and contrary to the material available on record. The circumstance no. 3 is not in dispute that the appellant was residing alone with the deceased in the Village – Tedesara and he was driver of vehicle owned by Dukhit Ram Sahu.

With regard to the Circumstance no. 4, the learned trial Court has not recorded any specific finding as Dukhit Ram Sahu has not been examined by the prosecution and in absence of his evidence, it cannot be presumed that loan of Rs.2,000/- was taken by the present appellant for treatment of his wife i.e. the deceased.

Regarding circumstance no. 5, Chandrakant Sahu @ Raju (PW6), who is son of Dukhit Ram Sahu, has stated that his father is indulge in business of vehicles and the appellant had taken loan of Rs.2,000/- on Saturday assigning reason that his wife is pregnant and he has to see the doctor on account of pregnancy of his wife. He has further stated that the appellant had stated that he would not come for work on Monday as his wife has gone to somewhere. It is the further finding of the learned court below that the appellant herein admitted the above questions in his answers given while his examination under Section 313 of Cr.P.C. From the evidence of Chandrakant Sahu @ Raju (PW6), it is evident that he is a hearsay witness as he neither had advanced Rs.2,000/- to the appellant nor granted leave for Monday to the appellant.

Further, regarding circumstance no. 6, the learned trial Court has recorded the finding that vide memorandum (Ex.P/12), the appellant has admitted the fact that on 02.09.2012 at about 7.30 hours while on pretext of visiting Ratanpur, he committed murder of his wife near Railway Station, Bilaspur by means of a small knife. The appellant has stated in memorandum statement (Ex.P/12) that the weapon- small knife and some stones are lying on the spot. Vide Ex.P/13 the police seized one blood stained full pant and full shirt worn by the appellant at the time incident. Vide Ex.P/14 two blood stained stones were recovered on the instance of the present appellant. The other incriminating articles i.e. knife, broken bangles, hair pin etc. were already seized by the police vide Ex.P/26 on 03.09.2012 at about 17:00 hours from the spot itself. In the FSL report blood has been found on knife, hair pin, plain soil, saree, blouse and towel of deceased and the stones recovered on the instance of the present appellant. On other articles, human blood was not found and the blood group could not be identified being inconclusive or were disintegrated. Laxman Nayak (PW7) and Sheru Khan (PW15) are the seizure witnesses. Though, the witness Laxman Nayak (PW7) has admitted his signature on the memorandum statement (Ex.P/12) and seizure memo (Ex.P/13), but has not supported the case of the prosecution and he was declared hostile by the prosecution. Another witness to seizure, Sheru Khan (PW15) has supported the memorandum statement (Ex.P/12) and the seizure (ExP/14) whereby some stones were seized. Dr. Ajay Tawadkar, (PW11) vide query report (Ex.P/22) has stated that the injury sustained by the deceased might be caused by the seized knife and the stones.

In the matter of Balwan Singh Vs. State of Chhattisgarh reported in (2019) 7 SCC 781 their lordships of the Hon’ble Supreme Court have observed that 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 which reads thus :-

“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.”

In order to establish the guilt of the appellant herein the prosecution had to prove the chain of circumstantial evidence coming in the case against him. It is a case of circumstantial evidence and in a case of circumstantial evidence, the entire chain of evidence must be complete and the conclusion which is arrived at after examining the chain of evidence must point towards the culpability of the accused and to no other conclusion. This, however, is clearly missing from the case of the prosecution. The entire case of the prosecution is based on the so-called confessional statement or voluntary statement given by appellant herein while he was in police custody. Statement given by an accused to police while in latter’s custody is not admissible as evidence. The so-called evidence discovered under section 27 of Indian Evidence Act, 1872, i.e., the recovery of articles also seems very doubtful as one seizure witness turned hostile and another seems to be chance witness. Further, the other incriminating articles were seized by the police from the spot on the very next day of the incident. Recently, in the matter of Munnikrishna alias Krishna V. State by Ulsoor P.S. reported in 2022 SCC OnLine SC 1449 their lordships of the Hon’ble Supreme Court have observed as regards a case based upon circumstantial evidence as under :-

“15. In a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. In other words, a very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt. As early as in 1952, this Court in its seminal judgment of Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh had laid down the parameters under which the case of circumstantial evidence is to be evaluated. It states: -

“… It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused…”

Now coming to the case in hand, it is not in dispute that the appellant herein and the deceased Purnima got married and were living separately. As regards the fact of assault committed by the appellant upon the deceased, no complaint has been made by the deceased during her life or by any other person on her behalf. The incriminating articles viz. knife, broken bangles, hair pin etc. were seized by the police vide Ex.P/26 on 03.09.2012 at about 17:00 hours from the spot itself. On the basis of the memorandum statement (Ex.P/12) of the appellant, blood stained clothes worn by him as well as the blood stained stones were recovered vide Ex.P/13-14. However, the seizure could not be established by the prosecution beyond reasonable doubt. Also, “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” (See : Mani Vs. State of T.N. (2009) 17 SCC 273). Further, vide FSL report (Ex.P/40), the blood group on alleged articles has not been established due to disintegration.

The motive as projected by the prosecution could not be substantiated against the appellant. In Shivaji Chintappa Patil v. State of Maharashtra reported in (2021) 5 SCC 626, it has been held that “though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances.”

Further, in Nandu Singh Vs. State of Madhya Pradesh (Now Chhattisgarh) reported in 2022 SCC OnLine SC 1454, it has been observed by the Hon’ble Supreme Court that “absence of motive weighs in favor of accused in a case of circumstantial evidence” which reads thus –

In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.

As sought from the aforesaid discussion, the learned trial Court has convicted the appellant on the ground that the relations between appellant and decreased were not cordial; deceased was brought to Bilaspur Railway Station, Bilaspur by appellant where she was murdered. Some articles like stones, shirt and pants were seized on his instance, human blood has been found on the articles, memorandum and seizure has been proved by Sheru Khan (PW15), dead body was left over railway track with intent to show the death as accidental.

Mere seizure of certain articles, particularly 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 deceased; it would be difficult for the Court to rely upon the aspect of recovery of the articles. Further, the fact of some bitter relation between appellant and deceased has not been proved beyond reasonable doubt. The witness Gyan Das (PW4) has narrated one year old incident of ill treatment to the deceased but no complaint was made either by deceased or by him before any authority, which creates doubt upon version of this witness. The presence of appellant at Bilaspur Railway Station has also not been established by the prosecution. Though, the dead body of the deceased was lying on railway track but appellant is only author of crime, has not been proved by the prosecution beyond reasonable doubt. In the case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent with the only hypothesis i.e. guilt of the accused.

We are of the considered opinion that since the chain of circumstances is incomplete in this case, therefore, basing conviction of the appellant upon such pieces of evidence would be unsafe. The prosecution has utterly failed to hold the appellant herein as the perpetrator of the crime in question. In that view of the matter, we have no option except to set aside the impugned judgment recording conviction of the appellant for offence punishable under Section 302 and 201 of IPC and awarding sentence as mentioned above. The appellant is acquitted of the charge punishable under Section 302 and 201 of IPC and he be released forthwith, if not required in any other case.

Accordingly, this criminal appeal stands allowed.