Ram Singh vs State Of Chhattisgarh
2022 Latest Caselaw 7229 Chatt

                                      1
                                                       Cr.A. No. 698 of 2013

                                                                     NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                     Criminal Appeal No. 698 of 2013
                    Judgment Reserved on 22.11.2022
                    Judgment Delivered on 02.12.2022


     •   Ram Singh, S/o Sahangu Ram, Aged About 42 Years, R/o Village
         Khairkatta, P.S. Manpur, District Rajnandgaon (C.G.)
                                                             ---- Appellant
                                   Versus
     •   State of Chhattisgarh, Through: Police Station - Manpur, Civil and
         Revenue District Rajnandgaon (C.G.)
                                                       ---- Respondent

_________________________________________________________

For Appellant             :     Mr. Rishabh Bisen, Advocate appears on
                                behalf of Mr. G.S. Ahluwalia, Advocate

For Respondent/State : Mr. Sudeep Verma, Dy. Govt. Advocate
________________________________________________________


         D.B. :     Hon'ble Shri Justice Sanjay K. Agrawal
                    Hon'ble Shri Justice Rakesh Mohan Pandey

                              CAV Judgment


Per Rakesh Mohan Pandey, J.

1. 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 12.06.2013 passed by

the Sessions Judge, Rajnandgaon, C.G., in Sessions Trial

No.41/2012, whereby the learned court below convicted the

appellant herein for offence punishable under Section 302 of IPC

Cr.A. No. 698 of 2013

and sentenced him to life imprisonment and fine of Rs. 3000/-, in

default of payment of fine further R.I. for 1 year.

2. Case of the prosecution, in brief, is that on 03.04.2012 at about

10:00 AM complainant Sahangu Ram (PW1) gave information to

the Police Station - Manpur as to presence of an unknown dead

body in Khairkatta. On the basis of said information, merg

intimation (Ex.P/1) was registered. The dead body of the

deceased was recovered and sent for postmortem.

3. Further case of the prosecution is that, deceased Ballar Sai was

resident of Village Phulkodo and worked as a labourer, who often

used to visit Village Khairkatta for labor. Two-three days after the

date of incident, wife of the appellant herein namely Bisantin Bai

(PW18) informed Jyoti Bai (PW4) that the deceased Ballar Sai

had his meal in their home on the night of the incident and he

was touching the anklet worn by Kumari Bharti (PW2), her niece,

upon which Kumari Bharti (PW2) shouted and they woke up. The

appellant herein while pulling the deceased, brought him out of

the house. Thereafter, meeting took place in the village where

many persons were present including Jyoti Bai (PW4) and

Kumari Bharti (PW2). It was informed by Kumari Bharti (PW2) in

the said meeting that the deceased was touching her anklet

while she was asleep. Jyoti Bai (PW4) also has stated similarly

in the said meeting. As per the prosecution, the appellant herein

on coming to know about the above fact, took the deceased to

Cr.A. No. 698 of 2013

nearby fields and killed him by axe and threw his dead body in a

pit. The FIR (Ex.P/19) was registered on 08.04.2012 and

thereafter, the wheels of investigation began running. The

investigation officer, N.L.Mandavi (PW17), took the appellant

herein into custody and, thereafter, recorded his memorandum

statement (Ex.P/7). Pursuant thereto, one axe was recovered

and lungi and baniyan (vest) worn by the appellant were seized

by vide Ex.P/8. Statement of the witnesses under Section 161 of

the Cr.P.C was recorded and seized articles were sent for

chemical examinations vide Ex.P/12 and after due investigation,

the appellant was charge-sheeted for offence punishable under

Section 302 of IPC which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The learned trial Court framed charge for offence punishable

under Section 302 of the IPC against the appellant. The

appellant abjured the charge and pleaded non-guilty. In order to

bring home the offence, prosecution examined as many as 18

witnesses and exhibited 21 documents including FSL report.

Statement of the accused was recorded under Section 313 of

the CrPC wherein he denied the guilt; however, he examined

none in his defense.

5. Learned trial Court, after appreciating the oral and documentary

evidence on record, convicted the appellant for offence

punishable under Sections 302 of IPC and sentenced him as

Cr.A. No. 698 of 2013

aforesaid, against which present appeal has been preferred.

6. Learned counsel for the appellant submits that the memorandum

and seizure witnesses Amar Sai (PW9) and Hire Singh (PW12)

have not supported the case of the prosecution. Other

independent witnesses have also not supported the

prosecution's version. He further submits that in FSL report

(Ex.P/21) blood has not been found and there is absence of

motive in the case. He also submits that chain of the

circumstances is not complete so as to the base the conviction

of the appellant. He lastly argues that the appellant has been

falsely roped in this case, therefore he is entitled for acquittal

7. On the other hand, learned counsel for the State opposes the

submissions made above 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 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. Upon hearing learned counsel for the parties and after going

through the record, the following two questions arise for

consideration :-

Cr.A. No. 698 of 2013

(i) Whether the prosecution has been able to prove death of deceased Ballar Sai to be homicidal in nature?

(ii) Whether the appellant is the perpetrator of the crime in question?

Answer to question No. 1: -

10. The learned trial court has recorded an affirmative finding with

regard to this question on the basis of postmortem report

(Ex.P/16), wherein Dr. Seema Thakur (PW16), who has

conducted the postmortem, has clearly stated that the cause of

death is internal bleeding owing to the injuries suffered by the

deceased and the nature of death may be homicidal. After going

through the postmortem report (Ex.P/16) as well as the evidence

of Dr. Seema Thakur (PW16), we have no hesitation to hold that

the death of deceased was homicidal in nature and the learned

trial court was justified in holding so.

Answer to Question No. 2:-

11. Coming to next question for consideration as to whether the

appellant is author of the crime in question. The learned trial

Court has relied upon the circumstances viz. (i) the deceased on

the night of the incident tried to outrage modesty of Ku. Bharti

(PW2), niece of the appellant; (ii) invoked by such act the

appellant assaulted the deceased; (iii) dead body of the

Cr.A. No. 698 of 2013

deceased was found on the very next day near the fields of the

appellant in a pit; (iv) several rounds of meeting took place in

village with regard to alleged act of the deceased and in one of

the meetings, appellant was also present where he was asked

as to how the dead body of the deceased reached to the pit

where he didn't say anything; (v) the appellant was last seen

together with deceased; and (vi) pursuant to memorandum

statement (Ex.P/7) alleged axe was recovered and clothes of

the appellant were seized vide Ex.P/8.

12. At the outset it would be apt to take note of Sharad

Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC

116, wherein the Hon'ble Supreme Court while dealing with

circumstantial evidence held that the onus was on the

prosecution to prove that the chain is complete and the infirmity

or lacuna in prosecution cannot be cured by false defence or

plea. The condition precedent as per the words of their lordships

of the Hon'ble Supreme Court is that before conviction could be

based on circumstantial evidence, chain of circumstances must

be fully established. It reads thus :-

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(ii) the fact so established should be consistent only with the hypothesis of the guilt of the accused,

Cr.A. No. 698 of 2013

that is to say, they should not be explainable of any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved; and

(v) 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."

13. The first and second circumstances considered by the learned

trial Court is that the deceased on the night of the incident tried

to outrage modesty of Ku. Bharti (PW2). This fact has been

admitted by Ku. Bharti (PW2) in her cross-examination and she

further stated that the deceased was thrown out of the house in

the night itself and the deceased was assaulted by the present

appellant. This fact has been further admitted by Bisantin Bai

(PW18), wife of the appellant, and Kaling Sai (PW5), therefore, it

has been established by the prosecution that on 02.04.2012 in

the night, the deceased tried to outrage modesty of niece of the

appellant, thereafter, he was ousted from the house.

14. Coming to the third circumstance relied by the trial Court that the

Cr.A. No. 698 of 2013

dead body of the deceased was found on very next day near the

fields of the appellant in a pit. In this regard, witness Sanhgu

Ram (PW1) saw the dead body and he informed the police and

consequently, merg intimation (Ex.-P/1) was registered. The

dead body was recognized as of deceased Ballar Sai. From the

above piece of evidence, it cannot be denied that the dead body

of the deceased was found on the very next day near the fields

of the appellant in a pit and same is evident from merg

intimation (Ex.-P/1), dead body identification (Ex.-P/2), inquest

(Ex.-P/3A) and seizure (Ex.-P/4).

15. The fourth circumstance relied by the trial Court is that several

rounds of meeting took place in the village with regard to the

alleged act of the deceased and in one of the meetings, the

appellant was also present and no explanation was given by him

with regard to dead body which was found in his fields. Ku.

Bharti (PW-2) has stated in para-4 of her cross-examination that

there was a meeting with regard to touching of her feet by the

deceased on the night of the incident. Sundari Bai (PW3) has

also stated that a meeting was held for such embarrassing act of

the deceased, who tried to touch the feet of Ku. Bharti (PW-2).

Jyoti Bai (PW4) has stated that a meeting was convened, but

there was no discussion about death of the deceased. Likewise,

Kaling Sai (PW5) has also stated in his cross-examination that

in meeting there was no discussion regarding murder of the

Cr.A. No. 698 of 2013

deceased. Phool Singh (PW8) has stated in his cross-

examination that the deceased was a drunkard. Bisantin Bai

(PW-18) has stated in para-6 of her cross-examination that a

meeting was called after murder of the deceased and Ku. Bharti

(PW-2) was inquired by the members of meeting wherein she

had narrated the incident of outraging her modesty. Bisantin Bai

(PW-18) has categorically denied that the deceased was

murdered by the present appellant and his dead body was

thrown in a pit.

16. From the above set of evidence, it is crystal clear that though

there was meeting, but it was with regard to outraging of

modesty of Ku. Bharti (PW2) and there was no discussion about

murder of the deceased.

17. The next circumstance as relied by the learned trial is that,

pursuant to memorandum statement (Ex.-P/7) of the appellant,

axe was recovered and clothes of the appellant were seized.

The witnesses to memorandum namely Amar Sai (PW9) and

Hire Singh (PW-12) have not supported the recovery of axe, and

seizure of Lungi and Baniyan (vest). Further, in FSL report (Ex.-

P/21), no blood was found on the axe, Lungi and vest of the

present appellant. Human blood was found on soil and T-shirt of

deceased, however, blood group could not be proved due to

disintegration of blood, therefore, alleged recovery of axe and

seizure of clothes are of no help to the prosecution.

Cr.A. No. 698 of 2013

18. The Supreme Court in case of Balwan Singh vs. State of

Chhattisgarh & Anr., (2019) 7 SCC 781, has clearly held that if

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 the blood group is not proved because of disintegration of

blood. It reads thus :-

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.

19. The last circumstance of last seen together as relied by the

learned trial Court is of no consequence because in the midnight

at about 11:30 PM on 02.04.2012, the deceased was thrown out

of the house of appellant as the deceased tried to outrage the

modesty of niece of the appellant. It is also not in dispute that

the deceased was slapped by the appellant and on 03.04.2012

Cr.A. No. 698 of 2013

at about 05:00 AM; dead body of the deceased was seen by

Sanhgu Ram (PW1). There is time gap of more than 05 hours

between the alleged act of assault and recovery of the dead

body and further, no corroborative material is available on

record so as to completely establish or could point to the guilt of

the appellant herein.

20. In the matter of Navneethakrishnan vs. State by Inspector of

Police, (2018) 16 SCC 161, their lordships of the Hon'ble

Supreme Court have clearly held that evidence of last seen is

an important piece of evidence, but accused cannot be

convicted solely on the basis of evidence of last seen together

and it requires corroboration, which reads thus :-

"18. .... It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."

21. In view of the judgments referred to above and in light of the

peculiar facts and circumstances of the case, as such, we are of

Cr.A. No. 698 of 2013

the considered opinion that prosecution has miserably failed in

establishing the complete chain of circumstances so as to hold

the appellant herein criminally liable for murder of the deceased.

In that view of the matter, we have no hesitation in setting aside

the impugned judgment recording conviction of the appellant for

offence punishable under Section 302 of IPC and awarding life

sentence. The appellant is acquitted of the charge punishable

under Section 302 of IPC and he be released forthwith, if not

required in any other case.

22. Accordingly, the criminal appeal is allowed.

                     Sd/-                                     Sd/-

            (Sanjay K. Agrawal)                    (Rakesh Mohan Pandey)
                  Judge                                   Judge



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