Chattisgarh High Court
Manroop @ Badka Baba @ Jojga vs State Of Chhattisgarh on 5 December, 2022
1
Cr.A. No. 1098 of 2012
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1098 of 2012
Manroop alias Badkha Baba alias Jojga son of Mangal Singh aged
about 29 years, resident of Village Gidhmudi, Police Station
Khadgawa, District Korea (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through Police Station Khadgawa, District
Korea (C.G.)
---- Respondent
For Appellant : Mr. R.V. Rajwade, Advocate
For Respondent : Mr. Ashish Tiwari, Govt. Advocate
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(05.12.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant/accused herein
under Section 374 (2) of the Cr.P.C. is directed against the
impugned judgment of conviction and order of sentence dated
26.10.2012 passed by the Court of learned IInd Additional Sessions
Judge, Manendragarh, District Korea (C.G.) in Sessions Trial No.
03/2011, whereby the appellant has been convicted for offence
under Section 302 of the IPC and sentenced to undergo life
imprisonment with fine of Rs.1,500/-, in default of payment of fine to
further undergo additional rigorous imprisonment for six months.
2. Case of the prosecution, in brief, is that on 16.09.2010 in Village
Gidhmudi, the appellant herein assaulted his aunt Jagdamba Devi
by hand and fist by which she suffered injuries and died on the
spot. Further case of the prosecution is that prior to the date of
Cr.A. No. 1098 of 2012
incident, buffalo of the appellant had gone to the field (baadi) of
deceased Jagdamba Devi by which she abused the appellant on
account of which on 16.09.2010 the appellant while his cattle were
grazing near the field, noticed the presence of deceased Jagdamba
in her house and he mixed his cattles in the cattle of Pitamber Das
(PW-2) and Satyanarayan (PW-3) and went away from there.
Pitamber Das (PW-2) and Satyanarayan (PW-3) noticed that the
appellant remained absent for half an hour. Ramprasad (PW-1)
Husband of the deceased) also noticed that the appellant was
chasing his wife and he was immediately thereafter on being
informed by Satyanarayan (PW-3) that his wife consumed
poisonous substance, Ramprasad (PW-1) came to spot and noticed
that his wife was lying dead. The matter was informed by
Ramprasad (PW-1) to the Police Station and merg intimation Ex.-
P/1 was registered. After reaching at the spot, the police prepared
Panchnama vide Ex.-P/02 and the dead body of deceased
Jagdamba was sent for postmortem. Postmortem examination was
conducted by Dr. R.P. Singh (PW-18), and as per the postmortem
report (Ex.-P/11A), cause of death was haemorrhage as a result of
injury to spleen and liver and death was accidental in nature.
Accused/appellant was arrested on 16.11.2010 and his
memorandum statement was recorded vide Ex.-P/8 consequent to
which towel was seized at the instance of the appellant vide Ex.-
P/9. After due investigation, the accused/appellant was charge-
sheeted for the offence punishable under Section 302 of the IPC
Cr.A. No. 1098 of 2012
which was committed to the Court of IInd Additional Sessions Judge
for trial in accordance with law, in which the accused abjured his
guilt and entered into trial.
3. In order to bring home the offence, prosecution examined 19
witnesses and brought on record 17 documents. The
appellant/accused was examined under Section 313 of CrPC
wherein he abjured his guilt, and exhibited 3 documents i.e. Exibit.-
D/1 to Ex.-D/3, however, he did not examine any witness.
4. Learned trial Court, after appreciating the oral and documentary
evidence on record, convicted the appellant for the offence
punishable under Section 302 of the IPC and sentenced him as
aforesaid.
5. Learned counsel for the appellant submits that the appellant has
been convicted under Section 302 of the IPC and sentenced to
undergo life imprisonment and to pay fine of Rs.1,500/- vide
judgment dated 26.10.2012 passed by IInd Additional Sessions
Judge, Manendragarh, District Korea. He further submits that
conviction is not well founded and the prosecution has utterly failed
to collect the evidence against the appellant to connect him with the
crime in question. The conviction is rested upon the alleged
circumstantial evidence, but the prosecution has failed to prove any
circumstance leading to conviction of the appellant. Therefore,
conviction of the appellant for offence punishable under Section
302 of the IPC is liable to be set aside.
6. Per contra, learned counsel for the State opposing the submission
Cr.A. No. 1098 of 2012
made by learned counsel for the appellant submits that conviction is
well founded. The prosecution has proved complete chain of
circumstances warranting conviction of the appellant. Therefore, the
trial Court has rightly convicted the accused/appellant for the
offence mentioned herein above, thus, the present criminal appeal
filed by the appellant deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
with utmost circumspection.
8. The first question is as to whether the death of the deceased was
homicidal in nature, which has been answered by the learned trial
Court in affirmative by relying upon the postmortem report (Ex.-
P/11A) duly proved by Dr. R.P. Singh (PW-18). In our considered
opinion that it is correct finding of fact based on evidence available
on record and same is neither perverse nor contrary to the record.
We hereby affirm that finding.
9. Now, the next question would be, whether the accused/appellant
herein is the author of the crime in question or not? The trial Court
for convicting the appellant herein has recorded following findings in
paragraph 44 as under :-
"44- voyksduh; ;g gS fd jkeizlkn ds ?kj esa
i<+us okys cPps fnu ds 4-30 cts gh Ldwy ls vk;s
gSa vkSj viuh nknh dks e`r ns[kk gS A mfnr
ukjk;.k vkSj mldh iRuh m"kk flag ?kVuk fnukad
dks lqcg 10 cts gh ferkuhu dk;Zdze esa [kM+xoka
Cr.A. No. 1098 of 2012
pys x;s Fks A bl rjg tgka MkWDVj vkj-ih- flag
dk ;g dguk fd txnEck nsoh dh e`R;q nq?
kZVukRed Fkh fo'oluh; ugha gS A bl laca/k esa
ekuuh; U;k; n`"Vkar jesa'k panz vxzoky fo:)
fjtsalh gkWfLiVy fyfeVsM ,oa vU; ,-vkbZ-vkj-
2010 lqizhe dksVZ 806 ,oa 2009 uksV uacj&9
lqizhe dksVZ dslsl 221 eys; dqekj xkaxqyh fo:)
MkWDVj f'ko dqekj eq[kthZ voyksduh; gS A ftlesa
;g vo/kkfjr fd;k x;k gS fd fo'ks"kK dh jk;
U;k;ky; ij ca/kudkjh izHkko ugha j[krh gS A og
dsoy ijke'kZ dk gksrk gS A ,sls lkf{k;ksa ds
fo'oluh;ek mlds fu"d"kksaZ ds leFkZu esa crk;s
dkj.kksa] vkadM+kas ;k lkekxzh ij vk/kkfjr gksrh gS A
bl rjg MkWDVj vkj-ih- flag us e`R;q dks dkj.k
vR;f/kd jDr L=ko ls yaXl ,oa yhoj esa vkbZ
pksVkas ds dkj.k gksuk dgk gS A voyksduh; ;g gS
fd MkWDVj vkj-ih- flag us ih-,e- djrs le;
e`frdk txnEck nsoh ds eaqg vksj dku dh vksj
[kwu ns[kk gS ,oa vU; lkf{k;ksa us Hkh e`frdk ds
eqag esa [kwu ns[kk gS A MkWDVj vkj-ih- flag us
txnEck nsoh ds nksuksa rjQ dh ilfy;k VwVh ikbZ
gS A og unh dh vksj ls vkrs gq, Hkh es<+ ls fxj
xbZ] ?kj ls fxj xbZ rc mldk ilyh VwVk gS ,slk
dksbZ lk{; ugha gS A vkoyksduh; ;g gS fd
txnEck nsoh dks fdlh gfFk;kj lk/kus ls ekjihV
ugha fd;k x;k gS A rHkh MkWDVj us tgka ilyh
VwVh Fkh mldh mijh peM+h esa dksbZ pksV ugha
ik;k gS A bl rjg MkWDVj vkj-ih- flag dk ;g
dguk fd txnEck nsoh dh e`R;q nq?kZVukRed Fkh
Cr.A. No. 1098 of 2012
fo'oluh; ugh gS A cfYd mijksDr lk{; foospuk
ds vk/kkj ij tgka Lo;a MkWDVj vkj-ih- flag
dk ;g dguk gS fd mlus ih-,e- djrs le;
txnEck nsoh dk ilyh VwVk gqvk ik;k gS A eqag
ls [kwu fudyrs gq, ns[kk gS A ilyh e`R;q iwoZ
VwVh gS ls ;g izekf.kr gS fd txnEck nsoh dh
e`R;q gR;kRed izd`fr dh gS u dh nq/kZVukRed A
bl rjg [email protected]@10 dks vkjksih eu:i fnu ds
3&4-30 cts viuk HkSalk firkEcj vkSj lR;ukjk;.k
ds eosf'k;ksa ds lkFk feykdj vk/kk ?kaVk ds fy,
dgha x;k Fkk ds le; txnEck ds ?kj gh tkdj
mldh ykr&eqDds ls ekjdj mldh gR;k dkfjr
fd;k gS LFkkfir o izekf.kr gksrk gS A"
10. The five golden principles to 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 vs. State of Maharashtra1, which states 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
1 (1984) 4 SCC 116
Cr.A. No. 1098 of 2012
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
Maharashtra2 where the following observations were
made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]
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."
11. Reverting to the facts of the present case in light of the aforesaid
principles of law laid down in the instant case, the learned trial Court
has firstly recorded the death to be homicidal in nature and further
came to the conclusion that on 16.09.2010, the appellant mixed his
cattles in the cattle of Pitamber Das (PW-2) and Satyanarayan (PW-
2 (1973) 2 SCC 793
Cr.A. No. 1098 of 2012
3) and thereafter the appellant remained absent for half an hour and
in the meanwhile, he went to the house of deceased Jagdamba and
caused her injury by hand and fist/leg. Thereafter, his subsequent
conduct of appellant that he has not been reported the matter to the
police, has been taken into account in paragraph 45 of the
impugned judgment which states as under :-
"45- bl rjg mijksDr ifjfLFkfrtU; lk{; ds
vk/kkj ij dM+h&nj&dM+h vkjksih dk mlds
O;ogkj ftlesa txnEck nsoh ds e`R;q okys ekeys
dk Fkkus ugha ys tkuk] MkWDVj vkSj iqfyl dks iSlk
nsdj iVkus dk lq>ko nsuk] le>kSrk dj yks dk
ncko cukuk] vk-lk-&2 firkEcj dks ;g dguk fd
eos'kh pjk jgs Fks fd ckr fdlh dks ugh crkuk
fd ifjfLFkfr vkjksih ds O;ogkj dks ysdj bl
ifjfLFkfr dk fuekZ.k djrh gS fd vkjksih
[email protected]@10 dks fnu ds 3&4-30 cts ds e/; gh
txnEck nsoh ds ?kj tkdj mls tku ls ekjus ds
vk'k; ls iqjkuh jath'k dk cnyk ysus ds fy, ?kj
esa vdsyh ikdj mls ykr&eqDds ls ekjihV dj
gR;k dkfjr fd;k vkSj vk/kk ?kaVk esa og
LkR;ukjk;.k vkSj firkEcj ds eos'kh pjkus ds ikl
NksM+ x;s vius HkSalks dks ysdj pyk x;k A mUgh
vk/kk ?kaVk esa gh txnEck nsoh dh gR;k vkjksih ds
}kjk gh dh xbZ A iw.kZr% ifjfLFkfrtU; lk{; ds
vk/kkj ij vk/kkfjr gksrk gS vkSj izekf.kr gksrk gS
A bl laca/k esa ekuuh; U;k; n`"Vkar dh
ifjfLFkfrtU; lk{; ds vk/kkj ij Hkh vkjksih dks
nks"kfl) Bgjk;k tk ldrk gS ijethr flag mQZ
Cr.A. No. 1098 of 2012
iEek fo:) mRrjk[kaM jkT; 2011 fdzehuy ykW
tujy 663 lqizhe dksVZ voyksduh; gS A"
12. In view of paragraphs 44 & 45, the learned trial Court has convicted
the appellant for offence punishable under Section 302 of the IPC,
however, Ramprasad (PW-1), husband of deceased Jagdamba, in
para-7 has only suspected that the appellant might have caused
the murder of his wife Jagdamba. However, no incriminating article
has been seized from the possession of the appellant, except towel
vide Ex.-P/9 which has been duly proved by the prosecution, as
seizure of towel would not further the case of prosecution and more
so that for half an hour, the appellant was absent on 16.09.2010 in
between 3-4:30 pm after mixing his in the cattle with that of
Pitamber Das (PW-2) and Satyanarayan (PW-3) would not help the
prosecution, as merely on the basis of suspicion accused cannot be
convicted for offence under Section 302 of the IPC and appellant
subsequent conduct that he did not report the matter to the police,
though relevant fact under Section 8 of the Indian Evidence Act, but
on that count the appellant cannot convicted for offence under
Section 302 of the IPC.
13. In our considered opinion, in view of the fact that there is no direct
evidence available on record, Ramprasad (PW-1) only suspected
that the appellant might have committed murder of his wife
Jagdamba (deceased) and furthermore absence of the appellant for
half an hour in between, it cannot be held that the appellant had
Cr.A. No. 1098 of 2012
gone to the house of the deceased and caused death of deceased
and his subsequent conduct, if any, may be relevant under Section
8 of the Evidence Act, but it cannot be made sole basis for
conviction of the appellant for the offence punishable under Section
302 of the IPC, as such the five principles laid down by their
Lordships of Supreme Court in case of Sharad Birdhichand Sarda
(supra) for proof of a case based on circumstantial evidence have
not been established beyond reasonable doubt and therefore the
trial Court has erred in convicting the appellant for the offence under
Section 302 of IPC.
14. Accordingly, conviction of the appellant for offence punishable under
Section 302 of the IPC as well as the sentence of life imprisonment
awarded to him by the learned trial Court is hereby set aside and he
is acquitted of charge under Section 302 of the IPC. The appellant
is on bail, he need not surrender, however, his bail bonds shall
remain in operation for a period of 6 months in view of the
provisions contained in Section 437-A of CrPC.
15. Consequently, this criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti
