Fali Ram vs State Of Chhattisgarh
2022 Latest Caselaw 509 Chatt

                                                                       AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.926 of 2017

                   Judgment Reserved on :      14.1.2022
                   Judgment Delivered on :     28.1.2022


Faliram, son of Fenkuram Panika, aged about 50 years, resident of Village
Ghunchapur, Police Station Udaypur, Revenue and Civil District Surguja,
Chhattisgarh
                                                            ---- Appellant
                                      versus
The State of Chhattisgarh through Police Station Udaypur, District Surguja,
Chhattisgarh
                                                             --- Respondent


For Appellant                     :      Ms. Bulbul Agrawal, Advocate
For Respondent                    :      Shri Anmol Sharma, Panel Lawyer


           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT

Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 25.9.2012

passed by 1st Additional Sessions Judge, Ambikapur, District

Surguja in Sessions Trial No.167 of 2010, whereby the Appellant

has been convicted and sentenced as under:

Conviction Sentence

Under Section 302 of the Imprisonment for Life and fine Indian Penal Code of Rs.1,000, in default of payment thereof, additional rigorous imprisonment for 4 months

2. Name of deceased, in this case, is Rupandas. He was a resident

of Village Namna. According to the case of prosecution, the

Appellant is a resident of Village Ghunchapur. Both the Appellant

and the deceased were working as devari (Jhadphoonk). Few

days prior to 3.2.2010, i.e., the date of incident, the Appellant and

the deceased went to the house of Aghnu (PW5) and his wife

Suhanobai (PW6) at Village Lalati for some devari work.

Thereafter, on 3.2.2010, both again went to the house of Aghnu

(PW5) and Suhanobai (PW6). At that time, Aghnu (PW5) was not

present at the house and his wife Suhanobai (PW6) was alone at

the house. After doing some devari work at the house of the above

witnesses, both the Appellant and the deceased left their house.

Before 3.2.2010, when the Appellant and the deceased had visited

their house, at that time, the deceased had forgotten his umbrella's

iron rod there, which he collected from there on 3.2.2010.

Thereafter, the deceased did not reach back his house. On

5.2.2010, his dead body was found near the drainage of Village

Rikhi. Near his dead body, one coconut and his umbrella's iron rod

were also found. Son of the deceased Bechandas (PW1) lodged

morgue intimation (Ex.P1). Inquest proceedings (Ex.P5) was

conducted. Post mortem examination over the dead body was

conducted by Dr. A.R. Jayant (PW15) on 5.2.2010 itself. His report

is Ex.P13 in which he opined that cause of the death was asphyxia,

nature of the death was homicidal and the death took place 50-52

hours before the post mortem examination. Statements of

witnesses were recorded under Section 161 of the Cr.P.C.

Disclosure statement (Ex.P8) of the Appellant under Section 27 of

the Evidence Act was also recorded. On completion of the

investigation, a charge-sheet was filed. The Trial Court framed the

charge.

3. In support of its case, the prosecution examined as many as 18

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellant denied the guilt and pleaded

innocence. No witness was examined in his defence.

4. On completion of the trial, vide the impugned judgment, the Trial

Court convicted and sentenced the Appellant as mentioned in first

paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant argued that the

conviction of the Appellant is based only upon the circumstantial

evidence and the Trial Court has convicted the Appellant only on

the basis of evidence of last seen together. It was argued that

according to the statement of Suhanobai (PW6), on 3.2.2010 at

about 6-7 p.m., both the Appellant and the deceased had left her

house. Thereafter, dead body of the deceased was found on

5.2.2010 at about 8 A.M. Looking to the above time gap, it cannot

be said that Suhanobai (PW6) was the last witness who seen the

Appellant and the deceased together on 3.2.2010 at about 6 P.M.

6. Opposing the above contentions, Learned Counsel appearing for

the State supported the impugned judgment of the Trial Court.

7. We have heard Learned Counsel appearing for the parties and

perused the statements of the witnesses and other evidence

available on record with utmost circumspection.

8. It is not in dispute that the dead body of deceased Rupandas was

found near the drainage of Village Rikhi on 5.2.2010. It is also not

in dispute that death of the deceased occurred due to asphyxia and

it was a homicidal death.

9. The case of the prosecution is totally based upon the circumstantial

evidence. It is well settled that in a case which rests upon the

circumstantial evidence, law postulates two fold requirements: (i)

every link in the chain of circumstances necessary to establish the

guilt of the accused must be established by the prosecution beyond

reasonable doubt and (ii) all the circumstances must be consistent

pointing only towards the guilt of the accused.

10. Case of the prosecution is based upon the extra judicial confession

made by the Appellant before Bhimdas (PW3) and the theory of last

seen together as stated by Suhanobai (PW6). Bhimdas (PW3), the

witness of the extra judicial confession made by the Appellant has

not supported the case of the prosecution and turned hostile and

the Trial Court has convicted the Appellant only on the basis of last

seen together theory narrated by Aghnu (PW5) and his wife

Suhanobai (PW6).

11. With regard to the theory of last seen together, case of the

prosecution is mainly based upon the statements of Aghnu (PW5)

and his wife Suhanobai (PW6). According to their statements,

since Aghnu (PW5) and Suhanobai (PW6) were issueless, the

Appellant and the deceased, on being called, had visited their

house before the date of incident and done there some devari work

and thereafter left their house in the evening hours. Both these

witnesses further deposed that on 3.2.2010, a panchayat election

was to take place and, therefore, on that day, Aghnu (PW5) had

gone to cast his vote and Suhanobai (PW6) was alone at the

house. At that time, the Appellant and the deceased had come to

their house. Suhanobai (PW6) further stated that on that day at

about 6-7 p.m., both the Appellant and the deceased left their

house together and they also took one coconut and one umbrella's

iron rod along with them. She admitted that after leaving their

house, where did the Appellant and the deceased go, was not

known to her. From the statements of Aghnu (PW5) and

Suhanobai (PW6), it is established that on 3.2.2010 at about 6-7

p.m., the Appellant and the deceased had left their house together.

12. According to the statement of Suhanobai (PW6), the Appellant and

the deceased left her house on 3.2.2010 at about 6-7 P.M.

Thereafter, dead body of the deceased was found on 5.2.2010 at

about 8 A.M. Post mortem examination over the dead body was

conducted by Dr. A.R. Jayant (PW15) on 5.2.2010 itself at about

5:10 P.M. As opined by him in his report (Ex.P13), the time gap of

the death was 50-52 hours prior to conducting of the post mortem

examination. In his cross-examination, this witness deposed that

on the basis of rigor mortis present and on being inquired from the

relatives of the deceased, he opined in his report (Ex.P13) the time

gap between the death and the post mortem examination to be 50-

52 hours. This witness, in his examination-in-chief, deposed that at

the time of conducting post mortem examination, he found a

laceration in the right ear lobe and blood was oozing out from there.

This fact mismatched the time gap given by this witness between

the death and the post mortem examination. If rigor mortis was

present and the time gap between the death and the post mortem

examination was 50-52 hours, oozing out of blood from the

laceration found in the right ear lobe at the time of post mortem

examination appears to be suspicious. Therefore, a suspicion

arises whether the said time gap of 50-52 hours is correct or the

time gap was lesser.

13. According to the case of prosecution itself, on 18.2.2010, the

disclosure statement (Ex.P8) under Section 27 of the Evidence Act

of the Appellant was recorded. From perusal of the said disclosure

statement, it reveals that the Appellant has stated therein that after

coming out of the house of Aghnu (PW5) and Suhanobai (PW6),

both the Appellant and the deceased first went to the house of the

Appellant and after sometime, the deceased went towards the

village and again returned to the house of the Appellant at about 8-

9 p.m. Thus, it appears that the above fact disclosed by the

Appellant was well within the knowledge of the investigating officer,

but, despite that, the investigating officer has not investigated into

this fact nor did he collect any evidence in this regard. Though the

above statement of the Appellant cannot be used against him, a

doubt arises whether Suhanobai (PW6) was the only witness who

had last seen the Appellant and the deceased together? Despite

the fact that in his disclosure statement (Ex.P8) recorded under

Section 27 of the Evidence Act, the Appellant has disclosed some

facts which are under discussion, the investigating officer has not

investigated into those facts nor did he collect any evidence in this

regard. The time gap between the death and the post mortem

examination reported (Ex.P13) by Dr. A.R. Jayant (PW15), as

discussed above, also creates a doubt whether Suhanobai (PW6)

was the only witness who had last seen the Appellant and the

deceased together. With regard to the motive also, the prosecution

has totally failed to produce any material. Rather, from the evidence

of the prosecution itself, it reveals that there was a cordial relation

between the Appellant and the deceased. Both were doing devari

work together and on 3.2.2010 also, when the deceased was last

seen alive, both had gone to the house of Suhanobai (PW6)

together to do devari work. Thus, in our considered view, without

any other corroborating evidence, only on the basis of the

statement of Suhanobai (PW6), sustaining the conviction of the

Appellant is not safe and, therefore, the Appellant is entitled to get

benefit of doubt.

14. In the result, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellant is acquitted of

the charge framed against him. He is reported to be in jail. He is

directed to be released from custody immediately, if not required in

any other case.

                            Sd/-                                   Sd/-

              (Rajendra Chandra Singh Samant)            (Arvind Singh Chandel)
                         Judge                                   Judge

Gopal