Chattisgarh High Court
Ram Singh Rathiya And Anr vs State Of Chhattisgarh on 22 November, 2022
CRA-756-2013
Page 1 of 10
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 756 of 2013
1. Ram Singh Rathiya, Son of Shri Rangaram Rathiya, aged about 45
years, Resident of Village Nawapara (Tenda), Police Station & Tehsil
Gharghoda, District Raigarh (Chhattisgarh)
2. Fuleshwar Rathiya, S/o Ram Singh Rathiya, aged about 21 years,
Resident of Village Nawapara (Tenda), Police Station & Tehsil
Gharghoda, District Raigarh (Chhattisgarh)
---- Appellants
(In Jail)
Versus
State of Chhattisgarh, through Police Station Gharghoda, District Raigarh
(Chhattisgarh)
---- Respondent
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For Appellants : Mr. Manoj Kumar Sinha, Advocate
For Respondent-State : Mr. Ashish Tiwari, Government Advocate
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DB: Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(22.11.2022)
Sanjay K. Agrawal, J
This criminal appeal filed by the accused-appellants under Section
374(2) of Cr.P.C. is directed against the impugned judgment of conviction
and order of sentence dated 02.08.2013, passed by the Court of learned
Additional Sessions Judge (FTC), Raigarh, District Raigarh (C.G.) in S.T.
No.153/2012 (State of CG vs. Ram Singh Rathiya & another), whereby both
the appellants-accused have been convicted for offence: under Section 302
of IPC and sentenced to undergo rigorous life imprisonment with fine of
Rs.10,000/- and, in default of fine, additional rigorous imprisonment for 01
year and also under Section 201 of IPC and sentenced to undergo rigorous
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imprisonment for 05 years with fine of Rs.5,000/- and, in default of fine,
additional rigorous imprisonment for 06 months.
(2) The case of the prosecution, in brief, is that between 08:00 PM of
10.07.2012 till 10:00 AM of 11.07.2012, at Village Nawapara (Tenda) within
the ambit of Police Station Gharghoda, District Raigarh (CG), the accused-
appellants in further of their common object and intention assaulted
deceased- Ramdev Rathiya and his wife- Kamla Rathiya by means of 'lathi'
and caused their death and, further in order to escape from said offecne of
committing murder of deceased- Ramdev Rathiya and Kamla Rathiya, they
covered the dead-bodies of deceased by means of cloth, put it on bed and
set ablaze, due to which the dead-bodies got burned and, thereby, committed
the offence under Sections 302, 201 & 34 of IPC.
(3) The further case of the prosecution, in nutshell, is that: the appellant
No.01- Ram Singh Rathiya and deceased- Ramdev Rathiya both were
brothers and between them a dispute/enmity was prevailing with regards to
payment of compensation money against land acquisition; on the fateful
intervening night, between 08:00 PM of 10.07.2012 till 10:00 AM of
11.07.2012, the accused-appellants assaulted deceased- Ramdev Rathiya
and Kamla Rathiya by means of 'lathi' and caused their death and, further in
order to escape from said offence of committing murder of deceased, cover
the dead-bodies of deceased by means of cloth, put it on bed and set them
ablaze, due to which the dead-bodies got burned; thereafter, on 11.07.2012,
appellant No.01- Ram Singh Rathiya informed to police that his brother-
Ramdev Rathiya and his wife- Kamla Rathiya both are dead and their dead-
bodies are burned in the house, pursuant to which police registered marg
intimations (Ex.P/20 & P/24) and on the basis of marg. intimations, FIR
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(Ex.P/21) was registered for offence under Section 302 & 201 of IPC;
thereafter, spot map was prepared and panchnama of dead-bodies of
deceased were also prepared vide Ex.P/08; thereafter, the dead-bodies of
deceased were sent for postmortem examination and in the postmortem
examination report (Ex.P/10 & P/11), conducted by Dr. S.N. Keshari (PW-06),
it has been opined that cause of death of deceased- Ramdev Rathiya and
Kamla Rathiya is due to hemorrhage and shock, as a result of multiple
injuries and nature of death is homicidal in nature; thereafter, memorandum
statements of accused-appellants were recorded vide Ex.P/13 & P/14 and,
pursuant to said memorandum statements of accused-appellants, two 'lathi'
are seized vide Ex.P/16 & P/16, which were sent for query to medical expert
vide Ex.P/12A, whereby it has been opined that injuries mentioned in
postmortem report can be caused by said 'lathi' vide query report (Ex.P/12);
thereafter, the seized articles were sent for FSL examination vide Ex.P31 and
in the FSL report (Page 38-40 of paper-book) it has been opined that no
blood has been found on the two 'lathi' seized pursuant to memorandum
statements of accused-appellants. Thereafter, statement of witnesses were
recorded and, after due investigation, the police filed charge-sheet in the
Court of Judicial Magistrate First Class, Gharghoda and, thereafter, the case
was committed to the Court of Sessions. The appellants/accused abjured
their guilt and entered into defence by stating that they are innocent and
have been falsely implicated.
(4) The prosecution in order to prove its case examined as many as 12
witnesses and exhibited 34 documents apart from FSL report and final report,
whereas the appellants-accused in support of their defence has not
examined any witness, but exhibited 02 documents.
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(5) The learned trial Court after appreciating the oral and documentary
evidence available on record proceeded to convict the appellants for offence
under Sections 302 & 201 of IPC and sentenced them as mentioned herein-
above, against which this appeal has been preferred by the appellants-
accused questioning the impugned judgment of conviction and order of
sentence.
(6) Mr. Manoj K. Sinha, learned counsel appearing for the appellants
submits that the learned trial Court is absolutely unjustified in convicting the
appellants for offence under Section 302 & 201 IPC, as the prosecution has
failed to prove the offence beyond reasonable doubt. He further submits that
there is no eye-witness or any direct evidence available on record against the
appellants to connect them with the crime in question, except the statement
of Bhikhyamati Rathiya (PW-10), who is mother of deceased- Kamla Rathiya,
who has proved existence of previous enmity between the appellant No.01
and deceased- Ramdev Rathiya. Furthermore, the alleged seizure of 'lathis'
pursuant to memorandum statements of accused-appellants, have not been
proved by seizure witnesses, namely, Beerbal Rathiya (PW-07) and
Mukutram (PW-11). By placing reliance on the decision rendered by their
Lordships of Supreme Court in the matter of Balwan Singh vs. State of
Chhattisgarh and another1 he submits that in the two 'lathis' which are said
to have been seized pursuant to memorandum statements of accused-
appellant, no blood has been found on the said 'lathis', therefore, same is of
no help to the prosecution. As such, the conviction and sentence passed by
the learned trial Court for offence under Section 302 & 201 of IPC against the
accused-appellants deserves to be set aside and they are liable to be
acquitted from said charges.
1 (2019) 7 SCC 781
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(7) Per-contra, Mr. Ashish Tiwari, learned State counsel supported the
impugned judgment of conviction and order of sentence and submits that the
prosecution has proved the offence beyond reasonable doubt by leading
evidence of clinching nature. He further submits that strong motive has been
proved by the prosecution against the accused-appellants, as on account of
previous dispute/enmity which was prevailing with regards to payment of
compensation money against land acquisition between the accused-
appellant No.01 Ramsingh Rathiya and deceased- Ramdev Rathiya, the
appellant No.01 with the assistance of appellant No.02 assaulted deceased-
Ramdev Rathiya and Kamla Rathiya and caused their murder and further
burned their dead-bodied in order to escape from the crime. The existence of
previous enmity between the appellant No.01 and the deceased has also
been proved by Bhikhyamati Rahiya (PW-10), who is mother of deceased-
Kamla Rathiya and prosecution has also exhibited document (Ex.P/34) copy
of crime register, for that purpose, as such, strong motive for commission of
offence on the part of the appellants has been proved by the prosecution.
Furthermore, though no blood has been found on the seized articles i.e.
'lathis', but the unnatural conduct of the appellant in not raising alarm while
the deceased, who were appellant's brother and sister-in-law (bhabi), were
burning, conclusively establishes the guilt of the appellants in the crime in
question. Thus, the learned trial Court has rightly convicted the appellants for
offence under Section 302 & 201 of IPC. Thus, the present 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.
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(9) The first and foremost question is as to whether the death of the
deceased was homicidal in nature, which the learned trial Court has recorded
in affirmative by taking into consideration the oral and documentary evidence
available on record and particularly considering the postmortem reports
(Ex.P/10 & P/11), wherein it has been opined that cause of death of
deceased- Ramdev Rathiya and Kamla Rathiya is due to hemorrhage and
shock, as a result of multiple injuries and nature of death is homicidal in
nature and the statement of Dr. S.N. Keshari (PW-06), who has conducted
the postmortem of the dead-bodies of the deceased. Accordingly, taking into
consideration the postmortem reports (Ex.P/10 & P/11) and the statement of
Dr. S.N. Keshari (PW-06), we are of the considered opinion that the learned
trial Court is absolutely justified in holding that the death of deceased-
Ramdev Rathiya and Kamla Rathiya is homicidal in nature, as the same is
correct finding of fact based on evidence and same is neither perverse nor
contrary to the record. Accordingly, we hereby affirmed the said finding.
(10) Now the next question would be whether the learned trial Court is
justified in holding that the accused-appellants herein is the perpetrator of the
crime in question ?
(11) In the instant case, in order to prove existence of previous enmity
between the appellant No.01 and deceased- Ramdev Rathiya, the
prosecution has exhibited relevant pages of crime register as Ex.P/34, which
shows that in the year 2011 on the report so lodged by deceased- Kamla
offence under Section 294, 506, 452, 323, 34 of IPC were registered against
accused-appellant No.01 and his son. Apart from that oral evidence of
Bhikhyamati Rathiya (PW-10) and Vishwanath Rathiya (PW-04), mother and
brother of deceased- Kamla Rathiya, were brought on record by the
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prosecution to prove motive for commission of offence against the accused-
appellants. After conjoint reading of document (Ex.P/34) with the statements
of Bhikhyamati Rathiya (PW-10) and Vishwanath Rathiya (PW-04), the
learned trial Court found proved that there was motive for commission of
offence in question by the appellants, as there was previous dispute/enmity
between the appellant No.01 and deceased- Ramdev Rathiya with regards to
payment of compensation money against land acquisition. It is well settled
law that previous enmity is a doubled edged sword, it can be used for false
implication as well as for correct implication. Even otherwise, it is one of the
incriminating circumstances for a case based on circumstantial evidence.
(12) The Supreme Court in the matter of Sharad Birdhichand Sarda vs.
State of Maharashtra2, lays down five golden principles to constitute the
panchsheel of the proof of a case based on circumstantial evidence and held
in para-153 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 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 & Anr. v. State of Maharashtra 3 where the following
observations were made:
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,
2 (1984) 4 SCC 116
3 (1973) 2 SCC 793
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(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."
(13) Now the next circumstance that has been pleaded on behalf of the
prosecution is that seizure of two 'lathis' pursuant to memorandum
statements of accused-appellants. Admittedly, though in the query report
(Ex.P/12) it has been opined that injuries caused to the deceased, as
mentioned in postmortem report, can be caused by said 'lathi', but in the FSL
report it has been clearly stated that no blood stains were found on the said
two 'lathis'.
(14) The Supreme Court in the matter of Balwan Singh vs. State of
Chhattisgarh and another4 held 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
proseuction 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 and held in Para-24 as under:
"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."
(15) Further, seizure witnesses in the instant case, namely, Beerbal Rathiya
(PW-07) and Mukutram (PW-11), before whom 'lathis' were seized, have
4 (2019) 7 SCC 781
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turned hostile and they have not supported the case of the prosecution. Even
if recovery of 'lathis' is held to be proved beyond reasonable doubt on the
basis of statement of Investigating Officer, namely, Keshav Narayan Aditya
(PW-12), but vide FSL report no blood has been found on the said two 'lathis'
recovered pursuant to memorandum statements of accused-appellants and,
as such, recovery of 'lathis' pursuant to memorandum statements of
accused-appellants is of no help to the prosecution and no other
incriminating circumstance has been found proved by the prosecution or by
the learned trial Court. Thus, the prosecution has only been able to prove
strong motive for commission of offence against the accused-appellants.
(16) It is well settled law that motive may be an important circumstance in a
case based on circumstantial evidence, but it cannot take place of conclusive
proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri 5). In a
recent decision rendered in the matter of Mahendra Singh vs. State of M.P.6
their Lordships of Supreme Court reiterated the law on the point stating that
merely because motive is established, solely on that basis accused cannot
be convicted under Section 302 of IPC.
(17) In view of foregoing analysis, in our considered opinion since
prosecution has only be able to prove motive against the accused-appellants
for commission of offence in question, but rest of the circumstances have not
found proved beyond reasonable doubt and as held by their Lordships of
Supreme Court in above mentioned decisions, we are unable to uphold the
impugned judgment of conviction and order of sentence passed by the
learned trial Court in convincing the appellants for offence under Sections
302 & 201 of IPC.
5 (2012) 4 SCC 124
6 (2022) 7 SCC 157
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(18) Accordingly, the conviction of the appellants for offence punishable
under Sections 302 & 201 of IPC as well as the sentence imposed upon
them by the learned trial Court is hereby set aside. They are acquitted from
the charges under Section 302 & 201 of IPC and they be released from jail
forthwith if their detention is not required in any other matter/case.
(19) This criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
[email protected]
