Ramesh Halba vs State Of C.G
2022 Latest Caselaw 7009 Chatt

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                                                                AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 676 of 2012

    Ramesh Halba, S/o Chamra Ram Halba, Aged About 25
     Years, R/o Village Kahgaon, Telitola, Thana Manpur,
     District- Rajnandgaon, Chhattisgarh.   ---- Appellant

                                Versus

    State of C.G., S/o Through - P.S. Manpur , District
     Rajnandgaon, Chhattisgarh.                    ---- Respondent


    For Appellant        : Shri Ashutosh Trivedi, Advocate
    For Respondent/State : Shri Avinash Singh, Panel Lawyer


            Hon'ble Shri Justice Sanjay K. Agrawal
          Hon'ble Shri Justice Rakesh Mohan Pandey
                      Judgment on Board
                           22/11/2022

Sanjay K. Agrawal, J.

1) This Criminal Appeal under Section 374 (2) of the CrPC is

directed against the impugned judgment of conviction and

order of sentence dated 13.07.2012 delivered by learned

Sessions Judge, Rajnandgaon, District- Rajnandgaon (C.G.)

in Sessions Trial No. 63/2011 whereby the

appellant/accused has been convicted for the offence

punishable under Section 302 of the IPC and sentenced to

life imprisonment and fine of Rs.5,000/-, in default of

payment of fine, additional R.I. for one year.

2) Case of the prosecution, in brief, is that between 28.03.2011

to 31.03.2011 at village Kahgaon, the appellant strangulated

deceased Ku. Kuleshwari Bai and caused her death thereby

he committed offence punishable under Section 302 of IPC.

Further case of the prosecution is that on the date of

offence, deceased Ku. Kuleshwari Bai, aged about 16

years, was staying with her mother Sulochani Bai (PW/1)

and father Sujani Ram (PW/2). On 28.03.2011, at night,

she went outside the house to answer the call of nature all

alone but could not reach home in time and then Sulochani

Bai (PW/1) having not noticed her, started tracing around

but could not trace her. At that time, the deceased was

already engaged with Gajendra Singh (PW/13) and her

father had went to other village to invite the guests for their

marriage. On the next day, Sujani Ram (PW/2) father of the

deceased, reached back to the village and started searching

the deceased and ultimately her dead body was recovered

on 31.03.2011 under the sand of Kotri River where some

parts of the body were visible and accordingly, mother of the

deceased, Sulochani Bai (PW/1) informed the police vide

Ex.P/1. Thereafter, A.S.I. B.L. Nagvanshi (PW/11) on

01.04.2011 reached to the spot and conducted panchnama

in presence Panchas vide Ex.P/2-A and the dead body of

the deceased was in decomposed condition. Pursuant to the

Panchas recommendation, the dead body was sent for

postmortem to the Bhimrao Ambedkar Hospital, Raipur,

where postmortem was conducted by Dr. R. K. Singh

(PW/14) and he prepared postmortem report (Ex.P/25), in

which cause of death could not be ascertained on account

of decomposed condition of the body, however, the doctor

noticed ligature mark on the neck and injuries near ears of

the deceased.

3) It is also the case of the prosecution that during merg, it was

revealed that the appellant, who was neighbour of the

deceased, had illicit relationship with the deceased though

she was engaged with Gajendra Singh (PW/13) and the

appellant had threatened Gajendra Singh (PW/13) and his

family members not to marry deceased Ku. Kuleshwari Bai

on which, village meeting was convened, in which the

appellant is said to have admitted his mistake and promised

not to repeat such act in future and executed Ex.P/3.

Thereafter, the First Information Report (Ex.P/1-A) was

registered against the appellant, he was taken into custody

and during interrogation his memorandum statement was

recorded vide Ex.P/6. Pursuant to his memorandum

statement, from the spot, Article-C (Plastic Box) and

appellant's shirt in which blood like stains were recovered

vide Ex.P/10 and two broken buttons were recovered on the

way to the spot, vide Ex.P/11. Investigating Officer obtained

certificate vide Ex.P/17 from the tailor namely, Sanat Kumar

(PW/10) who said that the seized buttons are similar to the

shirt of the appellant which was seized. Thereafter, all the

seized articles were sent for chemical analysis and the

F.S.L. report has been filed as Ex.P/24, in which blood was

found on Articles-C1, C2, C4, D and E. However, in the

viscera preserved, no poison was found on Articles-A, B and

C vide Ex.P/23.

4) After due investigation, the appellant/accused was charge-

sheeted before the jurisdictional criminal Court and it was

committed to the trial Court for hearing and disposal in

accordance with law, in which appellant/accused abjured his

guilt and entered into defence by stating that he has not

committed the offence. However, one document was

marked as Ex.D/1.

5) In order to bring home the offence, prosecution examined

14 witnesses and brought into record 25 documents

including Art-A/1 and Art-A/2 which are the photographs.

6) The trial Court, after appreciating oral and documentary

evidence on record, convicted the appellant/accused and

awarded sentence as mentioned herein-above against

which this appeal has been preferred by him questioning the

impugned judgment of conviction and order of sentence.

7) Shri Ashutosh Trivedi, learned counsel for the

appellant/accused, would submit that the trial Court is

absolutely unjustified in convicting the appellant on the

basis of conclusion drawn in para-22 of its judgment holding

the circumstances found proved and the circumstances

which are said to be found proved are not made out, thus

the prosecution failed to prove the case beyond all

reasonable doubt and on such finding, conviction recorded

by the trial Court is liable to be set-aside.

8) Shri Avinash Singh, learned State counsel, would support

the impugned judgment of conviction and submit that the

trial Court has rightly concluded the circumstances against

the appellant in para-22 and rightly proceeded in convicting

the appellant for the aforesaid offence. Therefore, the

appeal deserves to be dismissed.

9) We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went through

the records with utmost circumspection.

10) The first question for consideration would be, whether the

death of the deceased- Ku. Kuleshwari Bai was homicidal in

nature? Dr. R.K. Singh, in his postmortem report (Ex. P/25)

could not conclude the cause of death and left it open to be

considered by the trial Court, but the trial Court taking into

consideration the postmortem report (Ex.P/25), proved by Dr.

R. K. Singh (PW/14), rightly came to the conclusion that the

death of the deceased- Ku. Kuleshwari Bai was homicidal in

nature, which is a correct finding of fact based on evidence

available on record, which is neither perverse nor contrary to

the record and we affirm the said findings.

11) Now, the next question would be whether the appellant is

perpetrator of the crime. The trial Court has relied upon the

circumstances that have been mentioned in paragraph No.22

of the impugned judgment which read as under:

"vfHk;kstu }kjk izLrqr lk{; ls fuEu ifjfLFkfr;ka lansg ls ijs izekf.kr gksrh gS%& (A) vkjksih ds e`rdk dqys'ojh ls izse&laca/k FksA (B)vkjksih }kjk e`rdk dqys'ojh dh lxkbZ gkus ij mlds eaxsrj xtsUnz (v-lk-13) dks /kedh nh x;h Fkh rFkk dqys'ojh ls fookg djus ls euk fd;k x;k FkkA (C)e`rdk ds firk }kjk mDr ckrksa dks ysdj vkjksih dks tgj nsus dh ckr dh x;h Fkh] ftlls vkjksih {kqC/k FkkA (D) vkjksih }kjk crk;s x;s ?kVuk LFky ls tIr feV~Vh esa jDr ik;k x;k Fkk rFkk mDr ?kVuk LFky ds ikl e`rdk dqys'ojh dk IykfLVd dk fMCck feyk FkkA (E)?kVuk ds ckn vkjksih ls mldk 'kVZ tIr fd;k x;k Fkk rFkk mlds nks cVu VwVs gksuk ik;s x;s Fks tks vkjksih }kjk crk;s x;s jkLrs esa feys FksA mDr cVu e`rdk dqys'ojh dks mBkdj ys tkus esa VwV ldrs FksA (F)vkjksih ls tIr mDr 'kVZ ij jDr ik;k x;k FkkA (G)vkjksih ds xys esa iqjkus [kjksap ds fu'kku ik;s x;s Fks tks ?kVuk ds le; dkfjr gks ldrs FksA"

12) We deal with all incriminating circumstances of the trial

Court one by one.

13) With regard to the circumstance No.(A), the appellant had

love affair with deceased Ku. Kuleshwari Bai. In order to

prove the said fact, the prosecution examined mother and

father of the deceased Sulochani Bai (PW/1) & Sujani Ram

(PW/2). PW/1-Sulochani Bai in her cross-examination

particularly in para-7 has clearly stated that the deceased and

the appellant had no love affair between them. Similarly PW/2

Sujani Ram, also clearly stated that he has no information

about the relationship of the appellant & the deceased and he

heard nothing about the same. In para-6 he refuted that

deceased and the appellant had any such love affair. As

such, the said circumstance proved by the trial Court runs

contrary to the oral evidence of the father and mother of the

deceased available on record.

14) The next two circumstances No. B & C are that the

appellant threatened Gajendra Singh (PW/13) after his

engagement with the deceased and also told him not to marry

the deceased and over this matter, father of the deceased

has tried to give poison to the appellant by which the

appellant was aggrieved. A careful perusal of the statement of

Sujani Ram (PW/2), father of the deceased, clearly shows in

para-6 that they never tried to kill the appellant by

administering poison. Similarly, PW/13 Gajendra Singh with

whom the deceased was supposed to marry, explains the

facts stating that though the appellant was in drunken

condition, he asked him not to marry the deceased, otherwise

he will kill him. He further stated that he narrated the

deceased about the same thereafter, one social meeting was

convened where the appellant sought for apology on the

ground that on the particular date, he was in drunken

condition and furthermore, no such report was lodged neither

by Gajendra Singh (PW/13) nor by father of the deceased

Sujani Ram (PW/2) for the said threatening allegedly given by

the appellant to Gajendra Singh (PW/13). The question of

giving poison is also not established, as such, in these

circumstances, circumstances No. B & C are also not

established.

15) So far as circumstances No. D and F are concerned, the

question of presence of blood on seized soil sample from the

spot and from the shirt of the appellant has no relevance as it

is not established to be the human blood and even neither

origin of the blood or blood group is established, therefore,

mere seizure of shirt with stained blood would not take the

prosecution case any further, particularly to prove the guilt of

appellant/accused.

16) The next circumstance that has been heavily relied upon by

the trial Court is circumstance No.E that shirt was recovered

from the possession of the appellant pursuant to his

memorandum statement and in which two buttons were

broken and the broken buttons were found on the way

indicated by the appellant and that has been broken while the

deceased was being taken by the appellant. In this regard,

two broken buttons recovered on the instance of the appellant

in an open place were shown to the Tailor- Sanat Kumar (PW/

10) and he has stated in his certificate (Ex.P/17) that two

seized buttons shown to him which were said to have been

seized from the seized shirt of the appellant, are similar, but in

his cross-examination he has clearly admitted that he has not

stitched the shirt with the button, which was shown to him by

the police and further he said that usually the tailor brought

one box of buttons, which contains 60-70 buttons. At this

stage, it is appropriate to notice the decision of the Supreme

Court in the matter of Digamber Vaishnav and Anr. Vs.

State of Chhattisgarh1 with reference to recovery of buttons

and held at para-37 as under:-

"37.The shirt of appellant No.2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act is allegedly matched with the small broken button found at the scene of crime. This has been relied upon by the Courts below as another circumstances to corroborate the presence of the appellants at the scene of crime. However, there is nothing on record to show that the shirt is unique and cannot be matched with the shirt of any other person. PW/13 has admitted in his testimony that shirts of the same kind are easily available in the market. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the 'appellants' shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper."

17) Reverting to the facts of the present case in the light of the

this observation made by their Lordships of the Supreme

Court in Digamber Vaishnav (supra), it is quite vivid that in

the instant case, the prosecution has not shown that shirt

recovered from the possession of the appellant herein is a

unique and cannot be matched with the shirt of any other

person. The buttons which have been recovered at the

instance of the appellant from his shirt are not shown that it

cannot be easily available in the market, therefore, it is not

established by the prosecution that the buttons in question

1 (2019) 4 SCC 522

are any way unique to the appellant's shirt to the exclusion

of everyone else. Thus, recovery of buttons and

resemblance of the appellant's shirt button and thereby

holding one of such circumstances against the appellant

are wholly illegal.

18) Last circumstance No.G, that has been pointed out by the

trial Court is that on the neck of the appellant there was some

abrasion and the same could have been caused at the time of

incident. This lead to assumption, without going through the

other evidence by the trial Court which cannot be held to be

incriminating circumstance. The abrasion mark can be caused

in the body of person for various reasons and it cannot be

connected to the offence in question.

19) In sum and substance, none of the circumstances, which have

been held by the trial Court to be conclusive in pointing out the

guilt of the accused are proved beyond reasonable doubt.

Furthermore, the incident took place on 28.03.2011 and the dead

body was recovered on 31.03.2011, memorandum statement of

the appellant was recorded on 03.04.2011 and police recovered

shirt from the accused which was wore by the appellant at that

time on 03.04.2011. It is completely unbelievable that after

committing murder, the accused remained wearing same shirt for

4-5 days so that police can recover shirt for matching the button

recovered from the spot, which makes the case of the

prosecution quite suspicious. Therefore, the trial Court is

absolutely unjustified in convicting the appellant under Section

302 of IPC. As such, we are unable to convince ourselves to

affirm the impugned judgment and we have no option except

to set-aside the judgment of conviction and order of sentence

dated 13.07.2012.

20) Accordingly, the impugned judgment of conviction recorded

and sentence awarded dated 13.07.2012 is hereby set-aside.

The appellant is acquitted of the charge under Section 302 of

IPC. Since he is already on bail, his bail bonds shall remain in

operation for a period of six months in view of provision

contained in Section 437-A of CrPC.

21) The instant criminal appeal is allowed to the extent indicated

herein-above.

        Sd/-                                    Sd/-
(Sanjay K. Agrawal)                     (Rakesh Mohan Pandey)
      Judge                                    Judge




Nadim