Chattisgarh High Court
Bhikhan Deo Dwivedi vs State Of Chhattisgarh on 14 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 549 of 2012
• Bhikham Deo Dwivedi, son of Jhumuk Lal Dwivedi, aged about 50
years, resident of village Gatapar, Police Station Palari, District Raipur
(now Baloda Bazar/Bhatapara) (CG)
---- Appellant
Versus
• State Of Chhattisgarh Through The Station House Officer, Police
Station Palari, District Raipur (now Baloda Bazar/Bhatapara) CG
---- Respondent
For Appellant : Shri Satya Prakash Verma, Advocate.
For Respondent : Shri Anmol Sharma, Panel Lawyer.
Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Shri Deepak Kumar Tiwari, JJ
Judgment On Board
(14/10/2022)
Sanjay K. Agrawal, J
1. This Criminal Appeal preferred by the accuse/appellant under Section
374(2) of the CrPC is directed against the impugned judgment of
conviction and sentence dated 30.6.2012 passed by the 1st Additional
Sessions Judge, Balodabazar, District Balodabazart in ST No.145/2011
by which the appellant has been convicted for offence under Section
302 of the IPC and sentenced to undergo RI for life and to pay a fine of
Rs.500/-, in default of payment of fine to further undergo RI for 3
months. However, the appellant has been acquitted of the charge under
Sections 392 and 449 of the IPC.
2. Case of the prosecution, in brief, is that in the intervening night of 19 th /
20th January, 2011, at village Gatapar, the appellant trespassed the house
of deceased Chandrika Bai and robbed silver anklet (Lachcha), golden
chain etc. owned by the deceased and committed her murder. Further
case of the prosecution is that the deceased was the wife of (PW-5)
Janakram, mother of Ghanshyam (PW-10) & Uttara Bai (PW-13).
Ramayan Verma (PW-2) is the brother of deceased Chandrika. The
relations between Janakram and deceased Chandrika Bai were not
cordial, as Janakram was suspecting her character. It was alleged that
the appellant and the deceased were having illicit relations and because
of which the appellant had divorced his wife in a social meeting held at
village Pausari and deceased Chandrika was living separately from her
husband on the embankment of the tank by constructing a hut. The
deceased used to visit the house of the appellant herein, but thereafter
the deceased started pressurizing the appellant to keep her as his wife.
On 19.1.2011, when the deceased came to the house of the appellant,
the appellant committed her murder by strangulating the deceased and
thrown the dead body in the courtyard of the house of the deceased.
The silver and golden ornaments worn by the deceased were also
thrown in the tank by the appellant. One piece of slipper (Chappal)
belonging to the deceased was thrown in the field near the tank,
whereas the other piece of the slipper was thrown near the house of
Bharat Verma, which was an open place. Steel bucket owned by the
deceased was also kept by the appellant in his house after scratching the
name of the deceased which was imprinted on the bucket. Pursuant to
Dehati Nalishi (Ex.-P/5) and merg intimation by the brother of the
deceased (PW-2) Ramayan Verma, the FIR was registered. Thereafter
inquest was conducted vide Ex.-P/2. The spot map was also prepared.
The dead body of the deceased was sent for postmortem examination
which was conducted by Dr. BS Dhruw (PW-6) and he gave his report
Ex.-P/12 opining that the cause of death is strangulation of neck and the
mode of death is asphyxia and the death is homicidal in nature.
3. Pursuant to the memorandum statement of the appellant, one set of
ladies footwear and one bucket was seized vide Ex.-P/14 to P/16. After
due investigation, the appellant was prosecuted for the aforesaid
offences.
4. In order to bring home the charge, the prosecution examined as many as
16 witnesses and exhibited 21 documents.
5. The learned trial Court after appreciating the oral and documentary
evidence available on record convicted and sentenced the appellant as
mentioned above against which this Appeal has been preferred by the
appellant. However, the appellant was acquitted of the charges under
Sections 392 and 449 of the IPC.
6. Learned counsel for the appellant would submit that (1) there is
absolutely absence of motive and only on account of the fact that the
appellant was having illicit relations with the deceased, the appellant
cannot be convicted under Section 302 of the IPC. (2) only on the basis
that ladies footwear of the deceased which has been seized from the
open place, as per the evidence of (PW-16) Hemlal Verma, the
appellant cannot be connected with the crime in question, though the
said footwear is alleged to have been identified during identification
proceeding, as the footwear and the steel bucket are the articles, which
are ordinarily and commonly available in every house in the villages
and, therefore, conviction under Section 302 of the IPC cannot be
sustained, and (3) lastly, recovery of footwear was effected from the
field which is an open place and near the house of Samaru and,
therefore, conviction of the appellant on that basis is illegal and bad in
law, whereas the identification proceedings of the footwear and the
bucket were conducted by PW-14 and the articles have been identified
by Ghanshyam Verma in the presence of Ramayan Verma and
Bhuvneshwar Minj. As such, conviction imposed on the appellant
under Section 302 of the IPC deserves to be set aside.
7. Per contra, learned State Counsel would support the impugned
judgment of conviction and submit that the trial Court is absolutely
justified in convicting the appellant for offence under Section 302 of the
IPC and the Appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival
submissions and have gone through the records with utmost
circumspection.
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 relying on the postmortem report of Ex.-P/12
which is proved by (PW-6) Dr. B.S. Dhruv, stating that the death was
homicidal in nature, and we do not find any illegality in the said
finding, as the same is neither perverse nor contrary to the record.
10.Now the next question would be whether the accused/appellant herein is
the author of the crime in question, which has been recorded in
affirmative by the learned trial Court relying on the following
incriminating circumstances :-
• the appellant had illicit relationship with deceased Chandrika Bai and
the appellant used to visit the house of the deceased which has been
proved by (PW-10) Ghanshyam, son of the deceased as well as by PW-
5 Janak Ram and PW-13 Uttara Bai.
• Pursuant to the memorandum statement of the appellant (Ex.-P/13), one
set of ladies slippers and bucket possessed by deceased have been
recovered from the appellant vide Ex.-P/14 to P/16.
• Bucket and the footwear have been identified during the identification
proceedings conducted by PW-14 to be belonging to the deceased.
11.We shall consider the aforesaid incriminating circumstances found
proved by the trial Court one by one to find out whether the learned trial
Court is justified in convicting the appellant for the offence under
Section 302 of the IPC.
12.As regards the first circumstance, the same has been proved by the
learned trial Court in para-34 of the judgment with regard to motive that
the appellant had illicit relations with the deceased and, therefore, there
was strong motive on the part of the appellant to commit the offence. It
is settled law that in a case based on circumstantial evidence, the
circumstances cannot take the place of conclusive proof. In the matter
of Sampath Kumar Vs. Inspector of Police, Krishnagiri {(2012) 4
SCC 124} motive has been held to be established by the trial Court
fully on the basis of the fact that the deceased and the appellant had
some relations. Ultimately, the Hon'ble Supreme Court observed that
the presence of motive in the facts and circumstances of the case creates
a strong suspicion against the appellant but suspicion, howsoever
strong, also cannot be a substitute for proof of the guilt of the accused
beyond reasonable doubt.
13.As regards the next circumstance recorded by the trial Court, pursuant
to the memorandum statement of the appellant, one steel bucket has
been recovered from the house of the appellant and the same has been
identified during the identification proceeding which was conducted by
PW-14 Gautam Pradhan, vide his report Ex.-P/10. It is common
knowledge that the steel bucket is commonly available in the market
and is used by every villager. Merely because one steel bucket has been
seized, the appellant cannot be connected with the crime in question on
the basis of alleged recovery of steel bucket, which is ordinarily
available in the market and used by the villagers. {See : Bharat Vs.
State of MP [(2003) 3 SCC 106}.
14.As regards the last circumstance, one set of ladies footwear which has
been recovered pursuant to the memorandum statement of the appellant
has also been made basis for his conviction. Careful perusal of the
memorandum statement (Ex.-P/13) would show that the appellant has
made a statement that the one piece of footwear of the deceased was
thrown into the field near the tank and the other piece of the footwear
was thrown near the house of Bharat Verma, however, witness to the
said memorandum namely, Pramod Kumar (PW-11) has been declared
hostile and he has not supported the case of the prosecution. Hemlal
Verma (PW-16), other witness of memorandum, has also not supported
the case of the prosecution.
15.Ramayan Verma (PW-2), brother of deceased Chandrika, has stated in
para-9 that the bucket and the footwear were kept in Aanganbadi Centre
whereas as per the memorandum statement of the appellant, the
footwear were seized from the open place where the footwear is said to
be thrown in the field near the tank and near the house of Bharat Verma.
Since the footwear are alleged to have been seized pursuant to the
memorandum statement of the appellant, it cannot be said to be
recovered from the place which is in possession of the appellant. In that
view of the matter, recovery of footwear of the deceased has not been
established and even otherwise, alleged recovery of footwear would not
connect the appellant with the crime in question. Furthermore, the
footwear are common articles and are available in the market and used
by the villagers, which are said to have been identified by Ramayan
Verma (PW-2), brother of deceased Chandrika.
16.No other circumstance has been relied upon by the prosecution to
connect the appellant with the crime in question.
17.In that view of the matter, we are unable to affirm the conviction of the
appellant under Section 302 of the IPC.
18.In the result, the appeal is allowed. Conviction and sentence imposed
on the appellant under Section 302 of the IPC are set aside and he is
acquitted of the said charge. The appellant is on bail. He need not
surrender. The bail bonds furnished by the appellant shall remain in
operation for a period of 6 months from today in view of the provisions
contained under Section 437-A of the CrPC.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Barve
