Chattisgarh High Court
Netu Das vs State Of Chhattisgarh on 6 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 734 of 2012
Netu Das S/o Balidas Manikpuri, Aged about 36
years, R/o Village Ranveerpur, Police Station
Sahashpur Lohara, Distt. Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through District Magistrate
Kawardha, Distt. Kabirdham, Chhattisgarh.
Respondent
For Appellant : Mrs. Indira Tripathi, Advocate
For State : Mr. Afroz Khan, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
06/09/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
has been preferred by the appellant against
impugned judgment dated 14/08/2012 passed in
Sessions Trial No. 76/2011 whereby learned Sessions
Judge, Kabirdham (Kawardha) has convicted him for
offence punishable under Section 302 of IPC and
sentenced to undergo life imprisonment with fine of
Rs. 1000/ and in default of payment of fine,
further R.I. for 6 months.
2. Case of the prosecution, in brief, is that on
12/09/2011 at Village Ranveerpur, the appellant
herein committed murder of his wife Gayabai by
inflicting injury on her neck with a pharsa and
thereby, committed the aforesaid offence.
3. Further case of the prosecution is that on
13/09/2011 at about 04:30 AM, the appellant himself
appeared at Police Station Sahaspur Lohara and
informed that he doubted that his wife Gayabai was
having illicit relations with one Gulab Sen of
their village and on that account, on 12/09/2011 at
about 10:30 PM, he woke up his wife from sleep and
took her outside on the pretext of visting Sheetla
temple. When they reached the tamarind tree near
the field of Jawahar Tiwari, the appellant took out
pharsa, which he had already hidden behind the
tamarind tree, and inflicted a blow on her neck
from behind due to which his wife Gayabai fell on
the ground. Thereafter, he inflicted 34 blows on
her neck and caused her death and after leaving
Gayabai under the tamarind tree, he went to the
Police Station.
4. On the basis of the said information, Roznamcha
Sanha No. 48 was recorded by the Police vide Ex.
P/16C and along with the appellant/accused, the
Police officers reached the spot and informed about
the same to the senior officers and recorded the
same in Roznamcha Sanha No. 49 vide Ex. P/17C.
After reaching the spot, in the presence of the
Panchas, bayan panchnama was prepared vide Ex. P/1
and they found the dead body of Gayabai lying below
the tamarind tree. There were injuries on her neck
and blood was oozing out. Thereafter, dehati merg
was registered vide Ex. P/18 and dehati nalishi was
registered vide Ex. P/19. After issuing the summons
to the witnesses, inquest was conducted vide Ex.
P/3 and the dead body of Gayabai was sent for
postmortem which was conducted by Dr. Sanjay
Kharshan (P.W.5) and the postmortem report has
been filed as Ex. P/13 in which cause of death is
said to be shock due to excessive loss of blood and
nature of death is said to be homicidal. From the
spot, plain soil as well as blood stained soil was
seized vide Ex. P/5. After taking the
appellant/accused into custody, his memorandum
staetment was recorded vide Ex. P/6 and on that
basis, recovery of blood stained pharsa was made
vide Ex. P/7. The tshrit and gamcha worn by the
appellant/accused was also seized vide Ex. P/8 and
these seized articles were sent for chemical
examination. The FSL report has been filed as Ex.
24 in which blood was found on blood stained soil
(Article A), pharsa (Article C) and tshirt
(Article D) worn by the appellant/accused. The said
articles were also sent to the Serologist but no
report has been brought on record. After recording
the statements of the witnesses and after due
investigation, the appellant/accused was charge
sheeted for offences punishable under Section 302
of IPC which was committed to the Court of Session
for hearing and disposal in accordance with law.
The appellant/accused abjured his guilt and entered
into defence.
5. In order to bring home the offence, prosecution
examined 10 witnesses and brought into record 24
documents. Statement of the appellant/accused was
recorded wherein he denied guilt, however, examined
none in his defence.
6. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict the appellant/accused for offence
punishable under Section 302 of IPC and sentenced
him as aforesaid.
7. Mrs. Indira Tripathi, learned counsel for the
appellant, would submit that appellant/accused has
been convicted for offence punishable under Section
302 of IPC on the basis of roznamcha sanha (Ex.
P/16C) which is inadmissible in evidence in light
of the decision rendered by the Supreme Court in
the matter of Aghnoo Nagesia v. State of Bihar1. She
would further submit that memorandum statement (Ex.
P/6) as well as seizure of pharsa vide Ex. P/7 has
also not been duly proved as both the memorandum and
seizure witnesses namely Mohan Singh (P.W.1),
Devnath Yadav (P.W.2) and Netram (P.W.3) have
turned hostile. Furthermore, she would submit that
trial Court has also relied upon the FSL report (Ex.
P/24) in which blood is said to have been found on
pharsa (Article C) and tshirt of the
appellant/accused (Article D), but though blood has
been found on the said articles but neither the
origin of blood could be ascertained nor the blood
group. As such, the instant appellant be allowed and
the appellant be acquitted of the charge under
Section 302 of IPC levelled against him.
8. Per Contra, Mr. Afroz Khan, learned State counsel,
would submit that prosecution has brought ample
evidence on record to connect the appellant/accused
with the crime in question and thus, he has rightly
been convicted by the trial Court for the offence
punishable under Section 302 of IPC, therefore, the
instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties,
considered their rival submissions made herein
1AIR 1966 SC 119
above and went through the records with utmost
circumspection.
10. The first question that requires consideration is
whether the death of deceased Gayabai is homicidal
in nature ?
11. Learned trial Court has recorded an affirmative
finding in this regard relying upon the medical
opinion of Dr. Sanjay Kharshan (P.W.5) who has
conducted postmortem of deceased Gayabai and has
submitted in the postmortem report (Ex. P/13) that
cause of death is shock due to excessive blood loss
and the death is homicidal in nature. Taking
consideration of the entire evidence available on
record as well as looking to the injuries sustained
by the deceased on her neck which is a vital part
of the body and relying upon the medical opinion of
Dr. Sanjay Kharshan (P.W.5) as well as postmortem
report (Ex. P/13), we are of the considered opinion
that learned trial Court has rightly held the death
of deceased Gayabai to be homicidal in nature. As
such, we hereby affirm the said finding recorded by
the trial Court that the death of deceased Gayabai
is homicidal in nature.
12. The next question for consideration is, whether the
appellant is the perpetrator of the crime in
question ?
13. There is no eyewitness to the incident and learned
trial Court, finding the following five
circumstantial evidences proved, proceeded to
convict the appellant/accused for offence
punishable under Section 302 of IPC, which state as
under :
i) घटनन कक ततररत बनद सवकरक 04:30 बजक अभभयतक दनरन पतभलस
थननन सहसपतर ललहनरन मम उपभसथत हलनन एवर उसकक पतत कक
घनयल अवसथन मम खकत मम इमलत झनड़ कक नतचक पनयक जननक कक
समबनध मम ससचनन ददयन जननन, जल कक धनरन 8 सनकय अभधभनयम
कक अरतररत पशनतवरर आचरर कक रप मम पकरर मम सतसररत हह।
ii) अभभयतक कक ससचनन पर खकत मम अभभयतक कक पतत कक लनश
कन पनयन जननन।
iii) अभभयतक कक मकमलरमडम ससचनन कक आधनर पर घटनन मम पयतक
फरसन अभभयतक कक पकश करनक पर जप दकयन जननन, भजसमम रक
कन पनयन जननन एवर उक फरसक सक ममतकन कक ममतयत हल जननक कक
समबनध मम भचदकतसक डड सरजय दनरन अपनन मत ददयन जननन।
iv) अभभयतक कक शटर मम रक कन पनयन जननन।
v) अभभयतक कक पतत कन रनत मम घर मम हलनक कक उपरनरत, दतसरक
ददन सबकरक उसकक लनश खकत मम पनयक जननक कक समबनध मम अभभयतक
दनरन कलई भत सरतलषपद सपषतकरर नहह ददयन जननन।
14. The aforesaid five circumstances have been assailed
on behalf of the appellant/accused stating that no
such circumstance has been proved in accordance with
law and therefore, the trial Court has erred in
convicting the appellant/accused for offence in
question. We shall now consider each of the
circumstances one by one.
15. The first circumstantial evidence that has been
relied upon by the prosecution is that on 13/09/2011
at about 04:30 AM, the appellant himself appeared at
the Police Station and informed that he has committed
murder of his wife Gayabai and her body is lying
under the tamarind tree near the field of Jawahar
Prasad, which was entered into the Roznamcha Sanha
(Ex. P/16C) and pursuant thereof, the dead body of
Gayabai was indeed recovered by the Police from the
said spot which would come within subsequent conduct
under Section 8 of the Evidence Act.
16. In the matter of Aghnoo Nagesia (supra), Their
Lordships of the Supreme Court have held that, where
the accused himself gives the first information, the
fact of his giving the information is admissible
against him as evidence of his conduct under Section
8 of the Evidence Act. If the information is a non
confessional statement, it is admissible against the
accused as an admission under Section 21 of the
Evidence Act and is relevant. But a confessional
first information report by the accused to a police
officer cannot be used against him in view of Section
25 of the Evidence Act.
17. Thus, in view of the aforesaid principle of law laid
down by Their Lordships of the Supreme Court in
Aghnoo Nagesia (supra), the appellant/accused himself
appeared at the Police Station and informed about
committing the murder of his wife Gayabai. Thus, the
first information given by the appellant/accused
herein, being confessional in nature, would be
inadmissible in evidence in view of Section 25 of the
Evidence Act and the trial Court has erred in relying
upon roznamcha sanha (Ex. P/16C) to convict the
appellant/accused for the aforesaid offence.
18. The second circumstantial evidence that has been
found proved by the trial Court is recovery of dead
body of Gayabai from the spot informed by the
appellant/accused. True it is, that pursuant to the
information given by the appellant/accused, when the
police officers reached the spot, the dead body of
Gayabai was found lying under the tamarind tree near
the field of Jawahar Tiwari which has also been
recorded in dehati merg (Ex. P/18) and dehati nalisi
(Ex. P/19).
19. The third circumstantial evidence that has been found
proved by the trial Court is that pursuant to
memorandum statement of the appellant/accused under
Section 27 of the Evidence Act vide Ex. P/6, recovery
of bloodstained pharsa was made.
20. Learned counsel for the appellant has relied upon the
statements of Mohan Singh (P.W.1) and Devnath Yadav
(P.W.2), who are memorandum and seizure witnesses. A
careful perusal of statement of Mohan Singh (P.W.1)
would show that he has turned hostile and has not
supported the case of the prosecution. In his cross
examination, he has clearly stated in paragraph 6
that all the proceedings were done by the Police at
the Police Station and no seizure has been made from
the appellant/accused in his presence. Similarly,
Devnath Yadav (P.W.2) has also not supported the
case of the prosecution.
21. Moreover, though the pharsa, said to have been seized
from the appellant/accused vide Ex. P/7 pursuant to
his memorandum statement (Ex. P/6), was sent for
chemical examination in which blood was found as per
FSL report (Ex. P/24), but neither the origin of the
blood could be ascertained nor the blood group and
though the said article was sent to the Serologist
for examination but no such report has been brought
on record. The next incriminating circumstance that
the trial Court found proved is that, after seizure
of the tshirt worn by the appellant/accused vide Ex.
P/8, it was sent for chemical examination and as per
FSL report (Ex. P/24), though blood was found on it,
but again, the origin of blood as well as its blood
group could not be ascertained.
22. In the matter of Balwan Singh v. State of
Chhattisgarh2, the Supreme Court has held that if the
recovery of bloodstained articles is proved beyond
reasonable doubt by the prosecution, and if
2 (2019) 7 SCC 781
investigation was not found to be tainted, then it
may be sufficient if the prosecution shows that the
blood found on the articles is of human origin, even
though the blood group is not proved because of
disintegration of blood, and observed in paragraph 24
of the report 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."
23. In the instant case, it is quite vivid that recovery
of bloodstained pharsa vide Ex. P/7 pursuant to the
memorandum statement of the appellant/accused vide
Ex. P/6 has not been proved by the prosecution beyond
reasonable doubt as both the witnesses namely Mohan
Singh (P.W.1) and Devnath Yadav (P.W.2) have turned
hostile and in the FSL report (Ex. P/24) it has only
been proved that blood was found on the said pharsa,
but the origin of blood as well as the blood group
have not been ascertained and prosecution has failed
miserably to prove the same as any kind of Serologist
report has also not been brought on record.
Similarly, though the tshirt worn by the
appellant/accused was seized vide Ex. P/8 and it was
sent for chemical examination, but through the FSL
report (Ex. P/24) it could only be ascertained that
blood was found it and again, the origin of blood and
blood group could not be ascertained. As such, in
absence of quality evidence proving that the blood
found on the pharsa as well as on the tshrit was of
human origin, it would be difficult to conclude that
seizure of bloodstained pharsa and tshirt of the
appellant has helped the case of the prosecution.
24. The fifth and last circumstance found proved by the
trial Court is that appellant has not given
satisfactory explanation as to how the dead body of
his wife Jankunwar Rathiya was found in the field on
the next morning of the incident, when on the
previous night, she was at their home. Even if, the
appellant has not explained how the dead body of
deceased Jankunwar Rathiya was found in the field on
the next morning, it cannot be held to be
incriminating evidence against the appellant/accuse
as the primary burden is upon the prosecution to
prove the offence beyond reasonable doubt.
25. The Supreme Court, in the matter of Sharad
Birdhichand Sarda v. State of Maharashtra3, has
clearly laid down the factors to be taken into
account in adjudication of cases of circumstantial
evidence, which states as under :
3 (1984) 4 SCC 116
"(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances
concerned "must" or "should" and not "may
be" established;
(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."
26. Reverting to the facts of the present case in view of
the aforesaid discussion, we are of the considered
opinion that only on the basis of subsequent conduct
of the appellant/accused under Section 8 of the
Evidence Act pursuant to which dead body of his wife
Jankunwar Rathiya was recovered, it would be unsafe
to convict the appellant/accused for offence
punishable under Section 302 of IPC particularly when
no other incriminating circumstances are proved
against him beyond reasonable doubt and more
particularly, when the trial Court itself has
recorded a finding that the motive of offence has not
been proved by the prosecution. Thus, the conviction
of the appellant/accused under Section 302 of IPC and
the sentence recorded as aforesaid by the impugned
judgment is hereby set aside. Since the appellant is
already on bail, he need not surrender. However, his
bail bond shall remain in force for a period of six
months in view of the provision contained in Section
437A of the CrPC.
27. Accordingly, the instant appeal stands allowed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
