Chattisgarh High Court
Ramkumar vs State Of Chhattigarh on 8 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 479 of 2012
Ramkumar S/o Maniram, Caste Gond, Aged about 25
years, R/o Village Champajhar, Police Station
Patna, Distt. Koriya, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Patna, Distt. Korea,
Chhattisgarh.
Respondent
For Appellant : Mr. D.N. Prajapati, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
08/09/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
is preferred by the appellant/accused against the
impugned judgment dated 30/04/2012 passed by
learned First Additional Sessions Judge,
Manendragarh at Baikunthpur, Distt. Koriya in
Sessions Trial No. 82/2011 whereby he has been
convicted for offences punishable under Sections
302, 201 and 177 of the IPC.
2. Case of the prosecution, in brief, is that on
03/05/2011 at about 08:00 PM, the appellant
herein assaulted his wife Smt. Seeta Bai on her
head with a wooden stick at their home in Village
Champajhar due to which she suffered grievous
injury and succumbed to death on 20/05/2011 and
the appellant, in order to screen himself, gave
false information to the Police and thereby,
committed the aforesaid offences.
3. Further case of the prosecution is that appellant
as well as deceased, both being husband and wife,
used to live at Village Champajhar and on
03/05/2011, they got into a quarrel on the
pretext of going to see the baraat of one Lakhan
of their village and the appellant assaulted the
deceased with hands and fists as well as wooden
stick and thereafter, pushed her due to which
appellant's head dashed on the door frame and she
fell unconscious. She was taken to the Hospital
at Baikunthpur wherein she remained hospitalized
till 17/05/2011. Pursuant thereof, father of the
deceased, Heeravan (P.W.13), sought discharge
from the Baikunthpur Hospital and took the
deceased to her parental home at Village Temri.
Again on 20/05/2011, deceased became seriously
unwell and while she was being escorted to the
Hospital, she succumbed to death. After being
informed about the incident, merg intimation was
registered by the Police vide Ex. P/27 and
thereafter, FIR was registered against the
appellant vide Ex. P/28, summons were issued to
the witnesses vide Ex. P/1 and after conducting
inquest vide Ex. P/2, dead body of Smt. Seeta Bai
was sent for postmortem, which was conducted by
Dr. A.K. Sharma (P.W.5) and as per the
postmortem report (Ex. P/8), the cause of death
is said to be coma due to head injury and nature
of death is said to be homicidal. After taking
the appellant/accused into custody, his
memorandum statement was recorded vide Ex. P/4
and on that basis, wooden stick was seized vide
Ex. P/5. After recording the statements of the
witnesses and after due investigation, the
appellant was chargesheeted for offences
punishable under Sections 302, 201 and 177 of
IPC. The appellant abjured his guilt and entered
into defence.
4. In order to bring home the offence, prosecution
examined as many as 18 witnesses and brought into
record 29 documents. Statement of the appellant
was recorded under Section 313 of CrPC wherein he
denied guilt and though examined none his
defence, however, exhibited the statement of Atar
Sai (P.W.15) as Ex. D/1.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict the appellant/accused for the offences
punishable under Sections 302, 201 and 177 of IPC
and sentenced as aforesaid.
6. Mr. D. N. Prajapati, learned counsel for the
appellant, would submit that there is no direct
evidence available on the face of the record and
the case is based on circumstantial evidence. He
would further submit that trial Court is
absolutely unjustified in convicting the
appellant/accused for the aforesaid offences only
on the basis of subsequent conduct of the
appellant/accused particularly when memorandum
and seizure has not been found proved by the
trial Court, as such, the conviction recorded and
sentenced awarded to the appellant/accused by the
impugned judgment is liable to be set aside.
7. Per Contra, Mr. Sudeep Verma, learned State
counsel, would support the impugned judgment and
submit that prosecution has proved the offence
against the appellant beyond reasonable doubt and
learned trial Court is absolutely justified in
convicting the appellant for the aforesaid
offences as even though memorandum and seizure
have not been found proved but on the basis of
other evidence available on record, the
appellant/accused has rightly been convicted, as
such, the instant 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.
9. The first question for consideration is whether
the death of deceased Smt. Seeta Bai was
homicidal in nature ?
10. It is not in dispute that deceased received
injury on 03/05/2011 at about 08:00 PM and she
was taken to Baikunthpur Hospital wherein she
remained hospitalized till 17/05/2011 but against
the medical advice, her father Heervan (P.W.13)
took her to her parental house at Village Temri.
Thereafter, on 20/05/2011, she became seriously
unwell and while she was being escorted to the
hospital, she succumbed to death. Learned trial
Court after relying upon the medical opinion of
Dr. A.K. Sharma (P.W.5) who has conducted
postmortem of the deceased and has clearly stated
in the postmortem report (Ex. P/8) that cause of
death is coma due to head injury and the nature
of death is homicidal, has held the death of
deceased Smt. Seeta Bai to be homicidal in
nature. Taking consideration of the entire
evidence available on record as well as looking
to the injury sustained by the deceased on her
head and relying upon the medical opinion of Dr.
A.K. Sharma (P.W.5) as well as postmortem report
(Ex. P/8), we are of the considered opinion that
learned trial Court has rightly held the death of
deceased Smt. Seeta Bai to be homicidal in
nature. Moreover, the fact that death of the
deceased was homicidal in nature has not even
been seriously disputed by learned counsel for
the appellant. As such, we hereby affirm the said
finding recorded by the trial Court that the
death of deceased Smt. Seeta Bai is homicidal in
nature.
11. The next question for consideration is whether
the trial Court is justified in holding that
appellant is the perpetrator of the crime in
question ?
12. From a careful perusal of the record, it is
evident that there is no direct evidence
available in the instant case. After taking the
appellant/accused in custody, memorandum
statement was recorded under Section 27 of the
Evidence Act vide Ex. P/4 and on that basis,
recovery of wooden stick was made vide Ex. P/5.
13. Though pursuant to the memorandum statement of
the appellant/accused, recovery of wooden stick
was made, but in paragraph 22 of the judgment,
the trial Court has held that the seized wooden
stick was neither produced before the Court nor
it was subjected to chemical examination and no
FSL report is available on record. Moreover, the
seized wooden stick was sent for query to Dr.
A.K. Sharma (P.W.5) and though he has stated
that the injury suffered by the deceased could
have been caused by the said wooden stick but
there were no blood stains found on the said
wooden stick and even though the
appellant/accused has admitted to commission of
offence in his memorandum statement, but it is
inadmissible in evidence, which has rightly been
held by the trial Court and the said finding has
attained finality as the same has not been
questioned by the respondent/State by way of
appeal.
14. The circumstance that has been relied upon by the
trial Court to convict the appellant/accused is
his subsequent conduct after commission of the
alleged offence stating that at the time of the
incident, other than the appellant and the
deceased, no other person was present in their
house and it is the appellant who assaulted the
deceased with hands and fists and thereafter
pushed her due to which her head got dashed with
the door frame and she became unconscious.
Thereafter, the appellant took her to the
Baikunthpur Hospital wherein she remained
hospitalized till 17/05/2011 and on the pretext
of taking her to better hospital, she was
discharged from the hospital and thereafter, she
was taken to her parental home at Village Temri
and no treatment was provided to her and
ultimately, on 20/05/2011 when she became
seriously unwell, she succumbed to death while
she was being taken to the Hospital. When Police
asked the appellant, he concealed true facts and
falsely informed that deceased suffered injuries
by falling on the ground.
15. In the matter of Sidhartha Vashisht alias Manu
Sharma v. State (NCT of Delhi)1, their Lordships
of the Supreme Court have held as under :
"232. A criminal trial is not an enquiry
into the conduct of an accused for any
purpose other than to determine whether he
is guilty of the offence charged. In this
connection, that piece of conduct can be
held to be incriminatory which has no
reasonable explanation except on the
hypothesis that he is guilty. Conduct which
destroys the presumption of innocence can
alone be considered as material. In this
regard, it is useful to refer Anant
Chintaman Lagu v. State of Bombay :
"68. Circumstantial evidence in this
context means a combination of facts
creating a network through which there is
no escape for the accused, because the
facts taken as a whole do not admit of
any inference but of his guilt.
X X X
76. ... This conduct [of the accused] was
so knit together as to make a network of
circumstances pointing only to his
guilt.... His method was his own undoing;
because even the long arm of confidence
[could not] explain the multitude of
circumstances against him, and they
destroy the presumption of innocence with
which law clothed him."
233. Thus, it has been proved beyond
reasonable doubt that accused Manu Sharma
absconded after the incident which is very
1 (2010) 6 SCC 1
2 AIR pp. 523 & 526-27, paras 68 & 76
relevant conduct under Section 8 of the
Evidence Act."
16. It is well settled law that in order to invoke
Section 106 of the Evidence Act, prosecution is
bound to discharge its initial or general burden
or primary duty of proving the offence beyond
reasonable doubt. In a case governed by
circumstantial evidence, if the chain of
circumstances which is required to be established
by the prosecution is not established, the
failure of the accused to discharge the burden
under Section 106 of the Evidence Act is not
relevant at all.
17. In the instant case, prosecution has failed to
prove the offence beyond reasonable doubt. The
only circumstance that has been found proved by
the prosecution is that the death of deceased
Smt. Seeta Bai was homicidal in nature and the
subsequent conduct of the appellant/accused
wherein he did not inform the Doctor and the
Police about the true version of the incident.
The memorandum and seizure have not been found
proved and moreover, though Asha, who is an eye
witness, was produced before the Court but on
account of her incapability, she was not
examined. As such, merely on the basis of
subsequent conduct of the appellant/accused,
though it is admissible under Section 8 of the
Evidence Act, his conviction for offence
punishable under Section 302 cannot rest.
18. In conclusion of the aforesaid discussion, we are
of the considered opinion that learned trial
Court is absolutely unjustified in convicting the
appellant/accused for offences punishable under
Sections 302, 201 and 177 of the IPC. As such,
the impugned judgment of conviction recorded and
sentence awarded against the appellant/accused is
hereby set aside and he is acquitted of the
charges levelled against him. 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.
19. Accordingly, the instant appeal stands allowed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
