Ajay Sidar vs State Of Chhattisgarh
2023 Latest Caselaw 1036 Chatt

                                  1

                                                                NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 339 of 2014

                Judgment Reserved on 07.02.2023

                Judgment Delivered on 17.02.2023

    Ajay Sidar, S/o Late Vallabh Sidar, aged about 19 Years, R/o
     Faraswani, PS Dabhara, Civil and Revenue District Janjgir-
     Champa, Chhattisgarh.

                                                           ----Appellant

                               Versus

    State of Chhattisgarh, Through PS Dabhara, District Janjgir -
     Champa, C.G.

                                                       ---- Respondent


For Appellant         Mr. Ishwar Jaiswal, Advocate.
For State             Ms. Ruchi Nagar, Deputy Government
                      Advocate.

                   Hon'ble Shri Sanjay K. Agrawal and
                 Hon'ble Shri Radhakishan Agrawal, JJ.

CAV Judgment Per Radhakishan Agrawal, J.

1. This criminal appeal preferred by the appellant herein under

Section 374(2) of the Cr.P.C is directed against the impugned

judgment of conviction and order of sentence dated 14.03.2014

passed in Sessions Trial No.91/2013 by the Second Additional

Sessions Judge, Sakti, District Janjgir-Champa, C.G., by which

the appellant stands convicted & sentenced as under:-

Conviction Sentence

Under Section 302 of Indian Imprisonment for life and fine of

Penal Code (for short, 'IPC') Rs.10,000/-, in default of payment of fine additional rigorous imprisonment for six months

2. Case of the prosecution, in brief, is that on 18.02.2013 at about

3:00 pm near Baba Khaiya Road (Talab) at village Faraswani,

some altercation took place between the deceased Radha Bai

and appellant on which appellant committed marpeet with Radha

Bai/deceased and assaulted her with wooden stick, hands & fists,

as a result of which she sustained injuries on her body, fell down

on the road and became unconscious. Thereafter, one Gourilal

reached the spot and took the deceased at her home and at

about 10:00 pm, Radha Bai/deceased died. The said incident

was informed to PW-2 Jairam / son of the deceased over

telephone. Then, PW-2 Jairam came to the village Faraswani and

lodged the FIR Ex.P-4 against the appellant and merg intimation

Ex.P-05 was also recorded. Inquest proceedings were conducted

vide Ex.P-7. Nazri Naksha and spot panchnama were prepared

vide Exs. P-1 & P-2 respectively. On the recommendation of the

panchas, dead body was sent for postmortem examination which

was conducted by PW-08 Dr. N.P. Mishra, who has proved the

postmortem report Ex.P-14. In the postmortem report, cause of

death was stated to be shock due to internal hemorrhage, head

injury and injury on other parts of the body. Appellant was

arrested vide Ex.P-12. Memorandum statement of the appellant

was recorded vide Ex.P-9 consequent to which one wooden stick

was seized at his instance vide Ex.P-10 in presence of two

witnesses i.e. PW-4 Ratan Singh and PW-06 Harihar Singh.

Seized article was sent to FSL for chemical examination but no

FSL report has been brought on record. Query report Ex.P15 has

also been obtained vide Ex.P-15 and as per the said report,

injury found on the body of the deceased could have been

caused by the seized wooden stick.

3. After due investigation, the appellant was charge-sheeted before

the jurisdictional criminal Court and the case 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.

4. The prosecution in order to bring home the offence, examined as

many as 11 witnesses in support of its case and exhibited 18

documents. However, the appellant in support of his defence has

not examined any witness and only exhibited one document i.e.

Ex.D-1.

5. The trial Court after completion of trial and upon appreciation of

oral and documentary evidence, by its impugned judgment,

convicted and sentenced the appellant as mentioned in the

opening paragraph of this judgment against which he has

preferred the instant appeal under Section 374(2) of the Cr.P.C.

6. Learned counsel appearing for the appellant submits that only on

the basis of memorandum statement of the appellant (Ex.P-9), he

has been convicted which is absolutely illegal and bad in law. He

further submits that wooden stick is alleged to have been seized

but no bloodstain has been found as no FSL report has been

brought on record. He also submits that in this case, prosecution

witnesses have also turned hostile and not supported the

prosecution case. Therefore, the impugned judgment of

conviction and order of sentence deserves to be set aside and

the appellant be acquitted of the said charge.

7. Learned counsel for the State supports the impugned judgment

and submits that the prosecution has brought home the offence

against the appellant and has proved the case beyond

reasonable doubt and thus, the appellant has rightly been

convicted and sentenced for the aforesaid offence.

8. We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through

the record with utmost circumspection.

9. The first question for consideration would be whether the death

of the deceased was homicidal in nature which has been

answered by the trial Court in affirmative relying upon the

postmortem report (Ex.P-14) proved by Dr. N.P. Mishra (PW-08)

which is a finding of fact based on evidence available on record,

it is neither perverse nor contrary to the record and we hereby

affirm the said finding.

10. Now, the question would be whether the appellant is the author of

the crime in question for which the trial Court has relied upon the

circumstantial evidence by delving into the incriminating evidence

which have been found to be proved by the trial Court resulting

into conviction of the appellant.

11. Admittedly, the present case is based on circumstantial evidence.

The five golden principles to constitute the panchsheel of the proof

of a case based on circumstantial evidence have been narrated by

their Lordships of the Supreme Court in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra 1 , in which it was

observed in paragraph 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 v. State of Maharashtra2 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 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

1 (1984) 4 SCC 116 2 (1973) 2 SCC 793

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."

12. Now, we shall consider the incriminating circumstances found

proved by the trial Court. PW-2 Jairam, son of the deceased,

stated in his deposition that on the date of incident, he was at

village Pasid and PW-6 Harihar had informed him over telephone

that his mother has died. He further stated in para 5 that on

second day, he came to know about the death of his mother. This

witness has turned hostile and not supported the prosecution

case. PW-3 Smt. Kritika Bai, daughter-in-law of the deceased,

PW-4 Ratan Singh, PW-5 Ghasiya Ram, PW-6 Harihar Singh and

PW-9 Smt. Ashok Bai have neither supported the prosecution

case nor stated anything in relation to the commission of offence

by the appellant/accused.

13. PW-7 Sadhuram stated in his deposition that he has no

knowledge about the incident and he does not know as to how

Radha Bai / deceased died. He stated that at about 12:00 pm, he

came out of his house and saw that the deceased was lying on the

road in front of his house and thereafter, he went back to his

house and closed the door. This witness has also not supported

the prosecution case.

14. In view of the aforesaid discussion, it is quite clear that there is

no eye-witness to the incident. After the incident, one Gourilal who

took the deceased at her home has also not been examined by

the prosecution.

15. The next circumstance which has been pointed out is that

wooden stick has been seized vide Ex.P-10 from the possession

of the appellant pursuant to his memorandum statement vide

Ex.P-9. Though it was seized and proved by PW-10 Anand Ram,

Investigating Officer and according to the query report vide Ex.P-

15, Dr. N.P. Mishra (PW-8) has opined that injury could have been

caused by the seized wooden stick which was sent to FSL for

chemical examination but none of the seizure witnesses has

supported the prosecution case and further there is no FSL report

on record to prove the presence of human blood on the seized

weapon. Therefore, the aforesaid circumstance is of no help to the

prosecution to establish the complicity of the appellant in the crime

in question. In this regard, it would be appropriate to refer to the

judgment of the Supreme Court in the matter of Mani v. State of

Tamil Nadu3, wherein considering the nature, scope and

applicability of Section 27 of the Indian Evidence Act, 1872, it has

been held that discovery is a weak kind of evidence and cannot be

wholly relied upon. Paragraph 26 of the said judgment reads as

under :-

3 (2009) 17 SCC 273

"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory."

16. Thus, considering the circumstantial evidence relied upon by the

prosecution in light of the principles of law laid down by the

Supreme Court in the matter of Sharad Birdhichand Sarda

(supra), this Court finds that the prosecution has utterly failed to

prove appellant is the perpetrator of the crime in question. In view

of above stated analysis, the learned trial Court is wholly

unjustified in convicting and sentencing the appellant for offence

under Section 302 of IPC. Accordingly, the impugned judgment of

conviction and order of sentence dated 14.03.2014, passed by the

learned trial Court is not sustainable.

17. Consequently, the conviction of the appellant for the offence

punishable under Section 302 of IPC as well as the sentence

imposed upon him by the learned trial Court is hereby set aside.

He is acquitted of the said charge. The appellant is reported to be

on bail, therefore, his bail bonds shall continue for a period of six

months from today in view of the provisions contained in Section

437-A of Cr.PC.

18. In the result, the criminal appeal is allowed.

            Sd/-                                       Sd/-
       (Sanjay K. Agrawal)                      (Radhakishan Agrawal)
           Judge                                       Judge




Akhilesh