Bhagat Ram vs State Of Chhattisgarh
2023 Latest Caselaw 1138 Chatt

                                                                             Cr.A.No.558/2014

                                          Page 1 of 9

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                      Criminal Appeal No.558 of 2014
{Arising out of judgment dated 23-4-2014 in Sessions Trial No.51/2013 of
                    the Sessions Judge, Rajnandgaon}

Bhagat Ram, S/o Bhar Singh, aged about 42 years, R/o Village Urajhe,
Police Station Manpur, District Rajnandgaon (C.G.)
                                                             (In Jail)
                                                      ----- Appellant

                                            Versus

State of Chhattisgarh, Through the Aarakshi Kendra, Manpur, District
Rajnandgaon (C.G.)
                                                    ----- Respondent

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For Appellant:                  Mrs. Aditi Singhvi, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
--------------------------------------------------------------------------------------------------

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

Judgment On Board (23/02/2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under

Section 374(2) of the CrPC is directed against the impugned

judgment dated 23-4-2014 passed by the Sessions Judge,

Rajnandgaon, in Sessions Trial No.51/2013, by which, the trial

Court has convicted the present appellant for offences under

Sections 302 & 450 of the IPC and sentenced him to undergo

imprisonment for life & pay a fine of ₹ 500/-, in default, to further

undergo additional rigorous imprisonment for two months and

rigorous imprisonment for five years & fine of ₹ 1,000/-, in default,

additional rigorous imprisonment for three months, respectively, Cr.A.No.558/2014

with a direction to run the sentences concurrently.

2. Case of the prosecution, in brief, is that in the intervening night of

29-4-2013 and 30-4-2013 at Village Urjhe, Police Station Manpur,

District Rajnandgaon, the appellant unauthorisedly trespassed the

house of his brother Jagatram (deceased) and caused injury to him

by axe by which he suffered grievous injury and succumbed to

death and thereby committed the offence. Further case of the

prosecution is that the appellant and the deceased both were real

brothers but living separately in the village after having partitioned

the ancestral property. On the date of offence, the deceased and

his daughter Kum. Roshni (PW-1) were sleeping in the room with

lights on and wife of the deceased Baijantri Bai had gone to Village

Pahurjhola with the marriage party. It is also the case of the

prosecution that at 12:30 a.m., Kum. Roshni (PW-1) got up to

urinate, at that time, the light was off and when she put on the light,

she saw that her father had suffered grievous injury and blood was

oozing. Immediately on the report of Kum. Roshni (PW-1) in the

police station, FIR Ex.P-1 & morgue intimation Ex.P-1A were

registered and inquest was conducted vide Ex.P-4. Dead body of

deceased Jagatram was sent for postmortem which was conducted

by Dr. Nishant Shori (PW-12) vide Ex.P-15A and cause of death

was stated to be cardio-respiratory arrest due to hypodermic shock

by cerebral haemorrhage and death was homicidal in nature.

Thereafter, memorandum statement of the appellant was recorded

vide Ex.P-5 pursuant to which bloodstained iron axe was seized

vide Ex.P-6 and T-shirt & lungi were also seized vide Ex.P-7.

Cr.A.No.558/2014

Seized articles were sent for chemical examination to the State

FSL, Raipur and FSL report has been brought on record vide Ex.P-

16 according to which, blood was found on the axe Art.C, but origin

of the blood, whether human blood, could not be ascertained,

whereas on Arts.D, F & G i.e. shirt of the accused / appellant, T-

shirt of the deceased and kathri (bed sheet made with old & torn

clothes) of the deceased, respectively, human blood was found and

on Arts.F & G i.e. T-shirt & kathri (bed sheet) of the deceased,

respectively, human blood-group of 'A' was ascertained.

Statements of the witnesses were recorded under Section 161 of

the CrPC.

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

the jurisdictional criminal court and charges were framed against

him under Sections 302 & 450 of the IPC and the case was

committed to the Court of Sessions, Rajnandgaon where trial was

conducted in accordance with law.

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

many as 12 witnesses PW-1 to PW-12 in support of its case and

exhibited 16 documents Exs.P-1 to P-16. Defence has not

examined any witness in support of its case, but exhibited one

document Ex.D-1 i.e. the statement of Kum. Roshni Bhuarya

recorded under Section 161 of the CrPC. Statement of the accused

/ appellant was recorded under Section 313 of the CrPC in which

he abjured the guilt and pleaded innocence and false implication

and claimed to be tried.

5. The trial Court after completion of trial and upon appreciation of oral Cr.A.No.558/2014

and documentary evidence on record, by its impugned judgment,

convicted and sentenced the appellant herein as mentioned in the

opening paragraph of this judgment which is sought to be

challenged in this criminal appeal preferred under Section 374(2) of

the CrPC by the appellant.

6. Mrs. Aditi Singhvi, learned counsel appearing for the appellant,

would submit that conviction of the appellant is based on

memorandum statement and seizure, but on the seized articles

particular on axe, no human blood has been found, therefore, in

light of the decision of the Supreme Court in the matter of Balwan

Singh v. State of Chhattisgarh and another 1, no reliance can be

placed on the memorandum statement & seizure, more particularly

when memorandum statement & seizure have not been proved in

accordance with law. As such, the appellant deserves to be

acquitted by setting aside the impugned judgment of conviction and

order of sentence and the appeal deserves to be allowed.

7. Per contra, Mr. Sudeep Verma, learned State counsel, would

support the impugned judgment and submit that pursuant to the

memorandum statement of the accused / appellant, iron axe has

been seized and as per the FSL report, human blood has been

found on shirt of the appellant and T-shirt of the deceased. He

would further submit that as per the statements of Kum. Roshni

(PW-1), Kunti Bai (PW-5) & Ram Prasad (PW-7), it appears that

only the appellant is the author of the crime. As such, the appeal

deserves to be dismissed.

1 (2019) 7 SCC 781 Cr.A.No.558/2014

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 trial Court

is justified in holding that death of the deceased was homicidal in

nature?

10. The trial Court after relying upon the statement of Dr. Nishant Shori

(PW-12) and also taking into consideration the postmortem report

Ex.P-15A in which cause of death was stated to be cardio-

respiratory arrest due to hypodermic shock by cerebral

haemorrhage and death was homicidal in nature, clearly came to

the conclusion that death of the deceased was homicidal in nature.

In our considered opinion, such a finding recorded by the trial Court

that death of deceased Jagatram was homicidal in nature is the

correct finding of fact based on the evidence available on record, it

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

the said finding recorded by the trial Court.

11. Now, the second question for consideration is, whether the

appellant is the author of the crime?

12. The case is mainly based on circumstantial evidence i.e. the

statement of Kum. Roshni (PW-1) - daughter of the deceased. The

prosecution was required to establish the five golden principles

which constitute the panchsheel of a case based on circumstantial

evidence as laid down by the Supreme Court in the matter of

Sharad Birdhichand Sarda v. State of Maharashtra2 in which it

2 (1984) 4 SCC 116 Cr.A.No.558/2014

has been held 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 Maharashtra3 where the following observations were made:

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 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."

13. Now, the question is, whether the appellant has rightly been held to

be the author of the crime?

14. The trial Court in paragraph 18 of its judgment has relied upon

3 (1973) 2 SCC 793 Cr.A.No.558/2014

Ex.P-5 pursuant to which human blood has been found on the

blood stained earth and on the clothes of the deceased and further,

finding corroboration with the statements of Kum. Roshni (PW-1),

Kunti Bai (PW-5) & Ram Prasad (PW-7), it has been recorded that

the appellant is the author of the crime.

15. Kum. Roshni (PW-1) is not eyewitness, but she was sleeping along

with her father in the same room and in the mid night, when she

switched on the light, she has seen that her father was injured and

blood was oozing from the injury, and he was alive at that time,

therefore, she went towards the house of the appellant - brother of

the deceased, where he was sleeping and on seeing her, he started

shivering. Except this, nothing has been brought on record from

the testimony of Kum. Roshni (PW-1) and similarly, in the statement

of Kunti Bai (PW-5) & Ram Prasad (PW-7). Kunti Bai (PW-5) is

wife of late Brijlal. She has also narrated the same version as Kum.

Roshni (PW-1), then she came to the house of the appellant, at that

time, he was sweating and he was uncomfortable. Similar

statement has been made by Ram Prasad (PW-7).

16. As such, on going through the statements of aforesaid three

witnesses nothing can be deciphered except that they reached to

the spot immediately and also reached to the house of the

appellant and the appellant was not in comfortable position. As

such, the subsequent conduct of the appellant was not proper and

suspicion was raised on the appellant.

17. Now, the circumstantial evidence comes into play i.e. pursuant to

the memorandum statement of the appellant, bloodstained axe was Cr.A.No.558/2014

seized and other articles were also seized, but in the FSL report

blood has been found on the axe Art.C, but no human blood has

been found on it.

18. In Balwan Singh (supra), their Lordships of the Supreme Court

have clearly held that if the recovery of bloodstained articles is

proved beyond reasonable doubt by the prosecution, and if the

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 though, even though the blood group is not proved

because of disintegration of blood, and observed in paragraphs 23

& 24 as under: -

"13. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the 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 though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.

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."

Cr.A.No.558/2014

19. In that view of the matter, recovery of blood-stained axe is of no use

to the case of the prosecution. However, true it is that human blood

has been found on the shirt of the appellant, on the clothes of the

deceased i.e. T-shirt & kathri (bed sheet made with old & torn

clothes) with blood group matching, but merely on that basis,

conviction cannot be recorded, as the prosecution has to prove the

chain of circumstances as laid down by their Lordships of the

Supreme Court in Sharad Birdhichand Sarda (supra). Therefore,

in our considered opinion, the chain of circumstances is not

complete and the prosecution has failed to establish the chain of

circumstances so as to unerringly point towards the guilt of the

accused as held in Sharad Birdhichand Sarda (supra). In that

view of the matter, the appellant is entitled for benefit of doubt.

20. In view of the aforesaid discussion, we are unable to sustain the

conviction of the appellant under Sections 302 & 450 of the IPC, as

the conviction is not well merited. As such, conviction and

sentences imposed upon the appellant under Sections 302 & 450

of the IPC are liable to be set-aside and are hereby set-aside. The

appellant is acquitted of the said charges. Since he is in jail, we

direct that he be set at liberty forthwith if not required to be detained

under any other process of law.

21. The appeal is allowed accordingly.

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

Soma