Deveshdatt Tandon vs State Of Chhattisgarh
2023 Latest Caselaw 737 Chatt

                                   1

                                                                   NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                         CRA No. 923 of 2012

    Deveshdatt Tandon, S/o Gopatram Tandon, aged about 24 Years,
     R/o Village Bhothali, PS Arang, District Raipur, C.G.

                                                             ----Appellant

                               Versus

    State of Chhattisgarh, Through - Thana - Mahasamund, District -
     Mahasamund, C.G.

                                                      ---- Respondent



For Appellant           Mr. Tanuj Patwardhan and Mr. Ravi Kumar
                        Tandan, Advocates.
For Respondent          Mr. Soumya Rai, Panel Lawyer.

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

Judgment On Board (06.02.2023)

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 of conviction and order of sentence dated 01.10.2012

passed in Sessions Trial No.81/2011 by the Sessions Judge,

Mahasamund, 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.5,000/-, in default of payment of fine additional simple

imprisonment for one year

Under Section 201 of IPC Rigorous Imprisonment for five years and fine of Rs.5,000/-, in default of payment of fine additional simple imprisonment for six months

(Both sentences were directed to run concurrently)

2. Case of the prosecution, in brief, is that in between 10.09.2011

and 13.09.2011, appellant herein assaulted the deceased

Ku. Pratibha Koshriya with surgical blade and committed her

murder. Appellant in order to conceal the evidence, threw the

dead body of the deceased in a dense forest and thereby

committed the offence. Further case of the prosecution is that at

the time of incident, deceased was aged about 22 years and was

pursuing B.A at Raipur. The deceased was missing since

10.09.2011 and on 13.09.2011, her dead body was found in

highly decomposed condition having many injuries over her body.

Pursuant to this on 13.09.2011, PW-17 Ajay Kumar Sahu

registered Dehati merg intimation Ex.P-14 stating that he was

informed by the villagers of Sirgidi that a dead body of an

unidentified girl is lying in the forest, pursuant to which Dehati

Nalishi Ex.P-15 and merg intimation Ex.P-28 were recorded.

Identification panchnama & inquest proceedings were conducted

vide Ex.P-2 & Ex.P-8 respectively, whereby dead body of the

deceased girl was identified. On the recommendation of the

panchas, dead body was sent for postmortem examination which

was conducted by PW-15 Dr. Girdhari Chandrakar, who has

proved the postmortem report Ex.P-17. In the postmortem report,

no definite opinion was given as body was highly decomposed.

Thereafter, appellant was arrested vide Ex.P-19. Memorandum

statement of the appellant was recorded vide Ex.P-5 consequent

to which two surgical blades were seized at his instance vide

Ex.P-6 in presence of two witnesses i.e. PW-7 Rajesh Kumar

Jangde and PW-16 Kaliram. Vide Ex.P-7 clothes, motorcycle and

other articles were also seized. Seized articles were sent to FSL

for chemical examination but no FSL report has been brought on

record.

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 17 witnesses in support of its case and exhibited 30

documents Exs.P-1 to P-30 and other articles i.e. Art-1 to Art-I.

However, the appellant in support of his defence has neither

examined any witness nor exhibited any document.

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 CrPC.

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

the basis of memorandum statement of the appellant (Ex.P-5),

the appellant has been convicted which is absolutely illegal and

bad in law. He further submits that neither there is motive proved

nor human blood was found on the alleged articles and,

therefore, the impugned judgment of conviction and order of

sentence deserves to be set aside and the appellant be acquitted

of the said charges.

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-17) proved by Dr. Girdhari Chandrakar

(PW-15) 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 ?

11. It is an admitted fact on record that there is no eye-witness in the

instant case and there is no evidence against the appellant which

would show that the appellant and deceased were seen together

lastly before commission of the offence and the conviction of the

appellant is mainly based on the memorandum statement of the

appellant vide Ex.P-5 pursuant to which two surgical blades used

as a weapon vide Ex.P-6 have been recovered from the

possession of the appellant, proved by PW-16 Kaliram.

12. 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.

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

(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 prosecution has been able to

bring home the offence and prove the conditions laid down in

Sharad Birdhichand Sarda (supra)?

14. The trial Court has clearly recorded a finding that though it is the

case of the prosecution that the deceased was the daughter of

appellant's maternal uncle and they were close relatives and the

same is proved but the fact that since PW-4 Manoj Kumar Jangde

developed intimacy with the deceased and had made physical

relations also, the appellant had motive to commit the murder, is

not established. It has also been recorded that the deceased was

not seen together lastly with the appellant but further only on the

basis of the memorandum statement Ex.P-5 and recovery of the

articles vide Exs. P-6 and P-7, appellant has been convicted.

15. True it is that pursuant to the memorandum statement of the

appellant vide Ex.P-5, two surgical blades Ex.P-6 were seized

from the possession of the appellant and as per query report

Ex.P-30, injury found on the body of the deceased could have

been caused by the seized articles. Though as per query report of

Ex.P-20, the seized articles should have been sent to FSL for

chemical examination which were sent to FSL but no FSL report

has been brought on record.

16. The Supreme Court in the matter of Balwan Singh vs. State of

Chhattisgarh and another3 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

held in Para-24 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."

17. Further, the Supreme Court in the matter of Mani v. State of

Tamil Nadu4, considering the nature, scope and applicability of 3 (2019) 7 SCC 781 4 (2009) 17 SCC 273

Section 27 of the Indian Evidence Act, 1872, has held that

discovery is a weak kind of evidence and cannot be wholly relied

upon and has observed the following in paragraph 26 of the

judgment :-

"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."

18. Reverting to the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme

Court in the matters of Balwan Singh (supra) and Mani (supra), it

is quite vivid that there is no evidence available on record to show

that human blood was found on the two surgical blades seized

pursuant to the memorandum statement of the appellant and on

the other hand, Ex.P-6 seizure memo shows that surgical blades

were stained with rust. Moreso, one of the star witnesses of

memorandum PW-7 Rajesh Kumar Jangde has turned hostile and

the other witness namely Kaliram PW-16 has partly supported the

memorandum of the appellant and the recovery of surgical blade.

Since human blood is not proved to have been found on the

seized surgical blades in absence of FSL report and in view of the

decision of Hon'ble Supreme Court in the matter of Mani (supra),

recovery is a weak piece of evidence, in our considered opinion,

mere recovery of surgical blade as a weapon of offence would be

of no help to the prosecution and it cannot be held that the surgical

blade was used by the appellant in the crime in question.

19. In view of the aforesaid discussion, we are unable to hold that the

prosecution has been able to prove the five golden principles to

constitute the 'panchsheel' of the proof of a case based on

circumstantial evidence, as laid down by their Lordships of the

Supreme Court in the matter of Sharad Birdhichand Sarda

(supra), in absence of which, the appellant is entitled to the benefit

of doubt. The learned trial Court is unjustified in convicting and

sentencing the appellant for offence under Sections 302 & 201 of

IPC. Accordingly, the impugned judgment of conviction and order

of sentence dated 01.10.2012, passed by the learned trial Court is

not sustainable.

20. Consequently, the conviction of the appellant for offence

punishable under Sections 302 & 201 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 charges. 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.

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

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



Akhilesh