Vercals Tirkey vs State Of Chhattisgarh
2023 Latest Caselaw 930 Chatt

                                  1

                                                               NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 179 of 2014

    Vercals Tirkey, S/o Ruben Tirkey, aged about 21 Years,
     Occupation Labour, R/o Sardih, Ps Jashpur, Civil and Rev.
     District Jashpur, C.G.

                                                         ----Appellant

                               Versus

    State of Chhattisgarh, Through the Station House Officer, Police
     Station Jashpur, District Jashpur, C.G.

                                                    ---- Respondent


For Appellant     Mr. J.K. Saxena, Advocate.
For State         Mr. Sudeep Verma, Deputy Government Advocate.


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

Judgment On Board (14.02.2023)

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 25.01.2014

passed in Sessions Trial No.58/2013 by the Sessions Judge,

Sessions Division, Jashpur, District Jashpur, 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 rigorous

imprisonment for six months

2. Case of the prosecution, in brief, is that on 01.04.2013, PW-1

Satish Bhagat reported the matter to the police station alleging

that appellant was suspecting that his mother (PW-2) / Sonmait

Bhagat was practising witchcraft on his nephew by which his

nephew died, pursuant to which appellant came to the house of

deceased Jageshwar Bhagat, quarreled with the deceased and

PW-2 Sonmait Bhagat, caught hold of him (deceased), picked

up the sharp edged weapon kept in the house of deceased and

took the deceased towards Basti and thereafter his

father/deceased did not come and next day, dead body of his

father / deceased was found near Sarna Badi under Peepal tree.

Pursuant to this, on 01.04.2013, PW-8 M.R. Sinha registered

Dehati merg intimation Ex.P-1 and on that basis, Dehati Nalishi

Ex.P-2, FIR Ex.P-15 and merg intimation Ex.P-16 were

recorded. Inquest proceedings were conducted vide Ex.P-13,

whereby dead body of the deceased was identified and nazri

naksha vide Ex.P-8 was prepared. On the recommendation of

the panchas, dead body was sent for postmortem examination

which was conducted by PW-6 Dr. R.N. Kerketta, who has

proved the postmortem report Ex.P-9. According to postmortem

report, cause of death was excessive external hemorrhage due

to incised injury over front side of neck and the death was

homicidal in nature. Thereafter, appellant was arrested. From

the possession of the appellant, one blood stained T-shirt and

axe (tangiya) were seized vide Ex.P.6. Seized articles were sent

to FSL for chemical examination and as per FSL report Ex.P.20,

human blood has been found on the seized T-shirt and blood

has been found on the seized axe.

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 08 witnesses in support of its case and exhibited 20

documents Exs.P-1 to P-20. However, the defence has

examined none and not 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 there

is no eye-witness to the incident and the case is based on

circumstantial evidence. He further submits that the chain of

circumstantial evidence which constitute five golden principles

laid down by the Supreme Court in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra 1 are not

established beyond all reasonable doubt. He further submits that

in this case motive is also not proved. Therefore, the impugned

judgment of conviction and order of sentence deserves to be set

aside and the appellant be acquitted of the 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. Therefore,

the appeal deserves to be dismissed.

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-9) proved by Dr. R.N. Kerketta (PW-6)

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 1 (1984) 4 SCC 116

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 (supra), 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 nature and tendency, (4)they should exclude every possible hypothesis except the one to be proved, 2 (1973) 2 SCC 793

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 against the appellant one by one.

13. Firstly, the trial Court has relied upon the circumstance of the

appellant being last seen together with the deceased in the house

of deceased. PW-2 Sonmait Bhagat, wife of the deceased, stated

in her deposition that on the date of incident, she had visited the

house of the appellant where appellant and his brother- Devnath

were present. She further stated that appellant saying her a witch-

doctor, caught hold of her neck but she somehow escaped from

there and returned to her house. After 5-10 minutes, appellant

reached her house and quarreled with her and deceased, picked

up the axe kept in her house and caught the deceased. She also

stated in para 7 that her husband had gone to her sister's house

at 6-7 pm but he did not return from there.

14. PW-3 Anil Pradhan stated in his deposition that villagers of the

village had told him that on the date of incident, deceased was

seen in influence of liquor and was creating nuisance.

15. Though the appellant had gone to the house of the deceased

and PW-2 Sonmait Bhagat, but it has nowhere appeared that

appellant had taken the deceased along with him and thereafter

deceased was found dead. Though the trial Court has held that

the appellant took the deceased along with him relying upon the

statement of PW-2 Sonmait Bhagat but after screening the

statement of PW-2, it nowhere reflects that appellant had taken

the deceased along with him. Appellant had only taken the sharp

edged weapon from the house of the deceased. As such, the

evidence of last seen together is not borne out from the record as

it does not reflect from the record that the appellant had taken the

deceased along with him and thereafter his dead body was found

next day near Saran Badi under Peepal tree. As such, the

circumstance of last seen together is not proved by the

prosecution based on the evidence adduced by it.

16. The next circumstance that has been proved by the trial Court is

that from the possession of the appellant, T-shirt and axe

(tangiya) were recovered vide Ex.P-6 and as per FSL report

(Ex.P-20), human blood has been found on the seized T-shirt and

blood has been found on the seized axe.

17. Admittedly, in the instant case, there is no confessional

statement of the accused under Section 27 of the Evidence Act

and merely on the basis of information given vide Ex.P-6 recovery

of axe and the blood stained T-shirt have been seized from the

possession of the appellant.

18. The Supreme Court in the matter of Chandran vs. The State of

Tamil Nadu3 has held in paras 36 as under:-

"36...... Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act...."

19. Similarly, the Supreme Court in the matter of State of

Karnataka v. David Rozario and another 4 has held in para 5 as

under:-

"5. .........This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence.

The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events.

The doctrine is founded on the principle that if any

3 (1978) 4 SCC 90 4 (2002) 7 SCC 728

fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Pulukuri Kottaya v. Emperor (AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65) is the most-quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301]....."

[Emphasis supplied]

20. The Supreme Court in the matter of Subramanya v. State of

Karnataka5 has observed thus:-

"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27of the Evidence Act reads thus:

"27. How much of information received from accused may be proved.-

Provided that, when any fact is deposed to as discovered in consequence of information received

5 2022 SCC Online SC 1400

from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

21. The principle of law laid down in Chandran (supra), David

Rozario (supra) and Subramanya (supra) has been referred to

by the Supreme Court in the matter of Boby vs State of Kerala

in CRA No.1439 of 2009; January 12, 2023, reported in 2023

Live Law (SC) 50.

22. Thus, in absence of memorandum statement, recovery from the

appellant vide Ex.P-6 is of no use to the prosecution and further

more, no human blood has been found on the seized axe as per

FSL report Ex.P-20.

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

Chhattisgarh and another6 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.

Para 24 of the said judgment reads 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.

6 (2019) 7 SCC 781

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."

24. In that view of the matter, recovery of axe and T-shirt, on which

though blood and human blood, respectively, have been found, is

of no use to the prosecution and there is no other incriminating

evidence. Even if the motive is held to be established but it is a

weak piece of evidence and conviction of appellant cannot be

based on it.

25. In view of above, the chain of circumstances which constitute

five golden principles laid down by the Supreme Court in the matter

of Sharad Birdhichand Sarda (supra) is not established beyond all

reasonable doubt. The learned trial Court is 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 25.01.2014, passed by the learned trial Court is not

sustainable.

26. 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.

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

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




Akhilesh