Ranasram Rathiya vs State Of Chhattisgarh
2023 Latest Caselaw 224 Chatt

                                                                             Cr.A.No.810/2013

                                         Page 1 of 14

                                                                                            AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.810 of 2013

{Arising out of judgment dated 1-8-2013 in Sessions Trial No.131/2012 of
       the Additional Sessions Judge (Fast Track Court), Raigarh}

Ranasram Rathiya, S/o Jangiram Rathiya, aged about 35 years, R/o
Village Chidodih, Police Station Dharamjaigarh, District Raigarh, Civil &
Revenue District Raigarh (C.G.)
                                                                  (In Jail)
                                                            ---- Appellant

                                            Versus

State of Chhattisgarh, through Police Station Dharamjaigarh, District
Raigarh (C.G.)
                                                    ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant:                  Mr. Ashish Gupta and Mr. Anand Kumar
                                Kesharwani, Advocates.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
--------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                      Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (12/01/2023)

Sanjay K. Agrawal, J.

1. The appellant herein has preferred this appeal under Section

374(2) of the CrPC calling in question legality, validity and

correctness of the impugned judgment of conviction and order of

sentence dated 1-8-2013 passed by the Additional Sessions Judge

(Fast Track Court), Raigarh in Sessions Trial No.131/2012, by

which the appellant herein has been convicted under Sections 302

& 201 of the IPC and sentenced to undergo imprisonment for life &

pay a fine of ₹ 3,000/-, in default of payment of fine to further

undergo additional rigorous imprisonment for one year and rigorous Cr.A.No.810/2013

imprisonment for four years & pay a fine of ₹ 1,000/-, in default of

payment of fine to further undergo additional rigorous imprisonment

for six months, respectively.

2. Case of the prosecution, in short, is that on 29-5-2012 at 08.00

a.m., in Village Senaaama Jungle, Police Station Dharamjaigarh,

the appellant assaulted Bhanwar Singh Rathiya, aged 85 years, on

his neck and his wife Ramkunwar Bai, aged 70 years, on her back

and also strangulated them and further, in order to screen himself

from the aforesaid offence, buried both the dead bodies therein and

thereby committed the offence. It is the further case of the

prosecution that on 29-5-2012 at 8.00 a.m., the two deceased

persons - Bhanwar Singh Rathiya and his wife Ramkunwar Bai,

both, were going to the Department of Forest, Bankaruma Jungle

for getting lease of forest land then the appellant, who was sitting in

the said forest, assaulted them by wooden log and also

strangulated them and buried the dead bodies in the forest. On 2-

6-2012, Kalash Ram Rathiya (PW-1) made missing complaint

before Police Chowki Rairumakhurd, Police Station Dharamjaigarh,

District Raigarh about the missing of his uncle and aunt

Ramkunwar Bai (both deceased) that they have went to collect their

land patta on 29-5-2012 and they were missing. The aforesaid

information was recorded in roznamcha sanha and exhibited before

the trial Court as Ex.P-28A proved by Dilkishore Giri (PW-9). On 7-

6-2012 at 9.00 a.m., on suspicion, the police made interrogation of

the present accused / appellant and his memorandum statement

was recorded vide Ex.P-18 in which he has disclosed that he has Cr.A.No.810/2013

murdered his uncle Bhanwar Singh Rathiya and aunt Ramkunwar

Bai across the road of Senama Jungle and buried their dead bodies

in the Juma Pani Nala Jungle. He further disclosed that the

wooden log used by him for the commission of offence was

concealed in the cattle shed of his house. The said statement was

recorded in presence of Rajesh Lakra (PW-5) and Kamhar Singh

(not examined). On 7-6-2012 at 9.00 a.m. itself on the strength of

the disclosure statement of the appellant, the police reached to the

Juma Pani Nala Jungle and the dead bodies were exhumed from

the place pointed out by the appellant herein vide recovery

panchnama Ex.P-3 in presence of Rajesh Lakra (PW-5), Kamhar

Singh (not examined) and Kalash Ram Rathiya (PW-1).

Memorandum statement was recorded at Village Chirodih and dead

bodies were recovered at the Juma Pani Nala Jungle. After

recovery of dead bodies, the police has registered dehati nalsi at

zero number vide Ex.P-6 on 7-6-2012 at 9.20 a.m. and the police

has also registered dehati morgue intimation regarding the death of

Bhanwar Singh vide Ex.P-29 at 9.30 a.m. and the police has

identified the dead bodies as of Bhanwar Singh & Ramkunwar Bai

vide Ex.P-4 at 9.45 a.m.. The police has also registered dehati

morgue intimation vide Ex.P-30 qua the death of Ramkunwar Bai.

Spot map was prepared vide Ex.P-23 by Patwari Nareshchand

Patel (PW-7). Dead bodies were sent for postmortem vide Exs.P-

31 & P-32 and postmortem was conducted vide Exs.P-24 & P-25 by

Dr. B.L. Bhagat (PW-8). On the strength of the memorandum

statement of the appellant, wooden log used by the appellant was Cr.A.No.810/2013

recovered from the cattle shed of the house of the appellant vide

Ex.P-21 and the seized wooden log and other articles were sent for

chemical examination to the FSL vide Ex.P-36, but the FSL report

has not been brought on record. Thereafter, on 7-6-2012 at 5.05

p.m., the police registered first information report (FIR) against the

appellant for the offences punishable under Sections 302 & 201 of

the IPC and morgue intimation was registered regarding death of

Bhanwar Singh vide Ex.P-8 and that of Ramkunwar Bai vide Ex.P-

9.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC.. After completion of investigation, charge-sheet was filed

against the appellant before the jurisdictional criminal court and the

case was committed to the Court of Sessions for trial from where

the learned Additional Sessions Judge (FTC), Raigarh received the

case on transfer for trial and for hearing and disposal in accordance

with law.

4. The trial Court has framed charges against the appellant for

offences punishable under Sections 302 & 201 of the IPC and

proceeded on trial. The appellant abjured guilt and entered into

defence stating that he has not committed the offence and he has

been falsely implicated.

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

many as 11 witnesses and exhibited 39 documents Exhibits P-1 to

P-39. No witness has been examined on behalf of the defence and

no document has been exhibited. Statement of the appellant was

recorded under Section 313 of the CrPC in which he abjured the Cr.A.No.810/2013

guilt and pleaded innocence.

6. The trial Court after completion of trial and after appreciating oral

and documentary evidence available on record, convicted and

sentenced the appellant in the manner mentioned in the opening

paragraph of this judgment against which this appeal under Section

374(2) of the CrPC has been preferred by him calling in question

the impugned judgment.

7. Mr. Ashish Gupta, learned counsel appearing for the appellant,

would submit that as per the statement of Kalash Ram Rathiya

(PW-1), the fact of dead body of Bhanwar Singh lying near the

Juma Pani Nala Jungle already came to the notice of the police

much prior to making of disclosure statement by the accused and

also from the statement of Rajesh Lakra (PW-5) vide Ex.P-22 which

has been admitted by the Investigating Officer - J. Lakra (PW-10)

in his statement before the Court in paragraphs 11 & 12 and as

such, recovery of dead body cannot be said to be at the instance of

the appellant herein and therefore that part of recovery against the

appellant is inadmissible in accordance with law. Furthermore,

wooden log has been recovered and it has been sent for chemical

examination to the FSL, but except the query report, FSL report has

not been brought on record and therefore in absence of the FSL

report ascertaining either blood or human blood on the recovered

weapon of offence, recovery is of no use to the prosecution in view

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

v. State of Chhattisgarh and another1. The extra judicial confession

1 (2019) 7 SCC 781 Cr.A.No.810/2013

allegedly made by the appellant to Dhanesh Ram (PW-6) is also

inadmissible in accordance with law as the extra judicial confession

is made in the meeting held in the village. Therefore, the impugned

judgment deserves to be set aside and the appeal deserves to be

allowed by acquitting the appellant of the charges levelled against

him.

8. Mr. Sudeep Verma, learned State counsel, would support the

impugned judgment and would submit that pursuant to the

memorandum statement of the appellant, two dead bodies have

been recovered which goes to show that the appellant is the author

of the crime and he has rightly been convicted by the trial Court.

Moreover, wooden log has also been recovered from the appellant

and in the query report it has been stated that the injuries found on

the deceased persons could have been caused by the said wooden

log. As such, the appeal deserves to be dismissed.

9. 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.

10. The first question would be, whether the death of the deceased

persons was homicidal in nature?

11. Considering the statement of Dr. B.L. Bhagat (PW-8) and further

considering the postmortem reports Exs.P-24 & P-25 and also

considering the finding recorded by the trial Court, we are of the

considered opinion that the death of deceased Bhanwar Singh

Rathiya and Ramkunwar Bai was homicidal in nature and we

accordingly hold so.

Cr.A.No.810/2013

12. Now, the question is, whether the appellant, who has committed the

murder of two of his relatives, is the author of the crime, which the

trial Court has found in favour of the prosecution holding that

pursuant to the disclosure statement given by the accused, the

dead bodies of two persons were recovered and weapon of offence

has also been recovered. On inviting the opinion of the doctor by

showing the wooden log, it has been held that by the said wooden

log, such injuries by which the two persons died, could have been

caused. We will discuss each of the circumstances which have

been projected by the prosecution and found proved by the trial

Court one by one.

13. The first circumstance is, pursuant to the memorandum statement

of the appellant, dead bodies of deceased persons Bhanwar Singh

Rathiya & Ramkunwar Bai have been recovered.

14. On 7-6-2012 at 9.00 a.m., the appellant is said to have given his

disclosure statement to the police recorded vide Ex.P-18 at Village

Chirodih pursuant to which the dead bodies of two persons were

exhumed vide Ex.P-3 from the place shown by the accused in

presence of Rajesh Lakra (PW-5), Kamhar Singh (not examined)

and Kalash Ram Rathiya (PW-1). The memorandum statement is

said to have been given at Village Chirodih, whereas recovery

panchnama Ex.P-3 of the dead body of Bhanwar Singh has been

recorded on 7-6-2012 at same time on which the memorandum

statement was recorded and that of Ramkunwar Bai Ex.P-4 has

been recorded after 45 minutes. Witnesses to Exs.P-3 & P-4 are

Kalash Ram Rathiya (PW-1), Rajesh Lakra (PW-5) and Kamhar Cr.A.No.810/2013

Singh, who has not been examined.

15. Kalash Ram Rathiya (PW-1) in his statement before the Court in

paragraph 1 has clearly stated that he has lodged missing report

before the police station and after lodging report, he came to know

through Sanat Yadav & Kamhar Singh (both not examined) that

when they had gone to the forest for eating mango, then some

smell was coming near the mango tree, thereafter, he was called by

the police on which he went along with the villagers then the dead

body of Bhanwar Singh was lying therein. In paragraph 5, he has

admitted that on the place of incident, he came to know through

Sanat Yadav & Kamhar Singh (both not examined) who informed

him then villagers went to the spot and exhumed the dead body. He

has further admitted that the place of incident was not informed by

the appellant herein.

16. Rajesh Lakra (PW-5), who is witness to Exs.P-3 & P-4, has not

supported the case of the prosecution, though he has admitted the

signature.

17. The Investigating Officer - J. Lakra has been examined as PW-10.

In his statement before the Court, in cross-examination paragraph

11, he has stated that in the statement recorded under Section 161

of the CrPC (Ex.P-22), it has been disclosed by Rajesh Lakra (PW-

5) to him that on 7-6-2012 when he along with Kamhar Singh

Rathiya, Dhanesh Yadav & Sanat Yadav reached to the Juma Pani

Nala Jungle for plucking mangoes, clothes of some one were

appearing and it was smelling then he suspected that it was the

dead body of Bhanwar Singh. The Investigating Officer (PW-10) Cr.A.No.810/2013

has clearly admitted with regard to the dead body of deceased

Bhanwar Singh and about the place of incident, firstly it was

suspected by Rajesh Lakra (PW-5), Kamhar Singh Rathiya,

Dhanesh Yadav (PW-6) & Sanat Yadav out of whom Kamhar Singh

Rathiya & Sanat Yadav have not been examined, however, the fact

remains that they have gone for plucking mangoes.

18. Thus, from the statement of Kalash Ram Rathiya (PW-1), the

statement of Rajesh Lakra (PW-5) recorded under Section 161 of

the CrPC as Ex.P-22 and the statement of Investigating Officer J.

Lakra (PW-10), it is quite established that on the information being

given by Rajesh Lakra (PW-5), Kamhar Singh Rathiya (not

examined), Dhanesh Yadav (PW-6) & Sanat Yadav (not examined),

the fact of dead bodies, particularly of Bhanwar Singh, lying in the

Juma Pani Nala Jungle came to the notice of the police, thereafter,

the villagers and police reached to the spot and exhumed the dead

bodies of Bhanwar Singh & Ramkunwar Bai and thereafter, the

memorandum statement of the appellant has been recorded stating

that pursuant to the information given by the appellant herein, the

dead bodies of Bhanwar Singh & Ramkunwar Bai have been

exhumed which has been relied upon by the trial Court to base the

conviction.

19. Now, the question is, where a fact has already been known by the

police, there can be a discovery again of that fact as a result of a

statement made by the accused subsequent to original discovery?

20. The Supreme Court in the matter of Aher Raja Khima v. State of Cr.A.No.810/2013

Saurashtra2 has clearly held that discovery of incriminating articles

alleged to have been recovered at the instance of accused is

inadmissible in evidence if the police already knew where they were

hidden. It has been observed in paragraph 20 of the report as

under: -

"20. ... But those discoveries are inadmissible in evidence because the police already knew where they were hidden. ..."

21. Similarly, in the matter of Makhan Singh v. State of Punjab3, it has

been clearly held by the Supreme Court that investigating officer

getting information about dead bodies being buried in a field before

accused made statement leading to recovery, exclusive knowledge

to accused of bodies being buried cannot be attributed on the basis

of recovery from open field and therefore evidence under Section

27 of the Evidence Act is not a circumstance against accused. It

has been observed in paragraph 14 of the report as under:-

"14. Then we are left with the recovery of the dead bodies. Investigating Officer S.I. Puran Singh (PW-8) admitted in cross-examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed. This clearly indicates that he could get some information from the statement of Amrik Singh. As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field. The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a 2 AIR 1956 SC 217 3 AIR 1988 SC 1705 Cr.A.No.810/2013

place about which knowledge could only be attributed to the appellant and none else. Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant."

22. Reverting to the facts of the case in light of the aforesaid legal

position qua recovery, it is quite vivid that in instant case, as per the

statements of Kalash Ram Rathiya (PW-1), who is witness to

Exs.P-3 & P-4 and Rajesh Lakra (PW-5), more particularly the

statement of Investigating Officer J. Lakra (PW-10), it is clearly

established on record that about the dead bodies of the Bhanwar

Singh & Ramkunwar Bai and the place of incident, it had already

came to the notice of Rajesh Lakra (PW-5), Kamhar Singh Rathiya

(not examined), Dhanesh Yadav (PW-6) & Sanat Yadav (not

examined) when they had gone for plucking of mangoes and when

they informed to the police, pursuant to the said information, the

police along with villagers as well as Kalash Ram Rathiya (PW-1)

reached to the spot and exhumed the dead bodies, particularly of

Bhanwar Singh. Therefore, it cannot be held that the appellant had

exclusive knowledge of the dead bodies being buried and

consequently, discovery of dead bodies particularly of Bhanwar

Singh alleged to have been recovered at the instance of the

accused, is inadmissible in evidence, as the police had already

came to know the place where the dead body of Bhanwar Singh

was hidden and exhumed the dead body. Furthermore, the

appellant is said to have made memorandum statement on 7-6-

2012 at 9.00 a.m. at Village Chirodih which is clearly apparent from

the memorandum statement and dead body of Bhanwar Singh was Cr.A.No.810/2013

immediately recovered on 7-6-2012 at the same time at the Juma

Pani Nala Jungle. As per the spot map, there is far distance

between the two places - Village Chirodih and the Juma Pani Nala

Jungle. Furthermore, the prosecution has failed to examine

Kamhar Singh Rathiya & Sanat Yadav who had firstly reported the

matter to Kalash Ram Rathiya (PW-1) and thereafter, the wheels of

investigation started running.

23. In view of the aforesaid evidence available on record, we hold that

the alleged discovery of dead body of Bhanwar Singh pursuant to

the memorandum statement of the appellant is inadmissible in

evidence, as the police had already came to know about the place

of incident and the dead body of deceased Bhanwar Singh. We

hold so accordingly.

24. Now, the next circumstance that has been relied upon the trial

Court is the weapon of offence wooden log which has been seized

pursuant to the memorandum statement of the appellant from the

cattle shed of his house. The said weapon of offence was sent for

chemical examination to the FSL, but no FSL report was brought on

record. The Supreme Court in Balwan Singh (supra) has 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. In the instant case, for the reasons best

known to the prosecution, the FSL report indicating whether the Cr.A.No.810/2013

weapon of offence wooden log was stained with human blood or

not, has not been brought on record. Therefore, it could not be

ascertained, whether the wooden log was used as the weapon of

offence for causing the murders of Bhanwar Singh & Ramkunwar

Bai. Accordingly, the said part of recovery pursuant to the

disclosure statement of the appellant is also of no use to the

prosecution. We hold so accordingly.

25. The next incriminating circumstance is the extra-judicial confession

which the appellant has allegedly made to Dhanesh Yadav (PW-6),

but Dhanesh Yadav (PW-6) in his statement before the Court has

clearly stated that the appellant has informed about the incident in

the meeting of the villagers. As such, this circumstance is of no

use to the prosecution because, in paragraph 6, Dhanesh Yadav

(PW-6) has resiled from his previous statement and stated that no

meeting was held in the village and has also clearly stated that the

appellant has not given any extra-judicial confession to him with

regard to the incident. As such, the alleged extra-judicial

confession to villagers is involuntary and it cannot be accepted, as

the same is a weak piece of evidence. No other circumstances

have been brought on record.

26. In view of the aforesaid legal analysis, in our considered opinion,

the prosecution has failed to establish the five golden principles as

laid down by the Supreme Court in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra4 to prove a case based

on circumstantial evidence beyond reasonable doubt.

4 (1984) 4 SCC 116 Cr.A.No.810/2013

Consequently, we are unable to sustain conviction and sentences

imposed upon the appellant under Sections 302 & 201 of the IPC.

27. Accordingly, we set aside the conviction so recorded and the

sentences so awarded by the trial Court to the appellant vide the

impugned judgment dated 1-8-2013. The appellant is acquitted of

the charges under Sections 302 & 201 of the IPC. He is in jail. He

be released forthwith, if not required in any other offence.

28. The appeal stands allowed.

                 Sd/-                                            Sd/-
          (Sanjay K. Agrawal)                         (Rakesh Mohan Pandey)
                Judge                                           Judge
Soma