Chattisgarh High Court
Nirmal Rathiya vs State Of Chhattisgarh on 4 February, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.06
10:45:19 +0530
2025:CGHC:6252-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1234 of 2015
Nirmal Rathiya S/o Ghurau Rathiya Aged About 35 Years R/o
Village - Kaya Police Station And Tahsil Gharghoda, District
Raigarh Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through Station House Officer, Police
Station Gharghoda, District Raigarh Chhattisgarh
... Respondent
For Appellant : Mr. Ashish Gupta, Advocate
For Respondent/State : Mr. Afroz Khan, Panel Lawyer
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(04.02.2025)
Sanjay K. Agrawal, J.
1 This criminal appeal preferred by the appellant under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 26.05.2015, passed by learned Sessions Judge,
Raigarh (CG) in Sessions Trial No.38/2015, by which, the
appellant herein has been convicted for offence under
Section 302 of Indian Penal Code and sentenced to undergo
life imprisonment and fine of Rs.5,000/-, in default of
payment of fine, to undergo additional rigorous
imprisonment for two years.
2 The case of prosecution, in brief, is that in the intervening
night of 13-14.03.2015, at Bagaidhodha (Survey jungle)
dam, village Kaya, PS Gharghoda, District Raigarh, the
appellant herein caused the death of his wife Dhankunwar
Rathiya (now deceased) by first assaulting on her head with
a wooden stick and then by immersing her head in the water
of Survey Dam till she died and left the dead body there to
show it to be a natural death by drowning, thereby the
offence has been committed. Further case of the prosecution
is that on 15.03.2015, the appellant appeared at Police
Station Gharghoda and informed that on account of
unsound mind of his wife, he took her to the place of
incident i.e. Survey Jungle dam and assaulted on her head
with a wooden stick and kept her head immersed in the dam
water till her death. Based on this, Merg (Ex.P-16) was
recorded and FIR (Ex.P-17) was registered. Memorandum
statement of the appellant was recorded vide Ex.P-6
pursuant to which the dead body of the deceased is said to
have been recovered vide Ex.P-3. Inquest was conducted
vide Ex.P-8 and dead body of deceased Dhankunwar Rathiya
was subjected to post-mortem, which was conducted by Dr.
A. K. Minj (PW-06), who proved the post-mortem report
Ex.P-14, according to which, cause of death was opined to
be cardio respiratory arrest as a result of hemorrhagic shock
due to excessive loss of blood with drowning and death was
homicidal in nature. After due investigation, appellant was
charge-sheeted for the aforesaid offence before the
jurisdictional criminal court, which was ultimately
committed to the Court of Sessions for hearing and disposal
in accordance with law.
3 During the course of trial, in order to bring home the offence,
prosecution examined as many as 9 witnesses and exhibited
20 documents in support of its case. The statement of the
appellant / accused was recorded under Section 313 of the
CrPC in which he denied the circumstances appearing
against him in the evidence brought on record by the
prosecution, pleaded innocence and false implication.
However, appellant-accused in support of his defence has
neither examined any witness nor exhibited any document.
4 Learned trial Court, after appreciation of oral and
documentary evidence on record, convicted the appellant
herein for the offence under Section 302 of I.P.C. and
sentenced him as mentioned in the opening paragraph of
this judgment, against which the present appeal has been
preferred by the appellant questioning the legality, validity
and correctness of the impugned judgment.
5 Mr. Ashish Gupta, learned counsel for appellant, would
submit that there is no eye witness to the incident and the
appellant has been convicted on the basis of weak
circumstantial evidences. He submits that the basis for
conviction of the appellant held by the trial Court was that
pursuant to the memorandum statement of the appellant,
the dead body was recovered whereas the place from where
the dead body was recovered was already known to the
Police Officer Sushma Chelak (PW9) and therefore, in the
light of the decision of the Hon'ble Supreme Court in the
case of Ravishankar Tandon v. State of Chhattisgarh1, the
appellant cannot be convicted for offence under Section 302
of IPC on the basis of the recovery of the dead body
pursuant to the memorandum statement. He would submit
that the prosecution has not been able bring home the
offence beyond reasonable doubt, therefore, the appellant is
entitled for acquittal on the basis of benefit of doubt.
6 Mr. Afroz Khan, learned State counsel, would support the
impugned judgment and submit that the prosecution has
been able to bring home the offence beyond reasonable
doubt and the conviction of the appellant for the offence
under Section 302 of I.P.C. is well merited, as such, the
appeal deserves to be dismissed.
7 We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went through
the records with utmost circumspection.
8 The trial Court has convicted the appellant by finding the
following circumstantial evidences proved against him in
para-26 of the impugned judgment:
01/ इस प्रकार अभियोजन की ओर से प्रस्तुत उपरोक्त साक्ष्य के आधार पर
जहां घटना के हेतुक (मोटीव) स्पष्ट रूप से प्रमाणित है कि मृतिका के पागलपन से
अभियुक्त उसका पति परेशान था और उसी की परिणति में उसने अपनी पत्नी की
हत्या कारित किया है,
02/ अभियुक्त के द्वारा स्वयं प्रथम सूचना रिपोर्ट दर्ज कराई गई है जिसका वह
अंश जो कि उसकी संस्वीकृति के रूप में नहीं है, साक्ष्य में ग्राह्य किया जा सकता है,
तथा अभियुक्त के मेमोरंडम और बताये जाने के आधार पर ही मृतिका के शव की
बरामदगी की गई है,
03/ मृतिका के सिर में पहुच
ं ाई गई चोट के कारण उसकी मृत्यु होना पाया गया
है तथा पोस्ट मार्टम की रिपोर्ट में वह चोट "होमीसाईडल" बतलाई गई है ।
1(2024) 4 S.C.R. 558
04/ बचाव पक्ष की ओर से मृतिका की हत्या किसी अन्य व्यक्ति के द्वारा किये
जाने के बाबत् संदेह किये जाने का कोई आधार किसी भी गवाह के प्रतिपरीक्षण में
नहीं दिया गया है,
05/ अभियुक्त के द्वारा अपने अभियुक्त कथन में स्वयं मृतिका की मृत्यु के
संदर्भ में लिखाई गई प्रथम सूचना रिपोर्ट एवम् शव की बरामदगी के बाबत् अपना
समाधानप्रद कोई स्पष्टीकरण नहीं दिया गया है और न ही ऐसा कोई बचाव लिया गया
है कि उसकी हत्या किसी अन्य के द्वारा किसी अन्य उद्देश्य के लिये की गई है ।
9 The case of prosecution is not based on direct evidence. It is
based on circumstantial evidence. The five golden principles
which constitute the Panchsheel of the proof of a case based
on circumstantial evidence have been laid down by their
Lordships of the Supreme Court in the matter of Sharad
Birdhichand Sarda v. State of Maharashtra2 which must
be fulfilled for convicting an accused on the basis of
circumstantial evidence. The relevant paragraph 153 of the
said judgment reads 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
2(1984) 4 SCC 116
3(1973) 2 SCC 793
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."
10 Now, we consider the correctness of the aforesaid
circumstances recorded by the trial Court in the light of the
principles of law laid down by the Hon'ble Supreme Court in
the case of Sharad Birdhichand Sarda (supra).
11 The third circumstance as to whether the death of deceased
Dhankunwar Rathiya was homicidal in nature has been
answered by the trial Court in affirmative relying upon the
post-mortem report (Ex.P-14) proved by Dr. A. K. Minj (PW-
6), according to which, cause of death was cardio respiratory
arrest as a result of hemorrhagic shock due to excessive loss
of blood with drowning and death was homicidal in nature,
which in our considered opinion is a correct finding of fact
based on evidence available on record, it is neither perverse
nor contrary to the record and accordingly, we hereby affirm
the said finding.
12 The first circumstance of motive which the trial Court found
to be proved holding that the appellant was
disturbed/harassed due to insanity of the deceased and
therefore he caused her murder, which in our considered
opinion is also a correct finding of fact based on the evidence
available on record.
13 The second circumstance which the trial Court found to be
proved is that the dead body was recovered pursuant to the
memorandum statement of the appellant recorded under
Section 27 of the Evidence Act and this has been taken to
be the grave incriminating circumstance to base the
conviction of the appellant. In this regard, the Hon'ble
Supreme Court in the case of Ravishankar Tandon (supra)
have clearly held that the prosecution will have to establish
that before the information given by the accused persons on
the basis of which the dead body was recovered, nobody had
the knowledge about the existence of the dead body at the
place from where it was recovered and in para-14 observed
as under:
"We will have to therefore examine as to whether
the prosecution has proved beyond reasonable
doubt that the recovery of the dead body was on
the basis of the information given by the accused
persons in the statement recorded under Section
27 of the Evidence Act. The prosecution will have
to establish that before the information given by
the accused persons on the basis of which the
dead body was recovered, nobody had the
knowledge about the existence of the dead body
at the place from where it was recovered.
14 However, it is pertinent to mention here that the
memorandum statement of the appellant was recorded vide
Ex.P-6 on 16.03.2015 at 8:40 am and the dead body was
recovered vide Ex.P-3 on 16.03.2015 at 9:15 am. Perusal of
the Merg Intimation Ex.P-16 would show that the appellant
had already disclosed the said fact to Sushma Chelak (PW-9)
that on account of unsound mind of his wife (the deceased),
he assaulted her with stick and when she became
unconscious, he dipped her head in water till she died and
left the dead body there and came back. As such, the place
where the dead body was lying was already known to the
I.O. Sushma Chelak (PW-9). Thus, in the light of the decision
of the Supreme Court in the case of Ravishankar Tandon
(supra), it cannot be relied upon as an incriminating
circumstance to hold the appellant guilty for offence under
Section 302 of IPC.
15 Next circumstance that the trial Court has found to be
proved is the extra judicial confession made by appellant
before the Police that he had committed murder of his wife,
pursuant to which Merg Intimation (Ex.P-16) was recorded,
based on which, FIR (Ex.P-17) was registered and thereafter
the dead body was recovered, which is one of the
circumstances connecting the appellant with the crime. In
this regard, the decision of the Hon'ble Supreme Court in
the case of Aghnoo Nagesia v. State of Bihar 4, may be
noticed in which their Lordships have clearly held that the
recovery of dead body from the place concealed by the
appellant herein is not sufficient to convict the
appellant/accused under section 302 of IPC and held in
para-21 as under:
4. AIR 1966 SC 119
"Section 27 applies only to information received
from a person accused of an offence in the
custody of a police officer. Now, the Sub
Inspector stated that he arrested the appellant
after he gave the first information report leading
to the discovery. Prima facie, therefore, the
appellant was not in the custody of a police
officer when he gave the report, unless it can be
said that he was the in constructive custody.
On the question whether a person directly
giving to a police officer information which may
be used as evidence against him -may be
deemed to have submitted himself to the
custody of the police officer within the meaning
of s. 27, there is conflict of opinion. See the
observations of Shah, J. and Subba Rao, J. in
State of U.P. v. Deoman Upadhyaya(1). For the
purposes of the case, we shall assume that the
appellant was constructively in police custody
and therefore the information contained in the
first information report leading to the discovery
of the dead bodies and the tangi is admissible
in evidence. The entire evidence against the
appellant then consists of the fact that the
appellant gave information as to the place
where the dead bodies were lying and as to the
place where he concealed the tangi, the
discovery of the dead bodies and the tangi in
consequence of the information, the discovery of
a blood-stained chadar from the appellant's
house and the fact that he had gone to Dungi
Jharan Hills on the morning of August 11,
1963. This evidence is not sufficient to convict
the appellant of the offenses under s. 302 of the
Indian Penal Code."
16 In the light of the decision of the Supreme Court in the case
of Aghnoo Nagesia (supra), the recovery of dead body
pursuant to the information given by appellant to the Police
would not connect the appellant to the offence in question.
Even otherwise the extra judicial confession is a weak piece
of evidence and unless it is corroborated by further
evidences it cannot be made basis of conviction of the
appellant under section 302 of IPC. As such, only on the
basis of motive of the offence, the appellant cannot be
convicted for the said offence.
17 In that view of the matter, we find that as per the principle of
'Panchsheel' given by the Honorable Supreme Court in the
case of Sharad Birhichand Sarda (Supra), the chain of
evidences are not so complete in which the appellant can be
held guilty for the incident. Consequently, we are unable to
uphold the conviction of the appellant for offence under
Section 302 of the IPC and the appellant is entitled for
acquittal on the basis of the principle of the benefit of doubt.
18 Accordingly, the impugned judgment dated 26.05.2015
passed by the Trial Court convicting and sentencing the
appellant for the offence under Section 302 of IPC is hereby
set aside/quashed and the appellant is acquitted from the
said offence on the basis of benefit of doubt. Appellant is
reported to be in jail. He be released from jail forthwith, if
his detention is not required in connection with any other
offence. The appeal stands allowed.
19 Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the appellant is suffering the jail
sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
