Chattisgarh High Court
Ramnarayan Bada @ Thepa vs State Of Chhattisgarh on 30 January, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.05
10:28:18 +0530
2025:CGHC:5540-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 774 of 2019
Ramnarayan Bada @ Thepa S/o Bhodro Bada Aged About
27 Years Occupation - Agriculture, R/o Village - Lau,
Dhamdhamiyapara, Police Station Rajpur, District
Balrampur - Ramanujganj, Chhattisgarh.
--- Appellant
versus
State Of Chhattisgarh Through Police Station - Rajpur,
District Balrampur - Ramanujganj, Chhattisgarh.
--- Respondent
CRA No. 687 of 2019
1. Roopnarayan Toppo @ Gere Ram S/o Late Sukhu Toppo
Aged About 32 Years Occupation Agriculture, R/o Village
Lau, Dhamdhamiyapara, P. S. Rajpur, District Balrampur-
Ramanujganj Chhattisgarh
2. Bhodro Bada S/o Late Chirru Bada Aged About 32 Years
Occupation Agriculture, R/o Village Lau,
Dhamdhamiyapara, P.S. Rajpur, District Balrampur-
Ramanujganj Chhattisgarh
3. Smt. Gangi Bai W/o Bhodro Bada Aged About 52 Years
Occupation Housewife, R/o Village Lau,
2
Dhamdhamiyapara, P.S. Rajpur, District Balrampur-
Ramanujganj Chhattisgarh
4. Sonamani Toppo D/o Late Sukhu Toppo Aged About 35
Years Occupation Housewife, R/o Village Lau,
Dhamdhamiyapara, P. S. Rajpur, District Balrampur-
Ramanujganj Chhattisgarh
---Appellants
Versus
State Of Chhattisgarh Through Police Station Rajpur,
District Balrampur-Ramanujganj Chhattisgarh
--- Respondent
For Appellants : Mr. Pushkar Sinha, Advocate
For Respondent/State : Mr. Rahul Tamaskar, Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(30.01.2025)
Sanjay K. Agrawal, J.
1. Since both the criminal appeals have arisen out of the same
impugned judgment and the question of law and facts also
being similar in both the appeals, they have been clubbed
together, heard together and are being disposed of by this
common judgment.
2. A1 Ramnarayan Bada @ Thepa has preferred CRA No.
774/2019 and A2 to A5 namely Roopnarayan Toppo,
Bhodro Bada, Smt. Gangi Bai and Sonamani Toppo
respectively have jointly preferred CRA No. 687/2019,
under Section 374(2) of the Code of Criminal Procedure,
calling in question the legality, validity and correctness of
the judgment of conviction and order of sentence dated
02.04.2019 passed by learned 2nd Additional Sessions Judge
to the Court of Additional Sessions Judge, District
Balrampur, Place Ramanujganj (C.G.) in Sessions Trial No.
R 05/2018, whereby these five appellants have been
convicted and sentenced in the following manner :-
Appellants Conviction Sentence
Name
A1 Ramnarayan u/s 302 of Life Imprisonment and fine
Bada @ IPC of Rs.5,000/-, in default of
Thepa payment of fine, additional
R.I. for 1 year.
u/s 201 Rigorous Imprisonment for
(Part-1) r/w 7 years and fine of
Section 34 Rs.1,000/-, in default of
of IPC payment of fine, additional
R.I. for 1 year.
u/s 120-B Life Imprisonment and fine
(1) r/w of Rs.1,000/-, in default of
Section 34 payment of fine, additional
of IPC R.I. for 1 year.
A2 Roopnarayan u/s 201 Rigorous Imprisonment for
Toppo @ (Part-II) r/w 2 years and fine of
Gere Ram Section 34 Rs.1,000/-, in default of
A3 Bhodro Bada of IPC payment of fine, additional
A4 Smt. Gangi R.I. for 1 month.
Bai & u/s 120-B Rigorous Imprisonment for
A5 Sonamani (II) r/w 6 months and fine of
Toppo Section 34 Rs.500/-, in default of
of IPC payment of fine, additional
R.I. for 15 days.
3. The case of prosecution, in nutshell, is that deceased
Patiyaro Bai was the deserted wife of A1 Ramnarayan Bada.
A3 & A4 are the parents of A1 and A2 & A5 are his close
relatives. Further case of the prosecution is that since A1
had deserted his wife Patiyaro Bai, she was living
separately. On the date of offence, A1 conspiring with other
accused persons, in furtherance of their common intention,
called Patiyaro Bai to his Rahar Badi, made sexual
intercourse with her and thereafter strangulated her with a
towel. It is alleged that all the accused persons keeping the
dead body in a bag buried it in Jhingo Sagaun (teak)
forest/plantation, thereby committed the offence. Missing
report of Patiyaro Bai was lodged by her father Thibhu (PW-
2) on 15.01.2017 on which investigation was conducted.
Memorandum statements of A1 & A2 were recorded vide
Exs. P-8 & P-9 showing the place where the dead body was
buried which was exhumed vide Ex.P-2. Pursuant to the
memorandum statement of A1, a motorcycle was seized vide
Ex.P-13 and on the memorandum statement of A2, Fawda
(shovel) was seized vide Ex.P-14 but the same has not been
sent to FSL for chemical examination. Though
memorandum statements of A3, A4 & A5 were recorded vide
Exs. P-10, P-11 & P-12 respectively, but no seizure was
made from them. Sack Panchnama, identification
Panchnama, Dasteyabi Panchnama were prepared vide Exs.
P-3, P-4 & P-5. FIR was registered vide Ex.P-24. Inquest was
conducted vide Ex.P-07 and dead body of deceased Patiyaro
Bai was subjected to post-mortem, which was conducted by
Dr. Rahul Mehta (PW-04), who proved the post-mortem
report Ex.P-19, according to which, cause of death was
asphyxia due to strangulation and death was homicidal in
nature. After due investigation, appellants were 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.
4. During the course of trial, in order to bring home the
offence, prosecution examined as many as 11 witnesses and
exhibited 37 documents in support of its case. The
statements of the appellants were recorded under Section
313 of the CrPC in which they denied the circumstances
appearing against them in the evidence brought on record
by the prosecution, pleaded innocence and false implication.
However, the appellants in support of their defence have
neither examined any witness nor exhibited any document.
5. Learned trial Court, after appreciating the oral and
documentary evidence available on record, convicted and
sentenced the appellants as mentioned in the opening
paragraph of the judgment, against which both the appeals
have been preferred by the appellants questioning the
legality, validity and correctness of the impugned judgment.
6. Mr. Pushkar Sinha, learned counsel for the appellants,
would submit that the trial Court has convicted the
appellants only on the basis of the incriminating
circumstances culled out in paragraph-22 of the impugned
judgment, however, the prosecution has utterly failed to
bring home the offence beyond reasonable doubt as the said
incriminating circumstances are not established at all. He
submits that the trial Court is absolutely unjustified holding
that pursuant to the memorandum statement of A1, the
dead body was recovered whereas the place from where the
dead body was recovered was already known to Awdhesh
Gupta (PW-1) and A2 Roopnarayan Toppo. As per the
statement of Awdhesh Gupta (PW-1), the dead body was
recovered pursuant to the place shown by A1 & A2.
Therefore, in the light of the decision of the Hon'ble
Supreme Court in the case of Ravishankar Tandon v.
State of Chhattisgarh1, A1 cannot be convicted for offence
under Section 302 of IPC on the basis of the recovery of the
1 (2024) 4 S.C.R. 558
dead body pursuant to the memorandum statement. He
submits that the prosecution has not been able to prove the
theory of last seen together as other appellants were also
present there when A1 and the deceased were last seen by
PW-1, therefore, A1 is entitled for acquittal on the basis of
benefit of doubt. He further submits that since the recovery
of dead body pursuant to the memorandum statement of A1
has not been established, A2 to A5 are also entitled for
acquittal on the basis of benefit of doubt. Hence, the
impugned judgment is liable to be set-aside and the
appellants are entitled for acquittal on the basis of benefit of
doubt.
7. Per contra, Mr. Rahul Tamaskar, learned State Counsel,
would submit that the prosecution has been able to bring
home the offence beyond reasonable doubt, more
particularly, the theory of last seen together has been fully
established and therefore the trial Court has rightly
convicted the appellants for the said offence, as such, both
the appeals deserve to be dismissed.
8. We have heard learned counsel for parties, considered their
rival submissions made herein-above and have also gone
through the records with utmost circumspection.
9. The trial Court has convicted the appellants by finding 4
circumstantial evidences proved against the appellants
recorded in para-22 of the impugned judgment which are as
under:
10. 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 Maharashtra 2 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 Maharashtra 3 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,
2 (1984) 4 SCC 116
3 (1973) 2 SCC 793
(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."
11. Now we consider the correctness of the aforesaid
circumstances recorded by the trial Court one by one in the
light of the principles of law laid down by the Hon'ble
Supreme Court in the case of Sharad Birdhichand Sarda
(supra).
12. The first incriminating circumstance that has been found
proved by the trial Court is that A1 and the deceased were
last seen together on 11.11.2017 at 5 to 6 p.m. by Awdhesh
Gupta (PW-1) thereafter on 19.11.2017 at 11.30 a.m. the
dead body was found which was exhumed vide Ex.P-2. In
this regard the statement of witness Awadhesh Gupta (PW-
1) is noteworthy. He, in para-4 of his court statement, has
stated that on 11.11.2017 at around 5-6 p.m. while he was
going to village Joblapara, he saw the appellants chasing
deceased Patiyaro Bai in the Rahar field in front of the
house of A1 but he did not pay attention thinking that it
was a family matter and went away from there. The
aforesaid statement clearly shows that it is not the case of
prosecution that A1 and deceased Patiyaro Bai were all
alone. It is the case of the prosecution that A2 to A5 were
also present there. Thereafter, the dead body was recovered
on 19.11.2017 at about 11.30 a.m. vide Ex. P-2 i.e. after
about 8 days of the incident. As such, there is a
considerable time gap between last seen together and the
time when the dead body of the deceased was recovered.
Therefore, we cannot hold that the theory of last seen
together is established beyond doubt as only A1 has been
charged for offence under Section 302 of IPC and other
appellants have not been charged for offence under Section
302 of IPC, more particularly when PW-1 had seen all the
appellants along with the deceased and the dead body was
recovered approximately 8 days after the last seen together.
As such, the first incriminating circumstance is of no use to
the prosecution.
13. Next incriminating circumstances is that the relationship of
the appellants and the deceased was not cordial. As per the
statement of Awdhesh Gupta (PW-1), Thibhu (PW-2) &
Kishore Kavet (PW-11), A1 and the deceased entered into
marriage in 2008 and they were blessed with two children.
But they were living separately for the last 5-6 years. The
deceased had also filed a maintenance application before
the Rajpur Court. As such, from the statements of PW-1,
PW-2 & PW-11, the strained relationship between A1 and
the deceased is proved which has rightly been held by the
trial Court.
14. The third incriminating circumstance is that the dead body
was recovered pursuant to the memorandum statements of
the appellants and this has been taken to be the grave
incriminating circumstance to base the conviction of the
appellants. The trial Court has held that the recovery of the
dead body was made pursuant to the memorandum
statements of appellants recorded under Section 27 of the
Evidence Act. 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.
15. However, in this regard, statement of Awdhesh Gupta (PW-1)
may be noticed who in para-5 has clearly stated that after
three days of the incident on 19.11.2017 he came to know
that the appellants had committed murder of Patiyaro Bai
and buried the dead body in Jhingo Sagaon forest. On
19.11.2017, the Investigating Officer Kishore Kavet (PW-11)
took the appellants (A1+A2) in custody and recorded their
memorandum statements. Pursuant to the memorandum
statements (Exs. P-8 & P-9) of A1 & A2, the dead body was
recovered vide Ex. P-4. Though A3 to A5 have given their
memorandum statements vide Ex.P-10 to P-12 but they
have not shown the place from where the dead body was
recovered. As such, PW-1 and A2 both had knowledge
about the place from where the dead body was recovered.
16. It is pertinent to mention here that A1 is the accused only of
the charge under Section 302 of IPC and A2 has been
charged with offence under Sections 120B/34 and 201/34
of IPC but he has not been charged under Section 302 of
IPC. However, the place from where the dead body was
recovered was in the knowledge of PW1 and also A2 even
before recovery of the dead body whereas only A1 has been
convicted for offence under Section 302 of IPC on the basis
of the recovery of the dead body of the deceased. 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 convict A1 for offence
under Section 302 of IPC.
17. The last incriminating circumstance which has been found
to be proved by the Trial Court is that pursuant to the
memorandum statements of A1 & A2, a motorcycle and a
shovel respectively were recovered. However, there is no
evidence on record to show that the said motorcycle was
used in the commission of murder of Patiyaro Bai. Further,
the shovel seized from A2 has not been sent to FSL for
chemical examination, therefore it is of no useful to the
prosecution. No other articles has been seized from the
other appellants.
18. In conclusion, the theory of last seen together has not been
established beyond reasonable doubt as it is not the case of
prosecution that A1 and the deceased were last seen
together alone but at that time A2 to A5 were also present
there and there is a considerable time gap of about 8 days
between last seen together and the time when the dead body
of the deceased was recovered. The recovery of dead body
pursuant to the memorandum statement of A1 is not
established beyond doubt as it runs contrary to the decision
of the Supreme Court in the case of Ravishankar Tandon
(supra). As such, only on the basis of motive of the offence,
A1 cannot be convicted for offence under Section 302 of IPC.
19. In view of the aforesaid discussion, we find that as per the
principle of 'Panchsheel' laid down by the Honorable
Supreme Court in the case of Sharad Birhichand Sarda
(Supra), the chain of circumstances are not so complete in
which the appellants can be held guilty for the offence.
Consequently, we are unable to uphold the conviction of the
appellants for the aforesaid offence and they are entitled for
acquittal on the basis of the principle of the benefit of doubt.
20. Accordingly, the impugned judgment dated 02.04.2019
passed by the Trial Court convicting and sentencing A1 for
offence under Sections 302, 201(Part-I)/34 & 120B(1)/34 of
IPC and A2 to A5 for offence under Sections 201(Part-II)/34
& 120B(II)/34 of IPC is hereby set aside/quashed on the
basis of benefit of doubt and the appellants are acquitted
from the said offence. A1 Ramnarayna Bada is reported to
be in jail. He be released from jail forthwith, if his detention
is not required in connection with any other offence. A2 to
A5 are on bail, they need not surrender, however, their bail
bonds shall remain in force for a period of six months in
view of the provisions contained in Section 437A of the
CrPC.
21. Both the criminal appeals, accordingly, stand allowed.
22. 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 A1 is suffering the jail sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
