HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 432 of 2003 Criminal Appeal No 758 of 2003
1. Chait Ram
2. Jarha @ Madhav
3. Anand Ram
4. Sobharam
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Shri P.K.C. Tiwari, Sr. Advocate with Shri Shashi
Bhusan, counsel for the appellants in Cr.A. No.
432/2003
Shri D.R. Sharma, Sr. Advocate with Shri L.C. Dash,
counsel for the appellants in Cr.A. No. 758/2003.
^ Shri Ashish Shukla, Govt. Advocate, for the State in
both the appeals.
Honble Shri Rajeev Gupta,J,Honble Shri Sunil Kumar Sinha
Dated:05/01/2009
: Judgment
(Appeals under Section 374 (2) of The Code of Criminal Procedure)
JUDGMENT
(05.01.2009)
Following judgment of the Court was
delivered by
Sunil Kumar Sinha, J.
(1) These appeals have been filed against the judgment and
order dated 25th of March, 2003 passed by the Second
Additional Sessions Judge, Mahasamund (C.G.) in Sessions
Trial No. 358/2002, whereby, appellants Sobharam, Chait Ram
and Jarha @ Madhav have been convicted u/ss 302 & 460
I.P.C. and sentenced to undergo imprisonment for life and
to pay a fine of Rs.500/- in two counts with default
sentence of R.I. for 1-1 month under each count &
appellant Anand Ram has been convicted u/ss 302/34 & 460/34
I.P.C. and ordered to undergo similar sentences as above
under each count. It was also directed that all the
sentences shall run concurrently.
(2) The brief facts are that in the intervening night of
2nd-3rd May, 2002, some persons entered into the house of
Thakur Ram and murdered his wife Bisahin Bai. They caused
grievous injuries to Thakur Ram. Thakur Ram became
unconscious. He was taken to local hospital, from where, he
was referred to Medical College Hospital, Raipur and then
to MMI Hospital at Raipur, but ultimately, he died on
5.7.2002. Since he was throughout unconscious, his
statement/dying declaration could not be recorded, during
the said period of more than 2 months. When the incident
was noticed in the morning of 3.5.2002, the Sarpanch of the
Village Narayan Prasad (PW-11) reported the matter to the
police. The Investigating Officer reached to the scene of
occurrence on 3.5.2002, prepared inquest (Ex.-P/1) on the
body of the deceased, Bisahin Bai, and sent her dead body
for its postmortem to Community Health Center, Mahasamund
under memo Ex.-P/20-A, where the postmortem examination was
conducted by Dr. R.K. Pardal (PW-5), who prepared his
report Ex.-P/20. He noticed multiple external injuries on
the body of the deceased, there was fracture of right
mandible bone and right 1st & 2nd metacarpal bone. The
Autopsy Surgeon opined that the cause of death was shock
and haemorrhage due to multiple incised wounds over face
and head and it was homicidal in nature. A merg intimation
relating to deceased Bisahin Bai was registered as Ex.-P/26
and the First Information Report was registered as Ex.-
P/23. In further investigation, plain soil, blood stained
soil, some clothes and one Pharsa, stained with blood like
substance, were seized from the place of occurrence under
Ex.-P/27. Site plan was prepared under Ex.-P/28.
(3) On 20.5.2002 memorandum statement of appellant-
Sobharam was recorded vide Ex.-P/4, in pursuance of which,
one full-paint, shirt, saree, one silver chain and Rs.300/-
were seized at his instance under Ex.-P/9 and one small-box
& one tin-box were seized near a Nala under Ex.-P/10.
Likewise memorandum statement of appellant- Chait Ram was
recorded under Ex.-P/5 and one shawl, two full-shirts, one
dhoti and one full-paint & full-shirt were seized at his
instance under Ex.-P/11 and one rod was also seized at his
instance under Ex.-P/7. Further on the same day, memorandum
statement of appellant- Jarha @ Madhav was recorded under
Ex.-P/6 and one white dhoti, Rs.500/- cash, one green
coloured dhoti, one old banniyan and a knife was seized at
his instance under Ex.-P/8. Likewise memorandum of
appellant- Anand Ram was also recorded under Ex.-P/18 and a
sum of Rs.300/- was seized from his possession under Ex.-
P/12.
(4) Among the above seized articles, one saree, one kurta
(small-shirt) & one dhoti were put for identification
conducted by the Executive Magistrate, Mr. R.S. Sonpipre,
(PW-3). He prepared the identification memo Ex.-P/13,
according to which, on 1.7.2002, in the aforesaid
identification proceedings, those articles were identified
to be the articles of deceased persons. One witness
Genduram Sahu identified the saree saying that he had sold
this saree to deceased Bisahin Bai for Rs. 175/-. Other two
witness namely- Gaya Ram (PW-4) and Rakhu Ram identified
the kurta & dhoti saying them to be that of the deceased,
Thakur Ram, as they claimed that they had seen the deceased
wearing these clothes.
(5) The seized articles were sent for their chemical
examination to Forensic Science Laboratory, Raipur, from
where, the report Ex.-P/33 was obtained. According to the
F.S.L. report, blood stains were found on blood stained
soil, shawl, pharsa, saree & loongi seized from the place
of occurrence as also on knife seized from appellant Jarha
and rod seized from appellant Chait Ram. The blood stains
were also found on the saree & blause of deceased Bisahin
Bai. No blood stains were found on other articles. The
Serologist report regarding origin and grouping of the
blood could not be obtained.
(6) When Thakur Ram died on 5.7.2002, another inquest on
his body was prepared under Ex.-P/2 on 5.7.2002 and the
dead body was sent for postmortem to Community Health
Center, Mahasamund vide memo Ex.-P/24-A. The postmortem
examination was conducted by Dr. Girdhari Lal Chandrakar
(PW-10), who prepared his report Ex.-P/24. He noted the
history of multiple injuries and opined that the cause of
death was cardio respiratory failure due to chronic illness
and severe anaemia and old injuries. He did not opine it
to be homicidal in nature. However the viscera was
preserved and directed to be sent for further examination.
(7) After completion of usual investigation in the above
manner, the charge-sheet was filed in the Court of Judicial
Magistrate, First Class, Mahasamund, who in turn committed
the matter to the concerned Sessions Court, from where, it
was received on transfer by the Second Additional Sessions
Judge, Mahasamund, who conducted the trial and convicted
and sentenced the accused/appellants as aforementioned.
(8) Admittedly, there are no eye witnesses in this case
and the conviction of the appellants is based upon
circumstantial evidence. Learned Sessions Court found
proved the circumstance of giving memorandum statements of
appellants as also the seizure based on such memorandum
statements. It also found proved the identification of the
articles conducted by the Executive Magistrate and that the
articles were identified to be that of the deceased
persons. The Sessions Court held that on the basis of above
evidence, supported by the chemical examiner’s report, in
which the blood stains were found on the knife & rod seized
from the possessions of the respective appellants, it was
proved beyond reasonable doubts that the appellants entered
into the house of the deceased persons in the intervening
night of 2nd & 3rd May, 2002, caused assault to them, due
to which deceased Bisahin Bai died instantaneously and
deceased Thakur Ram died after about two months. It was
further held proved that the appellants had looted the
properties of the deceased as above, therefore, they were
liable for punishment under the aforementioned Sections of
I.P.C.
(9) Learned counsel for the appellants argued that the
memorandum statements and seizure, so far as they relate to
the clothes, are of no use because common clothes have been
seized in consequence thereof and they were not identified
to be that of the deceased persons. About seizure of
weapons, they argued that though the blood stains were
found on them but in absence their origin and group test,
they could not have been used against the appellants.
Therefore, there is no complete chain of circumstances
leading to singular hypothesis of guilt of the appellants
and the appellants deserve to be acquitted on these
accounts.
(10) On the other hand, learned counsel for the State
opposed these arguments and supported the judgment and
order passed by the Sessions Court.
(11) We have heard the learned counsel for the parties at
length and have also perused the records of the sessions
case.
(12) For resting the conviction solely based on the
circumstantial evidence, the law laid down by the Apex
court in the matter of Dhananjoy Chhatterjee -Vs- State of
W.B, (1994) 2 SCC 22 is that “In a case based on
circumstantial evidence, the circumstances from which the
conclusion of guilt is to be drawn have not only to be
fully established but also that all the circumstances so
established should be of a conclusive nature and consistent
only with the hypothesis of the guilt of the accused. Those
circumstances should not be capable of being explained by
any other hypothesis except the guilt of the accused and
the chain of the evidence must be so complete as not to
leave any reasonable ground for the belief consistent with
the innocence of the accused. It needs no reminder that
legally established circumstances and not merely
indignation of the court can form the basis of conviction
and the more serious the crime, the greater should be the
care taken to scrutinize the evidence lest suspicion takes
the place of proof.”
(13) In Bodh Raj alias Bodha and others -vs- State of Jammu
and Kashmir, AIR 2002 SC 3164, the Apex Court laid down
that there is no doubt that conviction can be based solely
on circumstantial evidence but the conditions precedent
before conviction could be based on circumstantial
evidence, must be fully established. They are:
1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The
circumstances concerned `must’ or `should’ and not `may’ be
established;
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.
(14) Almost similar view was again taken by the Apex Court
in the matter of State of Goa -vs- Sanjay Thakran & anr.,
(2007 (4) SBR 321. While passing the said judgment, the
Apex Court has also taken note of the decision of Bodh Raj
case (supra).
(15) In the present matter, it was firstly argued that the
discovery of the tin-box and another box was made from an
open place near the Nala and therefore, the memorandum is
of no consequence. The requirement of Section 27 of the
Evidence Act has been summarized by the Apex Court in the
matter of Amitsingh Bhikamsingh Thakur – Vs- State of
Maharashtra, (2007) 2 SCC 310 as follows:
“(1)The fact of which evidence is sought to be
given must be relevant to the issue. It
must be borne in mind that the provision
has nothing to do with question of
relevancy. The relevancy of the fact
discovered must be established according to
the prescriptions relating to relevancy of
other evidence connecting it with the crime
in order to make the fact discovered
admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence
of some information received from the
accused and not by the accused’s own act.
(4) The person giving the information must be
accused of any offence.
(5) He must be in the custody of a police
officer.
(6) The discovery of a fact in consequence of
information received from an accused in
custody must be deposed to.
(7) Thereupon only that portion of the
information which relates distinctly or
strictly to the fact discovered can be
proved. The rest is inadmissible.”
According to the prosecution, in the present case, the
boxes were found near the Nala, which was an open place,
therefore, there is no question of a “discovery” as a
consequence of memorandum statements recorded u/s 27. The
said place was accessible to all and it was not proved that
the articles were in hidden condition. Therefore, looking
to the long gap between the date of incident i.e. 2nd-3rd
May, 2002 and the date of seizure which was made on
20.5.2002, such seizure cannot be said to be of any use to
the prosecution.
(16) So far as seizure of clothes are concerned, they are
common articles and unless they are proved to be that
belonging to the deceased persons, they cannot be said to
be connecting the accused persons from crime in question.
It was argued before us that these articles were not
produced before the Court during the trial and that it has
also not come on record that where they were from date of
alleged seizure to the date of identification i.e.
1.7.2002.
(17) PW-3, Executive Magistrate, R.S. Sonpipre deposed that
on 1.7.2002, he received one closed packet from police
chowki, Patewa. When he opened the packet, he found that
there were clothes in the packet. It was containing one
dhoti, one saree & one kurta. He has conducted the
identification proceedings and the articles were identified
by Genduram, Gaya Ram (PW-4) and Rakhu Ram. The proceedings
were conducted in the premises of Tehsil office.
(18) A perusal of entire evidence would show that
everything was arranged by the police personnels and he had
only conducted the proceedings. His evidence does not
disclose that the articles sent for identification, were
sent to him in sealed condition and the seal was open by
him. It also does not come in his evidence that this
witness, after applying his mind, has mixed similar
articles with the articles sent for identification. It only
comes that the other articles of similar type were also
brought by the police personnels but it does not come they
were containing same marks etc. (like blood mark present on
dhoti).
(19) Out of 3 witnesses identifying the articles only Gaya
Ram (PW-4) has been examined and Genduram Sahu and Rakhuram
have not been produced by the prosecution for the reasons
best known to them. Gaya Ram (PW-4) deposed that
identification proceedings was conducted and he has
identified the dhoti and kurta (shirt) of deceased Thakur
Ram. Para-5 of the cross examination of this witness is
very interesting. The following portion of Para-5 of his
examination would be sufficient to impeach the testimony of
this witness:-
“——-Bkdqjjke ?kVuk ds igys ml dqrsZ dks dbZ
ckj iguk Fkk A vkSj eSaus mls dbZ ckj igus ns[kk
Fkk A ?kVuk ds ckn tc eSa Bkdqjjke ds ;gka x;k
Fkk rc Bkdqjjke us ogh dqrkZ iguk Fkk A ftlesa
mldk `kjhj ls fudyk gqvk [kwu fudyk Fkk A blfy,
eSaus ml dqrsZ dks ns[kdj igpku fy;k A——-“
It would be a matter of common sense that if the
murder and loot has taken place in the intervening night of
2nd-3rd May, 2002 and the said kurta was looted in the said
night by the accused/appellants, how this witness can see
Thakur Ram wearing that kurta on a subsequent day after the
incident when he had gone to meet him. The identification
of saree and other articles by Gendu Ram & Rakhu Ram as
deposed by the Executive Magistrate (PW-3) is also highly
suspicious.
(20) The Apex Court in the matter of Harnath Singh -Vs- The
State of Madhya Pradesh, AIR 1970 SC 1619, referring to the
decision of Ramkishan Mithanlal Shamra and others -Vs-
State of Bombay, AIR 1955 SC 104, speaking about the
reasons for holding identification proceedings and the
scope thereof said that “During the investigation of a
crime the Police has to hold identification parades for
the purpose of enabling witnesses to identify the
properties which are the subject-matter of the offence or
to identify the persons who are concerned therein. They
have thus a two-fold object: first, to satisfy the
investigating authorities that a certain person not
previously known to the witnesses was involved in the
commission of the crime or a particular property was the
subject of the crime. It is also designed to furnish
evidence to corroborate the testimony which the witness
concerned tenders before the Court”.
(21) The purposes of prior test identification is to test
and strengthen the trustworthiness of that evidence.
Therefore, it is accordingly considered a safe rule of
prudence to generally look corroboration of the testimony
of witness in the Court as to the identification. In the
present case, the testimony of Gaya Ram (PW-4) does not
appear to be reliable on the face of his evidence referred
to above, therefore, there is no question about seeking
corroboration from other evidence like the evidence of
proceedings of test identification. Therefore, we do not
rely on the circumstance of the identification of the
properties held to be proved by the learned Sessions Judge.
(22) In our considered view, the learned Sessions Judge
erred in law in holding the proceeding of the
identification to be genuine and further that in such
identification the properties mentioned in the
identification memo, Ex.-P/13, were duly identified by the
witness to be that of the deceased persons.
(23) So far as circumstance of blood stains found on the
weapons seized from the possession of the two appellants
are concerned, that also we do not feel to be much
incriminating against the respective appellants. What was
the origin, what was the blood group and whether the blood
found on those articles by the chemical examiner were those
of the groups of deceased persons, have not been
established. In the facts and circumstances of the case,
we do not hold this in complete solitary circumstance
sufficient to connect the appellants from crime in
question.
(24) In the result, the appeals are allowed. The conviction
and sentences awarded to the appellants are set aside. They
are acquitted of the charges framed against them. It is
stated that the appellants are throughout in jail since
21.5.2002. They be set at liberty, forthwith, if not
required in any other case.
CHIEF JUSTICE JUDGE