HIGH COURT OF GHHATTISGARH : BILASPUR DB: Hon'ble"Shri_T.P.^harma & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Criminal Aooeal No.296 of 2004 APPELLANTS RESPONDENT: 1. Jaikaran, son of Shri Samaru Ram, aged about 19 years, occupation agriculturist and labourer, resident of -Bendopanni, Police Station - ^apoo, District- Raigarh (Chhattisgarh) 2. Pradhan Chauhan, son of Shri Sukwachan Chauhan, aged about 18 years, occupation - agriculturist and labour, resident of Sonpur (Ratanpur), Police Station- Kapoo, Distt. Raigarh (Chhattisgarh) Versus State of Chhattisgarh, through: the Station House Officer, Police Station- Kapoo, Distt. Raigarh (Chhattisgarh) Cruninal ApEeal u/S 374 (2) ofthe Cr.P.C. s!?^^ Appearance: Shri D.R. Sharma, Sr. Advocate with Shri B.D; Badgaiyan, Advocate for the appellants. Shri S.R.J. Jaiswal, Panel Lawyer for the State. ORAL-JUDGMENT (Delivered on 3ri December, 2010) The following iudgment of the Court_ was deli_yered_ by T.P. Sharma, J. . 1. The challenge in . this appeal is to the judgment of conviction and order of sentence dated 31.1.2004 passed by leamed 4th Additional Sessions Judge (FTC), Raigarh in S.T. No. 127/03, whereby and whereunder, leamed Additional Sessions Judge, after holding the appellants guilty for commission of culpable homicide amounting t^ murder of Trilok Das, convicted each of the appellants under Section 302 of the IPC and sentenced to undergo imprisoninent for life with fine of Rs.200/-, in default ofpayment offine, addittonal R.I. for 1 month. 2. Conviction is impugned on the ground that without any iota of «' .^,1 evidence sufficient for conviction of the appellants, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on account of dispute relating to purchase of battery, while the appellants and deceased -Trilok Das were going to village- Podi, appellants assaulted Trilok Das and caused his death. The appellants also took cycle of deceased -Trilok Das and pledged the same to on? Sanjay Kumar (P.W.6), after receiving Rs.350/-. On 30.5.2003, dead body of the deceased was seen by one Chhedi Ram Patel near village - Pakhnakot. He went to Police Station - Kapoo and lodged merg vide merg intimation Ex.P-7. The investigating officer left for scene of occurrence. After sum.moning the witnesses vide Ex.P 12- A,'inquest over unknown dead body was prepared vide Ex.P-12. Spot map was prepared vide Ex.P- 8. Dead body of deceased was sent for autopsy to Community Health Center, Dharamjaigarh vide Ex.-14, where, Dr. B.L. Bhagat (P.W.17) conducted autopsy vide his report Ex. P-14 A and found following injuries/symptoms. i!3 ^^•^S^'i' Bd;slg(B!giifi (i) Maggots were found all over the body. (ii) Absence of muscle on the face, skull and right hand. (iii) Body was decomposed. (iv) Trachea bone was found fracture. Mode of death was asphyxia as a result of strangulation. Death was homicidal in nature. «'.. ,.^ 4. During course of investigation, accused were taken into custody. They made disclosure statement of cycle vide Exs.P-2 8s P-3. Cycle was recovered from Sanjay Thakur (P.W.6) at the instance of appellants vide seizure menio of Ex.P-4. Vide Ex. P-1, receipts of battery and cycle bearing Frame No. 1802048 was seized from Kanshi Das (P.W.l). One battery was seized from. Ramlal vide Ex.P-5. Patwari prepared spot map vide Ex.P- 6. Panchnama was prepared by Eve persons vide Ex.P-9. On the basis of merg intimation, finally, FIR was recorded vide Ex.P- 13. Plain and blood stained soil was recovered vide ExP-10. Seized articles were sent for chemical examination. 5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure Code, 1973 (in short "the Code"). After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Dharamjaigarh, who, in turn committed the case to the Court of Sessions, Raigarh, from where learned 4th Additional Sessions Judge (FTC), Raigarh received the same for trial. I»»"'iE~?"l'2fc" ^,.^ if 6. In order to prove the guilt of the appeUants, prosecution has examined as many ^s 18 witnesses. Accused were examined under Section 313 of the Code in which they denied circumstances appearirig against fhem, pleaded innocence and false impUcation in the'crime in question. 7. After affording opportunity of hearing to the parties, learned <!' ^: Additional Sessions Judge convicted and sentenced the appellants as aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and records of the trial Court. 9. Learned counsel for the appellants vehemently argued that as per paragraph 12 of the judgment impugned, circumstances relating to last seen theory has not been found reliable by the Court below, but Court below has convicted the appellants only on the basis of recovery of cycle owned by deceased, at the instance of the appellants. Leamed counsel for the appellants further argued that the Court below has not properly examined the evidence on record relating to recovery of cycle at the instance of appeUants. If the documents placed on record relating to seizure of cycle (exhibited/un-exhibited) are considered then that would show that cycle recovered at the instance of the appellants are not one and the same which has been purchased by the deceased or owned by the deceased. Frame numbers of both the cycles are not one and the same. Although, the prosecution has not 'proved the receipt of cycle ^ 3:a!!|t»a-*^^^1^ It.,,.,-. ^ J:s:^Kt£:'3-^^^ft ~';'^ffi!t6 but seizure of receipt of cycle by prosecution find place as Ex.P- 1. Original receipt as well as duplicate receipt, find place in the record (un-exhibited), shows that frame number of cycle are not one and the same. If the evidence of the prosecution is admitted relating to disclosure statement of the appellants and recovery of cycle then that same would not be sufficient for ti drawing an inference that cyole recovered at the instance of the appellants was the cycle owned by deceased. The prosecution has not collected any other evidence to connect the appellants in crime in question and therefore, in the absence of incriminating evidence, the appellants are entitled for acquittal. 10. On the other hand, learned counsel for the State-respondent has opposed the appeal and submitted that the prosecution has proved its case beyond all shadow of doubt and the learned Court below has rightly convicted the appellants for the alleged commission of offence. He further submitted that though there is clerical error relating to frame number of cycle, but only on the ground of clerical error of frame number of cycle, conviction is not liable to be set aside. Evidence of Sanjay Kumar (P.W.6) inspires confidence and is trustworthy as he deposed the material fact that the appellants were the persons who had pledged the cycle to him. 11. In order to appreciate the arguments advanced on behalf of leamed counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. % •93S -y -r— 12. In the present case, homicidal death of deceased - Trilok Das \, as a result of fatal injuries has not been substantially disputed by the appellants, otherwise, also established by the evidence of Dr. B.L. Bhagat (P.W.17) and autopsy report Ex.P-14 A, which reveal that fatal injuries were found over the body of the deceased and death was homicidal in nature. <)'. 13. As regards complicity of the "appellants in the crime in question, conviction is substantially based on the recovery of cycle at the instance of the appellants, owned by deceased - Trilok Das. While appreciating the evidence relating to last seen theory, the learned Court below has disbelieved the theory of last seen on the ground that the appellants proceeded towards village Podi Erst, thereafter, the deceased proceeded towards Podi and the deceased was not seen in the company of the appellants live last time before his death. The learned Court below has rightly disbelieved the last seen theory in the aforesaid circumstances. 14. As regard the recovery of cycle, owned by deceased on the basis of discourse statements of the appellants is concerned, as per evidence of Sanjay Kumar (P.W.6), both the appellants have pledged cytle with him and he has paid Rs.350/- to them. Thereafter, appellants came to him with police and the police has seized the cycle vide Ex.P-4. Perusal of Ex. P-4 reveals fraxne number of cycle as 182048, whereas, receipt of cycle s'eized vide Ex.P-l shows frarae No. as 1802048, which has been subsequently corrected as 182048 in original bill. Receipt V K F'ffiSlt.ibUt ofbattery has also been seized vide Ex.-l from Kanshi. Another duplicate receipt dated 22.8.2003 also find place on record (un- exhibited) showing frame number of cycle as 182048 with endorsement that on 13.5.2003, at the time of selling the cycle vide Bill No.59, it has been erroneously mentioned as 1802048. The prosecution has not examined the seller of cycle to explain aforesaid anomaly. <t, .-.l^ 15. Conviction of the appellants is based solely on fhe basis of recovery of cycle at the instance of appellants. In these circumstances, the prosecution was under obligation to prove the factum of recovery and identity of property i.e. cycle by cogent and reliable evidence. As per Ex.P-1 85 P-4, frame number of cycle alleged to owned by deceased and recovered at the instance of appellants are not one and sarae. The prosecution has not offered any explanation relating to discrepancy in such frame number. In the absence of such explanation, conviction of the appellants on the basis of disclosure statements, is not sustainable under the law. 16. While convicting and sentencing fhe appellants, the learned Court below has not considered the aforesaid aspects and the facts in its spirit and has erroneously considered that cycle owned by deceased and the recovered at the instance of the appellants are one and same and thereby comm.itted illegality. 17. On close scrutiny of evidence adduced on behalf of the prosecution; we are of the considered view that conviction of .,.->-.-^, ,»':a"~^<uts. ''^s^'^isss^. ''-;SE^^^^ ^ '^fs^^y "t:-laj&.<3!" ^."aveen ||E|fH'BS|IS"||jl||8||B|B^?i8BS^S^ff!^^^^BS^^BB KS^^^H :S"; •:-;SW!WKK?^'.s@%%a:gStgS|ffi^ the appellants for the aUeged commission of offence is not well founded and not sustainable under the law. \ 18. For the foregoing reasons, conviction of the appeUants under Section 302 of the IPC is not sustainable in law. The appeal deserves to be allowed. Consequently, the appeal is aUowed. Conviction and sentence of the appellants under Section 302 IPC is hereby set aside an,d they are acquitted of the charges. They be set at liberty at once. The appellants are in custody, they be released, ifnot required in any other cases. Sd/- T.P.Sliarma Sd/- Manindra Mohan Shrivastava Judge 'ls'IEia'ijisas