HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Sbri Dhirendra Mishra & Hon'ble SlirLR.N. Chandrakar, JJ. Crimmal Appeal No. 512 of 2003 >•,-, '"s-^;^^> Respondent Appellant Rakesh Kumar, S/o. Rakesh Kumar Baragh, aged 30, Piparsatti, Police Station Akaltara, District Janjgir Champa (CG). Vs. « .'./ , State of Chhattisgarh through the Disirict Magistrate, Janjgir Champa (CG). & Criminal Appeal No. 244 of 2004 Appellant Manharanpuri, s/o. Madhyanpuri Goswami, aged about 23 years, resident of Piparsatti, Police Station Akaltara, District Janjgir-Champa (CG). Vs. Respondent State of Chhattisgarh through the District Magistrate, Janjgir Champa (CG). (Criminal Appeal under Section 374(2) ofthe Cr.P.C. Present: Shri Vinay Dubey, counsel for appeltant in Criminal Appeal No. 512 of 2003. Shri Bharat Lal Dembra, counsel for appellant in Criminal Appeal No. 244 of 2004. Shri ArunSao, Govt. Advocate for the State 1. QRALJUDGMENT (14-7-2010) Criminal Appeal No. 512 of 2003 preferred by appellant Rakesh Kumar and Criminal Appeal No. 244 of 2004 appellant Manharanpuri '\- are being disposed of by this common judgment as both these appeals arise out of the ji^dgment dated 23-12-2002 passed in Sessions Trial No. 131/2002, whereby learned 2nd Additional Sessions Judge (FTC), Janjgir, Sessions Division Bilaspur, has convicted the appellants under Section 302 read with Section 34 of the IPC for causing homicidal death of Santara Bai and Anand Das and sentenced them to life imprisQnment. The appellants have been ,'•': further convicted under sections 450 and 404 read with Section SAof the IPC and sentenced to undergo R.l. for five years and fine of Rs.100/-, R.l. for two years and fine of Rs.100/- respectively, in default of payment of fine, the fine imposed is to be recovered as arrears of land revenue. 2. The case of the prosecution, in brief, is that the comptainant Rajaram I, (PW/1), resident of village Piparsatti, lodged report in Police Station on 4-1-2002 mentioning therein that in the intervening night of 3/4-1- 2002 Santara Bai and Anand Das, nephew of his brother Sumerdas have been murdered in the house of his brother Sumerdas unknown persons. On further investigation, it revealed that the appellants herein entered the house of Sumerdas with an intention to commit theft and assaulted Santara Bai with knife and murdered Anand Das by pressing his neck. On subsequent investigation, Police interrogated the appellants after taking them into custody and recorded their statements under Section 27 of the Indian Evjdence Act and on the basis of information received by them, weapon of offence knife, their wearing apparels stained with blood and articles of loot were seized from them. 4. After completing the investigation, charge sheet was filed against the appellants and after committal of the case learned Additional Sessions Judge, received the case on transfer for trial and framed charges under Sections 450 and 302 of the IPC for causing homicidal death of Santara Bai and Anand Das and under Section 404 read with Section 34 of the IPC for committing theft of two silver anklets and two silver rings from the dead body of Santara Bai. The appellants abjured their guilt.,. Prosecution in order to establish the charges against the appellants examined 24 witnesses in alt. Thereafter the statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. However, the appellants did not examine any witness in defence. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of the judgment. Learned trial Court on the basis of evidence of Dr. (Smt) Lalita Toppo (PW/12) and Dr. R.K. Agrawal (PW/23) who jointly conducted post- mortem over the persons of the deceased persons and proved the post-mortem reports of Santara Bai (Ex.P/12) and Anand Das (Ex.P/25). They opined that the cause of death of Santara Bai was shock and hemorrhage due to ante-mortem injuries a.nd also opined' that cause of death of Anand Das was asphyxia (due to pressing of neck) and held that their death was homicidal in nature. fitiMWIh. 7. After perusal of the evidence of Dr.(Smt) Lalita Toppo, (PW/12) who conducted post-mortem over the person of the deceased Santara Bai and found the fotlowing injuries and opined that she died as a result of shock and hemorrhage and the injuries were ante-mortem in •* nature, homicidal death of Santara Bai is established. INJURIES "i) Incised wound over the right parietal region 6 x .5 cm. ii) Incised wound over right forearm 2 x 1 cm atmiddle 1/3. iii) Incised wound over right forearm below the elbow posterior aspect 1 x .5 cm. iv) Incised wound over right forearm lower 1/3 at extension aspect 6 x 1 cm muscle cut bones seen through the injury. v) Incised wound over gtuteal region % x % cm. vi) Incised wound over left inguinal region 5 x .5cm. vii) Abrasion over right breast .5 x.1 cm. viii) Stab injury at 9 10th intercostats space (1x 1 xVi cm. ix) 18 stab injuries found over the lumber region right side size (2-5 cmx,5-1x1- 5 cm) elliptical shape. All injuries ante- mortem in nature. Face and lips pale. *>- 8. This witness also conducted post-mortem over the person of the deceased Anand Das and proved the post-mortem report (Ex.P/25) an^l found the following injuries and opined that cause of death of Anand Das was asphyxia due to throttling and the same is homicidal in nature. Homicidal death of Anand Das is established. INJURIES "i) Rigor mortis present in lower leg nail beds cyanosed. Reddish fiuids came through ii) mouth and both nostrils. Bubal mucosa congested over both lips. Tongue inside the oral cavity. Irregular abrasion over the neck left and side of mid-line arterially (1 x .5 cm) and (1.5 x 1 cm) face congested. ••'i-'.-S\-^.-f^^.S::S:& m. J 9. Dr. R.K. Agrawal (PW/23) who also participated in the postmortem has expressed his agreement with the opinion given in the <f. postmortem report of Santara BSi and Anand Das and opined that the deceased Anand Das died as a result of asphyxia due to pressing of neck and Tiis death is homicidal in nature. 10. Learned counsel appearing for the appellants did not dispute the homicidal death of both the deceased persons. Even other wise, from the evidence of Dr. (Smt) Lalita Toppo (PW/12) and Dr. R.K. Agrawal (PW/23), we are of the opinion that both the persons died homicidal death. 11. Shri Vinay Dubey, learned counsel appearing for the appellant- Rakesh Kumar submits that the appettant has been convicted on the basis of recovery of weapon of offence, blood stained knife and wearing apparels on his memorandum (Ex.P/14). From the evidence of Goverdhan (PW/8) who is witness of memorandum and seizure, it would be evident that this witness has deposed that a sword was seized from the appellant. The weapon of offence was never produced during trial and there is discrepancy in the description of weapon of offence in the seizure memo and evidence before Court. The weapon of offence was also not found stained with blood by FSL in its report (Ex.P/39). There is no other evidence to connect the appellant - Rakesh Kumar with the crime in question, except the recovery made on his memorandum. Therefore, looking to the discrepancy in the description of weapon of offence and the fact that no blood stain was found on the knife, the trial Court was not justified in convicting the appellant Rakesh Kumar only on the basis of recovery of weapon of offence. D 12. Shri B.L. Dembra, learned cq^nsel appearing for appellant -- Manharanpuri argued that conviction of the appellant is based on'- recovery of weapon of.offence, blood stained clothes of the appellant and silver bangles and silver anklets of the deceased on the memorandum of the appellant. He further argued that identification of the ornaments of the deceased is doubtful as identification was done in Police Station as deposed by PW/15 - Nankun Bai and no \ similar articles were mixed as admitted by the Executive Magistrate (PW/16). He further argued that in the first information report, it has not been mentioned that the above articles were missing and stol^n ^ -< from the dead body of the deceased and the recovery of the articles have been subsequently introduced to buttress the case of prosecution. 13. On the other hand, Shri Arun Sao, Government Advocate, appearing on behalf of the State supported the impugned judgment. 14. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 15. The trial Court has convicted the appellants on the basis of recovery of weapon of offence on their disclosure statements and also on the ,:.Ii-!;"::'i.<^0'^ basis of recovery of blood stained clothes and ornaments removed from the body ofthe deceased Santara Bai after her murder. 16. From perusal of the First Information Report (Ex. P/3) lodged by Rajaram (PW/1), we find that there is no mention that the deceased Santara Bai was putting on any silver ornaments at the time of incident and the same were missing. Goverdhan (PW/8) who is witness of memorandum and seizure has deposed that the Police <i- interrogated Rakesh Kumar in'his presence in which he disclosed that he has kept sword in the tank (Ex.P/14). He also disclosed that the wearing apparets i.e., full-pant and shawl were kept in his house. He was further interrogated by Police and he disclosed that «after committing murder of Anand Das he committed theft of silver ornaments of the deceased and has thrown the same in tank vide Ex.P/15. He has further proved the recovery of wearing apparels of Rakesh Kumar (Ex.P/17) and sword (Ex.P/18). He has atso proved the seizure memo (Ex.P/19) by which sword was seized at the instance of appellant Manharanpuri and wearing apparels were seized from him vide Ex.P/20. 17. From the evidence of this witness we find that neither the weapon of offence nor the ornaments that was discovered at the instance of the accused persons, was produced for perusal of the witness during trral. This witness has deposed in para 13 that memorandum of the appellants were recorded in village Piparsatti, whereas from perusal of memorandum of Ex.P/14 and P/15, we find that it is shpwn to be recorded at Police Station Akaltara. N 18. PW/24 Dilip Kumar is another witness of memorandum. Hehasalso proved the memorandum of-the appellants (Ex.P/14 & P/15) and in his presence recovery of sword, wearing apparels and ornaments was made vide Ex.P/18, P/19 & P/20. From perusal of paras 7 & 8 of the evidence of this witness, it is clear that the memorandum of appellant was not recorded in his presence, but he was made to sign 4, the documents, memorandum arjcl seizure. 19. PW/22 - D.K. Netam, Sub inspector and investigating Officer of thl case has clearly mentioned in para 18 of his evidence that at the time of registration of morgue intimation and preparation of inquest, no mention about the theft of any article was made. 20. The articles seized from the appellants were sent for chemical examination to FSL, Raipur. From the report of FSL, we observe that wearing apparels of Rakesh Kumar and knife seized from him did not ^ contain blood, though the knife and wearing apparels seized at the instance of the appellant Manharanpuri contained blood but the origin < of the blood was not confirmed as the same was not found sufficient for serotogical examination. 21. On close scrutiny ofthe impugned judgment and evidence available on record, we find that the conviction of the appellant - Rakesh Kumar based on recovery of weapon of offence and blood stained wearing apparels is not justified. We find substance in the argument of learned counsel for the appellant - Rakesh Singh that there is discrepancy in the description of weapon of offence in the court statement of witnesses on memorandum and seizure and the description mentioned in the memorandum and seizure memo. We MwSS .^^liSSS^.^ also take note of the fact that the weapons were not produced and identified by the witnesses during trial and there is no evidence that the same contained blood and that too of the deceased. 22. Similarly, the conviction of the appellant - Manharanpuri is also based on recovery of blood stained weapon of offence and blood stained wearing apparels on his memorandum. However, in the absence of any evidence thgjt the blood found on the above articles was human blood and thattoo of the blood group of the deceased, the conviction could not be based solely on recovery of blood stained weapon of offence and wearing apparels. So far as recovery of ornaments of the deceased at the instance of appellant - Manharanpuri is concerned, there was no allegation in the first information report that the ornaments worn by the deceased was found missing after her murder. Even otherwise, the identification of the ornaments of the deceased is doubtful as the same was done in Police Station and the Executive Magistrate (PW/16) who conducted identification has admitted in his deposition that no other similar ornaments were mixed with the ornaments seized at the instance of the appellant and thus, the identification looses its significance. 23. On the basis of aforesaid analysis, we are of the considered opinion that the impugned judgment convicting the appellants as mentioned in para 1 of this judgment, cannot be sustained and both the appeals have to be allowed by extending benefit of doubt to the appellants. 24. Accordingly, the appeals i.e., Criminal Appeal No.512 of 2003 preferred by Rakesh Kumar and Criminal Appeal No. 244 of 2004 preferred by Manharanpuri succeed. The. impugned judgment of 10 conviction of appellants Rakesh Kumar and Manharanpuri under Sections 302 read with Section 34, 450 and 404 read with Section 34 of the IPC, is set aside. The appellants are acquitted of the charges. They be set at liberty forthwith, if not required in any other case. Sd/- Dhirendra Mishra Judge ^h ^ ^';i "" Sd/- R.N. Chandrakar Judge !»m(»,iai.Rai" 'sitiMi 1