HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam^harma Criminal Appeal No.239 of 2010 Heeralal Sahu versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- Radhe Shyam Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: Sd/- Sunil Kumar Sinha Judge ^ -12-2011 Postfor 9 -12-2011 7 Sd/- Radhe Shyam Sharma Judge ft'pn- HIGH COURT OF CHHATTISGARH AT BILASPUR D.B,: Hon'ble Shri Justice Sunil Kumar Sinha and Hon^ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.239 of 201 O Appellant versus Respondent Heeralal Sahu, S/o Shri Dindayal Sahu, aged about 30 years, R/o Masabhath, Police Station Arjunda, District Durg (CG) State of Chhattisgarh through Police Station Arjunda, District Durg (Chhattisgarh) Present: Shri Manish Upadhyay, counsel forthe appellant. Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Shri Avinash Chand Sahu, counsel for Padumlal Soni, father of the deceased. Criminal Appeal under Section 374(2) ofthe CodeolCriminal Procedyre JUDGMENT (Delivered on 5:tt' December, 2011) Per^Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 28-6-2008 passed by Session Judge, Durg in Session Trial No.43/2006. By the impugned judgment, accused/appellant Heeralal Sahu has been convicted under Sections 397 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and imprisonment for life and to pay fine of Rs.500/-, in default, to further undergo rigorous imprisonment for three months. The sentences of imprisonment are directed to run concurrently. 2. Case ofthe prosecution, in brief, is as under: f'^' <. 2 Padumlal Soni (PW-1), along with his son Sunil Soni (deceased), was running business of ornaments/jewelleries moving market to market. On 17-10-2005, at about 7:00 A.M., the deceased went to Village Ruda for selling ornaments. Padumlal Soni (PW-1) did not accompany him onaccount of bad weather. At about 3 P.M., when the deceased did not come back, Padumlal Soni (PW-1) went in his search to Bhilai, where somebody told him that he had seen the motor cycle of the deceased at Mansabhat Khar. Padumlal Soni (PW-1) went there. He saw that motor cycle of the deceased was lying in an agricultural field and his dead body was lying in another agricultural field. Many injuries were present over neck of the deceased and blood was oozing out. The ornaments-box was not found there. Earlier, the deceased had told him that whenever he had askecUhe appellant to refund the money of his brother Anil Soni, the appe'Tlant created dispute and threatened him of dire consequences. Village Kotwar Santosh Kumar Sahu lodged Merg Irrtimation (Ex.P-4) and First Information Report (Ex.P-9) in Police Station Arjunda. The Investigating Officer reached the place of occurrence, gave notice (Ex. P-1) to Panchas and prepared inquest (Ex.P-2) on dead body of the deceased. The dead body was sent for post mortem examination vide Ex.P-19. Dr. C.B.Prasad (PW-13) conducted lautopsy on dead body of the deceased. He gave his report (Ex.P-20), in which, he found following injuries: (1) Ihcised wound between left little and ring finger vertical, length 2", on dorsal side, (2) Incised wound on left ring finger on dorsal surface, (3) Incised wound on left little finger, vertical, length 2", -^i-^VB'ssaaM "^*-:.-.. - s». ^^ss^. VfiilS (4) Incised wound between left index and middle finger situated horizontally, length 1%", (5) Incised wound on left fore-arm extended to surface, area ^AVA", (6) Deep incised wound on occipital region, horizontal, 3"x1/2"xy4", (7) Deep incised wound, 3" above the nape of neck— (a) left side of medius place, y'x^VA" and (b) right side of medius place, 3"x1 "x%", (8) Deep cutting wound on the neck, 3"x2"x2", half portion of the neck was cut from its back side, (9) Abrasion on scapular region of 2", (10) Linear scratch on right scapular region of 2". The doctor opined that cause of the death was acute shock due to fatal injuries on skull and neck which resulted into profuse haemorrhage and the death was homicidal in nature. In further investigation, memorandum statement (Ex.P-22) of the appellant was recorded under Section 27 of the Evidence Act and at his instance, ornaments were seized vide Ex.P-23. Plain soil ai^d blood stained soil were seized fromthe place of occurrence vide Ex.P-5. Motor-Cyde bearing registration No.CG 08 ZE 7734 and a pair of Chappal were seized from the place of occurrencevide Ex.P- 6. Fancy top, Jhumka, other Fancy Tops/and other ornaments were seized vide Ex. P-7, Patwari Jitendra Singh Rajput (PW-4) prepared site-map vide Ex. P-8. Seized article Tangia was sent for examination and Dr. C.B.Prasad (PW-13) gave his report (Ex.P-15). Proceeding of identification was conducted for the ornaments seized from the appellant by C.L.Chanay, Naib-Tahsildar/Executive Magistrate (PW-14) vide-ldentification memo (Ex.P-21). The spot- map was also prepared by the Investigating Officer. The appellant was also sent for medical examination to District Hospital, Durg and Dr. A.K.Mishra (PW-12), after examining him, gave his report (Ex.P- 17). The seized articles were sent for chemical examination to Director, Forensic Science Laboratory, Raipur vide Ex.P-13, from where, vide Ex.P-30, report(Ex.P-31)was received. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Manish Upadhyay, learned counsel for the appellant argued that name of the appellant is not mentioned in the First Information Report (Ex.P-9). No date is mentioned in the list produced -by Padumlal Soni (PW-1). Eye-witnesses Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW- 11) did not support the case of the prosecution. According to Devlal Sahu (PW-16) and Kushal Sahu (PW-17), when the said recovery was made, the appellant was not present there. This shows that the said recovery was made in absence of the appellant. The proseeution has failed to prove memorandum and recovery of ornaments from the appellant. Therefore, the finding of guilt recorded by the trial Court is notsustainable in the eyes of law. 4. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by y^-s^ ',^s:s% 1 i '"» Es-^fi •<&.. ^ the learned Session Judge do not warrant any interference by this Court. 5. Shri Avinash Chand Sahu, learned counsel for Padumlal Soni (PW-1), father of the deceased supported the impugned judgment passed by the learned Session Judge. 6. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of session case. 7. Padumlal Soni (PW-1) deposed that on 17-10-2005, at about 7 A.M., his son Sunil Kumar Soni (the deceased) had gone to Village Ruda for selling ornaments. He did not return from Village Ruda till 3 P.M. He had gone to Village Ruda on a motor-cycle. He went in search pfjiis son to Bhilai Bazar. There, few persons sitting in a hotel, told'tiim that they had heard about an altercation relating to his son. They also told him that the altercation took place with the appellant between Bhilai and Masabhat Khar. He further deposed that when he reached between Bhilai and Masabhat Khar, he saw motor-cycle of his son lying in an agricultural fieldand dead body of his son was lying in another agricultural field. He did not express suspicion on any person about death of his son Sunil Soni. 8. In cross-examination, Padumlal Soni (PW-1) deposed that he had not expressed suspicion in his statement before police that murder and loot were committed by the appellant. He had been disturbed mentally and physically as his earning son had expired. He had not made any report in the police earlier that the appellant L . 'V'V.f-TyS^ •KBgsS ''•S.&E2SS. <i" created dispute and gavethreatening regarding transactions with his son Anil Soni. It is true that he has engaged an Advocate in this case separately. It is true that there was no personal enmity between the appellant and his sons. He had not lodged any repori: regarding personal enmity between the appellant and his son. 9. Padumlal Soni (PW-1) deposed that few persons told him that they had heard about an altercation relating to his son. They also told him that the altercation took place with the appellant between Bhilai and Masabhat Khar. But, he did not disclose the name of person who told him about the altercation between the appellant and the deceased and the prosecution did not examine that person, which is fatal to the case ofthe prosecution. 10. Panchram Dewangan (PW-9) deposed that on 17-10-2005, at about8T30-A.M., he had gone to Village Chicha to take clothes from a tailor which he had given for sewing. After taking clothes, when he was returning to Village Masabhat at about 10-10:15 A.M., he saw the appellant walkingon his agricultural field. His bicycle was parked near his agricultural field and empty kerosene containers were kept thereon. Thereafter, on the same day, he had seen him coming towards Nikum along with those containers. In cross- examination, he deposed that he had stated before police that the appellant had parked his bicycle near his agricultural field and kerosene containers were kept thereoa. 11. Birendra Kumar (PW-10) deposed that he did not know the appellant. 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The quarrel was going on at an extremely far place, therefore, he could not recognise any one. He did not know that out of the two quarreling persons, one assaulted the other with a Tangia. 13. The prosecution examined Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) as eyewitnesses, but they did not support the case of the prosecution and they turned hostile. Therefore, their evidence is not reliable. 14. The prosecution has led evidence of memorandum and recovery against the appellant. We shall now examine whether the prosecution has been able to prove that the recovery of looted/stolen ornaments was made from the appellant on the basis of his memorandum statement recorded under Section 27 of the Evidence Act? "-- -' .-rf 15. Yakub Memon (PW-18) deposed that on 26-10-2005 at about 4:30 P.M., he had recorded memorandum (Ex.P-22) ofthe appellant and at his instance, a Tangiya was seized vide Ex. P-24. The appellant had produced a box (Peff) after taking it out from the pond, seizure of which was madein presence of the witnesses vide Ex.P- 26. Some articles were seized from kitchen of the house of the appellant vide Ex.P-23. 16. Devlal Sahu (PW-16) deposed that he knew the appellant. On 26-10-2005, ,the appellant was interrogated at Police Station Arjunda. The appellant had narrated the police about assaulting with Tangiya and had said that he will get the Tangiya seized from the place where it was kept. Seizure of the Tangiya was not made ^^3£'^te- ^"^ • ~~"~~'t '•"-Qs^SS^ by the police before him nor the appellant got the Tangiya seized before him. The appellant had accepted in the police station about having the Tangiya and the gold and silver ornaments with him. The appellant had stated to the police before him that he had kept the gold andsilver ornaments in a Pipa made of tin and had hidden the same in a pit dug by him in kitchen of his house. He had also stated before the police that he will get the ornaments seized. In cross- examination, he deposed that on 26-10-2005, he had gone to the police station. Statement of the appellant was not recorded at the police station before him. At the time when the police personnel had shown him the articles at the police station, they had interrogated the appellant. It is true that he had seen all the ornaments and the Tangiya at the police station for the first time. 17. .Kushal Sahu (PW-17) deposed that he had reached the house of the appellant after seizure by the police. He came to know that police had made seizure of a tin (container) from the house of the appellant in which gold and silver ornaments were kept. He had not seen the appellant there. In cross-examination, he deposed that he did not know that a Pipa, filled with jewelleries, was seized by the police at the instance of the appellant from his house because he had reached there late. It is true that the police personnel had asked him to put his signatures on the police papers saying him not to fear because no action will be taken against him. On the assurance given by t'nem, he had put his signatures on all the papers. s8p!)JB eq} uai^M tBL|) pesodep 9H 'Luiq ejojaq pepjooej fou SBM }ue|[adde aiji j0 LunpuejOLueLU teq} pasodap jeqyn^ e|-| 'esnoq siq jo usqoi!)) aq} ui uiq Aq 6np }]d e ui uappiq peq 9q qoi^M 93i|od 8L|i 0} ')dS>| 9J9M S}U9LUeUJO L|3iqM W'Bdld eq} UBAIO peq ^esLuiq iue||9dde sqi }eq} Aes o) BUOJM si }i }eq) pesodsp J8q)jnj 9|-| 'uojtB}s 80i|od 341 ui stuaiueujo SL)} MGS 9|-| 'sjeq} (ussejd )ou SEM )ue||9dde 94} 'eLUii }eiQ ye 'tue||9dde eq) ^o U3L|3)!>| SL|} IUQJJ jauieiuoo eqi pejeAooaj pEL) aoi|od ueqM tBL|} pesodep jaqpni ei-i -stuaueujo pue eAiBuBj^ inoqe pe^deooe peq }ue||3ddE eq) jeueejeqi )Bq} pesodep jaqijn^ 8|-| •jeuiBiuoo piesaqi ui }de>| ejam s}U9tueujo eLuos leq} MBS 94 'uojteis 33!|od sq} ui peuedo SBM jsuieiuoo e^ u8L|yv\ 'JSUIBIUOO teq} 01 id9>|' SGM }B4M teq} U98S }OU peq 94 (nq 'jauieiuoo eq} pezias peq eoiiod }e[\} pssodop j84}jni3|-| 'aouasajd siq ui }ue||9dde 94} Luoj^e/f/fiue^ ezies »ou pip aoiiod ie\Jf\ pesodsp (gi.-Md) n^BS |B|A9a •oz •ApO}SnO Ul 9|iqM )U9LU9(B1S 9>|BLU 0} p8||8dLUOO peepui SGM uosjed e jaqieqM peuiLuexe sq ueo \\ 'seoueisLunoJjo uo 'J9A9MOH •uois|ndLuoo qBnojqi pepejpo ueeq eAeq s}ueuj9)eis leipotsno eq} }Bq} uoiidiunsejd oiieLuoine ou si ejeq) 'MB| ueipui u| •S}OEI ^o AjeAoosip luenbesqns sq} Aq peiunsejd eq ueo AaL|i )eq} )U9}XS 3l\} 0} S}U9A9 ? 9Sjn03 AjBUIpJO 84} Ul }U3LU9)BtS IBIpOlSnO }o esn 9A!)EAU9p eq( sjiLujad )ov aouapiAg eq} ^o ^3 uojtoes '61 'pejeAooaj ejsm s)u9Lueujo '}UB||9ddB equo eoueisui eq) }E pue pepjoosj SBM tue]]edde eq) p LunpuejoLueai IBL|} pssodep OS]B (zi.-Md) nqes leqsnx •tue||9dde 941 p SOUEISUI 94) }E pezies 9J3M sfueLueujo pue eAiBuej_ pue pepjooaj sem )ue||9dde SL|I jo LunpuejoLuauj )B4) pssodsp (gi.-AAd) nqeg IBIASQ '91. 01 11 were shown to him, at that time, police personnel had interrogated the appellant. 21. Kushal Sahu (PW-17) deposed that when the seizure was made, at that time, he had not seen theappellant there. He further deposed that Tangiya was not seized from the appellant before him. He did not know about seizure of any article or ornaments from the appellant. He further deposed that on being asked by the police and giving assurance to him that nothing will happen against him, he had signed the memorandum and seizure memo. 22. The house of the appellant was searched by the police in absence of the appellant. Kushal Sahu (PW-17) deposed that a Pipa (container), in which gold and silver ornaments were kept, was seized near the house of the appellant. The house of the appellant was easilyaccessible and jewelleries were found near his house and at the time of recovery, the appellant was not present there. The search and recovery of articles/jewelleries made by the police on 26-10-2005 do not inspire confidence as the house was easily accessible. We have carefully gone through the evidence of the witnesses, the panchnamas and the listof seized artides. The reasoning adopted by the trial Court for convicting the appellant is without basis and unjustified. 23. Padumlal Soni (PW-1) depbsed that in identification proceeding, he had identified his orriaments/jewellries. He further deposed that he had appeared in identification proceeding of ornaments/jewellries. The identification proceeding was conducted by Naib-Tahsildar/Executive Magistrate C.L.Chanay (PW-14). He 12 had identified his ornaments on the basis of seal-marks of the companies. He had seen the seal-marks S.S.P. and R.S. on the ornaments and identified them to be belonging to him. The identification proceeding was conducted by the Tahsildar vide Ex.P- 21, which bears his signature. 24. C.L.Chanay (PW-14) deposed that on 22-11-2005, he was posted as Naib-Tahsildar/Executive Magistrate at Gunderdehi. On 22-11-2005, he conducted identification of the articles relating to Crime No. 128/05 of Police Station Arjunda. He further deposed that in identification proceeding, Padumlal Soni (PW-1) had identified his ornaments/jewelleries. 25. Padumlal Soni (PW-1) deposed that it is true that he had not stated before police about giving a list of articles separately. It is true th'a't-thre document Ex.P-3 does not bear any date. He had given the list (Ex. P-3) to the police before the identification proceeding. It is true that he had not submitted bills regarding purchases of the ornaments in the police station. He had not kept any other list of ornaments at home. 26. Ex.P-4 is the Merg Intimation and Ex.P-9 is the First Information Report. These documents do not contain description of looted ornaments. Ex.P-3 is a list of ornaments given by Padumlal Soni (PW-1) to the police. Ex.P-3 does not contain any date of its recording. Padumlal Soni (PW-1) admitted that it is true that no date was mentioned in Ex.P-3. Since Ex.P-4 and Ex.P-9 do not contain description of ornaments and Ex.P-3 does not contain any date of its nses 13 ' ,: ' • recording, it cannot be said that the articles seized Were actually looted or stolen articles. 27. According to Yakub Memon (PW-18), memorandum of the appellant was recorded by him on 26-10-2005 and seizure was made 6n 26-10-2005 at about 6:15 P.M. The identification proceeding was conducted by Naib-Tahsildar/Executive Magistrate C.L.Chanay (PW-14) on 22-11-2005, which was after nearabout 26 days from 26-10-2005. Devlal Sahu (PW-16) and Kushal Sahu (PW- 17)specifically deposed that at the time of recovery, the appellant was not present. This shows that the seizure was made in absence of the appellant. Perusal of the evidence of Devlal Sahu (PW-16) and Kushal Sahu (PW-17) shows that the police personnel had interrogated the appellant after making seizure of the ornaments, which reveals that recovery of the ornaments and Tangiya was not made on"the basis of the memorandum of the appellant and the identification of seized articles was conducted after lapse of 26 days and there is no plausible or proper explanation by the prosecution for this delay. Therefore, the identification proceeding of the seized articles becomes doubtful and cannot be based for conviction of the appellant. 28. The prosecution has led evidence of three eyewitnesses Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) against the appellant, but they did not support the case of the prosecution. The other set of evidence led by the prosecution is memorandum of the appellant and at his instance, recovery of the Tangiya and looted/stolen ornaments, but the ;..,» 14 prosecution has failed to prove the memorandum and the recovery made on the basis of the said memorandum. The chain of circumstances, therefore, is not complete to conclusively establish that the appellant alone committed the crime. In the above circumstances, the memorandum and the recovery of artictes on the basis of the said memorandum are not reliable and cannot be based for conviction of the appellant. 29. We are of the view that in the above facts and circumstances of the case, the prosecution has utterly failed to prove the charges against the appellant. For the reasons aforementioned, the impugned judgment cannot be sustained. 30. In fhe result, the appeal is allowed. The conviction and sentence awarded to the appellant under Seetions 397 and 302 of the Indian Penal Code are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail.since 26-10-2005. He be set at liberty forthwith if not required in any other case. 31. The order of the learned Session Judge regarding the seized property is affirmed. Sd/- Sunil Kumar Sinha Judge Sd/- Radhe Shyam Sharma Judge Gopal