HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 432 of 2003 Chait Ram & another Vs. State of Chhattisgarh (And other cannected Criminal Appeal No. 758 of 2003) JUDGMENT For consideration Sdl- Sunil Kumar Sinha Judge I HON’BLE SHRI JUSTICE RAJEEV GUPTA \? W ‘Chief Justice Postfor Judgment 5701/2009 Sd/— SUNIL KUMAR SINHA Judge / CORAM: APPELLANTS RESPONDENT APPELLANTS RESPONDENT Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 432 of 2003 1. Chait Ram S/o Parshu aged about 35 years, R/o Village— Dongri Pali, P.S.- Basna, Distt. Mahasamund (C.G.) Jarha @ Madhav, S/b Karmu aged about 30 years, R/o Village- Harratar, P.S.- Jharband, Distt. Bargarh, (Orissa) Versus State of Chhattisgarh, through P.S.- Tumgaon (Chowki-Patewa), Distt. Mahasamund, (C.G.) & Anand Ram, S/o. Bisauharam, aged 40 years, Rlo. Village Pali, P.S. Tumgaon, District Mahasamund, (C.G.) Sobharam, S/o. Ramnath Aged 6O years, R/o. Dhorabhata P.S. Bagbahara, District Mahasamund (C.G.) Versus State of Chhattisgarh Criminal Appeal No. 758 of 2003 1. ¢ (Appeals under Section 374 (2) of The Code of Criminal Procedure) Appearance: 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. Q HIGH COURT OF CHHATTISGARH, BILASPUR res S. (ref @ Criminal Appeals N0. 432 of2003 & 758 0f2003 JUDGMENT (5".01 .2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) These appeals have been flled against the judgment and order dated 25‘“ of March, 2003 passed by the Second Additional Sessions Judge, Mahasamund (C.G.) in Sessions Trial No. 358/2002, whereby, appellants Sobharam, Ch'ait Ram and Jarha @ Madhav have been convicted u/ss 302 & 460 l.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.l. for 1-1 month under each count & appellant Anand Ram has been convicted u/ss 302/34 & 460/34 l.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 intervenin§ night of 2nd—3r" 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 15‘ & 2nd metacarpal bone. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage \ v 3 Criminal Appeals N0. 432 of 2003 & 758 of 2003 due to multiple incised wounds over face and head and it was homicidal in nature. A merg intimation reiating 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 soii, blood stained soii, some clothes and one Pharsa, stained with blood Iike 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 appeliant— Sobharam was recorded vide Ex.-P/4, in pursuance of which, one full—paint, shirt, saree, one siiver 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. FurtheLon 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 kun‘a (small— shirt) & one dhoti were put for identification conducted by the Executive Magistrate, Mr. R.S. Sonpipre, (PW-3). He prepared the identification memg 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. \ \ \ é? Criminal Appeals No. 432 of 2003 & 758 of 2003 (5) The seized articles were sent for their chemicai examination to Forensic Science Laboratory, Raipur, from where, the report Ex.-P/33 was obtained. According to the F.S.L. report, biood stains were found on blood stained. soil, shawl, pharsa, saree & Ioongi 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 convi‘cted 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. lt also found proved the identification of the articles conducted by the Executive Magistrate and that the articles were identified to be Jhat of the deceased persons. The @ Criminal Appeals No. 432 of 2003 & 758 of 2003 Sessions Court heid 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 appeiiants, it was proved beyond reasonabie 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 l.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 thei'r‘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 Chhatteriee —Vs- State of W.B, (1994) 2 SCC 22 is that “ln 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 thetcircumstances so established should \ \ \ ‘\ @ Criminal Appeals N0. 432 of 2003 & 758 of 2003 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- SanjaK Thakran & ann, (2007 (4) SBR 321. While passing the said judgment, the Apex Court has also taken \ note of the decision of Bodh Raj case (supra). \ \ \ \ @ Criminal Appeals N0. 432 of 2003 & 758 of 2003 (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 Amitsinqh Bhikamsinqh 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. (5) 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 Q deceased persons, they cannot be said to be connecting the accused § Criminal Appeals No. 432 of 2003 & 758 of 2003 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 chowkl, Patewa. When he opened the packet, he found that there were clothes in the packet. lt was containing one dhoti, one saree & one kun‘a. 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 identiflcation. lt 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:- “ .......mmemwag‘éetaa‘wmw Isttttfimt Ha‘wuettetw lawa‘srrcza’sitamgtwartustwaia’si Wamwmw IWmwam—mganeg lama imfabaafcramwml ....... ” 9 Criminal Appeals No. 432 of 2003 & 758 of 2003 lt 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- mattersof the offence or to identify the personswho 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 cons‘idered a safe rule of prudence to generally look corroboration of the testimony of witness in the Court as to the identification. ln 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. a \ « kK ‘ w @ Criminal Anneals No. 432 of 2003 & 758 of 2003 (22) In our considered view, the iearned 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 biood 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) tn. 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. /'\\ ##4## sdi- _ Sunil Kumar Sinha if ‘ Judge l ; l Sdl- :jChief/{usticer l