HiGH COURT OF CHHATTISGARH AT BILASPUR Criminai Appeal No.1163 of 2003 APPELLANT: (In Jall) RESPO_NDENT: KedarSharma Versus State of Chhattisgarh v JUDGMENT FOR CONSIDERATJON HON'BLE MR. JUST!CE R.N. CHANDRAKAR 3 oL-q^e.e^, o Sd/- JU-DGE ^--8-2009 Sd/- R.N. Chandrakar Judge m POST FOR JUDGMENT ON -^ AUGUST. 2009 Sd/- Dhirendra Mishra Judge Ifff. ^ COURT OF CHHATTiSGARH AT BSLASPUR Crimina! Appea! No.1163 of 2003 APPELLANT: (In Jaii) Kedar Sharma, Son of Shri Devnandan Sharma, aged about 55 years, resident of Jail Para, Ramanujganj, District Surguja (CG) Versus RESPQNDENT: State of Chhattisgarh, through: The Police Statlon Ramanujganj, District Surguja (CG) (Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Smt. Hamida Siddique, counset forthe appellant. Shri S.K. IVIishra, Panel Lawyerforthe State/respondent. Division Bench: Hon'bIe^hrLDiTiltendiaLMLshra & Hon'ble Shrs R.N. Chandrakar. JJ. JUDGMENT ^ (Deiivered on_g__August, 2009) The foiiowing judgment of the Court was delivered by Dhlrendra IVjishra, J. ^. This criminal appeat is directed against the judgment of convlction and order of sentence dated 30th September, 2003 passed in S.T. No.363/2001 whereby learned Additionai Sessions Judge (FTC) Ramanujganj, District Surguja, after hoiding the appellant guilty under Sections 302 read with Section 34 and 201 ofthe IPC, sentenced him to undergo life Imprisonment & to pay a fine of Rs.10,000/-, in defauit of payment of fine to further undergo additional RJ. for 10 months and to undergo R.l. for 7 years & to pay a fine of Rs.5,000/-, [n defauit of payment of fine to further undergo additionai R.i. for ^ ^^ 5 months respectively. The jail sentences have been directed to run concurrentiy. 2. The case of the prosecution, in brief, is that deceased Hanstai had illlcit reiationship with accused Pramila @ Nanki, as a result of this relationshlp Pramila was carrying pregnancy. The appeiJant and other accused persons nameiy, Shambhu Sharma, Shyambihari Sharma and Manoj Sharma are brothers of Pramila whereas, accused inar Devi is the wife of Shyambihari. They pressurized the deceased to marry Pramila, however, when he deciined to marry her, ail of them in furtherance of their common intention assauited the deceased on 16-7-2001 at about 7 pm with lathi and tangi and murdered him and flown the dead body in Kanhar river and destroyed the evidence. 3, The crime was registered on 16-7-2001 vide Ex.-P/2 on report of Dhanpat (PW-2), father of the deceased. Site pian was prepared vide Ex.-P/3 by the Head ConstabSe, Krishna Kumar Kosle (PW-14). The blood stained red Gamcha of the deceased lying near the bank of river belonglng to the deceased, bloodstajned and piain soii from the place of incident were taken in to possession vide Ex.-P/6. Halka Patwari prepared site map vide Ex.-P/7. inquest memo of Ex-P/8 was prepared in the presence of witnesses. On memorandum (Ex.-P/10) of inar Devi, bamboo iathi was recovered vide Ex.- P/12. On memorandum (Ex.-P/11) of the appeiiant, biood stalned Kurta was recovered under Ex.-P/13. The appe!!ant was sent for medicai examination to the Community Health Centre, Ramanujganj and his injury report is Ex.- P/14. Weapon of offence i.e. iathi was seized from theappellant vide Ex.- P/15. ^ 4. After compieting investigation, charge sheet was filed in the Court of Judicial Magistrate, 1 Ciass, Ramanujganj against appellant Kedar Sharma, Inar Devi and Pramiia showing Shyambihari, Shambhu and Manoj Sharma absconding. Learned Judicial Magistrate commitied the case to the iearned Sessions Judge, who in turn transferred the case to Additlonai Sessions Judge for trial. 5. Charges under Sections 147, 148, 149, 302 and 201 ofthe IPCwas framed against the accused persons who denied the charges. 6. During tria!, the prosecution examined 15 witnesses in a!l. Thereafter, statement of the accused was recorded under section 313 of the Cr.P.C.. The appellant denied the circumstances appearing against him and pleaded innocence and false implication due to animosity regarding iand related dispute with witnesses Saligram Tiwari. He also stated that he sustained injuries described In Ex.-P/14, while saving his niece from failing timber of roof. 7. Ihe accused persons did not examine any witness in their defence. The trial Court after hearing learned counsel for the respective parties convicted the appeiiant as mentioned in para-1 ofthe judgment. However, other 2 accused persons namely, inar Devi & Pramiia were acquitted. 8. Learned counsel for the appellant submitted that conviction is based on the evidence of PW-2 Dhanpat, his wife PW-4 Basmatiya and his son Dashrath (PW-10). Witnesses Dhanpat, hisson Dashrath and deceased Hansiai were involved in murder cases and consteiering their criminal pastand that iand reiated dispute with the appellant, their evidence cannot be acted upon without further corroboration from independent witnesses. There are material ^ ^: omissions and contradictions in their evidence before the trial Court. Their version is contradictory to each other on material particulars. Theirversion is not corroborated by any independent witness. The residents of the vicjnity who could be independent witness have either not been examlned or have not supported the prosecution case. The dead body of the deceased was never recovered and the prosecution has miserably failed to establish the homicldal death of the deceased beyond reasonable doubt. In these circumstances, the trial Court was not justifled in convicting the appellant in the aforesaid offence. Learned counsei further submitted that on the same set of evidence co-accused inar Devl has been acquitted. The absconding accused persons namety, Shambhu Sharma and Shyambihari Sharma have b&en acquitted after theirsurrender vide judgment dated 14th March, 2008 and on the basis of same set of evidence, the learned tria! Judge has heid that the prosecution has faiied to prove its case beyond reasonabie doubt. in the circumstances, the appeliant Is also entitled for benefit of doubt. 9. On the other hand, learned counsel for the State/respondent has supported the impugned judgment. 10. We have heard iearned counse! for the parties. We have perused the record of the Sessions Trial, impugned judgment of the trial Court as alsothe judgment subsequently delivered in the trial of 2 absconding accused persons. ii.Learned Additional Sessions Judge negating the defence of the appellant that the deceased has in fact not died and the complainant party has deliberately caused his disappearance and framed the accused persons in his murder, has heid that the prosecution has to discharge its burden by adducing conclusive evidence beyond all reasonable doubt to prove that the deceased was murdered and the accused persons were responsible for his murder. Further relying upon the evidence of PW-2 Dhanpat, PW-4 Basmatiya and PW-10 Dashrath, it has been held that the deceased had illicit retationship wlth accused Pramila. She conceived through the deceased and she was pressurizing him to marry her. PW-2 Dhanpat and PW-4 Basmatiya are eyewltnesses, who have seen appellant Kedar Sharma and other accused persons namely, Shyambihari and Manoj beating the deceased. They tried to intervene, however, they were also threatened. PW-3 Raghunath and PW-6 Laxmi Bai had also seen the accused persons carrying the deceased towards the river. Thus, relying upon the evidence of aforesaid wjtnesses, it has been heid that the appeliant in association with co-accused Shyambjhari, Manoj and Shambhu assaulted the deceased with Jathi and after he fell on the ground, they took him towards river Kanhar. However, the trial Court has disbelleved the prosecution case as against accused Pramila and inar Devl on the ground that Pramila had love affairs with the deceased ^nd, therefore, she did not have criminai mens rea to commit the offence whereas, there is dlscrepancy in the evidence before the Court of Dhanpat and his wife and their diary statements EX.-D/1 & D/2 regarding allegation against Inar Devi. 12 We propose to scrutinize the evidence available on record in the light of the above finding of the trial Court. 13. PW-2 Dhanpat has iodged complaint of Ex.-P/2. Before the Court, he has deposed that the incident is of around 7 O'clock In the evening. The darkness has started to set in. He had gone to search hls calf and he heard the cries of his son to save him. He was crying Biggu Bhai save me. He ^- -.^ L rushed towards the place of incident near the house of Devnandan Korwa and saw that Kedar had caught his son whereas Shyambihari, Shambhu and Manoj were assaulting him with !athi. He calied Bigwa who resldes nearby, however, he refused to intervene. Thereafter, he went towards the place of Incident with a torch and saw that the accused persons were beating Hansial. Accused persons namely, Shyambihari, Kedar, Manoj and wife of Shyambihari took Hanslal towards Kanhar river. He was accompanied by his wife Basmati. He said to his v»'ifethat they are taking Hansial to kil! and throw him in the Kanhar river and after return they may aiso do the same to them. Thereafter theyreturned and went to the poiice station and lodged the report. They returned with 3-4 police constables of Ramanujganj and went towards the river in search. However, they couid not search and they returned to the police station again i.n the night. He has further stated that accused Pramila had 5 months' pregnancy through Hanstai and she insisted for court mamage with him and if he does not agree to marry, she shail get him kiiled. On the previous night of the incident, she had locked his son in the house of .Devnandan and only on the foilowing day his son was murdered. 14. in cross-examination, he has denied any land related dispute between Kedar and Saiik Tiwari. This witness has contradicted his version in the first information report that at the time of incident he was sltting in his house and went towards the place of incident after hearing the voice of his son and Pramila. Simllarly, he has also contradicted his diary statement (Ex.-D/1) wherein he has stated that his son Dashrath was not present in the home. as he had gone to his sister's home and who met him only on Tuesday. After returning to home; he enquired about his son from hls wife, who told him that Hanslal had gone towards Raghunath's house for chewing tobacco. fl Omissions that he was carrying 3 battery torch; Kedar had csught hold of Hansla! and other accused persons were assaulting him; that they continued to assauit even after he fell on the ground; that Kedar assaulted him by danda; that he asked for help from Bigu to save his son but Bigu refused to intervene ete. were brought to his notice in his diary statement of Ex.-D/t as wel! as report of Ex.-P/2, and he has replied that he had narrated the above facts while lodging the report (Ex.P/2) and in his statement (Ex.D/1). However, he cannot explain as to how the same does not find place in the abovedocuments. 15 !n his further cross-examination, he has admittedthat there are 8-10 houses in between the house of Kedar Sharma and Saligram Tiwari. He has also not been ab!e to explain the omission in his statement regarding insistence by Pramila for court marriage. He has denied the suggestion that he has sent his son to some other place and Implicated the accused persons in a false case. He has said that the distance of river Kanhar is 300 meter from the house of Kedar. 16.HJS wlfe (PW-4) Basmatiya has deposed that her husband had gone in search of calf. She foilowed him. Her husband was having torch. They had seen Saiik Tiwari on way and they had also seen Shambhu, Kedar, Shyambihari and Manoj carrying Hanslal on their shoulder towards river Kanhar. At that time, accused Kedar was saying that Hanslal is not dead and, therefore, beat him by club or else he Vi/ouid take revenge. Accused inar Devi had brought axe and lathi from her house and given it to Kedar for beating him. . A!l the accused persons were beating Hansla! by danda and thereafter they took him towards the east of Shambhu's house and thereafter they went to the poiice station. Her husband had caiied Bigu to save his ^' ^ ^SS"^"' son, who deciined and asked them to go to police station. Shyambihari, Kedar, Shambhu and Manoj had thrown Hansla! in river Kanhar. Pramila had cailed Hanslal in the night of Monday and she got him murdered. She was insisting for court marriage, as she was carrylng pregnancy of 5 months through Hanslal. This witness has aiso been subjected to iengthy cross- examination and materia! omisslon regarding appeiiant Kedar asking others to assault Hansla! by lathi as he is not dead and Inar Devi gave axe and lathl to Kedar for assaulting Hansiai in her diary statement Ex.-D/2 has been pointed out to her and she was unable to expiain. She has contradicted her version in the first information report that she met Pramiia on way. 17. PW-3 Raghunath has deposed that the incident occurred in the month of 'Sawan' at about 11 pm. Shyambihari and Manoj took out Hansiai form the house of Kedar and they were beating him by lathi and they took him towards the river. He had seen the accused persons taking Hanslai to river and thereafter he returned back, as he was frightened. However, this witness has denied that the police Interrogated Kedar in his presence or any incrimjnating article was seized at his instance. He has been cross-examined by the prosecution after he was deciared hostile. In cross-examination, he has admitted that he and his wife had stopped the accused persons from beating Hansial whereupon they were also threatened by them. He has further admitted that he had seen the accused persons including the appeilant carrying the deceased towards Kanhar river. in cross-examination by defence, he has again stated that it was pitch-dark night and it was impossibje to see anything without light and there was no source of light in his house and it is true to say that due to darkness he did not see anything. 18. PW-5 Sallkgram Tiwari is also the witness of the fact that Pramila and the deceased had physical relationship with each other, as a resuit she conceived. The accused persons objected to this relationshlp and they insisted for abortion. They stopped the deceased from vlsiting their house. They had paid Rs.3,000/- to Hanslal for starting any business and thereafter he stopped coming to Pramila's house. He has further stated that 2-3 days before the incident Pramila and Hanslal were inside the room of the house of one Ashok, at that time the accused persons had dlscussed with him about beating both of them, however, on his advise they did not beat hlm. Oniy 2 days thereafter Hansiai was murdered. He has contradicted his diary statement of Ex.-D/3 wherein he had stated that he was beaten by accused Shambhu Sharma and his famlly members in iand reiated dispute and Shambhu Sharma had impiicated him In offence of loot. Apart from the above contradictions. certain other omissions in his deposition before the Court and in the diary statement have been pointed out and proved. 19. PW-6 Laxmi Bai wife of Raghunath has not stated in her examination-in-chief that she saw accused Shyambihari and Manoj beating the deceased at about 11-12 In the night of the incident. She has not named the present appeliant in her deposition. She was declared hostile and in her cross-examination by the prosecution, she has denied having seen other accused persons beating thedeceased. 20. PVA/-7 Shiv Mangal and PW-11 Bal Kesar are the wltnesses of memorandum and seizure. However, they have denied that the accused persons gave any memorandum in their presence or any recovery was made on the basis of their memorandum. 10 (^l 21. PW-8 Dr. B.R. Ratre has proved the injury report (Ex.-P/14) of the appeilant wherein he noticed 8 injuries. One lacerated wound over parieta! bone, contusion over left forearm, right knee joint, knee jolnt, upper portlon of the right !eg. teeth bite injury on the right forearm, abrasion over lower vertebra, abrasion in the middie of left forearm and right scapular medial have been mentioned. Ai! the injuries have been described as simple injuries caused by hard and blunt object and the age of the injuries has been described as 2-3 days. 22. PW-9 Saraswati Devi has been examlned as a witness of the fact that she saw the dead body of the deceased flowlng in Kanhar river, however, she has denied having seen any dead body as mentioned in her diary statement ofEx.-P/15. 23. PW-10 Dashrath has aiso stated that he learnt about the murder of Hanslai in the following morning and that the appeilant and other accused persons had committed murder. He was apprised by his mother in the morning that they have iodged a report against the accused persons. 24.PW-13 Muriidhar Tiwari is a constable who registered first FIR of Ex.-P/2 whereas PW-14 Krishna Kumar is the head constable and PW-15 K.S. Parihar, Station House Officer, have.conducted investigation. 25. lt is settled iaw that corpus delicti need not be proved. Dlscovery of dead body is a ruie of c-aution and not of law. In the event, there exist a strong circumstantial evidence, a judgment of conviction can be recorded even in the absence of dead body. However, In the absence of corpus delicti, there must be direct or circumstantial evidence leadjng to the inescapabie conciusion that the person has died and that the accused are the persons 11 who had committed the murder. Reference Is made to the following judgments: 26 K.T. Palanisamy Versus State of Tamil Nadu1, Ramjee Rai & Ors. V. State of Bihar2, Rama Nand and OShers V. State of Himachal Pradesh3 and Ram Guiam Chaudhary and Others V. State of Bihar . 27. ln the iight of above principles of iaw laid down in the aforesaid judgments, it was necessary for the trial Court to arrive at a finding that Hansla! had died homlcidal death and that the accused persons were involved in the crime. 28. On carefu! scrutiny of the impugned judgment, we observe that the trial Court has not recorded a categorical finding regarding homicida! death of the deceased even in the absence of his corpus deiicti. The trial Court, heavily relying upon the version of Dhanpat and his wife Basmatiya and also on the ground that their evidence is further corroborated from the evidence of PW-3 Raghunath and his wlfe PW-6 Laxmi Bai, has held that the appeilant committed the said offence with the active Involvement of other accused .persons namely, Shyambihari, Shambhu and Manoj and thereafter convicted the appeiiant under Sections 302 with the aid of Section 34 and 201 of the IPC. The trial Court has also relied upon the evidence of Dr. Ratre and surmised that the jnjuries sustained by the appellant was in factcaused to him by other accused persons, through there is not an iota of evidence to establish the above fact and it is not the case of the prosecution that the appellant sustained the said injury as held by the trial Court in the impugned judgment. ^ (2008) 3 Supreme Court Cases 100 'JT200SC7)SC610 3 (1981)1 SCC511 4 (2001)83cc 311 12 Jd ^. 29. We have atready pointed out glaring discrepancy present in the evidence of alleged eyewitnesses namely, Dhanpat and his wife Basmatiya. There is improvement wlth regard to the presence of source of light as both the witnesses have introduced the presence of torch in the hands of Dhanpat for the first time before the Court. The tria! Court has also relied upon the evidence of PW-3 Raghunath and PW-6 Laxmi Bai and held that their version corroborates the evidence of eyewitnesses though there is materiai discrepancy regarding time of incident as Raghunath and his wife have stated that the incident took p'ace in the late night around 11-12 pm whereas accordjng to eyewitnesses the incident occurred around 7 pm. PW-3 Raghunath has categorically stated that it was a pitch-dark night and since there was no arrangement of light, he couid not see anything whereas his wife PW-6 Laxmi Bai has categoricaliy denied having seen the appellant at the time of incident. Therefore, in our considered opinion, the trial Court was not justified in recording conclusive findlng that the prosecution has proved its case against the appellant beyond al! reasonabie doubt, particularly, when ccrpus deiicti has not been recovered and wltnesses Saraswati Devi, who claimed to have seen the dead body of Hanslai flowing in Kanhar river, has turned hostiie and did not support the prosecution case. This apart, the prosecution has also not adduced any evidence to establish that blood stained c!othes of the deceased seized from near river or blood stained soii recovered from the ptace of incident contained human blood and that too, of the blood group of the deceased, as FSL report has not been produced and proved. 30. in the absence of corpus deiicti and keeping in view the defence of the accused persons that the compiainants have themselves sent their son and 13 implicated the accused persons due to animosity on a false charge of murder, it was a!i the more necessary to corroborate the evidence of aiteged eyewitnesses by somescientific evidence, which wasavailable. The injuries present over the person of the appe!lant do not give any credence to the prosecution case, as none of the eyewitnesses has stated that the appellant also sustained injuries in the same incident. 31. On the basis of aforesaid anaiysis, we are of the opinion that the prosecution has faiied to prove the charge against the appellant beyond ai! reasonable doubt and the trial Court was not justified in reaching the conclusion that the appeilant in association with other accused persons committed the murder of the deceased and thereafter threw the dead body in the river in order to destroy the evidence. 32. In the resuSt, the appeal is allowed. Conviction and sentence imposed upon the appeilant under Sections 302 read with Section 34 and 201 of the IPC are set aside and he is acquitted of the said charges. The appellant be released forthwith unless required to be detained in any other case. Sd/- DhirendraMishra Judge Sd/- R.N. Chandrakar Judge Barve