!i? tw~ HIGH COURT OF CHHATTISGARH AT BILASPUR ^, • DB; Hon'bie^h}-LDhirendraJWishra^& Hon'ble Shri R.N. Chandrakar, JJ. Criminal ApDeal No. 512 of 2003 Appellant Vs. Respondent Rakesh Kumar, S/o. Rakesh Kumar Baragh, aged 30, Piparsatti, Police Station Akaltara, District Janjgir Chai^ipa (CG). ,.! State 6f- Chhattisgarh through the District Magistrate, Janjgir Champa (CG). & CnmmalABBeal No. 244 of 2004 ADpellant Vs. Respondent Manharanpuri, s/o. Madhyanpuri Goswami, aged about 23 years, resident of Piparsatti, Police Station Akaltara, District Janjgir-Champa (CG). State of Chhattisgarh through the Districi Magistrate, Janjgir Champa (CG). (Criminal Appeal under Section 374(21 of the Cr.P.C. Present: Shri Vinay Dubey, counsel for appellant in Criminal Appeal No. 512 of 2003. Shri Bharat Lal Dembra.counsel for appellant in CriminalAppeal No. 244 of 2004. Shri Arun Sao, Govt. Advocate for the State Sj|;r ,il^l,:L 1. 11-1;,. ORAL JUDGMENT (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 thiscommon judgment as both these appeals arise out of the judgment dated 23-12-2002 passed in Sessions TrialNo. 131/2002, whereby learned 2hd Additionai Sessions Judge (FTC), Janjgir, Sessions Division Bilaspur, has convicted the appellantsunder Section 302 read with Section 34 of the 1PC for causing homicidal death of Santara Bai and Anand Das andsentenced them to 1'ife imprisonment. The appellants have been further convicted under sections 450 and 404 read with Section 34 of the IPC and sentenced to undergo R.l. for five years and fine of Rs.100/-, R.l. fqr 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. The case of the prosecution, in brief, is that the cornplainant Rajaram (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 inthe house of his brother Sumerdas by unknown persons. On further investigation, it reveaied 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 statemehts under Section 27 of the Indian Evidence Act and on the basis of information received by them, weapon of offence knife, their wearing apparels stained with blood and articles of loof were seized from them. ^ -^ 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 45Q and 302 of the IPC for causing homicidal death of Santara Pai 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 all. Thereafter the statements of the accused/appellants were recorded under Section 313 of the Code of Criminal ProGedure, in which they denied the circumstances appearing against them in fhe 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 ofthe judgment. Leamed trial Court on the basis ofevidenee 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 and also opined that cause of death of Anand Das was asphyxia (due to pressing of neck) and held thattheir death was homicidal in nature. •;;'1::- After perusal ofthe evidence of Dr.(Smt) Lalita Toppo, (PW/12) who conducted post-mortem over the person of the deceased Santara V, . ' ' • ' • Bai and found the following injuries and opined that she died as a result of shock and hemorrhage and the injuries were ante-mortem in nature, homicidal death ofSantara Bai is established. INJURIES "i) Ineised wound over the right parietal region 6 x.5 cm.- ^ ii) Incised woundover right forearm 2x1 em atmiddlel/3. iii) Incised wound over rightforearm below the elbow posterior aspect 1^ x .5 cm. iv) Ineisedwound over right forearm lower 1/3 at extension aspect 6x1 cm muscle cut bones seen through the injury. v) Incised wound over gluteal region % x 1A cm. vi) Incised wound over left inguinal region 5x .5cm. vii) Abrasion over right breast .5 x .1 cm. viii) Stab injury at 9 10 intercostals space(1x 1 x%cm. ix) 18 stab injuries found over the lumber region right sidesize (2-5 cmx.5-1 x 1 - 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) and found the following injuries and opined that cause of death of Anand Das was asphyxia due to throttling and the sameis homicidal in nature. Homicidal death of Anand Das is establlshed. 1 NJU RlES "i) Rigor mortis present in lower leg nail beds cyanosed. Reddish fluids came through ") moyth and both nostrils. Bubal mucosa eongested 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^ facecongested. ^ -T"v 9. Dr. R.K. Agrawal (PW/23)who also participated in the postmortem has expressed his agreement with the opinion given in the postmortem report of Santara Ba'h.and Anand Das and opined that the deceased Anand Das died as a resulf of asphyxia due to pressjng ofneckand his death is homicidal in nature. 10. Leamed 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), weare of theopinion that both the persons died homicidal death. 11. Shri Vinay Dubey, learned counsel appearing for the appellant- Rakesh Kumar submits thatthe appellant has beeneonvicfed on the basis of recovery of weapon of offence, blood stained knife and wearing apparelson his memorandum (Ex.P/14). From the evidence of Goverdhan (PW/8) who iswitness 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 ofoffence was also not found stainedwith blood by FSL in its report(Ex.P/39). Thereis no other evidence to connectthe ^•fMsS^S^SSyS^, .^.. appellant - Rakesh Kumar with the crime in question, except the recovery made on his memorandum. Therefore, lookjng to the discrepanGy in the descriptionofweapon of offence and the fact that no btood stain wasfound on the knife.the trial Courtwas not justified in convicting the appellaDt Rakesh Kumar only on the basis of recovery of weapon of offence, 12. Shri B.L. Dembra, learned,,counsel appearing for appellant - Manharanpuri argued that convictlon ofthe appellant is basedon the recovery of weapon of offence, blood sfained clothes of the appellant and silver bangles and silver anklets of the deceased on the memorandum of the appellant. He furtherargued that identiflcation of theornamentsof the deceased is doubtful as identification was done in Police Statjon as deposed by PW/15 - Nankun Bai and no similar articles were mixed as admitted by the Executive Magistrate (PW/16). t-te further argued that in the first information report, it has not been mentioned that theabove articles were missingand stolen from the dead body ofthedeceased and the recovery ofthe articles have been subsequently introduced to buttress the case of prosecution. 13, On the other hand, ShriArun Sao, Govemment AdvoGate, 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 eonvicted the appellants on the basis of recovery of weapon of offence on their disclosure statements and also on the ;lf 'iit basis of recovery of blood stained clothes and ornaments removed from the body of the 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 thesame were missing. Goverdhan (PW/8) who is witness of memorandumand^seizure has deposed that the Police ,'•'' 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 apparels 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 andhas thrown the same in tank vide Ex.P/15. He has further provedthe recovery of wearing apparels of Rakesh Kumar(Ex.P/17) andsword (Ex.P/18). He has also proved the seizure memo (Ex.P/19) by whichsword 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 thatwas discovered at the instance of the aGcused persons, was produced for perusal ofthe witness during trial. This witness has deposed in para 13 that memorandumof the appellantswere recorded in village Piparsatti, whereas Trom perusal Qf memorandum of Ex.P/14 and P/15, we find that it is shown to be recorded at Police Station Akaltara. 18. PW/24 Dilip Kumar is another witness of memorandym. He has also proved the memorandum of the appellants (Ex.P/14 & P/15) and in his presence recovery of sword, wearing apparels andornaments was made vide Ex.P/18, P/1-9 & P/20. From perusal ofparas 7 &8 of ' thte evidence of this witness, it is clear that the memorandum of appellant was not recprded in his presence, but hewas made tosign the documents, memoranduni,..and seizure. '. ^' °. 19. PW/22 - D.K. Netam, Sub inspector and investigating Officerof the case has clearly mentioned in para 18 of his evidence that at the time of registration of morgue intimation and preparation of jnquest, no mention about the theft of anyarticle 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 wearingapparels of Rakesh Kumar and knife seized from him didnot contain blood, though the knjfe and wearing apparels seized at the instanceof the appellant Manharanpuri eontained blood butthe origin of the blood was not eonfirmed as the same was not found sufficient forserological examination. 21. On close scrutiny of the impugned judgment and evidence available on recoFd, we find that the conviction of the appellant - Rakesh Kumar based on recovery of weapon of offence and blood stained wearing apparels is notjustified. We find substance in theargument of learned counsel for the appellant - Rakesh Singh that there is discrepancy in the deseription 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 l|i!..4. ...^-'.Tese.-mi^,, also take note of the fact that the weapons were not produced and identified by the witnesses during trialand there is no evidence that the same contained blood andthattoo ofthe deceased. 22. Similarly, the conviction of the appellant— Manharanpuri is also based on recovery of blood stained weapon of offenee and btood stained wearing apparels on his memorandum. However, in the absence of any evidence that tt)e blood found on the above articles /..'. was human blood and that too of tlie 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 thedeceased was found missing after hermurder. Evenotherwise, the identification of the ornaments of the deceased is doubtful as the same was done in Police Station and the Executive Magistrate(PW/16)whoconducted identification has admitted in his deposition that no other similar ornaments were mixedwith the ornaments seized at the instance of the appellant and thus, the identification looses its signiflcance. 23. On the basis of aforesaid analysis, we are of the considered opinion that the impugned judgment convicting the appellants as rnentioned in para 1 of this judgment, cannofrbe sustained and both the appeals haveto be allowed by extending benefitof doubt to the appellants. 24. Accordingly, the appeals i.e., Criminal Appeal No.512 of 2003 preferred by Rakesh Kumar and Crimjnal Appeal No. 244 of 2004 preferred by Manharanpuri succeed. The impugned judgment of 10 conviction of appellants Rakesh Kumar and Manharanpuri under Secfions 302 read with Secti6n 34, 450 and 404 read with Section 34 of the IPC, is set aside. The appellants are acquittedof the charges. They be set at liberty forthwith, if not required in any other case. Sd/- Dhirendra Misfara Judge Sd/- R.N. Chandrakar Judge •''^v^i^^^^iS.SSS&ti&.^SMf,.^