HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon^le Shri Sunil Kumar Sinha, J. Criminal Appeal No. 220 of 2006 Ramlal Vs. The State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^ ^UT ^s- Sd/- ChiefJustfce Post forJudgment :^/04/2009 Sd/- ^-g^/04/2009 sft' &' HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble^hrj Rajeev^UBta^C.J. & Hon'ble Shri Sunil KumarSinha.jJ, APPELLANT RESPONDENT Criminal Appeal No. 220 of 2006 Ramlal S/o Shri Lachchan Sai Yadava, Aged about 26 years, Occupation- Agriculture Resident of : Village : Charpara, P.S. Katghora, District Korba (C.G.) Versus The State of Chhattisgarh, Through : Officer-in-Charge, Police Station - Katghora, District Korba (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Ms. Sangeeta Mishra, Counsel for the appellant. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (2^.04.2009) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) Appellant Ramlal stands convicted and sentenced in the following manner by the Sessions Judge/Special Judge, Korba under the Scheduled Castes and Scheduled Tribes (Prevention of Atrodties) Act, 1989, in Special Sessions Trial No. 9/2005 on 28th January, 2006, with further direction to run the sentences concurrently. Conviction Sentence u/s 302 IPC ^ Imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for 6 months /"^""•vi s Criminal Apueal No. 220 of 2006 u/s 201 IPC (2) u/s 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention' of Atrocities) Act, 1989 (hereinafter referred to as the Special Act) R.l. for 3 years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 3 months Imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 3 months The facts, briefly stated, are as under:- Deceased Ram Singh Kanwar was Sarpanch of village Nawagaonkala. He was missing since 11.00 a.m. of 28.11.2004 when he had gone to make payments of midday-meals. When he did not return till 29.11.2004, search was made in nearby villages and it come to the notice of the family members that he was lastly seen by hlarrilal (PW-6, a boy aged about 10 years) in the company of appellant Ramlal and co-accused Biharilal (absconding till date). An information to this effect was given in police station Darri, which was transmitted to police station Katghora. During the course of investigation, on 4.12.2004 appellant Ramlal was taken into custody; his memorandum (Ex.-P/18) u/s 27 of the Evidence Act was recorded, on which the dead body of the deceased was recovered at the instance of the appellant from a drain (Naali) in Sirpitti forest plantation of Bhanwar nursery of village Dhanrash under Ex.-P/3 on 4.12.2004. The dead body was identified and an identification memo Ex.-P/2 was prepared. Site plans were prepared under Ex.-P/6 & P/7. After giving notice (Ex.- P/8) to the Panchas; inquest on the body of deceased was .'^r's, ' '-"s*t^i ^ *• Cnminal ABEeaLNo, 220 of 2006 prepared under Ex.-P/9; blood stains soil, plain soil, bicycle of the deceased and a piece of Dhoti, entangled with the chain of the bicycle, were seized from the place of occurrence under Ex.-P/12. Dehati merg intimation was recorded under Ex.-P/16 and another merg intimation was recorded under Ex.-P/17. The dead body of the deceased was sent for its post-mortem to Community Health Centre, Churikala under Ex.-P/20, where the post-mortem examination was conducted by Dr. S.R. Sirso (PW-9), who prepared his report Ex.-P/20-A. The Autopsy Surgeon noticed many external injuries on the body of the deceased. He also noticed fractures in left parietal & temporal bones, left mandible & right 2nd, 3rd, 4th, 5th & 6th ribs and fracture in clavicle bone. He opined that the injuries were ante-mortem in nature and were caused by hard and rough object. According to the post-mortem report, the cause of death was shock due haemorrhage, head injury & chest injury and it was homicidal in nature. (3) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Katghora, who in turn committed the matter to the concerned Special Court/Sessions Court, where the trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. (4) Ms. Sangeeta Mishra, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr. S.R. Sirso (PW-9) that the deceased had received above external and internal injuries, which were ^^ssss •I 'V& i %> ^-^J"' ^^r^-.^.^y' Criminal Apueal No. 220 of 2006 ante-mortem in nature and the death was on account of such injuries sustained by the deceased and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (5) Ms. Sangeenta Mishra argued that there are no eye witnesses in this case and the conviction based upon the above circumstantial evidence, cannot be sustained. (6) On the other hand, Mr. Akhil Agrwal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the learned Sessions Judge/Special Judge. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Admittedly, there are no eye witnesses in this case and the conviction is based on the circumstantial evidence. (9) In the matter of Dhananiov Chhatteriee -Vs- State of W.B. (1994) 2 SCC 22, the Apex Court held that "In 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 the circumstances so established should 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 ?t^ er"-vs P € g. '^»i Criminal Apoeal No. 220 of 2006 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." (10) In Bodh Rai alias Bodha and others -vs- State of Jammu and Kashmir. AIR 2002 SC 3164, the Apex Court laid down that"here 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" (11) Now we shall examine the circumstances held to be proved against the appellant: (A) The first circumstance is about last seen. Hirralal (PW-6) is the witness of last seen. He is a boy aged about 10 years. He categorically deposed in Para-1 of his evidence that "he knows appellant Ramlal as well as deceased Ram Singh. He was calling the appellant Bhaiya as the / ^is£T8%, /^^""' ^ ^. •^•^'sssSa g '"^SSs'. "•'S-'WiSffSf^y, ^&y Criminal Aupeal No. 220 of 2006 appellant was resident of his village namely Charpara. He was also knowing the deceased Ram Singh, who was village Sarpanch. Ram Singh has died. On the fateful day, he has gone for grazing the cattle. He saw that appellant Ramlal and Bihari (absconding accused) had caught Sarpanch Ram Singh. He became frightened looking to the scenario and ran away from the area, where he had gone for grazing the cattle". This witness has been put to a very short cross examination and nothing could be brought on record by the defence, on which, either his testimony may be disbelieved or it may be said that he is falsely implicating the appellant in crime in question. Why a boy, aged about 10 years, would falsely implicate an innocent person and come with a story like this ? No foundation has been laid down by the defence to assail the credibility of this witness either on account of tutoring or interestedness or false implication or plantation. The learned Sessions Judge/Special Judge has believed on the testimony of this child witness and has rightly held the circumstance of last seen to be proved. (B) The other circumstance is the disclosure statement given by the appellant to Investigating Officer I.C. Shandilya (PW-8). He deposed that on 4.12.2004, he has recorded memorandum statement of the appellant under Ex.-P/18. On the basis of discovery made in such statement, the dead body of the deceased was recovered by him on 4.12.2004. The evidence of this witness is corroborated by the evidence of Samaar Das (PW-11), who deposed vide Para-7 that police had asked questions to appellant Ramlal, who stated that he had concealed the dead body in Sirpitti Naali and he would got it recovered from the said place. This witness admitted his signature on disclosure memo Ex.-P/18. In the / Criminal Appeal No. 220 of 2006 earlier part of his evidence, he did not depose properly regarding disclosure made by the appellant but in later part i.e. in Para-6, he deposed all relevant facts and in the cross examination, Para-9, he categorically denied the suggestion that appellant had not given any disclosure statement to the police. It was argued before us that the evidence ofthis witness appears to be shaky, but in appreciation, we find that the final outcome of his evidence is that after taking the appellant to police custody, he gave statement regarding concealment of the dead body and said statement was recorded by the police by preparing memo Ex.-P/18. On the basis of evidence of this witness as also the Investigating Officer (PW-8), it was established that the appellant gave a discovery statement, on the basis of which, the dead body of the deceased was seized at his instance from the place indicated by him and the Special Court has rightly taken the circumstance as proved. (12) Therefore, the circumstance of last seen together and the discovery of the dead body on the disclosure of the appellant were strong circumstances against the appellant and the conviction of the appellant, u/ss 302 & 201 IPC, based on such circumstances cannot be held to be unjustified. (13) So far as conviction u/s 3 (2) (v) of the Special Act is concerned, we do not find any justification for the same. Section 3 (2) (v) provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a -J Criminal Aopeal No. 220 of2006 Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. It clearly indicates that the offence so committed under the IPC must be on the ground and for the reason that such person was a member of Scheduled Caste or Scheduled Tribe. If the offence is not committed on the said ground and for the reason that such .person belongs to a particular caste or tribe and by chance, such person happens to be the member oF the said community, the offence would not be made out. We do not find any evidence in.this case which may establish that the appellant committed murder of the deceased and concealed his dead body on the ground and for the reason that the deceased was a member of Scheduled Tribe. Therefore, the provisions of the Special Act would not be attracted in this case and the conviction u/s 3 (2) (v) of the Special Act deserves set aside. (14) In the result, the appeal is partly allowed. The conviction and sentences awarded to the appellant u/ss 302 & 201 IPC are maintained. However, the conviction and sentence awarded to him u/s 3 (2) (v) of the Special Act are set aside. Sd/- Chief Justice Sd/- SunilKumarSmha Judge