HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) RESPONDENT: ?•;. fi^. s . \'rf-.-^ ^,S ;-.'\s, !fi?;"VM "9 •^ I'K':.. i X:!i- K:. /\ ^ -i -,y //. /^ .,.<• .^ Criminal Appeal No.805 of 2008 Shobhit Ram S/o Kartik Ram Ganda aged about 45 years, r/o Viltage Pitiyajhar Naharpara, Mahasamund, Thana Mahasamund, Distt. Mahasamund (C.G.) Versus State of Chhattisgarh, through the District Magistrate, Mahasamund Distt. Mahasamund (C.G.) AND Criminal Appeal No.327 of 2009 Purshottam Sahu S/o Guharam Sahu aged about 47 years, r/o Subhash Nagar Mahasamund, Thana and Distt. Mahasamund (C.G.) Versus State of Chhattisgarh, through the District Magistrate, Mahasamund Distt. Mahasamund (C.G.) {Criminal appeals under Section 374 (2)afthe Code of Criminal Procedure, 1973} APPELLANT: (InJail) (ESPONDENT: Present: Mr. B.D. Badgayan, counsel for the appellant in Cr.A.No.805/2008. Mr. Sunil Sahu, counsel for the appellant in Cr.A.No.327/2009. Mr. Praveen Das, Deputy Govt. Advocate for the State/respondent. JUDGMENT (28InApril,2010) The followina iudament ofthe Court was delivered bv T.P. Sharma. J: - 1. Sinceboth the aforesaid criminal appeals are arising out of the same judgment of conviction & order of sentence dated 8-2-2006 passed by the 1 Additional Sessions Judge, Mahasamund, in Sessions Trial No. 164/2005, they are being disposed of by this common judgment. f i^ j l' J -—^' "^-^^' "'•'•.s.^^i^-JLUS''" |K» 2. Challenge in both these criminal appeals is to the judgment of conviction & order of sentence dated 8-2-2006 passed by the 1st Additional Sessions Judge.Mahasamund, in Sessions Trial No. 164/2005, whereby & whereunder learned Additional Sessions Judge while acquitting co- accused Girish Chand Sahu, convicted appellants Purushottam Sahu & Shobhit Ram for commission of the offence of culpable homicide amounting to murder of Ram Prasad Sahu and concealing the evidence of criminal case under Sections 302 & 201 read with Section 34 of the I.P.C., and sentenced each of them to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for three months and to undergo R.l. for seven years & pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for three months, respectively. ^" ^••^"^-.. ^i^t^^^ 3. Conviction is impugnedon the ground that without any clinching and ^w'^ • . • ''" • ~ iSI A J It creclible evidence, the trial Court has convicted & sentenced the ^.^>-,r.r,t appellants and thereby committed illegality. 4. Another trial was held against the appellants herein in S.T.No. 163/2005 by the 1 Additional Sessions Judge, Mahasamund and vide judgment dated 8-2-2006 learned Additional Sessions Judge has convicted & sentenced both the appellants under Sections 302, 302 & 201 read with Section 34 of the I.P.C. for commission of the murder of Kumari Bai & Digeshwari and concealing the evidence of criminal case. 5. Case ofthe prosecution, in brief, is that son of Ram Prasad Sahu (since deceased) i.e. Chitruram was residing with his brothers at Khariar Road, Orissa; on 1-1-2005 he was informed by Dataram Sahu of village Kachardih that the house of his father Ram Prasad (since deceased) was closed from inside and somebody was lying in the courtyard, on f sv ?2'^. f.''': • ," .u ^ .-* :• \\ M.c ,:-B ../ which Chitruram came and after opening the door, he found injured dead bodies of his mother Kumari Bai & daughter Digeshwari, his father Ram Prasad was missing. Villagers searched for Ram Prasad and on 4-1- 2005 his dead body was found near Thar nala in semi-buried condition. Dehati nalsi was recorded vide Ex.P-19. Merg was recorded vide Ex.P- 20. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-24, prepared inquest over the dead body of Ram Prasad vide Ex. P-22. Dead body was sent for autopsy to Assistant Surgeon, Bagbahra vide Ex.P-17. Autopsy was conducted by Dr. R.K. Singh (PW-6) vide Ex.P-21 who found following injuries: - (1) Spleen was peeled out, swelling was found on face, part of right leg wasmissing, one cloth was found inside the mouth and maggots were present. (2) Lacerated wound near nose of 3 c.m. x 1.5 c.m. comprising fracture of bone and fracture of teeth. (3) Lacerated wound on upper part of left eye of 4 c.m. x 1 c.m. x bone deep. (4) Lacerated wound on upper part left eye of 3 c.m. x 1 c.m. x bone deep. (5) Lacerated wound on right ear of 3 c.m. x 1 c.m. (6) Lacerated wound on right parito occipital region of 3.5 c.m. x 2 c.m. x bone deep. (7) Stab wound over left buttock of2c.m. x 1 c.m. x abdominal depth. (8) Stab wound over back of waist of 2.5 c.m. x 1 c.m. up to abdominal depth having depth of 6 c.m. (9) Depressed fracture of skull, commuted depressed fracture of temporal bone, fracture oftemporal bone and right temporal bone. Injuries were ante-mortem in nature. Softening was found on vital parts of the body. Death was homicidal in nature. Spot map was prepared vide Ex.P-1. Spot panchnama was prepared vide Ex.P-2. One spade was sejzed near the spot vide Ex.P-3. One gaiti was seized near the spot vide Ex.P-4. Spade & gaiti were identified by the witnesses as ^ ..••"f^^ w '\ J-..-.-^' l^C. ,^?:s^ iit'a J? \v .^.. ^^^' / -^ /:! '<i-.x";:-..- ^J^ •y spade & gaiti of Bhaguram & Chitruram. Crime No.6/2005 (present offence) and Crime No.3/2005 relating to S.T.No. 163/2005 were investigated simultaneously. 6. During the course of investigation, accused Purushottam was taken into custody, he made discloser statement of hammer, TVS Champ moped, silver ornaments, currency notes and silver ainthi vide Ex.P-6. TVS Champ was seized at the instance of Purushottam vide Ex.P-9. Clothes of Purushottam were seized vide Ex.P-10. Hammer & sweater were seized at the instance of Purushottam vide Ex.P-13. Rs.1,200/- currency notes were seized at the instance of Purushottam from his wife Gauri Bai vide Ex.P-14. Silver ornaments and copy were seized from Prabhu Jewellers of Baloda Bazaar, Kasdol at the instance of Purushottam vide Ex.P-15. Appellant Shobhit Ram was also taken into custody, he also made discloser statement of silver ornaments & currency notes vide Ex.P-7. Clothes of Shobhit Ram were seized vide Ex.P-11. Hammer was seized from Shobhit Ram vide Ex. P-12. Purchase register, license & silver ornaments were seized from Vijay Kumar at the instance of Purushottam. Accused Girish Chand was also taken into custody, he made discloser statement of ornaments and currency notes vide Ex. P-8. Patwari prepared spot map vide Ex.P-18. Viscera and others parts of thebody of Ram Prasad were seized after autopsy vide Ex.P-23. Seized articles were sent for chemical analysis vide Ex.P-25. Finally, F.1.R. was registered vide Ex.P-27. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. 7. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Mahasamund, who in turn,committed the case to the then Court of Sessions Division, Raipur, from where learned Additional Sessions Judge, Mahasamund, received the case on transfer for trial. ^^;;€:'^\s "^ '•.i'; ';AI®^. .":-^i^. ^ .-' 8. In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. The accused have examined defence witness Punit Ram Sahu (DW-1) in their defence who has deposed in his evidence that Purushottam is a cycle shop keeper and was a man of good character. 9. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Girish Chand, convicted & sentenced the appellants as aforementioned. 10. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. >.11.Mr. B.D. Badgayan & Mr. Sunil Sahu, learned counsel for the appellants, '^ . . V^ ',vehemently argued that in the present case virtually, the prosecution has ' not collected evidence to connect the appellants with the crime in question for commission of culpable homicide amounting to murder of Ram Prasad and concealing the evidence of criminal case. The prosecution has investigated and filed charge sheets relating to Crime Nos.6/2005 & 3/2005. The present case relates to Crime No.6/2005 (S.T.No.164/2005). Another case viz., S.T.No. 163/2005 has been tried and decided against the appellants herein and Girish Chand relating to commission of murder of Kumari Bai - wife of Ram Prasad and Digeshwari -10 years' aged grand-daughter of Ram Prasad. As per the original case of the prosecution, the appellants impressed deceased Ram Prasad on the point that there was some valuable property buried under the land, they took him along with them with spade & gaiti at night, they dug the place near the nala and during the course of digging the l^ ..^.^y^ ^y ^ .•-:.:...^' •' .;^\ ,111>1?" 'll \'IA ^v ^ .-%; ^ '-:'' '^ u. ^\ '^ r'/l ,v y %,. ^ ,^ 6 land, with ulterior motive and with intent to commit robbery of articles kept in the house of Ram Prasad, they committed the murder of Ram Prasad and buried his dead body in the same pit. Thereafter, both the appellants came to the house of Ram Prasad and after knocking the door of Ram Prasad, they entered in the house of Ram Prasad where Kumari Bai & Digeshwari were present, they committed the murder of Kumari Bai & Digeshwari and committed robbery of ornaments. Second day the dead bodies of Kumari Bai & Digeshwari were found in the house of Ram Prasad. The matter was investigated and during the course of investigation, after 4-5 days the dead body of Ram Prasad was recovered near the nala on which the present offence was investigated. Learned counsel further argued that the dead body of Ram Prasad has not been recovered at the instance of the appellants and nothing has been seized or recovered at the instance of the appellants relating to commission of the murder of Ram Prasad. As per the evidence of the prosecution, ornaments have been recovered at the instance of the appellants, which are related to the offence tried by the trial Court in S.T.No.163/2005 and, therefore, the evidence of S.T. No.163/2005 cannot be used in the present case for convicting the appellants. Learned counsel placed reliance in the matter of Kansa Behera v. State of Orissa in which the Apex Court has held that evidence of blood group is only conclusive to connect bloodstains with accused, in absence of such group no reliance could be placed on the circumstance. Learned counsel further placed reliance in the matter of Dawa Tshering Tamang and another v. State of Sikkim2 in which the Sikkim High Court has held that in case of only evidence that witness has seen the deceased lying injured in ginger field which was at a distance of 3/4 miles from his 1AIR 1987 SC 1507 22004Cri.LJ.2810 / ?^ Tbuse, no evidence of witnesses that they had seen accused persons and deceased together, chain of events is not complete and conviction of accused persons is not proper. Learned counsel also placed reliance in the matter of Saniya Ram v. State of C.G. in which this Court has held that in case of circumstantial evidence body found in an open place, extra judicial confession made in the presence of the police during investigation, and absence of any evidence relating to human blood and of the same blood group as that of the deceased, recovery of articles at the instance of the accused is no use. Learned counsel relied upon the matter of Dilbodh Nagesia v. State of M.P. (now Chhattisgarh) in which this Court has held that only on the evidence of presence of human blood on the shirt of accused, accused cannot be connected with the murder of deceased. 12.0n the other hand, Mr. Praveen Das, learned Deputy Govt. Advocate \ appearing on behalf of the State/respondent, opposed the appeals and submitted that this is the first murder in the course of commission of triple murder and after committing the murder of Ram Prasad the appellants have committed the murder of Kumari Bai & Digeshwari and also committed robbery of articles. Both the cases are interconnected and the prosecution has adduced sufficient evidence to prove the guilt of the appellants. The trial Court has rightly convicted and sentenced the appellants. 13.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 14.In the present case, homicidal death of Ram Prasad as a result ofante- mortem fatal injuries has not been substantially disputed on behalf of the 32004(2)C.G.LJ.124 42004(1)M.P.H.T.26(CG) ^ ]'->';^,.-"^^-, ';:<::' W M^ A 13!t ,"; ""^/. ^ '^s^s^ ^^" 8 appellants, otherwise also it is established by the evidence of Dr. R.K. Singh (PW-6) and autopsy report Ex.P-21 that the death of Ram Prasad was homicidal in nature. 15.As regards complicity of the appellants in the crime in question, Alakhram Sahu (PW-1) has deposed in para 7 of his evidence that after the commission of murder of Kumari Bai & Digeshwari, Ram Prasad was missing, villagers were searching for Ram Prasad and after four days of the first incident, the dead body of Ram Prasad was seen near Kedar nala in half buried position on which they informed the police, the police came, exhumed the dead body and conducted investigation. Ex.P-22, inquest of the dead body of Ram Prasad, reveals that the inquest was prepared on 4-1-2005. One spot panchnama Ex.P-2 in the form of discloser statement of both the appellants was recorded by R.L. Chauhan (PW-14) - Investigating Officer on 4-2-2005 after one month of the discloser of facVdead body of Ram Prasad, therefore, reliance could not be placed on Ex. P-2 - the alleged discloser statement of the dead body, which has already been discovered one month prior to such discloser. As per the evidence of R.L. Chauhan (PW-14), both the appellants have made discloser statements vide Exs.P-6 & P-7 and at their instances ornaments, especially ainthi, were recovered and other articles, hammer & clothes were also seized form the accused persons bearing blood stains. 16.In the present case, all the witnesses have deposed that dead body of Ram Prasad was found near the nala. The accused persons have made discloser statements of ornaments which are related to another offence tried inS.T.No. 163/2005 by the trial Court. In the present case, the prosecution has not recovered any article at the instance of the appellants relating to commission of present offence which may be N;%r? -7:%?^ t. 1 y considered as incriminating circumstance against the appellants in the present case. The prosecution has also not adduced any evidence to show any circumstance that the appellants have committed culpable homicide amounting to murder of Ram Prasad. The alleged ainthi was produeed in S.T.No. 163/2005 and it was identified in the case of S.T. No. 163/2005, but it is not related to the present offence. Virtually, the prosecution has not adduced any substantial evidence in the present case to connect the appellants with the crime in question. 17.As regards motive, as per the case of the prosecution with a view to commit robbery of articles kept in the house of Ram Prasad the appellants herein impressed Ram Prasad that some valuable property was hidden near the nala and on that impression they took Ram Prasad near the nala and committed his murder. Thereafter, they came to the house of Ram Prasad and committed murder of his wife and grand- \;> daughter and further committed robbery of articles. If theappellants have committed murder of two persons in the house, then there was no difficulty for them to commit the murder of another person (Ram Prasad) also in the house itself and there was no occasion for them to take Ram Prasad to the nala situated at a reasonable distance from the house of Ram Prasad only to commit his murder. The alleged motive of offence does not appear to be reasonable in nature. 18.1n absence of any cogent and reliable evidence admissible under the law, conviction of the appellants under Sections 302 & 201 read with Section 34 of the I.P.C. is not sustainable under the law. While convicting the appellants, the trial Court has not considered the evidentiary value of the alleged statements of the witnesses and thereby ^ committed illegality. I -• ' I :"r% - 10 M;4-/ ! ' "^:—;^'" 19.For the foregoing reasons, conviction and sentences of the appellants Sections 302 & 201 read with Section 34 of the I.P.C. are not sustainable l^.-' ^?^ ^.^ • '^^ B !:sl ..-.y under the law. Consequently, Cr.A.Nos.805/2008 & 327/2009 are allowed. Conviction & sentences of both the appellants under Sections 302 & 201 read with Section 34 of the I.P.C. are hereby set aside and they are acquitted ofthe said charges. The appellants are in jail, they be set at liberty forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge •^^•..•IW^S.v.^.^-.SfS.wii.^^'ii^lSI.-K.^^S^:^^.K^.%...:^s.-.^;;&A^^^.^^.^^^a^^s^:£lgs^^^!^S!2S^^^