Rambraksh @ Jalim vs State Of Chhattisgarh

The appellant Rambraksh @ Jalim was accused No.2 and Bechan Ram was accused No.1 in the case in Sessions Trial No.133 of 1993, on the file of Additional Sessions Judge, Surajpur, and they were tried for the offences under Section 302 read with 34 and Section 201 of Indian Penal Code. The trial court acquitted accused No.1 Bechan Ram and at the same time convicted accused No.2 Rambraksh and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500 and in default to undergo rigorous imprisonment for five months for the offence under Section 302 IPC and further sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.100 in default to undergo rigorous imprisonment for one month for the offence under Section 201 IPC and ordered the sentences to run concurrently. Aggrieved by the conviction and sentence accused No.2 Rambraksh preferred criminal appeal and the High Court dismissed the same. Challenging the said judgment the present appeal is preferred.

The case of the prosecution in a nutshell is as follows: On 7.10.1992 appellant herein/accused No.2 Rambraksh went to the house of deceased Ramsevak at 12.00 noon and asked to go with him to Ambikapur. Ramsevak refused saying that he does not have money and accused No.2 assured that he has money and he would come at night and they would go to Ambikapur by the first bus in the early morning. Thereafter he along with accused No.1 came to the house of Ramsevak at 11.00 p.m. and told him that they will proceed towards chowki from where they will board the bus to Ambikapur. Ramsevak went with accused and thereafter did not return home. On 14.10.1992, Rajesh son of Ramsevak inquired about his father to his mother PW3 Dasmatiya Bai and she told him that his father had gone with accused to Ambikapur and then Rajesh informed her that he had gone with Kamlesh and PW5 Banshidhar to their field and he noticed clothes, gamcha and shoes of his father in the field. PW3 Dasmatiya Bai along with her son went to the said place and found the articles of her husband and on noticing birds flying near one place they went there and she found skeleton remains of her husband. She went to Chandni Police Station and lodged Exh.P2 morque and the police recorded Morque vide Exh.P1. The investigation officer visited the scene of occurrence and conducted inquest on the scattered bones vide Exh.P5. Report vide Exh. P4. He seized from the spot one bamboo stick vide Exh.P6, pair of shoes vide Exh.P7, towel, pant, shirt, banjan and underwear vide Exh.P8, Bloodstained and plain soil vide Exh.P9, Hairs found on the spot vide Exh.P10. The human bones i.e. skull, jaw, legs and ribs were seized from the spot vide Exh.P13. He sent the bones of dead body for autopsy and PW6 Dr. Arvind Bhat on examination found the following :

1 vertebral column broken in three pieces each attached with each other with left femur attached with pelvis (detail of vertebral colum, sacrum, 5 lumber vertebrae, 12 thoracic vertebrae), One mandible attached 7 teech Two broken scapula Nine ribs Two broken long bones (one simulating to tibia and one simulating to femur) One radio ulna bones One broken ulna 3 vertebrae 2 detached tooth 4 pieces of broken bones.” Thereafter, dehati nalishi was recorded and FIR was registered vide Exh.P.18. Spot map was prepared vide Exh. P19. Bones were sent to Medical College, Raipur and PW10 Dr. Sapan Kumar Das examined the bones vide Exh.P23 and opined as follows:

The prosecution case rests only upon the circumstantial evidence. The Sessions Judge as well as the High Court mainly relied upon the evidence of the wife of the deceased PW3 Dasmatiya Bai to hold the appellant guilty of the charges. PW3 Dasmatiya Bai in her complaint as well as in the statement given to the police during investigation has stated that on 7.10.1992 at about 12.00 noon the appellant/accused No.2 came to their house and told her husband Ramsevak to come with him to Ambikapur and left the place by saying that he would return with money in the night and they would leave by the early morning bus to Ambikapur. It is her further testimony that both the accused came to their house in the night at about 10.00 p.m. and took her husband Ramsevak with them at 11.00 p.m. for Ambikapur and after that her husband Ramsevak never returned home. She has further stated that on 14.10.1992 her son Rajesh inquired about the whereabouts of his father and informed her that he went to the field of Kamlesh where he saw gamcha, shirt, pant and shoes of his father. Thereafter, she went along with him and found the articles of her husband lying in torn condition in the field and on noticing the flying of birds near that place she went and saw the bones of dead body lying scattered and she identified the same as that of her husband and she went to the Police Station and lodged complaint. When she gave evidence as PW3 in the trial before the Court she testified that the accused came to their house at night and took her husband to Ambikapur and after they left she heard scream of her husband and she ran to the place and saw the appellant/accused No.2 Rambraksh and accused No.1 Bechan Ram assaulting her husband Ramsevak by lathi and Danda and when she tried to intervene, she was driven away and in the morning while going to police chowki she saw her husband Ramsevak lying dead in the field and she informed the Munshi at Chandni Police Station and she was asked to come later when called and thereafter she waited for 7 days and then again went to the Police Station and lodged the complaint. As already stated PW3 Dasmatiya Bai in her complaint as well as her statement before the police has not told that she witnessed the occurrence during which both the accused assaulted her husband with lathi and Danda. Only in her testimony before the Court she claimed to have witnessed the occurrence. The High Court has rightly ignored the improved part of her testimony and placed no reliance on it.

In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/ accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside.

The appeal is allowed and the impugned judgment of conviction and sentence imposed on the appellant is set aside. The appellant is ordered to be set at liberty forthwith if not required in any other case.

…….….……………………….J. (JAGDISH SINGH KHEHAR) ….……………………………..J. (C. NAGAPPAN) New Delhi May 12, 2016 ITEM NO.1A COURT NO.3 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s).462/2016 @ SLP(CRL.)NO.1962/2015 RAMBRAKSH @ JALIM Appellant(s) VERSUS STATE OF CHHATTISGARH Respondent(s) HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE C. NAGAPPAN, JJ.] Date : 12/05/2016 This appeal was called on for pronouncement today.

For Appellant(s) Mr. Yogesh Tiwari, Adv.

Hon'ble Mr. Justice C. Nagappan pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Jagdish Singh Khehar and His Lordship.

For the reasons recorded in the Reportable judgment, which is placed on the file, the appeal is allowed and the impugned judgment of conviction and sentence imposed on the appellant is set aside. The appellant is ordered to be set at liberty forthwith, if not required in any other case.