Heeralal Sahu vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against the judgment dated 28-6-2008 passed by Session Judge, Durg in Session Trial No. 43/2006. By the impugned judgment, accused/appellant Heeralal Sahu has been convicted under Sections 397 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and imprisonment for life and to pay fine of Rs. 500/-, in default, to further undergo rigorous imprisonment for three months. The sentences of imprisonment are directed to run concurrently. Case of the prosecution, in brief, is as under:

Padumlal Soni (PW-1), along with his son Sunil Soni (deceased), was running business of ornaments/jewelleries moving market to market. On 17-10-2005, at about 7:00 A.M., the deceased went to Village Ruda for selling ornaments. Padumlal Soni (PW-1) did not accompany him on account of bad weather. At about 3 P.M., when the deceased did not come back, Padumlal Soni (PW-1) went in his search to Bhilai, where somebody told him that he had seen the motor cycle of the deceased at Mansabhat Khar. Padumlal Soni (PW-1) went there. He saw that motor cycle of the deceased was lying in an agricultural field and his dead body was lying in another agricultural field. Many injuries were present over neck of the deceased and blood was oozing out. The ornaments-box was not found there. Earlier, the deceased had told him that whenever he had asked the appellant to refund the money of his brother Anil Soni, the appellant created dispute and threatened him of dire consequences. Village Kotwar Santosh Kumar Sahu lodged Merg Intimation (Ex.P-4) and First Information Report (Ex.P-9) in Police Station Arjunda. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-1) to Panchas and prepared inquest (Ex.P-2) on dead body of the deceased. The dead body was sent for post mortem examination vide Ex.P-19. Dr. C.B. Prasad (PW-13) conducted autopsy on dead body of the deceased. He gave his report (Ex.P-20), in which, he found following injuries:

(1) Incised wound between left little and ring finger vertical, length 2", on dorsal side,

(2) Incised wound on left ring finger on dorsal surface,

(3) Incised wound on left little finger, vertical, length 2",

(4) Incised wound between left index and middle finger situated horizontally, length 1�"

(5) Incised wound on left fore-arm extended to surface, area �" x �".

(6) Deep incised wound on occipital region, horizontal, 3" x�" x �",

(7) Deep incised wound, 3" above the nape of neck--(a) left side of medius place, 3" x 1" x �" and (b) right side of medius place, 3" x 1" x �",

(8) Deep cutting wound on the neck, 3" x 2" x 2", half portion of the neck was cut from its back side,

(9) Abrasion on scapular region of 2",

(10) Linear scratch on right scapular region of 2.

The doctor opined that cause of the death was acute shock due to fatal injuries on skull and neck which resulted into profuse hemorrhage and the death was homicidal in nature.

In further investigation, memorandum statement (Ex. P-22) of the appellant was recorded u/s 27 of the Evidence Act and at his instance, ornaments were seized vide Ex. P-23. Plain soil and blood stained soil were seized from the place of occurrence vide Ex.P-5. Motor-Cycle bearing registration No. CG 08 ZE 7734 and a pair of Chappal were seized from the place of occurrence vide Ex.P-6. Fancy top, Jhumka, other Fancy Tops and other ornaments were seized vide Ex.P-7. Patwari Jitendra Singh Rajput (PW-4) prepared site-map vide Ex.P-8. Seized article Tangia was sent for examination and Dr. C.B. Prasad (PW-13) gave his report (Ex.P-15). Proceeding of identification was conducted for the ornaments seized from the appellant by C.L. Chanay, Naib-Tahsildar/Executive Magistrate (PW-14) vide identification memo (Ex. P-21). The spot-map was also prepared by the Investigating Officer. The appellant was also sent for medical examination to District Hospital, Durg and Dr. A.K. Mishra (PW-12), after examining him, gave his report (Ex.P-17). The seized articles were sent for chemical examination to Director, Forensic Science Laboratory, Raipur vide Ex. P-13, from where, vide Ex.P-30, report (Ex.P-31) was received.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Manish Upadhyay, learned counsel for the appellant argued that name of the appellant is not mentioned in the First Information Report (Ex.P-9). No date is mentioned in the list produced by Padumlal Soni (PW-1). Eyewitnesses Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) did not support the case of the prosecution. According to Devlal Sahu (PW-16) and Kushal Sahu (PW-17), when the said recovery was made, the appellant was not present there. This shows that the said recovery was made in absence of the appellant. The prosecution has failed to prove memorandum and recovery of ornaments from the appellant. Therefore, the finding of guilt recorded by the trial Court is not sustainable in the eyes of law.

On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Session Judge do not warrant any interference by this Court.

Shri Avinash Chand Sahu, learned counsel for Padumlal Soni (PW-1), father of the deceased supported the impugned judgment passed by the learned Session Judge,

We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of session case.

Padumlal Soni (PW-1) deposed that on 17-10-2005, at about 7 A.M., his son Sunil Kumar Soni (the deceased) had gone to Village Ruda for selling ornaments-He did not return from Village Ruda till 3 P.M. He had gone to Village Ruda on a motor-cycle. He went in search of his son to Bhilai Bazar. There, few persons sitting in a hotel, told him that they had heard about an altercation relating to his son. They also told him that the altercation took place with the appellant between Bhilai and Masabhat Khar. He further deposed that when he reached between Bhilai and Masabhat Khar, he saw motor-cycle of his son lying in an agricultural field and dead body of his son was lying in another agricultural field. He did not express suspicion on any person about death of his son Sunil Soni.

In cross-examination, Padumlal Soni (PW-1) deposed that he had not expressed suspicion in his statement before police that murder and loot were committed by the appellant. He had been disturbed mentally and physically as his earning son had expired. He had not made any report in the police earlier that the appellant created dispute and gave threatening regarding transactions with his son Anil Soni. It is true that he has engaged an Advocate in this case separately. It is true that there was no personal enmity between the appellant and his sons. He had not lodged any report regarding personal enmity between the appellant and his son.

Padumlal Soni (PW-1) deposed that few persons told him that they had heard about an altercation relating to his son. They also told him that the altercation took place with the appellant between Bhilai and Masabhat Khar. But, he did not disclose the name of person who told him about the altercation between the appellant and the deceased and the prosecution did not examine that person, which is fatal to the case of the prosecution.

Panchram Dewangan (PW-9) deposed that on 17-10-2005, at about 8:30 A.M., he had gone to Village Chicha to take clothes from a tailor which he had given for sewing. After taking clothes, when he was returning to Village Masabhat at about 10-10:15 A.M., he saw the appellant walking on his agricultural field. His bicycle was parked near his agricultural field and empty kerosene containers were kept thereon. Thereafter, on the same day, he had seen him coming towards Nikum along with those containers. In cross-examination, he deposed that he had stated before police that the appellant had parked his bicycle near his agricultural field and kerosene containers were kept thereon.

Birendra Kumar (PW-10) deposed that he did not know the appellant. He knew that the deceased was murdered and his murder was committed in an agricultural field between Masabhat and Bhilai. On the fateful day, when he was going to his school, at about 10:30 A.M., he had seen the deceased going on a motor-cycle on Masabhat Road towards Bhilai. At that time, he was standing under a Babool Tree as it was raining and he had got drenched. Thereafter, when he was returning to his village, he saw motor-cycle of the deceased lying on the road and someone was beating the deceased in an agricultural field. The weapon of assault was made of iron and that was a Dataun cutting article. He did not know name of the article. The person who was beating the deceased came to him and abused him, therefore, due to fear, he fled from there. He did not show him any weapon. Thereafter, fleeing, he went towards Masabhat Khar. He narrated the incident to the persons who met him on the way going on a tractor from Masabhat Khar to Bhilai. He further deposed that he could not recognise the person assaulting the deceased. He was not able to identify the assailant of the deceased even on the day of his deposition before the Court.

Nand Kumar (PW-11) deposed that on the fateful day he was returning from the agricultural field of his master situated in Khursulwal Khar. At that time, it was raining. To save himself from the rain, he entered in a Ponga (a pipe made of cement) lying by the side of the road. His face was towards Bhilai Khar. He saw two persons quarreling with each other. The distance between him and the place of quarrel was about 8-9 agricultural fields. He did not see who assaulted whom in the said quarrel and as soon as the rainfall stopped, he came to his house. In cross-examination, he deposed that it is true that from the Ponga he saw that a quarrel was going on at some distance. It is incorrect to say that the persons quarreling with each other were the appellant and the deceased. The quarrel was going on at an extremely far place, therefore, he could not recognise any one. He did not know that out of the two quarreling persons, one assaulted the other with a Tangia.

The prosecution examined Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) as eyewitnesses, but they did not support the case of the prosecution and they turned hostile. Therefore, their evidence is not reliable.

The prosecution has led evidence of memorandum and recovery against the appellant. We shall now examine whether the prosecution has been able to prove that the recovery of looted / stolen ornaments was made from the appellant on the basis of his memorandum statement recorded u/s 27 of the Evidence Act?

Yakub Memon (PW-18) deposed that on 26-10-2005 at about 4:30 P.M., he had recorded memorandum (Ex.P-22) of the appellant and at his instance, a Tangiya was seized vide Ex.P-24. The appellant had produced a box (Peti) after taking it out from the pond, seizure of which was made in presence of the witnesses vide Ex.P-26. Some articles were seized from kitchen of the house of the appellant vide Ex.P-23.

Devlal Sahu (PW-16) deposed that he knew the appellant. On 26-10-2005, the appellant was interrogated at Police Station Arjunda. The appellant had narrated the police about assaulting with Tangiya and had said that he will get the Tangiya seized from the place where it was kept. Seizure of the Tangiya was not made by the police before him nor the appellant got the Tangiya seized before him. The appellant had accepted in the police station about having the Tangiya and the gold and silver ornaments with him. The appellant had stated to the police before him that he had kept the gold and silver ornaments in a Pipa made of tin and had hidden the same in a pit dug by him in kitchen of his house. He had also stated before the police that he will get the ornaments seized. In cross-examination, he deposed that on 26-10-2005, he had gone to the police station. Statement of the appellant was not recorded at the police station before him. At the time when the police personnel had shown him the articles at the police station, they had interrogated the appellant. It is true that he had seen all the ornaments and the Tangiya at the police station for the first time.

Kushal Sahu (PW-17) deposed that he had reached the house of the appellant after seizure by the police. He came to know that police had made seizure of a tin (container) from the house of the appellant in which gold and silver ornaments were kept. He had not seen the appellant there. In cross-examination, he deposed that he did not know that a Pipa, filled with jewelleries, was seized by the police at the instance of the appellant from his house because he had reached there late. It is true that the police personnel had asked him to put his signatures on the police papers saying him not to fear because no action will be taken against him. On the assurance given by them, he had put his signatures on all the papers.

Devlal Sahu (PW-16) deposed that memorandum of the appellant was recorded and Tangiya and ornaments were seized at the instance of the appellant. Kushal Sahu (PW-17) also deposed that memorandum of the appellant was recorded and at the instance of the appellant, ornaments were recovered.

Section 27 of the Evidence Act permits the derivative use of custodial statement in the ordinary course of events to the extent that they can be presumed by the subsequent discovery of facts. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. However, on circumstances, it can be examined whether a person was indeed compelled to make statement while in custody.

Devlal Sahu (PW-16) deposed that police did not seize Tangiya from the appellant in his presence. He further deposed that police had seized the container, but he had not seen that what was kept in that container. When the container was opened in the police station, he saw that some ornaments were kept in the said container. He further deposed that thereafter the appellant had accepted about Tangiya and ornaments. He further deposed that when police had recovered the container from the kitchen of the appellant, at that time, the appellant was not present there. He saw the ornaments in the police station. He further deposed that it is wrong to say that the appellant himself had given the Pipa, in which ornaments were kept, to the police which he had hidden in a pit dug by him in the kitchen of his house. He further deposed that memorandum of the appellant was not recorded before him. He deposed that when the articles were shown to him, at that time, police personnel had interrogated the appellant.

Kushal Sahu (PW-17) deposed that when the seizure was made, at that time, he had not seen the appellant there. He further deposed that Tangiya was not seized from the appellant before him. He did not know about seizure of any article or ornaments from the appellant. He further deposed that on being asked by the police and giving assurance to him that nothing will happen against him, he had signed the memorandum and seizure memo.

The house of the appellant was searched by the police in absence of the appellant. Kushal Sahu (PW-17) deposed that a Pipa (container), in which gold and silver ornaments were kept, was seized near the house of the appellant. The house of the appellant was easily accessible and jewelleries were found near his house and at the time of recovery, the appellant was not present there. The search and recovery of articles/jewelleries made by the police on 26-10-2005 do not inspire confidence as the house was easily accessible. We have carefully gone through the evidence of the witnesses, the panchnamas and the list of seized articles. The reasoning adopted by the trial Court for convicting the appellant is without basis and unjustified.

Padumlal Soni (PW-1) deposed that in identification proceeding, he had identified his ornaments/jewelleries. He further deposed that he had appeared in identification proceeding of ornaments/jewelleries. The identification proceeding was conducted by Naib-Tahsildar/Executive Magistrate C.L. Chanay (PW-14). He had identified his ornaments on the basis of seal-marks of the companies. He had seen the seal-marks S.S.P. and R.S. on the ornaments and identified them to be belonging to him. The identification proceeding was conducted by the Tahsildar vide Ex.P-21, which bears his signature.

C.L. Chanay (PW-14) deposed that on 22-11-2005, he was posted as Naib-Tahsildar/Executive Magistrate at Gunderdehi. On 22-11-2005, he conducted identification of the articles relating to Crime No. 128/05 of Police Station Arjunda. He further deposed that in identification proceeding, Padumlal Soni (PW-1) had identified his ornaments/jewelleries.

Padumlal Soni (PW-1) deposed that it is true that he had not stated before police about giving a list of articles separately. It is true that the document Ex.P-3 does not bear any date. He had given the list (Ex.P-3) to the police before the identification proceeding. It is true that he had not submitted bills regarding purchases of the ornaments in the police station. He had not kept any other list of ornaments at home.

Ex.P-4 is the Merg Intimation and Ex.P-9 is the First Information Report. These documents do not contain description of looted ornaments. Ex.P-3 is a list of ornaments given by Padumlal Soni (PW-1) to the police. Ex.P-3 does not contain any date of its recording. Padumlal Soni (PW-1) admitted that it is true that no date was mentioned in Ex. P-3. Since Ex. P- 4 and Ex. P-9 do not contain description of ornaments and Ex.P-3 does not contain any date of its recording, it cannot be said that the articles seized were actually looted or stolen articles.

According to Yakub Memon (PW-18), memorandum of the appellant was recorded by him on 26-10-2005 and seizure was made on 26-10-2005 at about 6:15 P.M. The identification proceeding was conducted by Naib-Tahsildar/Executive Magistrate C.L. Chanay (PW-14) on 22-11-2005, which was after near about 26 days from 26-10-2005. Devlal Sahu (PW-16) and Kushal Sahu (PW-17) specifically deposed that at the time of recovery, the appellant was not present. This shows that the seizure was made in absence of the appellant. Perusal of the evidence of Devlal Sahu (PW-16) and Kushal Sahu (PW-17) shows that the police personnel had interrogated the appellant after making seizure of the ornaments, which reveals that recovery of the ornaments and Tangiya was not made on the basis of the memorandum of the appellant and the identification of seized articles was conducted after lapse of 26 days and there is no plausible or proper explanation by the prosecution for this delay. Therefore, the identification proceeding of the seized articles becomes doubtful and cannot be based for conviction of the appellant.

The prosecution has led evidence of three eyewitnesses Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) against the appellant, but they did not support the case of the prosecution. The other set of evidence led by the prosecution is memorandum of the appellant and at his instance, recovery of the Tangiya and looted/stolen ornaments, but the prosecution has failed to prove the memorandum and the recovery made on the basis of the said memorandum. The chain of circumstances,, therefore, is not complete to conclusively establish that the appellant alone committed the crime. In the above circumstances, the memorandum and the recovery of articles on the basis of the said memorandum are not reliable and cannot be based for conviction of the appellant.

We are of the view that in the above facts and circumstances of the case, the prosecution has utterly failed to prove the charges against the appellant. For the reasons aforementioned, the impugned judgment cannot be sustained.

In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 397 and 302 of the Indian Penal Code are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 26-10-2005. He be set at liberty forthwith if not required in any other case. The order of the learned Session Judge regarding the seized property is affirmed.