Shankar Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order dated 29-9-2014 passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No.70/2014 by which the appellant has been convicted for offences under Sections 302 of the IPC, 25 & 27 of the Arms Act and sentenced to undergo imprisonment for life and pay fine of ₹ 500/-, in default, additional rigorous imprisonment for six months; rigorous imprisonment for one year & pay fine of ₹ 200/-, in default, additional rigorous imprisonment for three months; and rigorous imprisonment for three years & pay fine of ₹ 200/-, in default, additional rigorous imprisonment for three months, respectively, with a direction to run the sentences concurrently.

Case of the prosecution, in a nutshell, is that on 20-5-2014 at 8 a.m. in the morning at Ranha Bhadra forest, the appellant assaulted Smt. Chandra Bhatra by chaku (kadri) and caused multiple injuries to her by which she suffered injuries and died. It is the further case of the prosecution that Burunda Kashyap (PW-1) left his mother Chandra Bhatra at Ranha Bhadra forest for picking mahuwa and the appellant was seen going towards Ranha Bhadra forest by Benudhar (PW-6), thereafter, Mangla (PW-5) while going towards forest, met Jayanti Bai, Rasna Bai & Radhamani who informed him that Chandra (deceased) is lying in injured condition and thereafter, Kotwar and others reached to the spot and found Chandra in injured condition. Ambulance was called and Chandra was escorted to the hospital where she died. Morgue was registered vide Ex.P-6 and Inquest was conducted vide Ex.P-4. Dead body of deceased Smt. Chandra Bhatra was sent for postmortem which was conducted by Dr. R.S. Bhanwar (PW-8) vide Ex.P-15 and cause of death was stated to be extreme amount of external and internal haemorrhage due to cardiopulmonary arrest, and death was homicidal in nature. Pursuant to the memorandum statement of the appellant, bloodstained knife and shirt of the appellant were seized from the spot vide Ex.P-2 and broken button was also seized and same were sent for chemical examination to the Forensic Science Laboratory from where report Ex.P-26 was received according to which blood was found on the appellant’s shirt and knife.

Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was charge-sheeted for offences under Sections 302 of the IPC, 25 & 27 of the Arms Act, and charge-sheet was filed before the jurisdictional criminal court i.e. Judicial Magistrate First Class, Bastar at Jagdalpur, and the case was committed to the Court of Sessions, Bastar at Jagdalpur from where the learned 3rd Additional Sessions Judge, Bastar at Jagdalpur received the case on transfer for trial.

The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as twelve witnesses and exhibited 27 documents. The defence has examined none and exhibited no document in support of its case. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question.

The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

Mr. Alok Dewangan, learned counsel appearing for the appellant, would submit that case of the prosecution is based on circumstantial evidence, but chain of circumstances is not complete, yet, the appellant has been convicted under Sections 302 of the IPC, 25 & 27 of the Arms Act, as such, due to lack of evidence connecting the appellant with the offence in question, the appellant is required to be acquitted by granting the appeal.

Mr. Sameer Oraon, learned State counsel, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the appellant has rightly been convicted and sentenced, as such, conviction of the appellant is well merited and the appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The first question whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative considering the postmortem report Ex.P-15, which has been proved by Dr. R.S. Bhanwar (PW-8) in which cause of death was stated to be extreme amount of external and internal haemorrhage due to cardiopulmonary arrest, and death was homicidal in nature. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Case of the prosecution is based on circumstantial evidence and in a case based on circumstantial evidence, the prosecution was required to establish the five golden principles which constitute the panchsheel of a case based on circumstantial evidence as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116  in which it has been held in paragraph 153 as under: -

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(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.”

The trial Court has, in order to convict the appellant, relied upon the nine circumstances elaborated in paragraph 35 of the impugned judgment out of which evidence against the appellant is that the appellant was seen near the place of incident by Benudhar (PW-6); pursuant to the memorandum statement of the appellant, bloodstained knife and shirt were seized and one broken button was also seized by the police from the spot; injuries found on the person of the deceased could have been caused by the knife; and as per the FSL report, blood was found on shirt of the appellant and on the weapon of offence knife. No explanation from the appellant has come as to how the broken button was found on the spot and blood found on his shirt and on weapon of offence knife has also not been explained by the appellant. As such, the appellant is the author of the crime.

In order to hold the appellant that he was seen near the place of incident, the trial Court has relied upon the evidence of Benudhar (PW-6). Benudhar (PW-6) has simply stated that on the date of offence while he was going towards Ranha Bhadra forest, he has seen the appellant going inside the forest; nothing more has been stated by him, he has refuted and not stated that on the place of incident he has seen the appellant. Merely because the appellant was going towards Ranha Bhadra forest, it cannot be said that the appellant has committed the offence. The trial Court is not justified in concluding that Benudhar (PW-6) has seen the appellant on the place of incident. In paragraph 7, he has clearly stated that number of persons used to come and go by the kachha route of Ranha Bhadra forest. As such, this circumstance found proved by the trial Court is not established.

The next circumstance found proved by the trial Court is, pursuant to the memorandum statement of the appellant, blood stained knife and shirt have been seized on which blood has been found. Admittedly in the FSL report Ex.P-25, it has been recorded that blood has been found on knife and shirt, but it is of no use to the prosecution as it has not been established that the blood found on the said articles is human blood. In light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery, and such recovery does not help the case of the prosecution and it will be no use to the prosecution. As such, the finding of the trial Court in that regard is of no use to the prosecution, particularly when the prosecution has failed to establish that it is human blood.

The next circumstance found proved by the trial Court is, one of the buttons was missing from the shirt, which was recovered from the possession of the appellant near the spot pursuant to his memorandum statement and which has been allegedly identified by Burunda Kashyap (PW-1) & Mangla (PW-5). Burunda Kashyap (PW-1) & Mangla (PW-5) both have identified the shirt to be belonging to the accused which he used to wear, but both these witnesses did not say that the button which was seized from the spot is the button which was missing from the shirt so seized,  however, they state that the shirt belongs to the accused. The Supreme Court in the matter of Digamber Vaishnav and another  v. State of Chhattisgarh4 held as under in paragraph 37: -

“37. The shirt of Appellant 2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act, 1872 is allegedly matched with the small broken button found at the scene of crime. This has been relied upon by the courts below as another circumstance to corroborate the presence of the appellants at the scene of crime. However, there is nothing on record to show that the shirt is unique and cannot be matched with the shirt of any other person. PW 13 has admitted in his testimony that shirts of the same kind are easily available in the market. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the appellant’s shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper.”

It has not been stated on behalf of the prosecution that the shirt which has been seized pursuant to the memorandum statement of the appellant, is unique and not easily available in the market. It is common knowledge that shirts of the same kind are easily available in the market and button is also not of sterling quality that it is only stitched in the appellant’s shirt and not available in the market. In that view of the matter, seizure of shirt from the appellant’s possession and button from the place of incident is of no use to the prosecution and reliance cannot be placed on such piece of evidence brought by the prosecution.

The Supreme Court in the matter of Mani v. State of Tamil Nadu (2009) 17 SCC 273, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in Balwan Singh (supra) and Mani (supra), it is quite vivid that from shirt and knife seized from the possession of the appellant pursuant to his disclosure statement, no human blood has been found to connect him with the offence in question and therefore mere recovery of these articles is of no use to the prosecution, as it is a weak piece of evidence.

In view of the aforesaid analysis, we are of the considered opinion that the prosecution has failed to establish the chain of circumstances as per the five golden principles which constitute the panchsheel of a case based on circumstantial evidence as laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) and therefore we are unable to uphold the conviction of the appellant and thus, he is entitled for acquittal on the principle of benefit of doubt. As such, conviction and sentences imposed upon the appellant under Sections 302 of the IPC, 25 & 27 of the Arms Act are liable to be set-aside and are hereby set-aside. The appellant is acquitted of the said charges. Since he is in jail, we direct that he be set at liberty forthwith if not required to be detained under any other process of law.

The criminal appeal is allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.