Radhakishan Agrawal, J
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the impugned judgment of conviction and order of sentence dated 14.03.2014 passed in Sessions Trial No.91/2013 by the Second Additional Sessions Judge, Sakti, District Janjgir-Champa, C.G., by which the appellant stands convicted & sentenced as under:-
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Conviction |
Sentence |
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Under Section 302 of Indian Penal Code (for short, ‘IPC’) |
Imprisonment for life and fine of Rs.10,000/-, in default of payment of fine additional rigorous imprisonment for six months |
2. Case of the prosecution, in brief, is that on 18.02.2013 at about 3:00 pm near Baba Khaiya Road (Talab) at village Faraswani, some altercation took place between the deceased Radha Bai and appellant on which appellant committed marpeet with Radha Bai/deceased and assaulted her with wooden stick, hands & fists, as a result of which she sustained injuries on her body, fell down on the road and became unconscious. Thereafter, one Gourilal reached the spot and took the deceased at her home and at about 10:00 pm, Radha Bai/deceased died. The said incident was informed to PW-2 Jairam / son of the deceased over telephone. Then, PW-2 Jairam came to the village Faraswani and lodged the FIR Ex.P-4 against the appellant and merg intimation Ex.P-05 was also recorded. Inquest proceedings were conducted vide Ex.P-7. Nazri Naksha and spot panchnama were prepared vide Exs. P-1 & P-2 respectively. On the recommendation of the panchas, dead body was sent for postmortem examination which was conducted by PW-08 Dr. N.P. Mishra, who has proved the postmortem report Ex.P-14. In the postmortem report, cause of death was stated to be shock due to internal hemorrhage, head injury and injury on other parts of the body. Appellant was arrested vide Ex.P-12. Memorandum statement of the appellant was recorded vide Ex.P-9 consequent to which one wooden stick was seized at his instance vide Ex.P-10 in presence of two witnesses i.e. PW-4 Ratan Singh and PW-06 Harihar Singh. Seized article was sent to FSL for chemical examination but no FSL report has been brought on record. Query report Ex.P15 has also been obtained vide Ex.P-15 and as per the said report, injury found on the body of the deceased could have been caused by the seized wooden stick.
3. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.
4. The prosecution in order to bring home the offence, examined as many as 11 witnesses in support of its case and exhibited 18 documents. However, the appellant in support of his defence has not examined any witness and only exhibited one document i.e. Ex.D-1.
5. The trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the Cr.P.C.
6. Learned counsel appearing for the appellant submits that only on the basis of memorandum statement of the appellant (Ex.P-9), he has been convicted which is absolutely illegal and bad in law. He further submits that wooden stick is alleged to have been seized but no bloodstain has been found as no FSL report has been brought on record. He also submits that in this case, prosecution witnesses have also turned hostile and not supported the prosecution case. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charge.
7. Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offence.
8. 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.
9. The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-14) proved by Dr. N.P. Mishra (PW-08) which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.
10. Now, the question would be whether the appellant is the author of the crime in question for which the trial Court has relied upon the circumstantial evidence by delving into the incriminating evidence which have been found to be proved by the trial Court resulting into conviction of the appellant.
11. Admittedly, the present case is based on circumstantial evidence. The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, in which it was observed 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 : [SCC para 19, p. 807 : SCC (Cri) p. 1047]
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.”
12. Now, we shall consider the incriminating circumstances found proved by the trial Court. PW-2 Jairam, son of the deceased, stated in his deposition that on the date of incident, he was at village Pasid and PW-6 Harihar had informed him over telephone that his mother has died. He further stated in para 5 that on second day, he came to know about the death of his mother. This witness has turned hostile and not supported the prosecution case. PW-3 Smt. Kritika Bai, daughter-in-law of the deceased, PW-4 Ratan Singh, PW-5 Ghasiya Ram, PW-6 Harihar Singh and PW-9 Smt. Ashok Bai have neither supported the prosecution case nor stated anything in relation to the commission of offence by the appellant/accused.
13. PW-7 Sadhuram stated in his deposition that he has no knowledge about the incident and he does not know as to how Radha Bai / deceased died. He stated that at about 12:00 pm, he came out of his house and saw that the deceased was lying on the road in front of his house and thereafter, he went back to his house and closed the door. This witness has also not supported the prosecution case.
14. In view of the aforesaid discussion, it is quite clear that there is no eye-witness to the incident. After the incident, one Gourilal who took the deceased at her home has also not been examined by the prosecution.
15. The next circumstance which has been pointed out is that wooden stick has been seized vide Ex.P-10 from the possession of the appellant pursuant to his memorandum statement vide Ex.P-9. Though it was seized and proved by PW-10 Anand Ram, Investigating Officer and according to the query report vide Ex.P-15, Dr. N.P. Mishra (PW-8) has opined that injury could have been caused by the seized wooden stick which was sent to FSL for chemical examination but none of the seizure witnesses has supported the prosecution case and further there is no FSL report on record to prove the presence of human blood on the seized weapon. Therefore, the aforesaid circumstance is of no help to the prosecution to establish the complicity of the appellant in the crime in question. In this regard, it would be appropriate to refer to the judgment of the Supreme Court in the matter of Mani v. State of Tamil Nadu (2009) 17 SCC 273, wherein considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, it has been held that discovery is a weak kind of evidence and cannot be wholly relied upon. Paragraph 26 of the said judgment reads as under :-
“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.”
16. Thus, considering the circumstantial evidence relied upon by the prosecution in light of the principles of law laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), this Court finds that the prosecution has utterly failed to prove appellant is the perpetrator of the crime in question. In view of above stated analysis, the learned trial Court is wholly unjustified in convicting and sentencing the appellant for offence under Section 302 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 14.03.2014, passed by the learned trial Court is not sustainable.
17. Consequently, the conviction of the appellant for the offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set aside. He is acquitted of the said charge. The appellant is reported to be on bail, therefore, his bail bonds shall continue for a period of six months from today in view of the provisions contained in Section 437-A of Cr.PC.
18. In the result, the criminal appeal is allowed.
