Allowed

Vijay Kumar v. State of Chhattisgarh

Chhattisgarh HC17 Aug 2017CRA/610/2008

Case brief

AI extract

What is this about?

The Chhattisgarh High Court dismissed appeals against conviction underSections 302 and 201 IPC, holding that the trial court erred in basing conviction solely on a co-accused ineffectual confession and 'last seen' evidence without sufficient corroborative links.

What did the court decide?

Appellants acquitted of charges under Sections 302 and 201 IPC; conviction and sentence set aside; bail extended.

Vijay Kumar Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRANo.610of2008

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Vijay Kumar, S/o Tikaram Suryawanshi, aged about 36 years, resident of village Seepat, Police Station Seepat, District Bilaspur (CG)

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-—Appetlant (In Jail)

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Versus

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State Of Chhattisgarh, through Police Station Seepat, District Bilaspur

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-—Respondent

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And

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CRA No. 616 Of 2008

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Santosh Kumar, S/o Patiram Suryavanshi, aged about 36 years. Dataram S/o Ram Sai Satnami, aged abput 40 years.

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Both R/o Village Seepat, Police Station Seepat, District Bilaspur (C.G.)

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-—Appellants (In Jail)

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State Of Chhattisgarh, through Police Station Seepat, District Bilaspur

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-— Respondent

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Cr.AppealNo.610of2008 ForAppellant Mr. Alok Nigam, Advocate For Respondent Mrs. Smita Ghai, Panel Lawyer. Cr.ANo.616of2008 ForAppellant Miss Nirupama Bajpai, Advocate For Respondent Mrs. Smita Ghai, Panel Lawyer

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Hon'bLeShri Justice Pritinker Diwaker Hon'ble^hrLJystice Ram Prasanna Sharma

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NAFR

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HIGHCOURT OF CHHATTISGARH, BILASPUR

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CRANo.610of2008

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Vijay Kumar, S/o Tikaram Suryawanshi, aged about 36 years, resident of village Seepat, Police Station Seepat, District Bilaspur (CG)

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-—Appellant (In Jail)

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Versus

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• State Of Chhattisgarh, through Police Station Seepat, District Bilaspur

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-— Respondent

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And

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CRANo. 616 Of 2008

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• Santosh Kumar, S/o Patiram Suryavanshi, aged about 36 years.
• Dataram S/o Ram Sai Satnami, aged abput 40 years.
Both R/o Village Seepat, Police Station Seepat, District Bilaspur (C.G.)

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-—Appellants(In Jail)

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• State Of Chhattisgarh, through Police Station Seepat, District Bilaspur
(CG) ^

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-—Respondent

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Cr. Appeal No.610of 2008

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ForAppellant Mr. Alok Nigam, Advocate For Respondent Mrs. Smita Ghai, Panel Lawyer. Cr.ANo.616of2008 ForAppellant Miss Nirupama Bajpai, Advocate For Respondent Mrs. Smita Ghai, Panel Lawyer

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Hon'ble Shri Justice Pritinker Diwaker Hon'ble ShrLJystice Ram Prasanna Sharma

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death by accused Vijay & Santosh and they have buried his body in his kitchen garden. Suresh Kumar immediately went in the kitchen-garden and noticed some fresh dug soil and a crowbar lying there. Thereafter he rushed to the police station and lodged the FIR (Ex.P-2) on 28.8.2007 at 11.00 a.m. based on which offence under Sections 302, 201, 34 IPC was registered against the accused persons. After obtaining permission from the Sub Divisional Officer (Police) vide Ex.P-24, the dead body was exhumed. Merg intimation (Ex.P-1) was recorded at the instance of Suresh (PW-1). Inquest over the body of deceased was prepared on 28.8.2007 vide Ex.P-5 and thereafter post mortem on the body of deceased was done vide Ex.P-20 by Dr. Rajesh Kumar (PW-11) who noticed following injuries;-

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Incised wound. of the size 4x1x1.5 cm x muscle deep over left clavicle region

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Incised wound of 6x2x1 cm in size present over !eft lower neck region oblique transverse underneath ecohymosis.

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Incised wound of 12x4x6cm (muscle deep) over left anterio medial aspect ofneck going upto right lateral aspect of upper neck region

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• Two incised wounds present over right lateral aspect^ofmiddleneck of7x1.5x3cm

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Incised wound over left anterio medial aspectof neck going up to right lateral aspect of neck of 14x3x3 cm (deep) oblique- transverse.

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Incised wound over middle of chin region vertically of 3.5x1x1.5cm in size.

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Graze abrasion over right shoulder region of 4.5 x 3 cm in size.

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Graze abrasion over right lower arm region of 3x2.5cm in size.

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The doctorhas opined that mode of death was shock and haemorrhage as a result of multiple injuries over neck and death was homicidal in nature. In the course of investigation, memorandum statement of accused Dataram was recorded vide Ex.P-9 and based on which one crowbar and bloodstained clothing which he was wearing at the time of incident were

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recovered vide seizure memo of Ex.P-12. Memorandum (Ex.P-10) of accused Santosh Kumar was recorded and in consequence of that information, one axe and t-shirt of this accused was seized vide seizure memo Ex.P-13. Memorandum statement of accused Vijay . Kumar Suryavanshi was recorded vide Ex.P-11 and on the basis of this disclosure statement, the bloodstained clothes.Which this accused was wearing at the time of incident, were seized at his instance vide seizure . memo Ex.P-14. Seized articles were sent for chemical examination to the Forensic Science Laboratory from where report Ex.P-27 was received. Statements ofwitnesses under Section 161 CrPC were recorded.

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After completion of investigation, charge sheet was filed against the accused/appellants under Sections 302 & 201, 34 of the IPC and the trial Court accordingly framed the charges against them.

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So as to hold the accused/appellant guilty, the prosecution examined as many as 13 witnesses. Statements of accused/appellants were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

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-6. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted & sentenced him as described above.

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Learned counsel for the accused/appellants submits that:

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the trial Court erred in convicting the appellants as none of the alleged pieces of circumstantial evidence could be proved by the prosecution.

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Confession of a co-accused cannot be made the foundation of a conviction and in the present case, appellants Santosh Kumar & Vijay Kumar have been convicted solely on the basis of alleged confession of co-accused Dataram before Suresh Kumar (PW-1) to the effect that

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.the deceased was done to death by them. The evidentiary value ofthe confession of a co-accused is extremely weak and a conviction solely on its basis is bad and unsustainable in law.

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the last seen evidence is not reliable because PW-1 , PW-3 & PW-5 who have allegedly last seen the deceased in the company of the appellants are related to the deceased and all are interested witnesses.

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there is no report of serologist tb establish the fact that the axe having blood stains thereon and the clothing of appellants have human blood thereon.

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though the dead body of deceased was found in the kitehen garden of co-accused Dataram but it is an open place accessible to ali.

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On the other hand, supporting the impugned judgment learned counsei for the State submits that conviction of the accused/appellants is strictiy in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court.

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We have heard learned counsel for the parties and perused the material available on record

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.?tv'

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Suresh Kumar Suryvanshi (PW-1), brother of deceased, is the lodger of Merg Intimation (Ex.P-1), FIR (Ex.P-2) & also a witness to last seen. He has deposed that on 27.8.2007 accused Santosh & Dataram had come to call his brother (deceased)^{anddespitehis} protest,^{hisbrotherhad} gone with them. His brother did not return in thenight. Next morning he was told by the wife of deceased that the deceased did not return in the night and then he along with Chhatram & Laxman had gone to the house of coaccused Dataram and on being asked, Dataram told them that on account of dispute relating t9 triarKet eontflct, .acciised Vijay, Ramesh & Santosh killed the deceased by causing axe injuries to him and thereafter buried He has further stated that they

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his dead body in his kitchen-garden.

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.the deceased was done to death by them. The evidentiary value of the confession of a co-accused is extremely weak and a conviction solely on its basis is bad and unsustainable in law.

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the last seen evidence is not reliable because PW-1 , PW-3 & PW-5 who have allegedly last seen the deceased in the company of the appellants are related to the deceased and all are interested witnesses.

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there is no report of serologist to establish the fact that the axe having blood stains thereon and the clothing of appellants have human blood thereon.

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though the dead body of deceased was found in the kitchen garden of co-accused Dataram but it is an open place accessible to all.

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On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of the accused/appellants is strictly in accordance with law and there is no illegality or infirmity in the same warranting interference bythis Court.

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We have heard learned counsel for the parties and perused the material available on record

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.,»:'"-

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Suresh Kumar Suryvanshi (PW-1), brother of deceased, is the lodger of Merg Intimation (Ex.P-1), FIR (Ex.P-2)^{&alsoawitnesstolastseen.} He has deposed that on 27.8.2007 accused Santosh & Dataram had come to call his brother (deceased) and despite his protest, his brother had gone with them. His brother did not return in the night. Next morning he was told by the wife of deceased that the deceased did not return in the night and then he along with Chhatram & Laxman had gone to the house of co;accused Dataram and on being asked, Dataram told them that on account of dispute relating tB ifiarRet eomf'aet, ,a:ccused Vijay, Ramesh & Santosh killed the deceased by causing axe injuries to him and thereafter buried He has further stated that they

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his dead body in his kitohen-garden.

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suppprtthe prosecution case and turned hostile.

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Angleshwar Banjara (PW-7) & Rohit Kumar Bhardwaj (PW-8) are the police persons who assisted in the jnitial investigation. Gendram Kulmitra (PW-9) is the Patwari who prepared the spot map of Ex.P-3. Ramnihore (PW-10) is thewitness of inquest (Ex.P-5), memorandums (Ex.P-9 to P- 11) and seizure memos Ex.P-12 to P-15. Dr. Rajesh Kumar (PW-11) is the person who conducted post-mortem on the body Qf deceased and noticed the injuries as described above. He has opined that cause of death was shock and haemorrhage as a result of multiple injuries over neck, death was homicidal in nature and duration is within 24 hours from post mortem examination. In response to the query raised by the police, the doctor has replied vide Ex.P-23 that the injuries noticed on the body of deceased could be caused by the axe sent to him for examination. V.S. Chandel (PW-12) is the investigating officer who has duly supported the prosecution case. Ratiram Yadav (PW-13) is the Head Constable who at the instance of PW-3 recorded the missing report in the roznamcha sanha (Ex.P-26).

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It is accepted position that there is no eye-witness in the present case and the prosecution case is completely based on the circumstantial evidence. It is by now well settled that in a case relating to circumstantial evidence, the chain of circumstances has.to be spelt out by the prosecution and even if one link in the chain is broken the accused must get the benefit thereof: In the matter of Dhananjoy^{ChatterjeeVs.StateofW.B.} reported in (1994) 2 SCC 220 the Hon"ble Supreme Court has held thus: "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of

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/A.. i7cy

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supporfthe prosecution case and turned hpstile.

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Angleshwar Banjara (PW-7) & Rohit Kumar Bhardwaj (PW-8) are the police persons who assisted in the initial investigation. Gendram Kulmitra (PW-9) is the Patwari who prepared the spot map of Ex.P-3. Ramnihore (PW-10) is the witness of inquest (Ex.P-5), memorandums (Ex.P-9 to P- 11) and seizure memos Ex.P-12 to P-15. Dr. Rajesh Kumar (PW-11)is the person who conducted post-mortem on the body Qf deceased and noticed the injuries as described above. He has opined that cause of death was shock and haemorrhage as a result of multiple injuries over neck, death was homicidal in nature and duration is within 24 hours from post mortem examination. In response to the query raised by the police, the doctor has replied vide Ex. P-23 that the injuries noticed on the body of deceased could be caused by the axe sent to him for examination. V.S. Chandel (PW-12) is the investigating officer who has duly supported the prosecution case. Ratiram Yadav (PW-13) is the Head Constable who at the instance of PW-3 recorded the missing report in the roznamcha sanha (Ex.P-26).

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It is accepted position that there is no eye-witness in the present case and the prosecution case is completely based on the circumstantial evidence. It is by now well settled that in a case relating to circumstantial evidence, the chain of circumstances has to be spelt out by the prosecution and even if one link in the chain is broken the accused must get the benefit thereof; In the matter of Dhananjoy Chatterjee Vs.State of W.B. reported in (1994) 2 SCC 220 the Hon"ble Supreme Court has held thus:

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"In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only io be fully established but also that all the circumstances so established should be of a conclusive nature and consistent oniy with the hypothesis of the guilt of the accused. Those circumstances should not be capable of

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would not be taken into consideration. Thus, when there is no substantive piece of evidence against these appellants having committed murder of the deceased, the confession of co-accused, which is merely corroborative in nature, could not have been used for the purposes of convicting them. Law is well settled that suspicion however strong suspicion may be it cannot take the place of proof. It cannot be the basis for conviction of an accused.

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So far as the complicity ofaccused/appellant Dataram is concerned, again we find that the evidence brought on record by the prosecution are not sufficient to prove that this appellant was also involved in the offences charged with. The only evidence, which has surfaced against this appellant, is the confession alleged to have been made by him before Suresh Kumar Suryavanshi (PW-1) & Chhatlal (PW-2). According to these witnesses, while searching the deceased when they reached the house of this appellant, they were informed by him that the deceased was done to death by accused/appellants Santosh Kumar & Vijay Kumar and thereafter they buried the body of deceased in his kitehen garderi. Thus, fro.m the statement of these witnesses it is clear that it was not a confession affecting the maker of it i.e. accused/appellant Dataram. Section 30 of the Evidence Act provides for consideration of proved confession affecting person making it and others jointly under- triat for same offence. It says that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. This makes very clear that such kind of confession would be admissible only if the same is affecting the person making it. If such confession is not

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affecting the person who mde it, it would not be relevant under Section 30 of the Evidence Act and it would hardly be an incriminating circumstance to connect the accused with crime in question. In the present case a!so, as stated above, the confession made by accused/appellant Dataram was not the one affecting him and therefore itwas hardly incriminating against him and the trial Court erred in law in holding it as incriminating circumstance against him. Since the confession does not pertain to confessor himself i.e. appellant Dataram, it cannot be stretohed to establish his complic.ity in the crime in question even if the recovery of dead body followed from kitahen-garden which was in his exclu.ijve possession and occupation.

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So far. as the theory of last seen, even if it is accepted that the deceased was seen in the company of accused/appellants by PW-1, 3 &5, it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of^"last seen together" even if version of the prosecution witness in this regard is believed. In the case in hand, there is no other positive to conclude that it is che accused/appellants who buried the body of deceased after committing his murder. therefore, the only circumstanceof last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypotheses of fhe guilt of accused persons and, therefore, no conviction on that basis alone can be founded.

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In the above facts and circumstances of the case, we find that the trial Court has completed erred in law in holding the accused/appellants guilty of the offence punishable under Sections 302^{&201IPContheaboveset} of circumstantial evidence. The conviction^{andsentencesawardedto}

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the appellants, on the above circumstantial evidence, therefore, cannot be sustained.

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In the result, both the appeals succeed. Conviction & sentence of the appellants under Sections 302 & 201 IPC are hereby set aside and they are acquitted of those charges by extending thern benefit of doubt. The appellants are reported to be on bail. Their bail bonds stand discharged.

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Sd/-

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(Pritinker Diwaker) Judge

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Sd/-

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(R.P. Sharma) Judge

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roshan/-

Vijay Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vijay Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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