Allowed

Bhajju Ram @ Bhajuram v. State Of Chhattisgarh

Chhattisgarh HC14 Jul 2023CRA/1554/2015

Case brief

AI extract

What is this about?

In an appeal against conviction for murder, the High Court of Chhattisgarh set aside the trial court's judgment. The appellate court held that the extra-judicial confession was unreliable due to contradictory witness statements and the weapon seized lacked forensic proof of human blood. Consequently, the five golden principles of circumstantial evidence were not met, and the appellant was acquitte

What did the court decide?

Conviction and sentence set aside; appellant acquitted and directed to be released from jail forthwith.

Bhajju Ram @ Bhajuram Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1554 of 2015

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Bhajju Ram @ Bhajuram, S/o Budhnath Ram, aged about 31 Years, Caste Nagesia, R/o Village Dumartoli Khutapani, Police Chowki Manora, P.S. Jashpur, Distt. Jashpur, Chhattisgarh.

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----Appellant

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Versus

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State of Chhattisgarh, Through Police Station Jashpur, Distt. Jashpur, Chhattisgarh.

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---- Respondent

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For Appellant : Ms. Ranjana Jaiswal, Advocate. For State : Mr. Sudeep Verma, Dy. G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board

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14.07.2023

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Radhakishan Agrawal, J.

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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 12.10.2015 passed in Sessions Trial No. 34/2015 by the Additional Sessions Judge Jashpur, District: Jashpur (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 IPC Life imprisonment with a fine of Rs.100/-, in default of payment of

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fine amount additional rigorous imprisonment for one month

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Case of the prosecution, in brief, is that on 13.12.2014, in between 11:00 pm to 12:00 pm, the appellant assaulted his uncle namely Kaleshwar (hereinafter called as 'deceased') with axe ( tangi), as a result of which, deceased sustained grievous injuries over his body and died. Further case of the prosecution is that on 14.12.2014, Ramdhaniram (PW-1) lodged a report at Police Chowki, Manora, stating that appellant herein has assaulted his uncle-deceased with axe, as a result of which, he died, pursuant to which merg intimation Ex.P-1 was recorded and FIR Ex.P-2 was registered against the appellant. Inquest proceedings were conducted and the dead body of the deceased was sent for postmortem examination which was conducted by Dr. George Jivan Lakda (PW-16), who has proved the postmortem report Ex.P-16, in which cause of death was stated to be due to hemorrhagic shock and the death was homicidal in nature. Memorandum statement of appellant recorded vide Exhibit-P/6, pursuant to which, axe ( tangi) was recovered from the possession of appellant vide Ex.-P/4-A. From the spot, blood stained soil, plain soil & lungi were seized vide Ex.P-5. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-22), blood has been found on the soil, lungi , tangi , kathri , shawl, T-shirt, shirt and sweater.

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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.

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In order to bring home the offence, prosecution examined as many as 21 witnesses and exhibited 22 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offences and sentenced as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

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Learned counsel for the appellant submits that PW-4 Kailash is not an eye witness to the incident, before whom extra judicial confession was made by the appellant, which is not voluntary and true and does not inspire confidence and in absence of corroboration, the extra judicial confession made by the appellant could not be made basis to convict the appellant. She also submits that pursuant the memorandum of the statement of the appellant, axe has been seized but as per FSL report, no human blood was found on the seized axe, therefore, recovery

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is of no use. As such, the impugned judgment of conviction and sentence deserves to be set aside.

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Learned counsel for the State supports the impugned judgment and submits that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and learned trial Court has rightly convicted and sentenced the appellant herein for the aforesaid offence, therefore, the appeal deserves to be dismissed.

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

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The first question for consideration as to whether the death of the deceased- Kaleshwar was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P/16 proved by Dr. George Jivan Lakda (PW-16), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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Now, whether conviction of the appellant is based on circumstantial evidence that is the extra-judicial confession made by the appellant before PW-4 Kailash?

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In the matter of Nikhil Chandra Mondal vs. State of West

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Bengal reported in 2023 LiveLaw (SC) 171, principles of law

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have been laid down by their Lordships qua evidentiary value of

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extra judicial confession in paragraphs 13 and 15 as under:-

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“13. The trial Court observed that where the prosecution case is entirely based on extrajudicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.

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15 It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extrajudicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403 . This Court, in the said case, after referring to various earlier judgments on the point, observed thus:

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“16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

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(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

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(ii) It should be made voluntarily and should be truthful.

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(iii) It should inspire confidence.

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(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported 2 (2012) 6 SCC 403 by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

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(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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(vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

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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 vs. State of Maharashtra , reported in (1984) 4 SCC 116, in which it was observed in paragraph 153 as under :-

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“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:

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

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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]

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Certainly, it is a primary principle that the accused

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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.

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(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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

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Returning to the facts of the present case in light of the aforesaid legal position, it is quite vivid that the extra judicial confession has been allegedly made by the appellant before PW-4 Kailash. A careful perusal of the statement made by Kailash (PW-4) before the Court would show that on the second day of incident, the appellant came to his house and handed over a sum of Rs.120/-, at that time, he did not disclose anything about the incident. Although, this witness has been declared hostile, but in para 2, he has further deposed that when the appellant came to his house to give money, then appellant made extra-judicial confession before him to the effect that he committed the murder of his uncle i.e. Kaleshwar. A perusal of his statement would

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further reveal that both the statements made by this witness are contradictory in nature and untrustworthy.

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Further, from the evidence of PW-2 Sukhni, it has come that she is the mother of the appellant and she did not know anything about the incident as she was not present in the house. In para 2, she has admitted that all the family members were residing in the same house though in different rooms and has further deposed that on the date of incident, she had gone to the house of PW-14 Surathuram along with her children to sleep. On the next day of the incident, when she went to her house, she saw the deceased lying on the floor and when she removed the cloth, she found the neck of deceased cut. This witness has also been declared hostile as she has not stated specifically anything about the incident.

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PW-1 Ramdhani Ram, who lodged FIR, has deposed in his statement that Surathuram (PW-14) had informed him that the appellant might have committed the murder of deceased. This witness has also been declared hostile. Similarly, PW-14 Surathuram has also deposed in his evidence that mother of the appellant had come to his house to sleep along with her children and on the next day morning, hearing her cries, he went to her house and saw the body of deceased lying on the floor. This witness has also turned hostile and he has not stated that he informed to Ramdhani Ram (PW-1) about the death of

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deceased caused by the appellant and also he is not the eye-witness to the incident.

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A perusal of above evidence would reveal that the appellant had made extra judicial confession before PW-4 Kailash to the effect that he killed- Kaleshwar, but the particulars of which, such as, exact date and time of the incident, what had exactly happened between them and what was the reason that has prompted him to do so, etc., have not been explained. Therefore, we are of the considered opinion, the testimony of this witness (PW-4) does not inspire confidence for the above stated reason and it would be unsafe to rely upon the extra-judicial confession allegedly made by the appellant before Kailash (PW-4). Further, PW-1 Ramdhani Ram, PW-2 Sukhni and PW-14 Surathuram have also turned hostile and not supported the prosecution case.

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The next circumstance which has been pointed out is that pursuant to the memorandum statement of appellant, axe has been seized from his possession but as per the FSL report Ex.P-22, no human blood has been found on the seized axe. So the recovery of axe from the possession of appellant is of no use in absence of human blood.

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The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another¹ held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the

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1 (2019) 7 SCC 781

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prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:

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“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, 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 of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

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In light of the above principle of law laid down by their Lordships of the Supreme Court in the matter of Balwan Singh (supra), it is quite vivid that there is no evidence available on record to show that human blood was found on the axe seized pursuant to the memorandum statement of the appellant and mere recovery of the same would be of no help to the prosecution, as it is a weak piece of evidence.

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In that view of the matter, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of the proof of a case based on

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circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) , in absence of which, the appellant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court is totally 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 12.10.2015, passed by the learned trial Court is liable to be set-aside.

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Consequently, the conviction of the appellant for 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 charges. The appellant is reported to be in jail, we direct that he be released from jail forthwith, if not required in any other matter/case.

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In the result, the criminal appeal is allowed.

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

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Saurabh/Akhilesh

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Bhajju Ram @ Bhajuram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bhajju Ram @ Bhajuram v. State Of Chhattisgarh

Case brief

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