Allowed

Hemram Rathiya v. State Of Chhattisgarh

Chhattisgarh HC27 Jul 2023CRA/651/2015

Case brief

AI extract

What is this about?

"CRA No.* *651 of 2015": Criminal appeal from the High Court of Chhattisgarh. Conviction for murder under Section 302 IPC quashed due to insufficiency of circumstantial evidence, specifically absence of FSL report on seized weapon and lack of proof of last seen together.

What did the court decide?

Conviction under Section 302 IPC and sentence set aside; accused acquitted and released from jail forthwith.

Hemram Rathiya Vs State Of Chhattisgarh — 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.651 of 2015

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Hemram Rathiya S/o Manaram Rathiya, aged about 50 years, Occupation – Agriculture, R/o Amapali, P.S. Lailunga, Civil and Revenue District Raigarh (C.G.) ---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station Lailunga, Civil and Revenue District Raigarh (C.G.)

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---- Respondent

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For Appellant Mr. Manoj K. Jaiswal, Advocate. For State Mr. Sameer Oraon, G.A.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ. Judgment on Board (27.07.2023)

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Sanjay K. 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 judgment of conviction and order of sentence dated 13.03.2015 passed in Sessions Trial No.101/2014 by the 1^st Additional Sessions Judge, Raigarh (C.G.), by which the appellant stands convicted & sentenced as under:-

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Conviction	Sentence
Under Section 302 of Indian	Imprisonment for life with fine
Penal Code	of Rs.5,000/- and in default to
	pay fine amount, additional RI for five months.

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Case of the prosecution, in brief, is that, on 02.01.2014 between 05:00 to 08:00 pm, at village Amapali at school Dipa,

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appellant herein assaulted Charan Singh Rathiya (hereinafter called as 'deceased') by stone as a result of which, deceased suffered grievous injuries over his body and died and thereby committed the offence. Further case of the prosecution is that on 02.01.2014 at 5:00 pm the appellant's daughter-in-law, namely, Dangbirhin had come to the house of the deceased and took him along with her to her house where the appellant assaulted the deceased by stone on account of money dispute and it was informed to Janki (P.W.1) and Hetram (P.W.2). Thereafter, they visited the spot and noticed the body of Charan Singh, who was found dead. The incident was reported by P.W.3 Dharam Singh to Police Station Lailunga where F.I.R. vide Ex.P.14 was lodged against the accused/appellant so also merg intimation was recorded vide Ex.P.5. Investigating Officer, after visiting the spot, prepared inquest proceedings vide Ex.P.12 and the dead body of deceased Charan Singh was sent to the Community Health Center, Lailunga where Dr. Yogeshwar Singh Sartiya (P.W.6) conducted the post-mortem examination and gave his report vide Ex.P11 opining that death was homicidal in nature due to intra-cerebral haemorrage caused by hard and blunt object. Memorandum statement of the appellant was recorded vide Ex.P.3, on the basis of which, seizure memo vide Ex.P.2 was prepared, based on which, stone stained with blood, plain soil, bloodstained soil and cloths like lungi and gamcha were recovered on the spot. This apart, spot map was

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prepared vide Ex.P.17. Seized articles were sent for examination to the F.S.L. but no F.S.L. report was brought on record. During course of investigation, the appellant was arrested vide arrest memo Ex.P.14.

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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 has examined as many as 09 witnesses and brought on record 18 documents whereas the appellant-accused person in support of his defence has exhibited one document Ex.D.1, i.e., the statement of Janki recorded under Section 161 Cr.P.C.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

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Shri Manoj K. Jaiswal, learned counsel for the appellant would submit that the deceased was not seen together with appellant at any point of time. The deceased was not called by the daughter-in-law of the appellant. Pursuant to memorandum statement of the appellant, stone stained with blood was seized

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and the same has been sent to F.S.L. but no F.S.L. report has been brought on record and in absence of F.S.L. report, seizure of bloodstained stone is of no use and there is no other piece of evidence available on record to prove the guilt of the appellant. As such, the appellant may be acquitted of the charge.

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Per contra , Shri Sameer Oraon, learned State counsel would support the impugned judgment of conviction and order of sentence and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC as the prosecution has proved the offence beyond reasonable doubt by leading cogent and clinching evidence, therefore, the instant 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 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-11) proved by Dr. Yogeshwar Singh Sartiya (PW-6), 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.

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Now, the question would be, whether the appellant is the author of the crime in question ?

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Case of the prosecution is based on circumstantial evidence. The question that requires for our consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC on the basis of circumstantial evidence which was actually proved by the prosecution in the light of five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra¹ .

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Now, the first circumstance that has been found by the trial Court is that the deceased was called by the daughter-in-law of the appellant and the deceased has gone along with her to the house of the appellant and thereafter he was killed and his dead body was found outside the house of the appellant's courtyard. P.W.1 Janki in her examination-in-chief has stated that on the date of incident, appellant's daughter-in-law called the deceased and took him along with her at 5:00 pm and thereafter the dead body of deceased was found near the house of the appellant. The fact remains that the appellant and deceased were not seen together lastly at one point time and date of incident. Merely because the appellant's daughter-in-

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1 (1984) 4 SCC 116

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law had taken the deceased along with her, it cannot be held that the appellant and deceased both were lastly seen together and for that appellant is responsible for the murder of the deceased – Charan Singh, particularly, when the dead body of the deceased was found outside the house of the appellant. However, the daughter-in-law of the appellant has not been examined by the prosecution for the reasons best known to it and it is not the statement of P.W.1 Janki that the appellant has taken the deceased on the call made by him. In that view of the matter, in absence of cogent evidence, merely on the basis of statement of P.W.1 Janki and in absence of examination of daughter-in-law of the appellant, it would be difficult to hold that the appellant and deceased were seen together lastly and thereafter the deceased was found dead.

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The second circumstance that has been relied upon by the trial Court is that the dead body of the deceased was lying in the courtyard of the appellant's house, which was informed by the son of appellant. If we consider the evidence of P.W.1 Janki, it emerged that the courtyard of the appellant is situated near the road and the dead body of deceased was found outside the courtyard of the appellant, i.e., on the road. A perusal of Ex.P.1, which is the map, would show that the dead body of the deceased was found outside the courtyard of the appellant and the distance between the house of the appellant and the

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incident spot is shown to be 25 meters. Ex.P.1 is proved by P.W.2. Furthermore, P.W.1 Janki in her statement has stated that after the incident, the appellant's son Firsingh came and informed that Charan Singh (deceased) was lying in the courtyard, upon this statement, this witness and her mother-inlaw went to the spot and saw the deceased lying in the courtyard. It is pertinent to mention here that Firsingh has not been examined by the prosecution and in absence of his examination, it would be difficult to hold that the appellant has committed the murder of deceased. As such, the said circumstance found proved by the trial Court is perverse and contrary to record.

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The next circumstance that has been found proved by the trial Court is that pursuant to memorandum statement made by the appellant, cloths of the appellant were seized. The seized articles were sent for examination to F.S.L. but, for the reasons best known to the prosecution, no F.S.L. report has been brought on record so that the prosecution could establish the guilt of the appellant. However, the appellant has been convicted merely on the ground that pursuant to his memorandum statement (Ex.P.3), the weapon of offence, i.e., stone has been recovered at his behest, which in our considered opinion is not sustainable in law as mere discovery of weapon is a weak kind of evidence and cannot be wholly

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relied upon to base the conviction of an accused that too for an offence under Section 302 of IPC.

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The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another² held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the 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 distegration 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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Further, the Supreme Court in the matter of Mani vs. State of Tamil Nadu,³ 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 :-

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“26. The discovery is a weak kind of evidence and

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2 (2019) 7 SCC 781

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3 (2009) 17 SCC 273

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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.”

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Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that though the weapon of offence, i.e., stone has been seized vide Ex.P.2 at the behest of the appellant's memorandum statement (Ex.P.3) and the same has been sent to F.S.L. for examination, but neither F.S.L. report has been brought on record nor there is any evidence available on record to show that blood was found on the alleged weapon of offence seized pursuant to memorandum statement of the appellant. More so, when bloodstain on the stone is not proved in absence of F.S.L. report, mere seizure of weapon of offence would be of no help to the prosecution, as it is a weak piece of evidence. As such, in absence of F.S.L. report suggesting that human blood was found on the weapon of offence, conviction of the appellant based on the recovery of

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weapon of offence on the disclosure statement of the appellant cannot be sustained and the appellant is entitled to be acquitted on the basis of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 13.03.2015 passed by the learned trial Court in convicting the appellant for offence under Section 302 IPC is not sustainable in law.

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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 charge entitling him to be released on the basis of benefit of doubt. The appellant is reported to be in jail since 03.01.2014, 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 Superintendent of Jail forthwith for necessary information and action, if any.

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

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Anjani

Hemram Rathiya v. State Of Chhattisgarh

Case brief

What is this about?

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Hemram Rathiya v. State Of Chhattisgarh

Case brief

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