Allowed

Dilip Kumar Banjare v. State Of Chhattisgarh

Chhattisgarh HC6 Jul 2023CRA/951/2014

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh acquitted two appellants convicted of murder. The court held the prosecution failed to prove guilt beyond reasonable doubt as crucial evidence, including memorandum statements regarding body recovery and Section 10 Evidence Act admissions, was inadmissible under Section 27 Evidence Act post-FIR disclosure.

What did the court decide?

Conviction and sentences under Sections 302, 201 and 120B IPC set aside; appellants acquitted and ordered released forthwith subject to other detentions.

Dilip Kumar Banjare Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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Page 1 of 20

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NAFR

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(Cr.A.Nos.968/2014 & 951/2014)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.968 of 2014

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{Arising out of judgment dated 31-7-2014 in Sessions Trial No.50/2012 of the Additional Sessions Judge, Durg}

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Chaindas Chaturvedi, S/o Mehattam Chaturvedi, Aged aged 38 years, R/o Shikari Tola, Police Station Somani, District Rajnandgaon (C.G.)

(In Jail)

---- Appellant

Versus

State of Chhattisgarh, Acting Through Officer-in-Charge, Police Station Durg, District Durg (C.G.)

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---- Respondent

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For Appellant: Mr. Deepak Jain, Advocate. For State / Respondent: -

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Mr. Sudeep Verma, Deputy Government Advocate.

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AND

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Criminal Appeal No.951 of 2014

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Dilip Kumar Banjare, S/o Sanwal Das Banjare, aged about 38 years, Occupation Teacher, R/o Village Potiyakala, Durg, Police Station Pulgaon, District Durg, Chhattisgarh, Presently R/o Civil Line, Sahaspur-Lohara, District Kabridham, Chhattisgarh

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(In Jail) ---- Appellant

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Versus

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State of Chhattisgarh, Police Station Durg, District Durg (C.G.)

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---- Respondent

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For Appellants: Mr. Abhishek Sinha, Senior Advocate with Mr. Samrath Singh Marhas, Advocate.

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For State / Respondent: -

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Mr. Sudeep Verma, Deputy Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ.

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Page 2 of 20

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(Cr.A.Nos.968/2014 & 951/2014)

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Judgment On Board (06/07/2023)

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Sanjay K. Agrawal, J.

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Since both the two criminal appeals emanate from one common judgment dated 31-7-2014 passed by the Additional Sessions Judge, Durg, in Sessions Trial No.50/2012 and since common question of fact and law is involved in both the two appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

¶31

Chaindas Chaturvedi (A-1) – appellant in Cr.A.No.968/2014, Dayaluram Kenwat (A-2) (non-appealing accused) – not preferred any appeal and Dilip Kumar Banjare (A-3) – appellant in Cr.A.No.951/2014 were tried and convicted for the offences under Sections 302, 201 & 120B of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 1,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 302 of the IPC and to undergo rigorous imprisonment for seven years & pay a fine of ₹ 1,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one month on both counts under Sections 201 & 120B of the IPC with a direction to run the sentences concurrently.

¶32

Case of the prosecution, in short, is that two appellants herein and one non-appealing accused conspired together and caused the death of Smt. Bhamini Banjare – wife of accused Dilip Kumar Banjare (A-3), in furtherance of their common intention in the house

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Page 3 of 20

¶34

(Cr.A.Nos.968/2014 & 951/2014)

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of accused Dayaluram Kenwat (A-2) by basula (adze) and in order to screen themselves from the offence, buried the dead body in the house of Dayaluram Kenwat (A-2) and thereby committed the offences. It is the further case of the prosecution that deceased Bhamini Banjare & accused Dilip Kumar Banjare (A-3) developed love affair leading to their marriage and they were blessed with one daughter Kum. Durga and thereafter, Dilip Kumar Banjare (A-3) deserted her. Consequently, Smt. Bhamini Banjare (now deceased) made an application under Section 125 of the CrPC before the Family Court for maintenance which was registered as Misc. Criminal Case No.379/2007 in the Court of 2^nd Additional Principal Judge, Family Court, Durg in which by order dated 29-10-2009 Dilip Kumar Banjare (A-3) was directed to pay ₹ 2,500/- per month to his wife and his daughter, which A-3 tried to avoid and threatened his wife Bhamini and also tried to kidnap her and pressurize her for withdrawal of case leading to lodging of FIR at Police Station Pulgaon for offences under Sections 341, 294, 506B & 323 of the IPC and challan was also filed before the Court of Judicial Magistrate First Class, Durg, but by judgment dated 26-12-2011, A- 3 was acquitted of the said charges. It is also the case of the prosecution that thereafter, deceased Bhamini was engaged with an institution namely HBN persuading the people / public to make fixed deposits in the said institution thereby earning her livelihood, but A-3 remained disturbed by the order of maintenance giving ₹ 2,500/- per month to his wife Bhamini as directed by the Family Court and in order to eliminate her, he conspired with Chaindas

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Page 4 of 20

¶37

(Cr.A.Nos.968/2014 & 951/2014)

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Chaturvedi (A-1) and non-appealing accused Dayaluram Kenwat (A-2) and in furtherance of said conspiracy, Chaindas Chaturvedi (A-1) proposing to make fixed deposit in KBN Company, asked Bhamini Banjare / deceased to come to Dongargaon, Distt. Rajnandgaon which Bhamini / deceased informed to her sister Smt. Onkar Sahu (PW-2) that she is going to meet A-1 and A-1 brought her to Dongargaon in the house of Dayaluram Kenwat (A-2). While Bhamini was filling up the form, A-1 & A-2 attacked her on her head from backside by deadly weapon by which she became unconscious and Dilip Kumar Banjare (A-3) also caused injury to her by kudali , and thereafter, she was buried in the house of A-2. On 12-10-2011, when Bhamini did not come back, her sister Smt. Onkar Sahu (PW-2) visited Padmanabhpur Chowki and lodged missing report No.124/2011. J.L. Sahu (PW-14) inquired into the missing report and also inquired from Chaindas Chaturvedi (A-1) who told that Bhamini Banjare was likely to come to collect money, but she did not come, but somehow, J.L. Sahu (PW-14) came to know that she was seen travelling with A-1 towards Manpur and thereafter, A-1 revealed the incident pursuant to which FIR Ex.P-36 was registered at Padmanabhpur Chowki on 25-11-2011 at 5 a.m. by J.L. Sahu (PW-14) and subsequently, the offence was transferred to Police Station Durg and thereby the offences were registered. Thereafter, it is also the case of the prosecution that on 25-11-2011 at 8 a.m., statement of A-1 was recorded vide Ex.P-9 and after 20 minutes at 8.20 a.m., statement of A-2 was recorded vide Ex.P-14 and statement of A-3 was recorded vide Ex.P-15 at

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Page 5 of 20

¶40

(Cr.A.Nos.968/2014 & 951/2014)

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8.40 a.m.. Thereafter, dead body of deceased Bhamini Banjare was recovered on 25-11-2011 between 12.30 p.m. and 3.45 p.m. from the house of A-2 vide dead body exhumation panchnama Ex.P-25 and dead body was identified by Smt. Onkar Sahu (PW-2) – sister of the deceased. Inquest over the dead body of the deceased was prepared vide Ex.P-4 and dead body was sent for autopsy to Government Hospital, Dongargaon, Distt. Rajnandgaon, Camp Mathaldabri vide Ex.P-6. Autopsy was conducted by Dr. S.K. Bagh (PW-12) who proved the autopsy report Ex.P-6A according to which death was due to head injuries and homicidal in nature. A-1 was arrested on 25-11-2011 at 11.35 p.m. vide Ex.P-40, A-2 was arrested at 11.40 p.m. vide Ex.P-41 and A-3 was arrested at 11.45 p.m. vide Ex.P-42. Pursuant to the memorandum statement, dead body, kudali , basula (adze) and motorcycle were recovered and kudali & basula (adze) were sent for chemical analysis to the FSL, Raipur from where report Ex.P-53 was received according to which, blood has been found on kudali & basula (adze), but no human blood was found on those articles. Statements of witnesses were recorded under Section 161 of the CrPC.

¶42

The investigating officer after completion of investigation, chargesheeted the two appellants herein and the other accused and also filed supplementary charge-sheet before the jurisdictional criminal court from where the case was committed to the court of Sessions, Durg and from where the learned Additional Sessions Judge

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Page 6 of 20

¶44

(Cr.A.Nos.968/2014 & 951/2014)

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received the case on transfer for trial and for hearing and disposal in accordance with law.

¶46

The prosecution, in order to bring home the offence, has examined as many as 15 witnesses and exhibited 53 documents Exs.P-1 to P-53. The accused persons abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have examined two witnesses namely, Madhu Harsh Dewangan (DW-1) & Bisram Das (DW-2) and exhibited three documents Exs.D-1, D-3 & D-4 – statements of Ku. Durga Banjare, Smt. Onkar Bai Sahu & Omprakash Sahu in support of their case. Statements of the accused persons were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence.

¶47

The trial Court after appreciating ocular, oral and documentary evidence on record, convicted and sentenced the appellants herein as also the other accused in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred.

¶48

Despite inquiry, it could not be ascertained as to why accused Dayaluram Kenwat (A-2) has not preferred any appeal before this Court against his conviction.

¶49

Mr. Deepak Jain, learned counsel appearing for appellant Chaindas Chaturvedi (A-1) in Cr.A.No.968/2014, would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and furthermore, memorandum statement of

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Page 7 of 20

¶51

(Cr.A.Nos.968/2014 & 951/2014)

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accused / appellant Chaindas Chaturvedi (A-1) was recorded on 25-11-2011 at 8 a.m. vide Ex.P-9, whereas FIR Ex.P-36 has been recorded on 25-11-2011 at 5 a.m. by which the commission of offence has been disclosed and police officer came to know that dead body of the deceased had been buried in the house of accused Dayaluram Kenwat (A-2) and therefore memorandum recorded on 25-11-2011 at 8 a.m. is of no use. Moreover, memorandum statement of accused Dayaluram (A-2) has been recorded in presence of two witnesses Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW-13). Amitabh Tiwari (PW-6) in paragraph 9 of his statement before the Court has clearly stated that at 7 a.m. on that day they had already left for Dongargaon from Durg for recovery of dead body at Mathaldabri where the dead body was buried, at 9.30 a.m. they reached Police Station Dongargaon and after completing formalities at the police station, at 11.30 a.m. they have started at Dongargaon for Mathaldabri. Similarly, Om Prakash Sahu (PW-13) in paragraph 17 of his statement before the Court has clearly stated that on 25-11-2011, he along with Amitabh Tiwari and his mother Onkar Bai Sahu reached Police Chowki Padmanabhpur, Durg at 7.30 a.m. and thereafter, started for Mathaldabri and therefore recording of memorandum is of no use. Furthermore, Smt. Onkar Sahu (PW-2) – sister of the deceased has stated that on the fateful day Chaindas Chaturvedi (A-1) has called her sister i.e. the deceased herein, which she has informed to Khileshwari (PW-4). Taking into consideration the statements of Smt. Onkar Sahu (PW-2), Smt. Paltin Bai (PW-3) & Khileshwari

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Page 8 of 20

¶54

(Cr.A.Nos.968/2014 & 951/2014)

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(PW-4) as also in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1, chain of circumstances would not be complete. As such, appellant Chaindas Chaturvedi (A-1) deserve to be acquitted and the appeal deserves to be allowed.

¶56

Mr. Abhishek Sinha, learned Senior Counsel appearing for appellant Dilip Kumar Banjare (A-3) in Cr.A.No.951/2014, would submit that excepting motive on the part of the appellant that he did not want to comply the order of the Family Court directing payment of maintenance to the deceased i.e. his wife and daughter, no other evidence, direct or circumstantial, is available to hold this appellant A-3 guilty for the aforesaid offences; he has been convicted on the basis of surmises and conjectures, therefore, his conviction deserves to be set aside. Apart from that, learned Senior Counsel would further submit that the prosecution has recorded memorandum statement of the appellant at 8.40 a.m. in presence of two witnesses Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW13), whereas, as per own showing of the prosecution vide Ex.P-39 i.e. rojnamcha sanha, T.I. Sanjay Devsthale (PW-15) – Investigating Officer has already started for Dongargaon Mathaldabri to recover the dead body which was proved by another Investigating Officer J.L. Sahu (PW-14) also. Therefore, no such memorandum statement could be relied upon and furthermore, all the facts have already been disclosed by accused / appellant Chaindas Chaturvedi (A-1) vide FIR Ex.P-36 recorded at 5 a.m., therefore,

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1 (1984) 4 SCC 116

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Page 9 of 20

¶59

(Cr.A.Nos.968/2014 & 951/2014)

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recording of memorandum statement and alleged discovery of dead body of Bhamini Banjare is of no use for the prosecution. Apart from that, even if the memorandum statement is once recorded, the third memorandum statement recorded on 25-11-2011 at 8.40 a.m. is not in accordance with law in light of the decision of the Supreme Court in the matter of Sukhvinder Singh and others v. State of Punjab 2 and Section 10 of the Evidence Act is also not attracted in light of the decision of the Supreme Court in the matter of State of Gujarat v. Mohammed Atik and others 3.

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Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences against the appellants beyond reasonable doubt and therefore no exception can be taken of the judgment rendered by the learned trial Court convicting the appellants. He would further submit that the deceased has already stated to have informed to her sister Smt. Onkar Sahu (PW-2) that she is going to meet Chaindas Chaturvedi (A-1) which has also been proved by Smt. Paltin Bai (PW-3) & Khileshwari (PW-4) and thereafter, she was never seen and her dead body was found in the house of accused Dayaluram Kenwat (A-2), therefore, A-1 & A-2 cannot be discharged of their responsibility to explain where she has gone and thus, Section 106 of the Evidence Act wold apply. He would also submit that motive of the offence so far as accused Dilip

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2 (1994) 5 SCC 152

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3 (1998) 4 SCC 351

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Page 10 of 20

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(Cr.A.Nos.968/2014 & 951/2014)

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Kumar Banjare (A-3) is concerned, is strongly proved which the trial Court has also catalouged in paragraph 28 of the judgment.

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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.

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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-6A, which has been proved by Dr. S.K. Bagh (PW-12), in which cause of death was stated to be due to head injuries, 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.

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The next question is, whether the trial Court is justified in convicting appellant Chaindas Chaturvedi (A-1) & A-3 whose cases are based on circumstantial evidence. 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 4 in which it has been held 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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4 (1984) 4 SCC 116

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Page 11 of 20

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(Cr.A.Nos.968/2014 & 951/2014)

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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 Maharashtra⁵ where the following observations were made:

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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.

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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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Now, the question is, whether the trial Court has rightly convicted the appellants herein finding that,

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the motive of the offence is established;

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both the appellants herein have given their memorandum statements on 25-11-2011 at 8 a.m. and 8.40 a.m. vide Exs.P-9 & P-15, respectively, pursuant to which dead body of

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5 (1973) 2 SCC 793

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Page 12 of 20

¶86

(Cr.A.Nos.968/2014 & 951/2014)

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deceased Bhamini Banjare was recovered on 25-11-2011 between 12.30 p.m. and 3.45 p.m. vide dead body exhumation panchnama Ex.P-25; and

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the fact of conspiracy is proved as Dilip Kumar Banjare (A-3) – husband of the deceased, did not want to pay the amount of maintenance granted by the Family Court to deceased Bhamini Banjare and in order to eliminate her, he conspired with Chaindas Chaturvedi (A-1) & Dayaluram Kenwat (A-2) and therefore Section 10 of the Evidence Act is squarely attracted.

¶89

We will consider the aforesaid circumstances one by one.

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Motive of the offence: -

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The trial Court has found the motive fully established against Dilip Kumar Banjare (A-3) vide paragraph 28 of the judgment stating that A-3 has married Bhamini pursuant to the love affair between them and thereafter deserted her leading to grant of maintenance of ₹ 2,500/- per month by the Family Court to her and her daughter which he wanted to avoid and he has also beaten her and abused her pursuant to which he was tried in a judicial criminal case, but he was ultimately acquitted.

¶92

Considering the evidence on record and the finding of the trial Court, we are of the opinion that motive of the offence found proved by the trial Court is based on the legal evidence available on record and even it has not been seriously disputed on behalf of counsel for A-3, only it has been stated that motive cannot be made basis for

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Page 13 of 20

¶94

(Cr.A.Nos.968/2014 & 951/2014)

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conviction under Section 302 of the IPC and relied upon the recent decision of the Supreme Court rendered in the matter of Subramanya v. State of Karnataka 6. However, the effect of motive found established by the trial Court as endorsed by this Court will be considered in the later part of the judgment, but, there is no evidence available, so far as motive to commit the offence, against Chaindas Chaturvedi (A-1).

¶96

Memorandum statements made by Chaindas Chaturvedi (A-1) & Dilip Kumar Banjare (A-3) – the appellants herein

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FIR has been recorded under ‘zero number’ by J.L. Sahu (PW-14) in Police Chowki Padmanabhpur, District Durg, on 25-11-2011 at 5 a.m. vide Ex.P-36 on the inquiry of missing report and on the basis of the facts which have been disclosed by Chaindas Chaturvedi (A1) and the entire information leading to causing death of Bhamini has been recorded in the FIR (Ex.P-36) and it has also been recorded therein that she has been killed by the two appellants herein and one non-appealing accused and the body has been kept in a gunny bag and buried in the house of Dayaluram Kenwat (A-2), who has not preferred any appeal. Subsequently, the FIR has been transferred to Police Station Durg which has been numbered as FIR No.1353/2011 and it is the named report against the two appellants herein and one another accused. Thereafter, memorandum statement of Chaindas Chaturvedi (A-1) has been recorded on 25-11-2011 at 8 a.m. vide Ex.P-9 and memorandum

¶98

6 AIR 2022 SC 5110

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Page 14 of 20

¶100

(Cr.A.Nos.968/2014 & 951/2014)

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statement of Dilip Kumar Banjare (A-3) has been recorded on 2511-2011 at 8.40 a.m. vide Ex.P-15.

¶102

Further, Sanjay Devsthale (PW-15) – Investigating Officer (T.I.), has recorded rojnamcha sanha Ex.P-39 on 27-1-2012 at 8.20 a.m. in which it has been stated that T.I. Devsthale, ASI J.L. Sahu (PW-14), Smt. Onkar Sahu (PW-2), Om Prakash Sahu (PW-13) & Amitabh Tiwari (PW-6) have started for Dongargaon Mathaldabri to recover the dead body, whereas, memorandum statement of Chaindas Chaturvedi (A-1) has been recorded on 25-11-2011 at 8 a.m. vide Ex.P-9 and memorandum statement of Dilip Kumar Banjare (A-3) has been recorded on 25-11-2011 at 8.40 a.m. vide Ex.P-15 after the departure as stated in the rojnamcha sanha Ex.P-39 recorded on 27-1-2012 at 8.20 a.m., which makes the memorandum statement Ex.P-15 doubtful and suspicious as well. Once Sanjay Devsthale (PW-15) – Investigating Officer (T.I.) and witnesses to the memorandum statements Om Prakash Sahu (PW-13) & Amitabh Tiwari (PW-6) had already started for the place of incident to recover the dead body, the question of recording memorandum statement thereafter does not arise. Even that fact of plea of dead body having been buried in the house of Dayaluram Kenwat (A-2) has already been disclosed by Chaindas Chaturvedi (A-1) in the FIR Ex.P-36. Not only this, Amitabh Tiwari (PW-6) in his statement before the Court has stated that he himself, Smt. Onkar Sahu (PW2) & Om Prakash Sahu (PW-13) had already started for Dongargaon at 7 a.m. on 25-11-2011 and reached Dongargaon

¶103

Page 15 of 20

¶104

(Cr.A.Nos.968/2014 & 951/2014)

¶105

Police Station at 9.30 a.m. and after completing formalities, they started from Dongargaon to Mathaldabri. Similar is the statement made by other witness Om Prakash Sahu (PW-13).

¶106

As such, according to the statements of Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW-13), before recording memorandum statement Ex.P-15, they have already started for Dongargaon Mathaldabri to recover the dead body and the said fact has already been revealed by Chaindas Chaturvedi (A-1), therefore, recording of memorandum statement becomes a mere formality.

¶107

In the matter of Aher Raja Khima v. State of Saurashtra 7, in paragraph 20, their Lordships of the Supreme Court have clearly held that discovery of incriminating articles alleged to have been recovered by the accused is inadmissible in evidence if the police already knew where they were hidden, and observed as under: -

¶108

“(20) Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects). The way the police came to find this out was this.”

¶109

The principle of law laid down by the Supreme Court in Aher Raja Khima (supra), was followed in the matter of State of Haryana v. Jagbir Singh and another 8.

¶110

7 AIR 1956 SC 217

¶111

8 (2003) 11 SCC 261

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Page 16 of 20

¶113

(Cr.A.Nos.968/2014 & 951/2014)

¶114

Similarly, while dealing with the question of evidentiary value of disclosure statement given by the accused under Section 27 of the Evidence Act, this Court in the matter of Belwanti v. State of C.G. 9 observed as under:-

¶115

“20. While dealing with the same question, the Apex Court in the matter of Thimma Vs. The State of Mysore¹⁰ has held that once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused. Relevant para of the said judgment reads as under: -

¶116

“10. … One once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary. …”

¶117

While dealing with the same question, the Apex Court in the matter of Jaffer Husain, Dastagir Vs. The State of Maharashtra¹¹ has held that if the facts are within the knowledge of the police, then disclosure of statement of the accused is inadmissible in terms of Section 27 of the Evidence Act.”

¶118

Similar proposition has been laid down by the Supreme Court in the matters of Makhan Singh v. State of Punjab 12 and State of Rajasthan v. Kashi Ram 13.

¶119

In view of the aforesaid factual and legal position, following facts are firmly established: -

¶120

9 2010(2) C.G.L.J. 203 (DB) 10 AIR 1971 SC 1871

¶121

11 AIR 1970 SC 1934

¶122

12 AIR 1988 SC 1705

¶123

13 (2006) 12 SCC 254

¶124

Page 17 of 20

¶125

(Cr.A.Nos.968/2014 & 951/2014)

¶126

The fact of hiding the dead body of deceased Smt. Bhamini Banjare in the house of accused Dayaluram Kenwat (A-2) was already known to the police on 25-11-2011 at 5 a.m. while recording the FIR (Ex.P-36) after the facts have been disclosed by accused Chaindas Chaturvedi (A-1).

¶127

Thereafter, the police party along with Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW-13) have started for Dongargaon Mathaldabri at 7 a.m. as evident from the statements of Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW-13), though J.L. Sahu (PW-14) has recorded rojnamcha sanha Ex.P-39 on 27-1-2012 at 8.20 a.m. that they have started for Dongargaon Mathaldabri, which is incorrect in light of the statements of Amitabh Tiwari (PW-6) & Om Prakash Sahu (PW-13), more particularly, Amitabh Tiwari (PW-6). However, memorandum statements of Chaindas Chaturvedi (A-1) & Dilip Kumar Banjare (A-3) have been recorded on 25-11-2011 at 8 a.m. and 8.40 a.m., respectively.

¶128

Thereafter, the dead body was recovered on 25-11-2011 between 12.30 p.m. and 3.45 p.m. vide dead body exhumation panchnama Ex.P-25 and later-on, the dead body was discovered vide Ex.P-2 – recovery memo.

¶129

Returning to the facts of the case, it is quite vivid that the fact of hiding the dead body of deceased Smt. Bhamini Banjare was already known to the police on 25-11-2011 at 5 a.m. at the instance of Chaindas Chaturvedi (A-1) duly recorded in FIR Ex.P-36 and for

¶130

Page 18 of 20

¶131

(Cr.A.Nos.968/2014 & 951/2014)

¶132

which the police party along with witnesses had already started for Dongargaon Mathaldabri at 7 a.m. and therefore recording memorandum statements Exs.P-9 & P-15 at 8 a.m. & 8.40 a.m., respectively, cannot be relied upon by the court to hold the appellants guilty. Furthermore, the Supreme Court in Sukhvinder Singh (supra) has clearly held that once the disclosure statement was made as to where the dead body had been concealed and from where it could be recovered, the recording of the disclosure statement of other accused was a wholly impermissible exercise.

¶133

The trial Court has also considered the admission made by Chaindas Chaturvedi (A-1) which has also been relied upon by the trial Court as one of the incriminating circumstances to hold him guilty, however, that is not acceptable. The prosecution has to prove the offence that too of murder against the accused beyond reasonable doubt, otherwise, he cannot be convicted on the basis of admission allegedly made by him.

¶134

The appellants have also been convicted with the aid of Section 120B of the IPC holding that they have conspired together and committed the offence, taking the aid of Section 10 of the Evidence Act.

¶135

Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former

¶136

Page 19 of 20

¶137

(Cr.A.Nos.968/2014 & 951/2014)

¶138

conspirator thereafter cannot be regarded as one made “in reference to their common intention”. (See Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra 14.)

¶139

The appellants have been roped into on the basis of their memorandum statements of recovery of dead body which we have already rejected and held that memorandum statements and recovery pursuant to memorandum statements is not reliable, more particularly when they were already taken into custody though formal arrest has been made thereafter. In that view of the matter, as laid down by their Lordships of the Supreme Court in Mohammed Atik’s case (supra), conviction of the appellants herein with the aid of Section 10 of the Evidence Act in absence of evidence of conspiracy since the evidence of memorandum statement and recovery pursuant to the memorandum statement has already been rejected, under Section 120B of the IPC is also liable to be set aside.

¶140

Similarly, the Supreme Court in respect of motive, in Subramanya (supra) has already held that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt.

¶141

In that view of the matter, we are of the considered opinion that the prosecution has failed to establish that the dead body of deceased

¶142

14 AIR 1965 SC 682

¶143

Page 20 of 20

¶144

(Cr.A.Nos.968/2014 & 951/2014)

¶145

Smt. Bhamini Banjare was recovered pursuant to the memorandum statements of Chaindas Chaturvedi (A-1) & Dilip Kumar Banjare (A3) and we hereby reject the evidence of memorandum statement of A-3 against co-accused person.

¶146

In conclusion, we are unable to uphold the conviction and sentences imposed upon the appellants under Sections 302, 201 & 120B of the IPC and we hereby set-aside their conviction and sentences and they are acquitted of the said charges. They are in jail. They be released forthwith, if their detention is not required in any other offence.

¶147

The appeals are allowed.

¶148

However, it is made clear that any of the observations made hereinabove and the findings recorded in this judgment are only for the purpose of deciding the cases of Chaindas Chaturvedi (A-1) & Dilip Kumar Banjare (A-3) – the appellants herein, nothing has been said about other accused Dayaluram Kenwat (A-2), who has not preferred appeal.

¶149

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the accused persons are lodged and suffering jail sentence forthwith, for necessary information and action, if any.

¶150

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

¶151

Soma

Dilip Kumar Banjare v. State Of Chhattisgarh

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Dilip Kumar Banjare v. State Of Chhattisgarh

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