Allowed

Hemant Uke v. State Of Chhattisgarh

Chhattisgarh HC14 Jan 2024CRA/114/2016

Case brief

AI extract

What is this about?

This joint judgment quashes convictions of two appellants for murder (IPC 302) and tampering with evidence (IPC 201, 120-B) in a domestic dispute case. The High Court held that the prosecution failed to establish a complete chain of circumstances under the Sharad Birdhichand Sarda principles, specifically lacking proof of the appellants' presence at the crime scene, leading to their acquittal.

What did the court decide?

Convictions and sentences set aside; appellants acquitted and directed to be released from jail forthwith.

Hemant Uke Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

¶1

Page 1 of 19

¶2

(CRA-114-2016 & CRA-186-2016)

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

Criminal Appeal No. 114 of 20 16

¶6

Hemant Uke, Son of Harichandra Uke, aged about 35 years, Resident of Village Mahrapara, Bajinpali, Police Station City Kotwali, Raigarh District Raigarh (Chhattisgarh)

¶7

---- Appellant (In Jail)

¶8

Versus

¶9

State of Chhattisgarh, through Station House Officer, Police Station City Kotwali, Raigarh District Raigarh (Chhattisgarh)

¶10

---- Respondent

¶11

------------------------------------------------------------------------------------------- For Appellant : Ms. Indira Tripathi, Advocate For Respondent : Mr. Sameer Oraon, Govt. Advocate

¶12

AND

¶13

Criminal Appeal No. 186 of 20 16

¶14

Roopmati Sanyasi @ Anju, Wife of Late Ravi Chandra Sanyasi, aged about 27 years, Resident of Bagherkona, Police Station Jashpur, District Jashpur (Chhattisgarh)

¶15

---- Appellant (In Jail)

¶16

Versus

¶17

State of Chhattisgarh, through Aarakshi Kendra City Kotwali, District Raigarh (Chhattisgarh)

¶18

---- Respondent

¶19

For Appellant : Mr. Sanjay Agrawal, Advocate For Respondent : Mr. Sameer Oraon, Govt. Advocate

¶20

Division Bench

¶21

Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

¶22

Judgment on Board (15.01.2024)

¶23

Sanjay K. Agrawal, J

¶24

Page 2 of 19

¶25

(CRA-114-2016 & CRA-186-2016)

¶26

(1) Regarding being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment, on the joint request of learned counsel for the parties, these two criminal appeals are clubbed together, heard together and are decided by this common judgment.

¶27

(2) In these two criminal appeals preferred under Section 374(2) of Cr.P.C., the two accused-appellants herein, namely, Hemant Uke (A-1) and Roopmati Sanyasi (A-2) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 05.01.2016, passed by 2^nd Additional Sessions Judge, Raigarh in Sessions Trial No.200 of 2014, whereby they have been convicted and sentenced as under:

¶28

Hemant Uke (A-1) in CRA-114-2016:

¶29

Conviction		Sentence
U/s. 302 of IPC	Imprisonment Rs.2,000/-and, fine,additional	for life in default R.I. for 01	with of pa year.	fine of yment of
U/s. 201 of IPC	R.I. for 05 year and, in defau additional R.I. f	s with fin lt of pay or 06 mon	e of Rs ment ths.	.1,000/- of fine,
U/s. 120-B of IPC	Imprisonment Rs.2,000/- and fine,additional	for life , in defaul R.I. for 01	with t of pa year.	fine of yment of
[All the sen	tences are directed	to run con	curren	tly]

¶30

Roopmati Sanyasi @ Anju (A-2 ) in CRA-186-2016:

¶31

Conviction	Sentence
U/s. 201 of IPC	R.I. for 05 years with fine of Rs and, in default of payment	.1,000/- of fine,
	additional R.I. for 06 months.
U/s. 120-B of IPC	Imprisonment for life with	fine of

¶32

Page 3 of 19

¶33

(CRA-114-2016 & CRA-186-2016)

¶34

Rs.1,000/- and, in default of payment of fine, additional R.I. for 06 months. [Both the sentences are directed to run concurrently]

¶35

(3) The case of the prosecution, in a nutshell, is that on 27.09.2013, in the night at about 11:10 PM, in Room No.12 of Santoshi Ratre’s (PW-03) house ( chal ), situated at Gurughasidas Nagar, Raigarh the two appellants herein firstly conspired with each other for committing murder of Ravi Chandra Sanyasi [husband of appellant- Roopmati Sanyasi (A-2)] and also for tampering the evidence relating to commission of said offence and, thereafter, in furtherance of said conspiracy, appellant- Hemant Uke (A-1) committed murder of Ravi Chandra Sanyasi (hereinafter referred to as the “deceased”) by strangulation and, further, in order to screen themselves from the legal punishment of committing murder of the deceased, kept the dead-body of the deceased attached with cooler so as to transpire/proclaimed that deceased died due to electrocution. As such, appellant- Hemant Uke (A-1) is said to have committed offence under Sections 302, 201 & 120-B of IPC and that appellant- Roopmati Sanyasi (A-2) is said to have committed offence under Sections 201 & 120-B of IPC.

¶36

(4) It is further case of the prosecution that the deceased and appellant- Roopmati Sanyasi (A-2) were legally wedded husband and wife and they both used to reside in Room No.12 of Santoshi Ratre’s (PW-03) house ( chal ), situated at Gurughasidas Nagar, Raigarh alognwith their two children. However, on the date of

¶37

Page 4 of 19

¶38

(CRA-114-2016 & CRA-186-2016)

¶39

offence, appellant- Roopmati Sanyasi (A-2) was residing in her parental house at Bhagalpur (Jashpur), whereas incident took place in the premises of Santoshi Ratre’s (PW-03) situated at Gurughasidas Nagar, Raigarh. It is further case of the prosecution that the appellant- Roopmati (A-2) and appellant- Hemant Uke (A1) both were having relationship with each other outside the marriage and, when, the aforesaid fact came to the knowledge of the deceased, he scolded his wife (Roopmati) and lodged report at Police Station Jashpur. Thereafter, on the date and time of the offence, the two appellants herein conspired with each other and committed murder of the deceased.

¶40

(5) On the report so lodged by the ward-boy, namely, Nirakaran Chouhan (not examined), the police registered merg intimation (Ex.P/11) and FIR (Ex.P/13 & Ex.P/14) and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were also conducted vide Ex.P/02. Nazari naksha (not exhibited) was prepared. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/10), conducted by Dr. T.K. Tondal (PW-06), it was opined that the cause of death of deceased is shock due to asphyxia caused by manual strangulation and nature of death is homicidal. Thereafter, the accused-appellants were arrested vide Ex.P/23 & Ex.P/24 respectively. Copies of complaints written by the deceased to the

¶41

Page 5 of 19

¶42

(CRA-114-2016 & CRA-186-2016)

¶43

Superintendent of Police, Jashpur dated 29.09.2012 and to SHO, Jashpur Nagar dated 29.08.2012 with regard to his wife-Roopmati (A-2) having relationship with the appellant- Hemant (A-1) outside the marriage, were also recovered and marked as Ex.P/05 and Ex.P/06 respectively. Copies of rojnamcha sanha were also recovered vide Ex.P/21, wherein on 26.08.2012, appellantRoopmati (A-2) lodged report at Police Station Jhaspur to the effect that after few days of her marriage, his husband (deceased) used to quarrel with her on pity issues and, pursuant to which, on 18.08.2012, she went to reside in her parental house at Bhagalpur (Jashpur) alongwith her two children and left her materionial house. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/ accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

¶44

(6) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 33 documents apart from Final Report and Charge-sheet, whereas the appellants-accused in support of their defence, have neither examined any witness nor exhibited any document.

¶45

(7) The learned trial Court after appreciating the oral and

¶46

Page 6 of 19

¶47

(CRA-114-2016 & CRA-186-2016)

¶48

documentary evidence available on record, proceeded to convict the appellant- Hemant (A-1) for offences under Sections 302, 201 & 120-B of IPC and appellant- Roopmati (A-2) for offence under Section 201 & 120-B of IPC and sentenced them as mentioned herein-above, against which these two appeals have been preferred by the appellants-accused questioning the common impugned judgment of conviction and order of sentence.

¶49

(8) Ms. Indira Tripathi, learned counsel appearing for the appellant- Hemant Uke (A-1) submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 302, 201 & 120-B of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. She further submits that there is no evidence available on record that appellant- Hemant Uke (A-1) has strangulated the neck of the deceased. Merely on the basis that the deceased was having suspicion that his wife- Roopmati (A-2) was having relationship with appellant- Hemant (A-1) outside the marriage, for which, the deceased has also lodged complaints (Ex.P/05 & Ex.P/06), the appellant- Hemant (A-1) has been implicated in this matter, but fact remains that there is no legal and admissible evidence against the appellant- Hemant (A-1) to connect him with the offences in question. Learned counsel further submits that the circumstances culled out by the learned trial Court in Para-38 of the impugned judgment are based on surmises and conjunctures. Hence, the

¶50

Page 7 of 19

¶51

(CRA-114-2016 & CRA-186-2016)

¶52

present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt.

¶53

(9) Mr. Sanjay Agrawal, learned counsel appearing for the appellant- Roopmati Sanyasi (A-2) submits that the learned trial Court is also unjustified in convicting the appellant- Roopmati Sanyasi (A-2) for offences under Sections 201 & 120-B of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that admittedly, as per the case of the prosecution itself, on the date and time of the offence, appellantRoopmati (A-2) was not present at the spot, indeed, she was residing in her parental house at Bhagalpur (Jashpur) alongwith her two children and returned to Raigarh after getting information of death of her husband (deceased) and, therefore, she has wrongly been convicted for offence under Section 120-B of IPC of conspiring with the appellant- Hemant (A-1) to cause death of the deceased. Further, the call details obtained by the prosecution vide Ex.P/17, Ex.P/18 & Ex.P/19 have not been proved and even it has not been proved that appellant- Roopmati (A-2) was using any mobile phone to contact the appellant- Hemant (A-1) and conspiring with him to commit the offence in question. As such, appellant- Roopmati Sanyasi (A-2) is also entitled for acquittal on the basis of benefit of doubt.

¶54

(10) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the

¶55

Page 8 of 19

¶56

(CRA-114-2016 & CRA-186-2016)

¶57

prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences mentioned hereinbaove on basis of incriminating circumstances culled out at Para-38 of the impugned judgment and, therefore, the present appeals deserve to be dismissed.

¶58

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

¶59

(12) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/10), wherein it has been opined that cause of death of deceased is shock due to asphyxia caused by manual strangulation and nature of death is homicidal, which is duly proved by the statement of Dr. T.K. Tondal (PW-06). Accordingly, taking into consideration the postmortem report (Ex.P/10) and the statement of Dr. T.K. Tondal (PW-06), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

¶60

Page 9 of 19

¶61

(CRA-114-2016 & CRA-186-2016)

¶62

(13) Now, the next question would be whether the accusedappellants herein are the authors of the crime, which the learned trial Court has recorded in affirmative by relying upon following 14 incriminating circumstances, as culled out in Para-38 of the impugned judgment, which reads as under:

¶63

“1. e`rd jfopanz lU;klh ,oa vkjksfi;k :ierh ds oSfofgd laca/k lkekU; ugh FksA

¶64

e`rd jfopanz lU;klh }kjk Fkkuk t’kiqj es ntZ djokbZ xbZ f’kdk;r ls ;g Li"V gS fd mls vkjksih gsear ,oa viuh iRuh :ierh ds vkilh voS/kkfud lac/kksa dh tkudkjh gks pqdh Fkh vkSj blh dkj.k mlus Hk;o’k Fkkuk t’kiqj es fjiksVZ ntZ djokbZ FkhA

¶65

Fkkuk t’kiqj es fjiksVZ ntZ djokus ds vfrfjDr e`rd jfopanz lU;klh us bl tkudkjh ds ckjs esa viuh ekrk ,oa viuh cguksa dks Hkh crk;k FkkA

¶66

4- blds vfrfjDr e`rd jfopanz lU;klh }kjk mldh iRuh vkjksfi;k :ierh }kjk fy[kh xbZ Mk;jh ,oa i=ksa dks Hkh Lo;a ns[kk x;k gS rFkk viuh cguk s a dks crk;k x;k gSA

¶67

5- e`rd jfo dh cgu lk{kh liuk ,oa lfork dh lk{; ls Li"V gS fd vkjksih;k :ierh ,oa vkjksih gsear eksckbZy ls ,d nwljs ls laidZ es FksA

¶68

6- ?kVuk ds fnu vkjksfi;k :ierh jk;x<+ dks NksM+dj t’kiqj vk xbZ FkhA tcfd t’kiqj vkus ds fy, :ierh ds ikl D;k dkj.k Fkk ;g :ierh dh vksj ls Li"V ugh fd;k x;k gSA

¶69

7- e`rd ds ifjtuksa }kjk :ierh dks t’kiqj es ns[kk x;k ,oa vkjksih gsear RkFkk vkjksfi;k :ierh ds vkijkf/kd "kM~;a= dk vkHkkl gqvkA

¶70

8- ml le; ds dkWy fMVsy Hkh vfHk;kstu }kjk ladfyr fd;s x, gSa ftles ls ;|fi ;ksxs’k iVsy uked eksckbZy /kkjd dk eksckbZy :ierh ds }kjk bLrseky fd;s tkus ds rF; dks vfHk;kstu }kjk izekf.kr ugh fd;k x;k gS fdUrq ldyeqfu uk;d vfHk;qDrk dh eka gS ,oa mDr eksckbZy ls vkjksih gsear ds eksckbZy es ckrphr gksuk nf’kZr gks jgk gS] tks fd vfHk;qDrk ,oa vkjksih gsear ds vkijkf/kd "kM~;a= dh vksj bafxr djrk gSA

¶71

Page 10 of 19

¶72

(CRA-114-2016 & CRA-186-2016)

¶73

9- blds vfrfjDr gsear ,oa vfHk;qDrk :ierh dk ,d nwljs ds lkFk "kM~;a= esa gksuk ,oa ,d nwljs ds lkFk ?kVukdze dh ckjhfd;ksa dks tkuuk ;Fkk vkjksfi;k :ierh ds HkkbZ caVh }kjk erd jfo ds ?kj tkdj ;g dgk tkuk fd dwyj ls djaV yxdj jfo dh eR;q gks xbZ gS] ;g n’kkrkZ gS fd vfHk;qDrk :ierh ,oa vfHk;qDr gsear lrr~ laidZ esa FksA vU;Fkk vfHk;qDrk :ierh dks ;g dSls ekywe gqvk fd mlds ifr jfo dh dwyj ls djaV yxus ds dkj.k eR;q gqbZ gSA vfHk;qDrk :ierh dh vksj ls bl laca/k esa dksbZ Hkh Li"Vhdj.k izLrqr ugh fd;k x;k gS fd mls jfo dks dwyj dk djaV yxus ds rF; ds ckjs esa fdlus crk;k Fkk vkSj mls dSls ekywe gqvk FkkA tcfd okLro esa dwyj ls djaV yxus ds dkj.k jfopanz dh eR;q gh ugh gSA

¶74

10- erd jfo dh eR;q xyk ?kksaVus ds dkj.k gR;kRed izdfr dh gksuk izekf.kr gS rFkk 'ko ijh{k.k ds le; ls mlds eR;q ds le; dk tks vkadyu fpfdRld }kjk crk;k x;k gS] ls mldh e`R;q ds le; dh Hkh iqf"V gksrh gSA

¶75

11- vkjksih gsear ?kVuk ds i'pkr~ loZizFke ?kVuk LFky ij ns[kk x;k] bl laca/k esa ;|fi lk{kh uohu ekykdkj us vius iqfyl dFku dk leFkZu ugh fd;k gS fdUrq foospuk vf/kdkjh us uohu ekykdkj dk dFku mods crk, vuqlkj y[kc) djuk O;dr fd;k gS lkFk gh ;g Hkh egRiw.kZ gS fd vkjksih gsear dk 'ko iapukek dh dk;Zokgh ds le; ekSds ij ekStwn gksuk Lor% vkjksih gsear dh lafyIrrk dks n’kkZrk gS vU;Fkk ,slk dksbZ dkj.k ugh Fkk ftldh otg ls vkjksih gsear 'ko iapukek dh dk;Zokgh ds le; ekStwn gksrkA

¶76

12- vkjksih gsear ,oa vkjksfi;k :ierh ds e/; dh utnhdh gh og otg Fkh ftlds dkj.k vkjksih gsear izdj.k dh laiw.kZ dk;Zokgh esa lfEefyr jgk gSA

¶77

13- bl dkj.k mijksDr laiw.kZ ifjfLFkfr;ksa ls ek= ;g gh fu"d"kZ gksrk gS fd vkjksih gsear ,oa vkjksfi;k :ierh us vius voS/kkfud laca/kksa dh ekxZ esa ck/kk jgs erd jfopanz dks jkLrs ls gVkus dk "kM;a= fd;k ,oa mDr "kM;a= dks fdz;kUof;r djus gq, loZizFke :ierh dks jk;x<+ ls t’kiqj Hkstk x;k vkSj i'pkr~ esa vkjksih gsear us erd jfo dh xyk nckdkj vFkok xyk ?kksVdj gR;k dkfjr dh rFkk ;g n’kkZus ds fy, fd dwyj ds djaV ls mldh eR;q gqbZ gS erd ds 'ko dks dwyj ls lVkdj j[k fn;k rFkk ckn esa pky ds vU; fuoklh;ksa dks lwfpr fd;kA

¶78

14- vkjksih gsear dh vksj ls Lo;a ds ?kVuk LFky ij ekStwn gksus

¶79

Page 11 of 19

¶80

(CRA-114-2016 & CRA-186-2016)

¶81

ds laca/k es dksbZ Hkh Li"Vhdj.k izLrqr ugh fd;k x;k gSA ,sls es /kkjk 106 Hkkjrh; lk{; vf/kfu;e ds varxZr vkjksih gsear ds fo:) mi/kkj.kk mRiUu gksrh gSA”

¶82

(14) Since the present case is based on circumstantial evidence, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of

¶83

Sharad Birdhichand Sarda vs. State of Maharashtra1 which

¶84

constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

¶85

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

¶86

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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made:

¶87

"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."

¶88

(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,

¶89

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

¶90

(4) they should exclude every possible hypothesis

¶91

1 (1984) 4 SCC 116

¶92

Page 12 of 19

¶93

(CRA-114-2016 & CRA-186-2016)

¶94

except the one to be proved, and

¶95

(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.”

¶96

(15) We shall now consider each of the incriminating circumstances one by one in light of the evidence available on record.

¶97

As regards incriminating circumstances No.01 to 04:

¶98

(16) These incriminating circumstances No.01 to 04 quoted above relates to motive on the part of the appellants to commit the offence, as it is the case of the prosecution that the appellantRoopmati (A-2), who is wife of the deceased was having relationship with appellant- Hemant (A-1) outside the marriage and, as such, learned trial Court established and found proved the motive on the part of the appellants to commit the offence in question. Even if it is accept that there was motive on the part of the appellants to commit murder of the deceased on account of their relationship outside the marriage, then also it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri2 ). In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P.3 their Lordships of Supreme

¶99

2 (2012) 4 SCC 124

¶100

3 (2022) 7 SCC 157

¶101

Page 13 of 19

¶102

(CRA-114-2016 & CRA-186-2016)

¶103

Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly.

¶104

As regards incriminating circumstances No.05 & 08:

¶105

(17) The aforesaid two incriminating circumstances No.05 & 08 relates to the fact that appellants- Hemant and Roopmati were contacting with each other through mobile phone and conspiring to commit the offence of murder of the deceased. However, the learned trial Court has itself held that the appellant- Roopmati (A2) was using mobile number of one Yogesh Patel bearing No.9691826817. Further, the prosecution has alleged that the appellant- Roopmati (A-2) was using the mobile phone of said Yogesh Patel bearing No.9691826817, but it has not been proved beyond reasonable doubt. Indeed, as per the statement of Rajesh Patel (PW-11), three mobile phones were used in commission of the offence i.e. 7805984543, 9691827817 & 9302730524, which were registered in the name of Hemant Kumar Uke (A-1), Yogesh Patel and Sakalmuni Nayak respectively and none of these three mobile phones used were in the name of appellant- Roopmati (A-2). Though, the learned trial Court has held that one of the phone No.9302730524 belongs to Sakalmuni Nayak, who is mother of the appellant, but said cannot be made basis for holding that appellant- Roopmati (A-2) was using the mobile phone of Sakalmuni Nayak, in absence of which, appellant- Roopmati (A-2)

¶106

Page 14 of 19

¶107

(CRA-114-2016 & CRA-186-2016)

¶108

cannot be implicated. We hereby hold accordingly.

¶109

As regards incriminating circumstances No.06 & 07:

¶110

(18) By way of these two incriminating circumstances, the learned trial Court has held that since appellant- Roopmati (A-2) has left her husband (deceased) and started staying in her parental house at Bhagalpur (Jashpur) and there is no reason for leaving Raigarh and staying at Jashpur, the same cannot be said to be incriminating circumstance for the reason that it is apparent from the face of the record that on 26.08.2012 a dispute arose between appellant- Roopmati (A-2) and the deceased, of which, they both lodged report at Police Station Jashpur Nagar vide Ex.P/21 & Ex.P/22. Moreover, a bare perusal of the document i.e. copy of rojnamcha sanha (Ex.P/21) would show that appellant- Roopmati (A-2) lodged report at police station Jashpur Nagar to the effect that after few days of her marriage, her husband (deceased) used to quarrel with her on pity issues and, pursuant to which, on 18.08.2012, she went to reside in her parental house at Bhagalpur alongwith her two children. Whereas, the incident in question took place on 27.09.2013 and it is not the case of the prosecution nor there is any finding of the learned trial Court that immediately after or prior to the date of incident, appellant- Roopmati (A-2) has left her husband (deceased) and started residing at Jashpur in order to facilitate appellant- Hemant (A-2) in committing murder of the deceased. As such, taking the circumstances No.06 & 07 as it

¶111

Page 15 of 19

¶112

(CRA-114-2016 & CRA-186-2016)

¶113

is, the same cannot be held to be incriminating circumstances to implicate the appellant- Roopmati (A-2). We hereby hold accordingly.

¶114

As regards incriminating circumstance No.09:

¶115

(19) By way of this incriminating circumstance No.09, the learned trial Court has held that brother of appellant- Roopmati (A-2), namely, Banti (not examined) has visited the house of the deceased and informed that deceased died on account of electrocution and consequently came to the conclusion that the two appellants herein have conspired with each other and committed the offence in question and, in order to screen themselves from the legal punishment of the offence, said Banti has given wrong information that deceased died on account of electrocution and there is no explanation by appellant- Roopmati (A-2) in this regard. However, the fact remains that said Banti, who has visited the house of the deceased and informed that the deceased died on account of electrocution, has neither been cited by the prosecution as a witness nor he has been brought to the witness-box to be examined before the Court for the reason best known to the prosecution. As such, the presumption drawn by the learned trial Court that the two appellants herein have conspired with each other to commit murder of the deceased on the basis of said statement of Banti (not examined) cannot be held to be trustworthy and liable to be discarded. We hereby hold

¶116

Page 16 of 19

¶117

(CRA-114-2016 & CRA-186-2016)

¶118

accordingly.

¶119

As regards incriminating circumstance No.10:

¶120

(20) By this incriminating circumstance, the learned trial Court has held the death of the deceased to be homicidal in nature, which finding we have already affirmed in above paragraphs of this judgment and, therefore, the same need not to be dealt with again.

¶121

As regards incriminating circumstances No.11 & 12:

¶122

(21) By way of these incriminating circumstances No.11 & 12, the learned trial Court has held that on the date of offence, appellantHemant (A-1) was present on the spot, for which, the prosecution has relied on the police statement of Navin Malakar (PW-05) recorded under Section 161 CrPC. However, a careful perusal of the statement of Navin Malakar (PW-05) recorded before the Court would show that he turned hostile and have not supported the case of the prosecution at all. Navin Malakar (PW-05) in his statement before the Court nowhere states that appellant- Hemant (A-1) was present on the spot on the date of offence and his participation in the inquest proceeding has also been taken as an exception by the learned trial Court. However, on the other hand, if he had committed offence, ordinarily he could not have hided his presence on the spot, therefore, merely because he was participating in the inquest proceeding that would not implicate appellant- Hemant (A-1) for offence in question. We hereby hold accordingly.

¶123

Page 17 of 19

¶124

(CRA-114-2016 & CRA-186-2016)

¶125

As regards incriminating circumstance No.13:

¶126

(22) By the instant incriminating circumstance No.13, the learned trial Court has held that since the appellants herein were having relationship with each other outside the marriage and, therefore, in order to hide their relationship, they both conspired with each other and caused death of the deceased. However, this aspect has already been dealt with by us in above paragraph of this judgment while considering the motive on the part of the appellants to commit the offence in question, therefore, same need not to be dealt with again. Even the wrong information furnished by the brother of the appellant- Roopmati (A-2), namely, Banti that deceased died due to electrocution is also not established, as Banti has not been examined, which fact is also recorded in Para-30 of the impugned judgment of the trial Court. However, if giving wrong information would be treated to be one of the incriminating circumstance, then also it cannot be made sole basis to record conviction of the appellants. We hereby hold accordingly.

¶127

As regards incriminating circumstance No.14:

¶128

(23) The last incriminating circumstance that has been found proved by the learned trial Court is that the appellant- Hemant was present on the spot at the time of offence. However, this fact is not established except the statements of Tekram Bharadwaj (PW04) and Navin Malakar (PW-05), but they did not utter a word in their statement before the Court that appellant- Hemant (A-1) was

¶129

Page 18 of 19

¶130

(CRA-114-2016 & CRA-186-2016)

¶131

present in the house of the deceased on the date and time of the offence. Since the presence of the appellant- Hemant (A-1) on the spot at the time of offence has not been established and it is not the case of the prosecution that appellant- Hemant (A-1) was found present in the house of the appellant- Roopmati (A-2) at the time when the dead-body of the deceased was recovered, therefore, invocation of Section 106 of the Indian Evidence Act, 1872 is totally uncalled for. We hereby hold accordingly.

¶132

(24) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for offences mentioned hereinabove in light of incriminating circumstances as culled out in Para-38 of the impugned judgment and same are liable to be set aside.

¶133

(25) Accordingly, the conviction and sentences of appellantHemant (A-1) for offences under Sections 302, 201 & 120-B of IPC and that of appellant- Roopmati (A-2) for offence under Section 201 & 120-B of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are in jail, we direct that they be released from jail forthwith, if not required in

¶134

Page 19 of 19

¶135

(CRA-114-2016 & CRA-186-2016)

¶136

any other matter/case.

¶137

(26) This criminal appeal is allowed .

¶138

(27) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.

¶139

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

¶140

s@if

Hemant Uke v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Hemant Uke v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bishnu Yadav Vs State Of Chhattisgarh

Sarvar Vs State Of Chhattisgarh

Dr. S.r. Sidar Vs State Of Chhattisgarh

Rajesh Kumar Bharadwaj @ Borru Vs State Of Chhattisgarh

Ganga Prasad @ Chetan Vs State Of Chhattisgarh

Jivan Singh Gond Vs State Of Chhattisgarh