Allowed

Sukhram Majhwar v. State Of Chhattisgarh

Chhattisgarh HC11 Mar 2024CRA/1387/2017

Case brief

AI extract

What is this about?

Extrajudicial confession is a weak piece of evidence and must be corroborated; conviction on circumstantial evidence requires fulfilment of the panchsheel principles of Sharad Birdhichand Sarda. Here the eyewitness turned hostile, a witness saw only the accused armed with a spade near the scene, and no blood was found on the weapon, so the chain of circumstances was incomplete. The High Court set aside the conviction under Section 302 IPC and acquitted the appellant on benefit of doubt.

What did the court decide?

Conviction and life sentence under Section 302 IPC set aside; appellant acquitted on benefit of doubt and ordered released forthwith.

Sukhram Majhwar Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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(Cr.A.No.1387/2017)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1387 of 2017

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{Arising out of judgment dated 22-7-2017 in Sessions Trial No.8/2017 of the 1^st Additional Sessions Judge, Ambikapur, District Surguja}

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Sukhram Majhwar, S/o Shri Dharmu Ram Majhwar, aged about 35 years, R/o Village Manpur, Majhwar Para, Police Station Udaypur, District Sarguja (C.G.)

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(In Jail) ---- Appellant

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Versus

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State of Chhattisgarh, Through Station House Officer, Police Station Udaypur, District Sarguja (C.G.)

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---- Respondent

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For Appellant: Mr. Amit Singh Chauhan, Advocate / Panel Lawyer appointed by the Chhattisgarh High Court Legal Services Committee, Bilaspur. For Respondent/State: Mr. Tarakeshwar Nande, Panel Lawyer.

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Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ.

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Judgment On Board (12-3-2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Additional Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay fine of ₹ 2,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for four months.

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Case of the prosecution, in short, is that on 11-9-2016 at 03.00 p.m., at Village Manpur, Police Station Udaypur, District Surguja, in the

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(Cr.A.No.1387/2017)

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agricultural field of Bankheta Nala, the appellant assaulted his wife Ganeshwari Bai by spade, suspecting her character, by which she suffered grievous injuries and died, and thereby committed the offence. Dharmu (PW-6) – father of the appellant, reported the matter to Police Station Udaypur, pursuant to which morgue was registered vide Ex.P-16 and FIR was lodged vide Ex.P-17. Spot map was prepared by the investigating officer vide Ex.P-8 and inquest was conducted vide Ex.P15. Patwari also prepared the spot map vide Ex.P-9. Dead body of deceased Ganeshwari Bai was subjected to postmortem which was conducted by Dr. S.K. Tigga (PW-13) vide Ex.P-25 in which cause of death was stated to be coma due to head injury caused by hard and blunt object and death was homicidal in nature. Pursuant to the memorandum statement of the appellant recorded vide Ex.P-21, spade was recovered from him vide Ex.P-23, which was sent for chemical examination to the FSL from where report Ex.P-31 was received according to which blood was not found on the said spade Article ‘C’, but human blood was found on the clothes of the deceased Article ‘E’.

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Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was chargesheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court, and the case was committed to the Court of Sessions, Surguja from where the learned 1^st Additional Sessions Judge, Ambikapur, District Surguja received the case on transfer for trial.

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The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution has examined as many

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(Cr.A.No.1387/2017)

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as seventeen witnesses and exhibited 33 documents. The defence has examined none and no document has been exhibited.

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The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased and also considering that it is the appellant who has caused the murder of his wife Ganeshwari Bai, proceeded to convict and sentence him under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

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Mr. Amit Singh Chauhan, learned counsel appearing for the appellant, would submit that Phulbasiya Bai (PW-8) – the alleged eyewitness, has turned hostile and has not supported the case of the prosecution. The extrajudicial confession is not trustworthy and not reliable in absence of other evidence. He would further submit that as per the FSL report, blood / human blood was not found on the spade and Sukhnandan @ Bhola (PW-7) has seen the appellant near the place of incident armed with spade, but no overt-act has been noticed by Sukhnandan @ Bhola (PW-7). As such, the appellant is entitled for acquittal.

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Mr. Tarakeshwar Nande, learned State counsel, would support the impugned judgment and would submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and as such the appellant has rightly been convicted under Section 302 of the IPC, therefore, the appeal deserves to be dismissed.

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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 original records of the trial Court with utmost circumspection and carefully as

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(Cr.A.No.1387/2017)

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well.

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Now, the following two questions arise for consideration: -

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Whether the death of deceased Ganeshwari Bai was homicidal in nature?

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If yes, whether the appellant herein is the author of the crime in question?

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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 relying upon the postmortem report Ex.P-25 proved by Dr. S.K. Tigga (PW-13), which

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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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Now, the next question is, whether the appellant is the author of the offence in question?

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The prosecution case is based on the following incriminating circumstances: -

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Evidence of eyewitness Phulbasiya Bai (PW-8).

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Extrajudicial confession which the appellant is said to have allegedly made before Devnath (PW-17) – uncle of the appellant.

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Evidence of Sukhnandan @ Bhola (PW-7), who has seen the appellant armed with spade near the place of incident.

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Human blood was found on the clothes of the deceased.

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A careful perusal of the evidence of Phulbasiya Bai (PW-8) would show that though in examination-in-chief, she has supported the case of the prosecution, but in paragraph 3 of her cross-examination, she has

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(Cr.A.No.1387/2017)

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clearly stated that she has not seen as to who has assaulted deceased Ganeshwari – wife of the appellant herein, as such, the testimony of this witness is not wholly reliable and therefore it is of no use to the prosecution.

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Sukhnandan @ Bhola (PW-7), who was grazing his cattle, has only seen the appellant armed with spade near the place of incident. He did not see the incident. As such, this witness is also of no use to the prosecution.

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Last witness is Devnath (PW-17) – uncle of the appellant, before whom the appellant has made extrajudicial confession that he has killed his wife. As per his evidence, while he was searching for his grand-son & grand-daughter, the appellant met him on the way and stated before him that he has killed his wife. However, this witness has not stated, by which weapon the appellant has killed his wife.

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It is the settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extrajudicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan and another v. State of Tamil

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(Cr.A.No.1387/2017)

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Nadu 1.]

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Thus, in absence of other evidence it would be unsafe to convict the appellant only on the basis of the alleged extrajudicial confession which is said to have been made by the appellant before Devnath (PW-17) – uncle of the appellant.

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The last piece of incriminating circumstance against the appellant is, as per the FSL report Ex.P-31, human blood was found on the clothes of deceased Ganeshwari Bai. This circumstance is also of no use to the prosecution, it would be a mitigating circumstance against the appellant, but that would not be one of the circumstances to convict him.

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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 2 in which it has been held

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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 Maharashtra³ where the following observations were made:

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Certainly, it is a primary principle that the accused

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1 (2012) 6 SCC 403

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2 (1984) 4 SCC 116

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3 (1973) 2 SCC 793

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(Cr.A.No.1387/2017)

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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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The prosecution has to prove the chain of circumstances as laid down by their Lordships of the Supreme Court in Sharad Birdhichand Sarda (supra). In our considered opinion, the chain of circumstances is not complete and the prosecution has failed to establish the chain of circumstances so as to unerringly point towards the guilt of the accused as held in Sharad Birdhichand Sarda (supra). There is no other evidence against the appellant. In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt.

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In view of the aforesaid analysis, we are unable to sustain conviction and sentences imposed upon the appellant under Section 302 of the IPC on the basis of benefit of doubt. Accordingly, the impugned judgment dated 22-7-2017 passed in Sessions Trial No.8/2017 by the 1^st Additional Sessions Judge, Ambikapur, District Surguja, is hereby set aside. The appellant stands acquitted of the charge framed against him

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(Cr.A.No.1387/2017)

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for the offence punishable under Section 302 of the IPC on benefit of doubt. He is in jail since 12-9-2016. He shall be forthwith set at liberty,

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unless he is required in connection with any other case.

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The appeal is allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is

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suffering the jail sentence.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Soma

Sukhram Majhwar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sukhram Majhwar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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