Allowed

Dhaneshwar @ Tedu @ Ronha Pando v. State of Chhattisgarh

Chhattisgarh HC12 Nov 2024CRA/1484/2019

Case brief

AI extract

What is this about?

This Criminal Appeal challenges a conviction for rape and murder based on the insufficiency of medical and forensic evidence. The High Court acquitted the appellant of rape due to lack of DNA and semen findings. Regarding murder, the Court found the circumstantial evidence, including the 'last seen' theory and weapon recovery, failed to exclude reasonable doubt, leading to acquittal and release.

What did the court decide?

Appellant acquitted of offences under Sections 376 and 302 IPC and directed to be released forthwith from jail.

Dhaneshwar @ Tedu @ Ronha Pando Vs State… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr. A. No. 1484 of 2019)

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2024:CGHC:44120-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 1484 OF 2019

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(Arising out of Judgment dated 18.9.2013 passed by Additional Sessions Judge (F.T.C.) Raigarh, in Sessions Case No.157/2012)

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 Dhaneshwar @ Tedu @ Ronha Pando, S/o Samaru Pando, aged about 23 Years, R/o Village Kadamdhodhi (Kahrapara), P.S. Kapu, District Raigarh (C.G.)

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... Appellant(s)

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Versus

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 State of Chhattisgarh, through: Police Station Kapu, District Raigarh (C.G.)

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... Respondent(s)

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For Appellant	:-	Mr. C.R. Sahu, Advocate.
For Respondent-State	:-	Mr. Arvind Dubey, Govt. Advocate.

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Division Bench

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

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Judgment on Board [13.11.2024]

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Sanjay K. Agrawal, J.

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1. The present Criminal Appeal, filed under Section

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374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) assails the legality, validity and correctness of the judgment dated 18.9.2013 passed

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(Cr. A. No. 1484 of 2019)

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by learned Additional Sessions Judge (F.T.C.), Raigarh, District Raigarh (Trial Court) in Sessions Case No.157/2012.

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2. By impugned judgment dated 18.9.2013, the sole appellant herein has been convicted for offence under Sections 376 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and for each offence he has been sentenced to undergo Imprisonment for Life and to pay fine of Rs.10,000/- and in default of payment of fine amount to suffer additional Rigorous Imprisonment for 01 year, with a direction to run both the sentences concurrently.

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Prosecution case, in brief:-

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3. On 4.8.2012 from 8:00 p.m. till the morning at 7-8:00 a.m. on 5.8.2012 in Village Kadamdhodi which falls within the jurisdiction of Police Station Kapu, District Raigarh, the appellant is said to have committed rape on the deceased and murdered her assaulting with knife. According to the prosecution, on 4.8.2012 at 8 O'clock in the night, when the deceased was sleeping

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in her house along with her mother PW-1 Naiharin Bai, sister PW-5 Heeramoti and brother PW-4 Jailal, at that time the appellant, who was their neighbour,

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(Cr. A. No. 1484 of 2019)

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came to the house of the deceased and took her forcefully with him to the field of one Bhakto Yadav where he committed forcible sexual intercourse with her and also committed her murder with the use of knife. PW-3 Manbodh, grandfather of the deceased, lodged FIR (Ex. P-1) and Merg Intimation (Ex. P-2). Crime Details Form (Ex. P-21) was prepared by the Investigating Officer, PW-10 T.R. Sidar. Nazri Naksha (Ex. P-3) was prepared by the Patwari, PW-9 Bharat Singh Thakur. Inquest proceeding was conducted vide Ex. P-11. Post-mortem of the deceased was conducted by PW-6 Dr. B.L. Bhagat and PW-8 Dr. Nancy Lakda vide Ex. P-5 in which cause of her death has been opined to be syncope due to internal bleeding and the nature of her death to be homicidal and her hymen was also found to be ruptured by Dr. Lakda. Query report (Ex. P-14) was obtained from PW-8 Dr. Nancy Lakda who opined that the deceased might have been subjected to rape. Statements of the witnesses were recorded. Arrest of the appellant was made vide Ex. P-23. Vide Ex. P-12, one set of slippers, one knife and blood mixed & control earth were seized from the spot. Vide Ex. P-13, underwear of the appellant was seized. Vide Ex. P-20, clothes of the deceased and her

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(Cr. A. No. 1484 of 2019)

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vaginal slides were collected. In the FSL report dated 4.9.2013 (not exhibited), no blood was found on the knife (Ex. C) seized from the spot. Similarly, no stain of semen and human sperms were found on the clothes (Exbts. D1 to D4) and on the vaginal slides (Exbts. E1 to E4) of the deceased as well as on the underwear (Ex. F) of the appellant.

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4. On completion of the investigation, the appellant was charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. After committal, the appellant appeared before the Trial Court where charges were framed against him for offence under Sections 302 and 376 of IPC to which he denied and claimed for trial.

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5. During the course of trial, in order to prove its case, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited 24 documents vide Exhibits P-1 to P-24. After closure of the prosecution evidence, statements of the accused appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in

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(Cr. A. No. 1484 of 2019)

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the evidence of the prosecution, pleaded innocence and false implication.

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6. On conclusion of the trial, learned Trial Court, after hearing the arguments and appreciating the evidence came on record, found the appellant guilty of committing the offence of rape and murder of the deceased and accordingly convicted him for offence under Sections 376 and 302 of IPC and for each offence sentenced him to undergo Life Imprisonment and fine of Rs.10,000/- with default stipulation, which led to the filing of the present appeal by the appellant assailing the impugned judgment passed by learned Trial Court.

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:Submissions of parties

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7. Mr. C.R. Sahu, learned counsel appearing on behalf of

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the appellant, would submit that the offence under Section 376 of IPC is not at all made out as in the FSL report no stain of semen and human sperms were found on the vaginal slides and on the clothes of the deceased as well as on the underwear of the appellant and no DNA profiling also has been done so as to connect the appellant with the said offence. Similarly, the theory of last-seen together is also not established

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(Cr. A. No. 1484 of 2019)

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at all and even if it is found to be established, there is no corroboration as the alleged weapon of offence i.e. knife was not seized from the possession of the appellant but it was seized from the spot and no blood was found on the said knife in the FSL report and the slippers recovered from the spot were also not identified to be that of the appellant. As such, the prosecution has failed to prove the alleged offence against the appellant beyond reasonable doubt and learned Trial Court has wrongly held him guilty for offence under Sections 376 and 302 of IPC of which he is entitled to be acquitted, allowing the appeal.

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8. Mr. Arvind Dubey, learned State Counsel, would however submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and learned Trial Court has rightly convicted the appellant for offence under Sections 376 and 302 of IPC and therefore appeal deserves to be dismissed.

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9. We have heard learned Counsels appearing for parties, considered their rival submissions made herein above and also perused the record of the case with utmost care and circumspection.

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(Cr. A. No. 1484 of 2019)

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10. The appellant has been convicted for offence under Sections 376 and 302 of IPC. We will first consider the correctness of the finding recorded by learned Trial Court for his conviction under Section 376 of IPC and thereafter under Section 302 of IPC.

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Conviction under Section 376 of IPC

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11. It is the case of the prosecution that on the date of offence in the night at 8:00 p.m. when the deceased was sleeping in her house, the appellant came and took her forcefully from her house to the field of Bhakto Yadav where he is said to have firstly committed sexual intercourse with the deceased and thereafter murdered her with the use of knife. The post-mortem of the deceased was jointly conducted by PW-6 Dr. B.L. Bhagat and PW-8 Dr. Nancy Lakda vide Ex. P-5. PW-8 Dr. Nancy Lakda has stated that while conducting post-mortem of the deceased, on internal examination, she found that the hymen of the deceased was torn and white material was present there of which two slides were prepared for forensic examination. In her cross-examination, she has stated that in the post-mortem report she had not given any opinion as to whether the deceased was subjected to rape or not. In the query report (Ex. P-14), PW-8 Dr.

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(Cr. A. No. 1484 of 2019)

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Nancy Lakda has opined that the deceased might have been subjected to rape. However, in the FSL report, there were no stain of semen and human sperms found on the vaginal slides and on the clothes of the deceased as well as on the underwear of the appellant. In addition, the Investigating Officer PW-10 T.R. Sidar in paragraph-8 of his statement has stated that in the inquest proceeding (Ex. P-11) the panchwitnesses had not expressed any suspicion of rape or attempt to rape with the deceased. Jhuribai, grandmother of the deceased, had also not noticed any sign of rape on the deceased.

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12. As such, except the hymen of the deceased was found to be torn, there is no other piece of evidence available on record so as to draw an inference that she was actually subjected to rape. No DNA profiling was either conducted. In this regard, the decision of the v. Supreme Court rendered in the matter of Chotkau State of Uttar Pradesh 1 would be profitable to be noticed herein, in which their Lordships have held that in cases where the victim is dead and the offence is sought to be established only by circumstantial

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1 2023 (6) SCC 742

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(Cr. A. No. 1484 of 2019)

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evidence, medical evidence assumes great importance,

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and observed in paragraphs 82 & 83 as under:-

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“82. In cases where the victim of rape
is alive and is in a position to
testify in court, it may be possible
for the prosecution to take a chance by
not medically examining the accused.
But in cases where the victim is dead
and the offence is sought to be
established only by circumstantial
evidence, medical evidence assumes
great importance. The failure of the
prosecution to produce such evidence,
despite there being no obstacle from
the accused or anyone, will certainly
create a gaping hole in the case of the
prosecution and give rise to a serious
doubt on the case of the prosecution.
We do not wish to go into the question
whether Section 53A is mandatory or
not.Section53Aenablesthe
prosecution to obtain a significant
piece of evidence to prove the charge.
The failure of the prosecution in this
case to subject the appellant to
medical examination is certainly fatal
to the prosecution case especially when
the ocular evidence is found to be not
trustworthy.

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83. Their failure to obtain the report
of the Forensic Sciences Laboratory on
the blood/semen stain on the salwar
worn by the victim, compounds the
failure of the prosecution.”

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13. In this case, the medical evidence of PW-8 Dr. Nancy Lakda qua post-mortem (Ex. P-5) and query report (Ex. P-14) as well as the forensic evidence in the form of FSL report does not support the case of the prosecution so far as under Section 376 of IPC is concerned. Merely because the hymen of the deceased

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(Cr. A. No. 1484 of 2019)

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was found torn that itself would not lead to the conclusion that the deceased was raped and that too by the appellant. As such, the appellant is entitled to be acquitted of the offence under Section 376 of IPC on the basis of benefit of doubt and it is accordingly held so.

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Conviction under Section 302 of IPC

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14. The conviction of the appellant under Section 302 of IPC is based on the circumstantial evidence not on the direct evidence. Hence, it would be apposite to refer herein the decision of the Supreme Court in the matter of Sharad Birhichand Sarda v. State of Maharashtra2 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been catalogued in paragraph 153 which reads 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

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2 (1984) 4 SCC 116

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(Cr. A. No. 1484 of 2019)

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between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made:

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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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15. So far as the offence under Section 302 of IPC is

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concerned, the circumstantial evidences that have been found to be established by learned Trial Court are that the death of the deceased was homicidal as

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(Cr. A. No. 1484 of 2019)

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per post-mortem report (Ex. P-5); the appellant was last seen with the deceased by PW-5 Heeramoti, sister of the deceased; from the place of incident the slippers of the appellant was recovered and a bloodstained knife was seized from the place of incident which was brought by the appellant from the house of PW-2 Kaushalya Bai.

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Homicidal death:-

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16. As regards this incriminating circumstance as to whether the death of the deceased was homicidal in nature or not, learned Trial Court has found the same duly established relying upon the statement of PW-6 Dr. B.L. Bhagat who along with PW-8 Dr. Nancy Lakda has conducted the post-mortem examination of the deceased vide Ex. P-5 in which cause of her death has been opined to be syncope due to internal bleeding and the nature of her death has been opined to be homicidal after examining the injuries of the deceased. The said finding of learned Trial Court, in our considered opinion, is correct finding of fact based on medical evidence available on record and which is neither perverse nor contrary to record. We, therefore, affirm the said finding of learned Trial Court, holding that the death of the deceased was homicidal.

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(Cr. A. No. 1484 of 2019)

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:Last-seen theory

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17. In this regard, the statement of PW-5 Heeramoti, sister of the deceased, may be noticed. In her statement before the Court she has stated that on the date of offence in the night when they were sleeping in their house, the appellant came in their house and took her sister with him forcefully, though she was refusing to go with him. She has further stated that when the appellant was taking her sister with him, she was present right there and that she does not know as to what happened in the next morning. At this very stage, PW-5 Heeramoti was declared hostile. In her cross-examination, she has stated that on the date of offence in the night she along with the deceased was sleeping in the same room though in different cots. She has admitted that the fact of the appellant’s taking the deceased with him forcefully was not disclosed by her to her family members, particularly to her mother PW-1 Naiharin Bai and brother PW-4 Jailal who were present in the house. Further, suprisinlgy, she has stated that when she got up in the morning she found out that the deceased was not in the room and later the news of the murder of her sister was spread in the village. In this regard, the

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(Cr. A. No. 1484 of 2019)

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statement of PW-4 Jailal, brother of the deceased, deserves to be noticed. He has stated in his examination-in-chief that there are three rooms in their house and in one of the rooms her sisters i.e. PW-5 Heeramoti and the deceased, both were sleeping and the appellant came to his house and took the deceased with him and murderd the deceased. However, in his cross-examination, he has admitted that he has not seen the appellant taking the deceased with him nor has he seen the appellant assaulting the deceased with knife and he was informed by PW-7 Bhuneshwar that the deceased was taken by the appellant with him and he killed her with knife. PW-7 Bhuneshwar has turned hostile and not supported the case of the prosecution. As such, the theory of last-seen together cannot be said to be established beyond reasonable doubt.

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18. Even if the case of the prosecution is accepted as it is that the appellant and the deceased were last-seen together in the night at 8 O’clock on 4.8.2012, the dead-body of the deceased was noticed between 7-8 O’clock in the next morning on 5.8.2012 by one Khemanidhi who informed to PW-7 Bhuneshwar. As such, there is a gap of around 12 hours between the

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(Cr. A. No. 1484 of 2019)

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deceased last seen together with the appellant and the recovery of her dead-body. In this regard, the decision of the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of

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Police3 , the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as

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under:-

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“22. PW 11 was able to identify all the
three accused in the court itself by
recapitulating his memory as those
persons who came at the time when he
was washing his car along with John
Bosco and further that he had last seen
all of them sitting in the Omni van on
that day and his testimony to that
effect remains intact even during the
cross-examination in the light of the
fact that the said witness has no
enmitywhatsoeveragainstthe
appellants herein and he is an
independent witness. Once the testimony
of PW 11 is established and inspires
full confidence, it is well established
that it is the accused who were last
seen with the deceased specially in the
circumstances when there is nothing on
record to show that they parted from
the accused and since then no activity
of the deceased can be traced and their
dead bodies were recovered later on.
It is a settled legal position that the
law presumes that it is the person, who
was last seen with the deceased, would

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3 (2018) 16 SCC 161

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(Cr. A. No. 1484 of 2019)

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have killed the deceased and the burden
to rebut the same lies on the accused
to prove that they had departed.
Undoubtedly, the last seen theory is an
important event in the chain of
circumstances that would completely
establish and/or could point to the
guilt of the accused with some
certainty. However, this evidence alone
cannot discharge the burden of
establishing the guilt of accused
beyond reasonable doubt and requires
corroboration.”

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19. In the instant case, in the shape of corrobation nothing has been brought on record except the fact that from the place of incident, a bloodstained knife was recovered, though in the FSL report no blood was found on the said knife. In this regard, their Lordships of the Supreme Court in the matter of Boby v. State of Kerala 4 , following the decisions rendered in the matters of Chandran v. The State of Tamil Nadu5 , State of Karnataka v. David Rozario and

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Anr6 , have clearly held that in absence of confessional statement of the accused leading to recovery of the material object, recovery of dead-body cannot be said to be at the instance of the accused. As such, the recovery of the knife from the place of incident is of no use to the prosecution. Similarly, the recovery of the slippers from the place of incident also cannot be said

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4 2023 LiveLaw (SC) 50)

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5 (1978) 4 SCC 90

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6 (2002) 7 SCC 728

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(Cr. A. No. 1484 of 2019)

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to be proved to be that of the appellant, as it is not the case of the prosecution that the slippers seized from the place of incident were of such a unique quality that are not available in the local market. Apart from that, the slippers seized were not subjected to identification so as to prove that they actually belonged to the appellant and the appellant had worn them at the time of incident.

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20. As such, the prosecution has not been able to prove the offence under Section 302 of IPC against the appellant beyond reasonable doubt and the finding recorded by learned Trial Court for convicting the appellant for offence under Section 302 of IPC is absolutely unjustified and as such the appellant is also entitled for acquittal of the offence under Section 302 of IPC on the basis of benefit of doubt.

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21. Resultantly, we allow this Criminal Appeal and set-

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aside the impugned Judgment dated 18.9.2013 passed by learned Trial Court. Consequently, the appellant stand acquitted of the offence under Sections 376 and 302 of IPC. He is stated to be in jail since 6.8.2012 i.e. more than 12 years. We direct him to be released forthwith from jail, unless he is required in connection with any other offence.

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(Cr. A. No. 1484 of 2019)

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22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also served with a copy of this judgment, for information and necessary action, if any, at the

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earliest.

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

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sharad

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Digitally signed
by SHARAD
SHARAD KUMAR
KUMAR YADAVDate:
YADAV 2024.11.1816:12:55
+0530

Dhaneshwar @ Tedu @ Ronha Pando v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dhaneshwar @ Tedu @ Ronha Pando v. State of Chhattisgarh

Case brief

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What the court decided

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