Sangram Verma Vs State of Chhattisgarh

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2024:CGHC:35048-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 149 of 2019

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(Arising out of judgment dated 30.11.2018 passed in Sessions Trial No.08/2018 by the learned Additional Sessions Judge, Khairagarh, District-Rajnandgaon C.G.)

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1 - Sangram Verma S/o Budharu Verma Aged About 32 Years R/o- Village Narmada Sandi, P.S. Chhuikhadan, District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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versus

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1 - State Of Chhattisgarh Through- The Police Station Khairagarh, DistrictRajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System) For Appellant : Mr. Abhishek Sharma, Advocate For Respondent/State : Mr. Soumya Rai, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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( 09/09/2024)

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Sanjay K. Agrawal, J.

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Digitally signed by RAVI SHANKAR MANDAVI

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of Code of Criminal Procedure has been filed by the appellant calling in question the legality, validity

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and correctness of the judgment of conviction and order of sentence dated 30.11.2018 passed by the learned Additional Sessions Judge, Khairagarh, District-Rajnandgaon, Chhattisgarh in Sessions Trial No. 08/2018 whereby the appellant has been convicted and sentenced as mentioned below :-

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CONVICTION	SENTENCES
Under Section 302	: R.I. for life and fine amount of Rs.1,000/-, in
of IPC	default of payment of fine amount additional R.I. for 6 months.
Under Section 201 of IPC	: R.I. for 7 years and fine amount of Rs.500/-, in default of payment of fine amount additional R.I. for 3 months.

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It has also been directed that all the jail sentences shall run concurrently.

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The case of the prosecution, in a nutshell, is that on 03.02.2018 at about 08:00 p.m. at Durga Chowk, Khairagarh, Police Station Khairagarh, District Rajnandgaon, Chhattisgarh, the appellant assaulted Hemant Verma (now deceased) by iron rod/axe and knife due to which he suffered grievous injuries and died. The dead body was found near a dustbin wrapped in a plastic sac near the place of incident i.e. Marriage Hall, thereby committed the offence. The complainant - Peelu Verma (PW-03) brother of the deceased reported the matter to the police, pursuant to which, merg intimation and FIR were registered vide Exs.P/10 & P/11, respectively. Spot map was prepared vide Ex.P/12. Inquest proceedings (Ex.P/05) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16) proved by Dr. Vivek Bisen (PW-8) cause

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of death was shock as a result of head injury and death was homicidal in nature. Weapon of offence i.e. iron rod/axe, knife and clothes of the appellant were seized from the possession of the appellant vide Ex.P/9. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/24) on the weapon of offence i.e. iron rod/axe (Article M) and on the clothes of the appellant (Article E1 & G) human blood was found. Peelu Verma (PW03) has supported the seizure. He has stated in para 29 that the investigation officer has recovered the weapons such as axe, knife and clothes from the possession of the appellant on his instance.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 24 documents, whereas, the appellant in defence has examined 2 witnesses namely Peelu Verma (PW-03) and Devaram Sen (PW-07) and exhibited Ex.D/01 and Ex.D/01. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which

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this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Abhishek Sharma, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the other seizure witness PW-7 Devaram Sen has declared hostile. As per prosecution story, the articles were recovered from the possession of appellant are seized on 04.02.2018 and from the perusal of the FSL report Ex.P/24, it seems that the seized articles were received by the Laboratory on 23.04.2018 and no explanation has been offered by the prosecution that the seized articles were kept in a safe custody or not. He further submits that there is no direct evidence against the appellant and the case of the prosecution is based on the surmises and conjectures and as such, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt.

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On the other hand, Mr. Soumya Rai, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative by relying upon the postmortem report (Ex.P/16) proved by Dr. Vivek Bisen (PW-08), wherein it has been opined that cause of death of the deceased was shock as a result of head injury and nature of death was homicidal, which in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the accusedappellant herein has caused injuries over the body of the deceased ?

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To base the conviction of the appellant, the trial Court has relied upon the memorandum statement of the appellant (Ex.P/6) pursuant to which, weapon of offence i.e. blood stained axe and knife were seized vide Ex.P/9 and clothes of the appellant were also seized. As per FSL report (Ex.P/24) on knife (Article N) blood was found and on axe (Article M), clothes of the (Articles O & P) human blood was found. However, the seizure of articles have been questioned on behalf of the appellant as seizure witness Devaram Sen (PW-7) has turned hostile and not supported the case of the prosecution and the other seizure witness Peelu Verma (PW-3) at para 29 of his statement before the Court has stated that the investigating officer has recovered the axe and knife at the instance of the appellant, but in para 33 he has also stated that articles were not seized in his presence and he has singed all the documents in the police station before the police officers. In this

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regard, the Supreme Court in the matter of Varun Chaudhary v. State of Rajasthan1 , has held that if the seizure memo was prepared at the police Station then it would loss its sanctity and the same is followed in the matter of Mustkeem alias Sirajudeen v State of Rajasthan2 and their Lordships of the Supreme Court have held in para 25 to 28 as under :-

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“25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”

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If the recovery memos were prepared at the Police Station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary Vs. State of Rajasthan reported in AIR 2011 SC 72.

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The scope and ambit of Section 27 were also illuminatingly stated in AIR 1947 PC 67 Pulukuri Kotayya & Ors. Vs. Emperor reproduced hereinbelow:-

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"...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have

1 (2011) 12 SCC 545

2 (2011) 11 SCC 724

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been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

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The same were thereafter restated in another judgment of this Court reported in Anter Singh Vs. State of Rajasthan reported in 2004 (10) SCC 657.

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The doctrine of circumstantial evidence was once again discussed and summarised in 2008 (3) SCC 210 Sattatiya @Satish Rajanna Kartalla Vs. State of Maharashtra in the following terms:

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"10. ..It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances".

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Reverting to the facts of the case present case in light of the principles of law laid down by their Lordships of the Supreme Court in the matter of Varun Chaudhary (supra) and Mustkeem alias Sirajudeen (supra), it is quite vivid that prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt as the prosecution has failed to connect the seized articles, which were seized pursuant to memorandum statement of the appellant, with the offence in question and to establish close link between discovery of the material object and its use in the commission of the offence and also seizure witness has not supported the case of the prosecution. As such, the said evidence is of no use to the prosecution and only on that basis appellant could not be convicted in absence of other

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corroborative piece of evidence that too for offence under Section 302 of the IPC, and, therefore, the appellant is entitled for acquittal on the basis of principle of benefit of doubt.

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Concludingly, we are of considered opinion that the prosecution has failed to discharge its primary burden of proving its case and, as such, the conviction of the appellant for offence under Sections 302 & 201 of IPC as well as sentence of imprisonment for life and RI for 7 years, respectively, are hereby set aside and he is acquitted of the said charges on the basis of principles of benefit of doubt. He is reported to be in jail since 04.02.2018. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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Consequently, this criminal appeal is allowed .

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

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ravi Mandavi

Sangram Verma v. State of Chhattisgarh

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Sangram Verma v. State of Chhattisgarh

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