Rajendra Das Vs State of Chhattisgarh

Deepak Kumar, S/o Kailash Singh Paikra, aged about 20 years, R/o Village Kanchanpur, P.S. Dhourpur, at present Ashirwad Bhawan, Shivdhari Colony, Gandhinagar, District Surguja (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Ambikapur, District Surguja (C.G.)

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... Respondent(s)

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Arising out of Judgment dated 30.6.2018 passed by First Additional Sessions Judge, Ambikapur, District Surguja in Sessions Case No.240 of 2012.

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-------------------------------------------- For Appellant :- [In Cr.A. No.1187/2018]	------------------------------------- Mr. C.R. Sahu, Advocate.
For Appellants :- [In Cr.A. No.1506/2018 & Cr.A. No.1560/2018]	Mr. Amarnath Pandey, Advocate.
For Appellant :- [In Cr.A. No.1691/2018]	Dr. N.K. Shukla, Senior Advocate, with Ms. Priya Mishra and Mr. Rajesh Ku. Jha, Advocates.
For Respondent/State :-	Mr. Ashish Shukla, Additional Advocate General.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Amitendra Kishore Prasad

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C A V Judgment

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Sanjay K. Agrawal, J.

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1. Assailing the legality, validity and correctness of the Judgment dated 30.6.2018 passed by learned First Additional Sessions Judge, Ambikapur, District Surguja (Trial Court) in Sessions Case No.240 of 2012, the present batch of four criminal appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC) has been filed by A-1 Deepak Kumar who has preferred Cr.A. No.1691/2018, A-2 Dashrath Das who has filed Cr.A. No.1187/2018, A-3 Rajendra Das who has moved Cr.A. No.1560/2018 and A-4 Sanjay Das who has filed Cr.A. No.1506/2018, whereby the aforesaid four accused/appellants have been convicted for offences under Sections 302, 364A, 201 & 120B read with Section 34 of the Indian Penal Code, 1860 (in short, IPC) and sentenced thereunder as mentioned at the cart given below:-

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Conviction	Sentence
1.Under Section 302/34	1.Imprisonment for Life.
of IPC.	2.Fine of Rs.100/-.
	3.In default of payment of
	fine, to undergo additional Rigorous Imprisonment for 01 month.

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2.Under Section 364A/ 34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
3.Under Section 201/34 of IPC.	1.Rigorous Imprisonment for 05 years. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
4.Under Section 120B/ 34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
With a direction to run	all Sentences concurrently.

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:Factual matrix of the prosecution case, in brief

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2. On 10.4.2012, all the four appellants herein, in furtherance of their common intention, are said to have abducted the minor victim Sourabh Kerketta for ransom after his school time and took him to the hill side and after making him to consume cold drink with pesticide and sleeping pills and after he became unconscious, crushed his head with stone and cut his throat by blade and thereafter in order to screen themselves from legal punishment threw his deadbody into the deep of Ara Hills to disappear the

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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evidence of his murder, thereby committed the aforesaid offences.

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3. PW-1 Lalsai Kerketta, father of deceased Sourabh Kerketta, lodged FIR (Ex.P-1) at Police Station Ambikapur stating inter-alia that his son, Sourabh Kerketta, did not return home after his school time got over at 1:30 p.m. and a ransom call was made on the landline phone no.9301705431 of his house by some unknown person from Mobile SIM No.8516048405 asking his wife, PW-2 Nirmala Kerketta, to collect a letter from the compound of their house and on the information of his wife he reached home and thereafter the report was lodged suspecting the kidnap of his son for ransom on the basis of said letter threatening them of dire consequences and also demanding for Rs.70 Lakh in lieu of releasing his son Sourabh Kerketta. Pursuant to Ex.P-3, the said threatening letter written with red ink along with an envelope was recovered from the possession of PW-1 Lalsai Kerketta. The said threatening letter has been brought on record as Ex.P-4. Six specimen writings of the said ransom letter (Ex.P-4) were got written by A-1 Deepak Kumar at the premises of the Police Station and seized vide Ex.P-17 and the same have been

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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marked as documents S-1 to S-6. The opinion and the report of the Hand Writing Expert, Shri R.K. Alma, Additional State Examiner of Questioned Document, Government of Chhattisgarh, Raipur in respect of the handwriting identification of the documents S-1 to S- 6 and Ex.P-4 has been brought on record, though it has not been exhibited.

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4. Memorandum statement of A-1 Deepak Kumar has been recorded vide Ex.P-7, pursuant to which a bottle of thumps up cold drink having smell of pesticide, a small plastic bottle of frooti containing little quantity of liquid and one strip of pesticide inscripted with ‘insecticide lethal’ were recovered vide Ex.P-13. Further, pursuant to the supplementary memorandum statement (Ex.P-11) of A-1 Deepak Kumar, entry registers of Dev Hotel, Ambikapur were recovered vide Ex.P-22 and a chain with cross sign locket, two plain papers written “Lal Salam” in red ink, a Samsung mobile box and a Samsung mobile hand-set bearing SIM No.08103847117 of reliance company were seized vide Ex.P-28 from Room No.205 of Dev Hotel, Ambikapur. Pursuant to the memorandum statement (Ex.P-10) of A-2 Dashrath Das, a boulder stone weighing 5-6kg and a blade of

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Vijay company both having blood like stains were recovered vide Ex. P-14. Similarly, pursuant to the memorandum statement (Ex.P-8) of A-3 Rajendra Das, a TVS City Star motorcycle and a blue colour school bag were recovered vide Ex.P-15. Likewise, pursuant to the memorandum statement (Ex.P-9) of A-4 Sanjay Das, a white colour school shirt and brown colour school pant were recovered vide Ex.P16. Vide Ex.P-12, a buckle of belt inscripted with the mono of Oriental Public School, Ambikapur in English language, a burnt pen and ash were seized from the kitchen garden situated behind the house of A-2 Dashrath Das. Vide Ex.P-20, two note-books containing normal hand writing of A-1 Deepak Kumar were seized.

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5. Dehati merg & merg intimation were registered vide Ex.P-41 & P-43. Inquest panchnama was prepared vide Ex.P-40 and the dead-body of deceased Sourabh Kerketta was subjected to post-mortem which was conducted by PW-21 Dr. A. Kachhap vide Ex.P-36 in which cause of his death was opined to be hemorrhagic shock and the nature of death was opined to be homicidal. Vide Ex.P-37, PW-21 Dr. Kachhap opined on the query report sought by the

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Investigating Officer PW-26 Nirbhay Singh Rajput that the injuries sustained by deceased Sourabh Kerketta which resulted to his death may be caused by the seized stone and blade. In the Forensic Science Laboratory (in short, FSL) report, which is Ex.P-62, blood was found on the bloodstained earth (Art. A) seized from the spot and on the blade (Art. D) seized from A-2 Dashrath Das and human blood was found on the stone (Art. C) seized from him. In the serologist report, ‘B’ blood group was found on the bloodstained earth (Art. A) and on the stone (Art. C).

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6. On completion of the investigation, the accused appellants were 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. The appellants appeared before the Trial Court where charges were framed against them for offence under Sections 364A, 302, 201, 120B/34 of IPC to which they denied and claimed to be tried.

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7. During the course of trial, in order to prove its case, the prosecution examined as many as 26 witnesses as PW-1 to PW-26 and exhibited 62 documents vide

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Exhibits P-1 to P-62. After closure of the prosecution evidence, statement of the accused appellants was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, one witness has been examined as DW-1 and statements of five witnesses recorded under Section 161 of CrPC have been relied on as Ex. D-1 to D-5.

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8. After conclusion of the trial, learned Trial Court on appreciation of the oral and documentary evidence available on record, by impugned Judgment dated 30.6.2018, convicted the four appellants herein for offence Sections 302, 364A, 201 & 120B read with Section 34 of IPC and sentenced them thereunder in the manner as mentioned at the chart given in the opening paragraph of his judgment, which led to filing of present appeals by the appellants separately against the impugned Judgment passed by learned Trial Court.

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Submission of learned counsel appearing for A-1 :- Deepak Kumar in Cr.A. No.1691/2018

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9. Dr. N.K. Shukla, learned Senior Counsel appearing for A-1 Deepak Kumar would submit that learned Trial

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Court is absolutely unjustified in convicting A-1 Deepak Kumar for the alleged offences as the recovery of dead-body pursuant to his memorandum statement has not been proved beyond reasonable doubt and no dead-body recovery panchnama has been prepared which was absolutely necessary to demonstrate that the dead-body was in-fact recovered pursuant to his memorandum statement, in absence of which, chain of circumstances cannot be said to be duly proved. He would further submit that the Handwriting Expert, Shri R.K. Alma, who has opined the alleged threatening letter written by A-1 Deepak Kumar has not been examined to prove his report. Similarly, the specimen writings were not taken by the Court but it was taken by the Investigating Officer, PW-26 Nirbhay Singh Rajput, which is contrary to the well settled legal principles laid down by the Supreme Court in this regard. In addition, the SIM allegedly used by A-1 Deepak Kumar was not in his name, but it was in the name of PW-20 Nemchand Rawte. Recovery of other incriminating articles from A-1 Deepak Kumar has also not been proved at all. Thus, learned Senior Counsel would submit that there is no evidence against A-1 Deepak Kumar and his conviction for

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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alleged offences deserves to be set-aside, acquitting him of the said offences.

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Submission of learned counsel appearing for A-2 Dashrath Das in Cr.A. No.1187/2018:-

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10. Mr. C.R. Sahu, learned Counsel appearing for A-2 Dashrath Das would submit that only on the basis of alleged recovery of a blade and other articles from A-2 Dashrath Das, his conviction for the alleged offences is unsustainable and bad in law particularly when there is no other incriminating circumstances have been proved against him in the instant crime.

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Submission of learned counsel appearing for A-3 Rajendra Das in Cr.A. No.1560/2018 and for A-4 :- Sanjay Das in Cr.A. No.1506/2018

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11. Mr. Amarnath Pandey, learned Counsel appearing for A-3 Rajendra Das and A-4 Sanjay Das, would submit that except for some school bag and school dress nothing incriminating has been seized from A-3 Rajendra Das and A-4 Sanjay Das and the seizure witness PW-16 Gurucharan Singh being a stock witness of the police, his testimony cannot be relied upon to base their conviction for the alleged offences which are totally false and fabricated and therefore their conviction is liable to be set-aside and they deserves to be acquitted of the said offences.

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Submission of learned State Counsel:-

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12. Mr. Ashish Shukla, learned Additional Advocate

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General, appearing for Respondent/State, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt. The dead-body of deceased Sourabh Kerketta was recovered from Ara Hills at the instance of the appellants as well as other incriminating articles also have been seized pursuant to their memorandum statement which has been proved by PW-16 Gurucharan Singh and which the appellants have not been able to explain in their statement recorded under Section 313 of CrPC. The threatening letter written by A-1 Deepak Kumar has been found proved as per the opinion of the Handwriting Expert and the recovery of Mobile SIM and Mobile handset used by A-1 Deepak Kumar for making ransom call has also been proved by PW-9 Ashwini Kumar and PW-10 Harish Agrawal. In addition, in the FSL report, blood has been found on the blade and human blood has been found on the stone seized from A-2 Dasrath Das. Apart from that, the deceased Sourabh Kerketta was last seen together with the appellants by PW-11 Shivcharan Das and PW-15 Sanjay Pandey. Thus, the convictions and

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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sentences of the appellants for the said offences are absolutely justified and their appeals are liable to dismissed as such.

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:Discussion and legal analysis

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13. We have heard learned Counsel for parties, considered their rival submissions and also perused the record of the case with utmost care and circumspection.

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14. As is apparent from the evidence available on record, the present case is not based on direct evidence rather it is a case based on the circumstantial evidence. Hence, it would be appropriate to notice herein the decision rendered by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 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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1 (1984) 4 SCC 116

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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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 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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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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15. The incriminating circumstances that have been found proved by learned Trial Court prominently to base the conviction of the appellants for the aforesaid offences are as under:-

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(1) The homicidal death of deceased Sourabh Kerketta has been proved by PW-21 Dr. A. Kachhap.

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(2) The threatening letter (Ex.P-4) has been proved by PW-1 Lalsai Kerketta and PW-2 Nirmala Kerketta, who are father and mother of deceased Sourabh Kerketta respectively.

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(3) The documents (S-1 to S-6) containing six specimen writings of the threatening letter (Ex.P4) written by A-1 Deepak Kumar, which on handwriting identification by the Hand Writing Expert, Shri R.K. Alma, have been opined to be of common authorship.

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(4) SIM No.8516048405 used for making ransom call to PW-1 Lalsai Kerketta by A-1 Deepak Kumar was purchased by him from shopkeeper, PW-9 Ashwini Kumar and the Samsung mobile set used by A-1 Deepak Kumar was purchased from mobile shop owner PW-10 Harish Agrawal.

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(5) The recovery of dead-body of deceased Sourabh Kerketta including other incriminating articles seized pursuant to the memorandum statement of all the four appellants.

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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(6) Recovery of blade from A-2 Dashrath Das purchased from the provisional shop owner A-8 Dilbodh, on which blood has been found in the FSL report (Ex.P-62).

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(7) The deceased was last seen together in the company of the four appellants by PW-11 Shivcharan Das and PW-15 Sanjay Pandey.

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16. Now, we will consider the correctness of the finding of learned Trial Court in convicting the appellants based on the aforesaid seven incriminating circumstances and decide the same one by one herein under:-

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1 st :- Incriminating Circumstance

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17. As regards this incriminating circumstance as to whether the death of deceased Sourabh Kerketta was homicidal in nature, learned Trial Court has found proved it relying upon the statement of PW-21 Dr. A. Kachhap who has conducted the post-mortem examination of deceased Sourabh Kerketta and also proved the post-mortem report (Ex.P-36) in which cause of death of deceased Sourabh Kerketta has been opined to be hemorrhagic shock and the nature of his death has been opined to be homicidal, which, 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,

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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therefore, affirm the said finding of learned Trial Court holding that the death of deceased Sourabh Kerketta was homicidal in nature and accordingly answer this incriminating circumstance in affirmative.

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nd rd 2 & 3 Incriminating Circumstances :-

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18. The letter (Ex. P-4), seized vide Ex. P-3, which was delivered at the residence of deceased Sourabh Kerketta and allegedly written by A-1 Deepak Kumar with a threatening note of dire consequences, has been duly proved by PW-1 Lalsai Kerketta and PW-2 Nirmala Kerketta, father and mother of deceased Sourabh Kerketta. The Investigating Officer, PW-26 Nirbhay Singh Rajput, has stated that six specimen writings of the said threatening letter (Ex. P-4) were got written by A-1 Deepak Kumar from his left hand and signed by his right hand in English at the premises of the Police Station itself in presence of PW-5 Arjun Sonkar and PW-16 Gurucharan Singh and were seized vide Ex. P-17 as documents S-1 to S- 6. The said threatening letter (Ex. P-4) and the specimen writings (S-1 to S-6) were sent by the Superintendent of Police to the State Examiner of Documents of the Government of Chhattisgarh, Raipur vide Ex. P-55. Shri R.K. Alma, Additional State

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Examiner of Questioned Document, Government of Chhattisgarh, Raipur vide his opinion and report dated 25.9.2013 (not exhibited) opined that the person who wrote the red enclosed writings stamped and marked S-1 to S-6 also wrote the red enclosed writings similarly stamped and marked as Q-1 giving the reason that the there was no material divergences between both the sets of questioned writings it is proved to be written by the common author. It is quite clear from the statement of the Investigating Officer PW-26 Nirbhay Singh Rajput that the afore-mentioned six specimen writings (S-1 to S-6) were got written from A-1 Deepak Kumar at the police station at the investigating stage itself. Though learned Trial Court did not rely upon the Handwriting Expert’s report dated 25.9.2013, but it proceeded to compare the handwriting written in the questioned documents i.e. threatening letter (Ex.P-4) and specimen writings (S-1 to S-6) and found that both are similar to each other and thus relied upon the said incriminating circumstances in view Section 73 of the Indian Evidence Act, 1872 (in short, the Evidence Act). For ready reference, Section 73 of the Evidence Act is being reproduced herein under:-

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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“73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

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The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

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This section applies also, with any necessary modifications, to fingerimpressions. ”

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19. From perusal of the aforesaid provision, it is clear that Section 73 provides for comparison made by the Court with a writing sample admitted or proved to be the writing of the person concerned. The Court can order the accused person or any person present in Court to give his handwriting and fingerprint. Second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person.

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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20. The question as to whether Section 73 of the Evidence Act empowers the Court to give specimen writing during the course of investigation or whether the Investigating Officer has power and jurisdiction to take specimen writing during the course of investigation had come up for consideration before the Supreme Court in the matter of State of Uttar Pradesh v. Ram Babu Misra 2 in which it has been

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held that Section 73 of the Evidence Act does not permit the Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court and observed pertinently in paragraphs 4 and 8 as under:-

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“4. The second paragraph of section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a

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2 (1980) 2 SCC 343

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?

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8. The view expressed by us in the earlier paragraphs on the construction of Section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S. K. D. Ramaswamy Nadar (AIR 1970 Mad 85), the Calcutta High Court in Farid Ahmed v. the State(AIR 1960 Cal 32) (Mitter J., at page 32). and Priti Ranjan Ghosh & Ors. v. The State(77 CWN 865), the High Court of Punjab and Haryana in Dharamvir Singh v. State(1975 Cri LJ 884), the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The State(AIR 1957 MP 106), the Orissa High Court in Srikant Rout v. State of Orissa(1972 2 Cut WR 1332) and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan & Ors. v. State(AIR 1962 Pat 255) and the High Court of Andhra Pradesh in B. Rami Reddy & Ors. v. State of Andhra

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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Pradesh(1971 Cri LJ 1591). We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest the suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings. ”

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21. In the matter of Ajay Kumar Parmar v. State of

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Rajasthan 3 their Lordships of the Supreme Court have held that the opinion of a handwriting expert is fallible/liable to error like that of any other witness and observed in paragraph 28 as under:-

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“28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court,

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3 (2012) 12 SCC 406

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision. ”

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22. Admittedly, in the instant case, the Investigating Officer PW-26 Nirbhay Singh Rajput has taken the specimen writings of A-1 Deepak Kumar that too without any direction of the Court. However, even the Court would not have directed for it to the Investigating Officer during the investigation. It is for the Court when the matter is before the Court to direct the accused or person concerned to give specimen writing, but at the investigation stage the Investigating Officer has no jurisdiction or authority to take specimen writing of accused for comparison by Handwriting Expert. Since at the case on hand the Investigating Officer PW-26 Nirbhay Singh Rajput has taken the specimen writings of A-1 Deepak Kumar at the investigation stage itself and learned Trial Court has not taken any specimen writings of the said accused person yet made comparison of the handwriting written in the admitted document i.e. threatening letter (Ex.P-4) and disputed document i.e.

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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specimen writings (S-1 to S-6) and found that both are similar to each other relying upon the said incriminating circumstances in view Section 73 of the Evidence Act and holding it to be of the writing of A-1 Deepak Kumar is absolutely unjustified and deserves to be set-aside in view of the decision of the Supreme Court in Ram Babu Misra (supra). We thus answer to these two incriminating circumstances in negative.

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4 th :- Incriminating Circumstance

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23. So far as use of SIM No.8516048405 from which it is

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alleged that the ransom call was made to A-1 Lalsai Kerketta, learned Trial Court has recorded the finding that the aforesaid Mobile SIM No.8516048405 was used by A-1 Deepak Kumar to make ransom call to PW-1 Lalsai Kerketta demanding Rs.70 Lakh in lieu of releasing his son, deceased Sourabh Kerketta and the said Mobile SIM was purchased by A-1 Deepak Kumar from shopkeeper, PW-9 Ashwini Kumar and the Samsung mobile set used for that purpose was purchased by him from mobile shop owner PW-10 Harish Agrawal. However, the purchasing of the mobile handset by A-1 Deepak Kumar from the shop of PW-10 Harish Agrawal has not been proved beyond reasonable doubt as held by learned Trial Court in

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(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

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paragraph 41 of the impugned Judgment. Though in paragraph 32 of the impugned Judgment, learned Trial Court has relied upon the statement of PW-4 Prem Narayan Singh who has confirmed that on a call being made by the police on his Mobile No.9424265239 to know about the person who had made a call on his mobile, he had told them the name of A-1 Deepak Kumar who had made the call, but the Trial Court in the same paragraph has clearly held that Investigating Officer (PW-26) has not brought on record the call details record of the Mobile SIM No.8516048405 as admitted by the Investigating Officer himself in paragraph 61 of his testimony. As such, there is no call details record of Mobile SIM No.8516048405 available on record on the basis of which it can be duly established that it is the A-1 Deepak Kumar who had made the ransom call to A-1 Lalsai Kerketta.

¶167

24. In the instant case, the call details record in respect of Mobile SIM No.8516048405 has not been brought on record and has not been proved in accordance with law, more particularly when the aforesaid Mobile SIM was purchased by A-1 Deepak Kumar from the shop of PW-9 Ashwini Kumar and the said SIM was

¶168

26 / 39

¶169

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶170

registered in the name of PW-20 Nemchand Rawte though he has only stated before the Court that he was not using the aforesaid Mobile SIM, but admittedly and undisputedly the said SIM was not registered in the name of A-1 Deepak Kumar but in the name of PW-20 Nemchand Rawte. As such, in absence of call details record of the said Mobile SIM No.8516048405, it cannot be established that the said SIM was used by A-1 Deepak Kumar to make ransom call to PW-1 Lalsai Kerketta. The said incriminating circumstance found proved by the Trial Court only seems to be based on the hearsay statement of PW-4 Prem Narayan Singh and not based on any legally admissible evidence so as to hold that A-1 Deepak Kumar had used the said Mobile SIM to make ransom call to PW-1 Lalsai Kerketta threatening and demanding Rs.70 Lakh in lieu of release of his son, deceased Sourabh Kerketta and therefore this incriminating circumstance found proved by learned Trial Court also cannot be held to be duly established.

¶171

th 5 Incriminating Circumstance :-

¶172

25. So far as recovery of dead-body of deceased Sourabh Kerketta including the seizure of other incriminating articles is concerned, it has been held by learned Trial

¶173

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¶174

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶175

Court that pursuant to the memorandum statement of the appellants the dead-body of deceased Sourabh Kerketta and other incriminating articles have been seized in presence of PW-5 Arjun Sonkar and PW-16 Gurucharan Singh. However, PW-5 Arjun Sonkar has clearly refuted that any such memorandum statement recorded in his presence. PW-16 Gurucharan Singh has stated that when he had reached at Police Station on 13.4.2012 at 11:00 a.m., the dead-body was already brought out. As such, it appears that the witnesses of memorandum have not supported the case of the prosecution. Furthermore, though pursuant to the memorandum statement (Ex. P-7) of A-1 Deepak Kumar dead-body is allged to have been recovered and other incriminating articles i.e. a bottle of thumps up cold drink having smell of pesticide, a small plastic bottle of frooti containing little quantity of liquid and one strip of pesticide inscripted with ‘insecticide lethal’ were also said to have been recovered vide Ex.P-13, but for recovery of dead-body of deceased Sourabh Kerketta from the spot, no panchnama/dead-recovery panchnama has been prepared, which creates doubt on the prosecution story. Dehati Merg Intimation (Ex.P-41) records that

¶176

28 / 39

¶177

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶178

A-1 Deepak Kumar has stated in his memorandum statement that he along with A-2 Dashrath Das, A-3 Rajendra Das and A-4 Sanjay Das had taken the deceased to the hill and make him to consume pesticide in cold drink and after he became unconcious they killed him and threw his dead-body into the deep of Ara hill and at the instance of the four appellants, dead-body was recovered. However, a careful perusal of the memorandum statement of A-1 Deepak Kumar (Ex. P-7) would reveal that he made a statement that they threw the dead-body of the deceased into the deep of the hills and he will get the dead-body recovered. No such statement has been made by other accused appellants (A-2 to A-4).

¶179

26. Though the merg intimation (Ex.P-41) records that pursuant to the memorandum statement of all the four accused appellants the dead-body was recovered, but no dead-body recovery panchnama has been prepared. In this regard, in the matter of Jaharlal Das

¶180

v. State of Orissa 4 wehrein the prosecution has alleged that the dead-body has been recovered at the instance of the accused, their Lordships of the Supreme Court have held that panchnama regarding

¶181

4 (1991) 3 SCC 27

¶182

29 / 39

¶183

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶184

the discovery of dead-body should have been prepared and the same should also have been mentioned in the inquest report, and observed in paragraph 10 as under:-

¶185

“10. ...According to this evidence the accused is alleged to have taken P.W. 11 and others to the open paddy field where the dead body was lying. It is only thereafter that the inquest report was drawn up. However, P.W. 11 stated in his evidence that before going to the paddy field the F.I.R. Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery of the body in the F.I.R. itself. But the same is not found in the inquest. There is not even a reference to the accused in the column No. 9 of the inquest report where the information of witness as to the cause of death has to be noticed. We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been atleast a mention in the inquest report as to how the body was discovered. Apart from that usually a panchanama is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this case there is no such panchanama nor there is any other evidence of P.Ws 1 and 11. P.W. 6 does not say anything about this aspect. As a matter of fact the trial court has noted the discrepancies in the evidence of P.Ws 1 and 11 and it is observed as under:

¶186

"The Investigating Officer, P.W. 11 has stated something more about the find of the dead body. He speaks that the accused pointed out the place where the dead body of the deceased was lying and thereafter led him to the paddy field wherefrom the dead body of the deceased could be recovered.

¶187

30 / 39

¶188

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶189

Though this part of this evidence has not been supported by P.W. 1,but from the evidence of both P.Ws 1 and 11 coupled with the evidence of P.W.4 I am persuaded to hold that on the showing of the accused, the dead body of the deceased was recovered from a paddy field."

¶190

We have perused the evidence of P.W. 4. His evidence does not in any manner incriminate the accused. P.W. 4 deposed that the dead body of the deceased was found lying in paddy field and that the police held inquest over the dead body in his presence and that the inquest report is P. 1 in which he put his signature as a witness. Nothing more is stated by him. He does not even refer to the presence of the accused at the place where the dead body was found or at the time of inquest, which was held also there. P.W. 4 does not in any manner help the prosecution case so far as this circumstance is concerned. If ready the body has been discovered at the instance of the accused there should have been discovered at the instance of the accused there should have been a panchanama and a mention about the same in the inquest report. ... ”

¶191

27. Similarly, the Supreme Court in the matter of in the matter of Yaqub Abdul Razak Memon v. State of

¶192

Maharashtra5 in respect of the evidentiary value of panchnama has observed in paragraphs 352, 353 & 354 as under:-

¶193

“ Panchanama

¶194

352. The primary intention behind the Panchnama is to guard against possible tricks and unfair dealings on the part of the

¶195

5 (2013) 13 SCC 1

¶196

31 / 39

¶197

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶198

officers entrusted with the execution of the search with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article.

¶199

Evidentiary value of Panchnama

¶200

353. Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called ‘Panchas’, as also by the concerned party. The witnesses are required to be not only impartial but also ‘respectable’. ‘Respectable’ here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of the panchnama proceedings. Only majors are to be taken as witnesses as minors’ witness may not withstand the legal scrutiny.

¶201

354. Panchnama can be used as corroborative evidence in the court when that respectable person gives evidence in the court of law under Section 157 of the Indian Evidence Act. It can also be used as evidence of the recorded transaction by seeing it so as to refresh their memory u/s 159 of Indian Evidence Act.

¶202

32 / 39

¶203

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶204

28. In the instant case, though the dead-body is said to have been recovered at the instance of A-1 Deepak Kumar, but neither dead-body recovery panchnama has been prepared nor it specifically finds mention in the Merg Intimation (Ex. P-41) which records that dead-body was recovered at the instance of all the four accused appellants which per se is not apparent from the memorandum statement of A-2 Dashrath Das, A-3 Rajendra Das and A-4 Sanjay Das and it has not been proved in accordance with law including the recovery of other incrimianting articles from all the appellants as one of the memorandum and seizure witnesses i.e. PW-5 Arjun Sonkar has turned hostile and not supported the case of the prosecution. As regards the other memorandum and seizure witness i.e. PW-16 Gurucharan Singh, in paragraph 32 of his statement, he has clearly admitted that in 10-15 cases he is the witness of the police and he himself has stated that he often visits police station and becomes witness in the cases on the instructions of the police. As such, PW-16 Gurucharan Singh apparently seems to be a stock witness of the police

¶205

33 / 39

¶206

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶207

and therefore it would be unsafe to rely upon the statement of said witness that in his presence the recovery of the dead-body was made. In addition, in paragraph 46 of his statement, PW-16 Gurucharan Singh has also clearly stated that nothing has been recovered from A-1 Deepak Kumar in his presence. In that view of the matter, the recovery of other incrimianting articles alleged to have been made from all the appellants also cannot be said to be proved.

¶208

th 6 Incriminating Circumstance :-

¶209

29. Though from the possession of A-2 Dashrath Das, a blade of Vijay company was recovered which he is said to have purchased along with Range gutkha from the provisional shop of A-8 Dilbodh two or three months prior to the date of offence and in the FSL report (Ex.P-62) blood has also been found on the said seized blade by which as per the query report (Ex.P37) injuries could be caused, but in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to

¶210

34 / 39

¶211

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶212

rely upon the aspect of recovery of the said weapon of offence and such recovery would not be helpful for the prosecution as has held by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh 6 .

¶213

7 th :- Incriminating Circumstance

¶214

30. Learned Trial Court has found proved that the deceased Sourabh Kerketta was last seen together in the company of the four appellants by PW-11 Shivcharan Das and PW-15 Sanjay Pandey. However, PW-11 Shivcharan Das in his statement made before the Court has only stated that on the date of offence near the place of incident he had seen the present appellants, out of them he only knows A-2 Dashrath Das by his name, along with boy aged about 11-12 years in school dress and only on the basis of newspaper report he states that he has seen that boy along with the four appellants. Though PW-11 Shivcharan Das in paragraph 13 of his statement he specifically states that except A-2 Dashrath Das, he does not identify the other accused persons and he even could not identify the other accused persons also on the date of offence and the name of other accused persons he was stating on the basis of what he had

¶215

6 (2019) 7 SCC 781

¶216

35 / 39

¶217

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶218

heard. Learned Trial Court, in paragraph 20 of the impugned Judgment, has recorded a finding that PW11 Shivcharan Das has only seen A-2 Dashrath Das. However, a careful perusal of the entire statement of PW-11 Shivcharan Das it would reflect that he did not identify the deceased Sourabh Kerketta who can be said to be seen along with A-2 Dashrath Das and the Trial Court has only recorded a finding that the appellants were seen near the place of incident. So far as PW-15 Sanjay Pandey is concerned, learned Trial Court has recorded a finding that this witness even could not identify A-1 Deepak Kumar. Surprisingly, learned Trial Court though in paragraph 70 of the impugned Judgment has recorded the finding that PW-11 Shivcharan Das has identified only A-2 Dashrath Das, but the Trial Court has concluded that the appellants were seen along with the deceased Sourabh Kerketta by PW-11 Shivcharan Das and PW15 Sanjay Pandey. However, a careful perusal of the statement PW-11 Shivcharan Das and PW-15 Sanjay Pandey would show that PW-11 Shivcharan Das has only identified A-2 Dashrath out of the other accused persons and PW-15 Sanjay Pandey has not identified any one of the accused persons and both these

¶219

36 / 39

¶220

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶221

witnesses have not identified the deceased and PW-11 Shivcharan Das has only stated to be seen a boy aged about 11-12 years in school uniform. As such, the theory of last-seen together, in my considered opinion, is not established.

¶222

31. Even otherwise, in absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction in light of the decision of the Supreme Court rendered in the matter of Navaneethakrishnan v. State by Inspector of

¶223

Police7 , wherein it has been 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 para 22 as under :-

¶224

“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 crossexamination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of

¶225

7 (2018) 16 SCC 161

¶226

37 / 39

¶227

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶228

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 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. ”

¶229

Conclusion:-

¶230

32. Though learned Trial Court has rightly found proved

¶231

the death of deceased Sourabh Kerketta to be homicidal in view of the medical evidence available on record, but the comparison of the admitted document (Ex. P-4) and disputed document (S-1 to S-6) is not accordance with law as the Investigating Officer was not authorised to take specimen writings of the accused A-1 Deepak Kumar during the investigation stage in view of the decision of the Supreme Court in Ram Babu Misra (supra) and therefore the threatening letter (Ex. P-4) is not proved to be written

¶232

38 / 39

¶233

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶234

by A-1 Deepak Kumar, in accordance with law. Similarly, it is also not proved that A-1 Deepak Kumar had made ransom call to PW-1 Lalsai Kerketta, father of deceased Sourabh Kerketta, from Mobile SIM No.8516048405 as the call details record in respect of the said telephonic conversation has not been brought on record and the said SIM was registered in the name of PW-20 Nemchand Rawte. Likewise, the recovery of dead-body pursuant to memorandum statement of A-1 Deepak Kumar also is not established in absence of dead-body recovery panchnama in accordance with law and similarly the recovery of other incriminating articles recovered pursuant to the memorandum statement of the appellants is also not proved in view of the statement of the memorandum and seizure witnesses, PW-5 Arjun Sonkar and PW-16 Gurucharan Singh. In addition, in view of Balwan Singh (supra), recovery of the blade from A-2 Dashrath Das on which blood has been found in the FSL report is also not established. Lastly, the theory of last-seen together is also not established in view of the statement of PW-11 Shivcharan Das and PW-15 Sanjay Pandey in view of

¶235

Navaneethakrishnan (supra).

¶236

39 / 39

¶237

(Cr. A. Nos. 1187, 1506, 1560 & 1691 of 2018)

¶238

33. Thus, in view of the aforesaid discussion and analysis of evidence supported with the authoritative decisions of the Supreme Court referred to herein-above, we are of the considered opinion that the prosecution has failed to bring home the offences against all the four appellants beyond reasonable doubt and as such their conviction for offences under Sections 302, 364A, 201 & 120B read with Section 34 of IPC deserves to be and is hereby set-aside and all of them are acquitted of the said charges on the basis of benefit of doubt. All the four appellants are reported to be in jail since 13.4.2012. They are directed to be released from jail forthwith, if their detention is not required in connection with any other offence.

¶239

34. In the result, all four criminal appeals are allowed.

¶240

35. 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 supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.

¶241

sharad

¶242

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

¶243

SHARAD Digitally signed by SHARAD KUMAR KUMAR YADAV Date: 2024.09.24 YADAV 17:55:08 +0530

2.Under Section 364A/ 34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
3.Under Section 201/34 of IPC.	1.Rigorous Imprisonment for 05 years. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
4.Under Section 120B/ 34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
With a direction to run	all Sentences concurrently.

Rajendra Das v. State of Chhattisgarh

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Rajendra Das v. State of Chhattisgarh

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