Kaushal Prasad Rathia Vs State of Chhattisgarh

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 22.12.2018 passed by learned Second Additional Sessions Judge, Raigarh in Sessions Trial No.123/2017, by which, the appellant herein has been convicted and sentenced as under with a direction to run both the sentences concurrently :-

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CONVICTION		SENTENCE
U/s. 302 of IPC	:	Life imprisonment and fine of Rs.1000/-, in default of payment of fine, 1 year additional rigorous imprisonment.
U/s. 201 of IPC	:	Rigorous imprisonment for 3 years and fine of Rs. 500/-, in default of payment of fine, 6 months additional rigorous imprisonment.

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2 . Case of the prosecution, in short, is that on 13.07.2017 at about 10:00 p.m., the appellant herein throttled Basanti (now deceased) and caused her death and in order to screen himself from the offence, he buried the dead body nearby the village; thereby, committed the offence. Dehati Merg Intimation was recoded vide Ex.P-2 at the instance of

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Ganesh Ram (PW-1), father of the deceased, on 09.08.2017 at 9:00 a.m. and thereafter, Dehati Nalsi was registered vide Ex.P-3, Merg Intimation was registered vide Ex.P-31 & FIR was registered vide Ex.P-32. Pursuant to memorandum statement of the appellant, dead body of deceased was extracted vide exhumation panchnama (Ex.P-12), which was identified by Ganesh Ram (PW-1) vide Ex.P-1 and thereafter, inquest was conducted vide Ex.P-8 and dead body of deceased was subjected to post-mortem, which was conducted by Dr. Rajesh B. Goswami (PW-17), who proved the post-mortem report vide Ex.P-26, in which, no opinion as to the cause of death could be given due to advance decomposition of dead body and nature of death could not be ascertained. The DNA report is Ex.P-40, on the basis of which, it has been ascertained that the deceased was daughter of Ganesh (PW-1) and Mangli Bai (PW-3). After due investigation, the appellant was charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 23 witnesses and exhibited 40 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offences as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

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5 . Mr. N.K.Malviya, learned counsel for the appellant would submit that only on the basis of recovery of dead body, the appellant has been convicted whereas the memorandum witnesses Anjor Chouhan (PW-10) and Leelaram Dansena (PW-11) have not supported the case of the prosecution and therefore, merely on the basis of recovery, the appellant cannot be convicted and furthermore, there is no other incriminating evidence available on record and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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6 . Mr. Sharad Mishra, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has

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rightly convicted the appellant for the aforesaid offences and, as such, the appeal deserves to be dismissed.

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

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8 . The first question for consideration as to whether the death of deceased Basanti was homicidal in nature, has been answered by the trial Court in affirmative in para 27 of its judgment relying upon the memorandum statement of the appellant Ex.P-17, pursuant to which, dead body of deceased was recovered and post-mortem report Ex.P-26, proved by Dr. Rajesh B. Goswami (PW-17), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of

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Maharashtra1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra² 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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1 (1984) 4 SCC 116

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2 (1973) 2 SCC 793

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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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10. The trial Court has held that the appellant and deceased were in relationship outside of marriage and since deceased had become pregnant, appellant wanted that she should go for abortion, but she refused and on account of which, the appellant throttled her and buried the dead body. Furthermore, pursuant to memorandum statement of the appellant (Ex.P-17), the dead body of deceased was recovered vide Ex.P-12 and, as such, the appellant is guilty for offence of murder of deceased.

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11. So far as first incriminating circumstance is concerned, Sukanti Bai (PW-2), sister of deceased, has stated in her statement that the appellant used to come into the house of deceased, but nothing has been brought on record to hold that the appellant and deceased had relationship outside of marriage and on account of their relationship, deceased became pregnant. Dr. Rajesh B. Goswami (PW17) who had conducted the post-mortem vide Ex.P-26 did not mention in the report that the deceased was pregnant

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at the time when he conducted the post-mortem and, as such, this theory of relationship of appellant & deceased outside of marriage and deceased had become pregnant on account of said relationship is not established.

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12. The next incriminating circumstance that dead body was recovered pursuant to memorandum statement of the appellant (Ex.P-17) is also appears to have not established. Anjor Chouhan (PW-10) and Leelaram Dansena (PW-11) are the witnesses to the memorandum statement. However, Anjor Chouhan (PW-10) has clearly refuted that appellant had given any statement to the police and only he has proved his signature and, therefore, he declared hostile. Even in the cross-examination, on leading question being asked, PW-10 has clearly stated that the appellant did not make any kind of statement before him. Similarly, Leelaram Dansena (PW-11) has also refuted to any kind of memorandum proceeding and only stated that his signature is there in the memorandum statement. In the cross-examination, on being leading question asked, he has also refuted that any memorandum statement has been given by the appellant. Surutilal (PW-8) and Rajesh Kumar Chouhan (PW-9) were the seizure witnesses in whose presence the dead body was extracted, but in absence of prove of memorandum statement, they have

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turned hostile and they have not supported the case of the prosecution and in that view of the matter, the recovery of dead body is of no use to the prosecution.

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13. Furthermore, it has been held by Their Lordships of the Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar 3 that the evidence of discovery of the dead bodies and the tangi in consequence of the information given by the accused is not sufficient to convict the appellant of the offence under Section 302 of I.P.C. and allowed the appeal. In the present case also, the recovery of dead body is said to have been made pursuant to memorandum statement of the appellant, but the witnesses to the memorandum statement Anjor Chouhan (PW-10) and Leelaram Dansena (PW-11) have turned hostile and have not supported the case of the prosecution, as such, the memorandum statement is of no use to the prosecution and the other incriminating circumstance is also not established. In that view of the matter, the prosecution has failed to bring home the offence beyond reasonable doubt and the five golden principles as held in Sharad Birdhichand Sarda (supra), which constitute the panchsheel of the proof of a case based on circumstantial evidence would not complete and therefore, we are unable to maintain

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3 AIR 1966 SC 119

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the conviction of the appellant for offence under Sections 302 & 201 of I.P.C. and therefore, the appellant is entitled for acquittal on the basis of benefit of doubt

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14. In view of the above, the impugned judgment of conviction and order of sentence dated 22.12.2018 is set aside. The appellant stands acquitted giving him benefit of doubt of the charge framed against him for the offence under Sections 302 & 201 of Indian Penal Code. The appellant is in jail since 09.08.2017, he is directed to be released forthwith from jail, unless he is required in any other offence.

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15. In the result, the appeal is allowed.

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

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

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Ashok

Kaushal Prasad Rathia v. State of Chhattisgarh

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Kaushal Prasad Rathia v. State of Chhattisgarh

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