Criminal appeal against conviction of four appellants under Sections 302 and 201 IPC for murder and burning of a body. The High Court found the body's identification doubtful, the last-seen theory unproved with a nine-hour time gap, and no corroboration; it acquitted all four appellants on benefit of doubt.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 181 of 201 8
(Arising out of judgment dated 18.01.2018 passed in Sessions Trial No.35/2017 by learned 3rd Additional Sessions Judge, Janjgir, District Janjgir-Champa)
1. Rajendra Kewat @ Guddu S/o Bansilal Aged About 30 Years R/o Gram Khoksa, Chowki Naila, P. S. Janjgeer District Janjgir Champa Chhattisgarh
2. Banshram Kewat S/o Fhiratram Kewat Aged About 49 Years R/o Gram Khoksa, Chowki Naila, P. S. Janjgeer District Janjgir Champa Chhattisgarh
3. Ajay Kumar S/o Banshram Kewat Aged About 25 Years R/o Gram Khoksa, Chowki Naila, P. S. Janjgeer District Janjgir Champa Chhattisgarh
4. Janak Prasad @ Janki S/o Rajubaram Kewat Aged About 38 Years R/o Gram Salkhan, P. S. Shivrinarayan, District Janjgir Champa Chhattisgarh
---- Appellants
Versus
State Of Chhattisgarh Through District Magistrate, Janjgeer District Janjgir Champa Chhattisgarh
---Respondent
| For Appellants :- |
Smt. Indira Tripathi, Advocate and |
|---|---|
| Mr. Sumit Singh , Advocate |
|
| For State-Respondent :- | Mr. Arvind Dubey, Govt. Advocate |
| Mr. H.A.P.S. Bhatia, Panel Lawyer |
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(12.07.2024 )
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Sanjay K. Agrawal, J.
1. This criminal appeal has been preferred under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 18.01.2018, passed by learned 3rd Additional Sessions Judge, Janjgir, District JanjgirChampa (C.G.) in Sessions Trial No.35/2017, whereby these four appellants have been convicted for offence punishable under Sections 302 and 201 of IPC and sentenced in the following manner :-
| Conviction | Sentence |
|---|---|
| U/s 302 of IPC | Imprisonment for Life and fine of Rs.100/- |
| U/s 201 of IPC | R.I. for 7 years and fine of Rs.100/- |
| In default of payment of fine of Rs.200, each of the appellants shall undergo additional R.I. for 10 days. |
2. The case of the prosecution, in short, is that on 22.03.2017 at about 3:00 a.m. in village Khoksa, Police Station Janjgir, District – Janjgir-Champa, these four appellants, in furtherance of their common intention, assaulted Devprakash Chouhan alias Bholu (deceased) by hand, fist and knife and committed his murder by strangulating with a towel. Thereafter, in order to screen themselves from the offence, the appellants burnt the dead body in the courtyard of Santram Yadav of village Kamrid, thereby committed the aforesaid offence. The father of the deceased Shyamlal Chauhan (PW-15) lodged a missing report on 22.03.2017 at Chowki Naila and on
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information of Sitaram Chauhan (PW-8) of village Kamrid, the dead body was recovered. Merg Intimation was recorded vide Ex.P-26. Inquest was conducted vide Ex.P-20 and the dead body was sent for postmortem examination which was conducted by Dr. K. K. Dahire (PW-17) vide Ex.P-33 in which the cause of death was opined to be postmortem burn. Memorandum statements of the appellants were recorded, pursuant to which, knife was seized from A3 vide Ex. P-9 and Gamchha was seized from A4 vide Ex.P-11 which were sent for chemical examination along with other articles to the FSL. In FSL report (Ex. P-51) human blood was found on C, D, E & F i.e. the shirts of A1 & A2, the knife seized from A3 and Gamchha seized from A4 respectively. After completion of investigation, the appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law.
3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 21 witnesses and exhibited 52 documents. The statements of accused/appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, accused-appellants in support of their defence have have not examined any witness but have exhibited 4 documents.
4. After conclusion of trial, learned trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellants for the
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offence punishable under Sections 302 & 201 of I.P.C. and sentenced them as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellants.
5. Learned counsel for the appellants submit that the prosecution has failed to bring home the offence beyond reasonable doubt as the incriminating circumstances drawn in para-26 and found the same proved in para-63 by the trial Court in its judgment are not established at all and the appellants have been convicted only on the basis of surmises and conjectures. As such, the impugned judgment is liable to be set aside and the appellants are entitled for acquittal on the basis of benefit of doubt.
6. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and therefore, the conviction of appellants for offence under Sections 302 & 201 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and gone through the records with utmost circumspection.
8. It is the case of prosecution that the dead body was found in the courtyard of Sant Yadav (PW-11) in 100% burnt condition. The dead body was subjected
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to identification vide Ex.P-3 by Jitendra Singh (PW-3). This witness has proved his signature in Identification Memo Ex. P-3 and has stated in para14 of his cross-examination that the face, hair and some parts of the body were not burnt. According to Jitendra Singh (PW-3), he could identify deceased Bholu looking at the buttons on his shirt and black coloured clothes, especially looking at the hairs on his face and chest. However, Dr. K. K. Dahire (PW-17) who conducted post-mortem of the dead body vide Ex.P-33, in para-2B of his statement has clearly stated that the chest, abdomen, both thighs, both legs, back, both arms and forearms of the deceased were completely burnt. The Knees of both the legs were deformed due to burns and the thigh bones were broken. He has further stated in para-4 that they went to the mortuary and started conducting postmortem but till then the dead body could not be identified. Further in para-6 he has stated that the dead body was seriously burnt and bones were visible at many places. As such, from the statement of Dr. K. K. Dahire (PW-17), the identification of the dead body appears to be doubtful. It cannot be concluded that the dead body was of deceased Bholu. Therefore, the finding of the trial Court that the deceased was duly identified appears to be not based on the materials on record. Therefore, the finding of trial Court holding death of deceased Bholu to be homicidal is erroneous and is hereby set aside.
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9. Now, as regards the conviction of the appellants based on circumstantial evidence, in the instant case, there is no direct evidence available on record. The case of prosecution is solely 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 Maharashtra 1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -
“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:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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:
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.
2 (1973) 2 SCC 793
1 (1984) 4 SCC 116
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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,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(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.”
10. Now, the incriminating circumstantial evidences against the appellants which the trial Court has found to be proved in para 63 of its judgment are as under:-
।
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11. Reverting to the facts of this case, the Trial Court in paragraph-63 of its judgment has recorded the finding that these 4 appellants and deceased Bholu were last seen together by Raju Yadav (PW-2), Naresh Yadav (PW-7), Suraj Chauhan (PW-10), Pradeep Sahu (PW-13) & Ranu Kewat (PW-18) but the appellants have not given any explanation in their 313 CrPC statement as to how the deceased suffered serious burn injuries, therefore, the trial Court found these 4 appellants guilty for the offence punishable under Section 302 of IPC.
12. As per the prosecution case itself, the wife of A1 Ranu Kewat (PW-18) had relationship with deceased Bholu. It is the case of prosecution that on the fateful night, Pradeep Sahu (PW-13) had left the deceased near the house of A1, the information about which was given to A1 by Suraj Chauhan (PW-10). It is the further case of prosecution that when A1 reached his house, he found the deceased and his wife (PW-18) in a compromising position. He immediately called A2 & A3 and A4 was already present in the house. Subsequently, all the four appellants caused severe injuries to the deceased and thereafter took the
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dead body to the courtyard of Santram Yadav and burnt it with straw. The next morning, the dead body was found in a burnt condition. However, as contended by learned counsel for the appellants that it is nowhere established from the evidence that in fact when A1 reached his house, he found the deceased and PW-18 (the wife of A1) in compromising position and thereafter the incident took place. Pradeep Sahu (PW-13) only states that he had left the deceased near the house of A1 and returned back. He did not say that the appellants at that time were present in the house. Similarly, Suraj Chauhan (PW-10) has stated that since A1 had requested him to inform, he only informed A1 about the deceased coming to his house by phone. As such, there is no evidence on record to show that on being informed by Suraj Chauhan (PW-10), A1 reached his house and found the deceased and Ranu Kewat (PW-18) in compromising position and then he called A2 and A3 and A4 was already present there and all the four appellants committed murder of deceased Bholu and burnt the dead body by taking it 30 kilometers away in the courtyard of Santram Yadav. Though the trial Court has relied upon the statements of PW-2 PW-7, PW10, PW-13 and PW-18 but it is nowhere established that these 4 appellants were seen along with the deceased in the house of A1 at any point of time. So far as Ranu Kewat (PW-18) i.e. the wife of A1 is concerned, though she has stated in her examination-in-chief that the four appellants including her husband had brought the deceased to her house, she has turned hostile and has not supported the case of prosecution. She has stated that she did not know Bholu @ Devprakash. She has refuted the fact that her husband A1 had seen her in a compromising position with the deceased. She has stated that at that
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time her husband had gone outside for video shooting. As such, the prosecution has not been able to prove beyond reasonable doubt that the appellants and the deceased were last seen together on the date and time of offence i.e. late night of 21.03.2017 and on 22.03.2017 in the morning his dead body was found in burnt condition 30 kilometers away in the courtyard of Santram Yadav. Even otherwise, if it is accepted for the sake of argument that the appellants and deceased were seen together on 21.03.2017 at about 10 p.m. and the dead body was found on 22.03.2017 at 7.30 a.m., there is a considerable time gap of 9 hours between the time when they were last seen together and the time when dead body was found on 22.03.2017 at 7.30 a.m.
13. In the matter of Navneethakrishnan v. State by inspector of Police3 , their Lordship of the Supreme Court have clearly held that evidence of last seen is an important piece of evidence, but accused cannot be convicted solely on the basis of evidence of last seen together and it requires corroboration and held as under:
“18. …. 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 can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.”
3(2018) 16 SCC 161
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14. Reverting to the facts and circumstances of the case, relying upon the principles of law laid down by their Lordships of the Supreme Court in the matte of Navneethakrishnan (supra), it is quite vivid that there is a considerable time gap of 9 hours between the time when appellants and deceased were last seen together and the time when dead body was recovered and there is also no corroborative piece of evidence to connect the appellants for offence under Section 302 of the IPC. In the absence of any corroboration, more particularly even the dead body of the deceased could not be identified properly in accordance with law, the appellants cannot be convicted for offence under Section 302 of the IPC. Though as per FSL report, human blood was found on the shirts of A1 & A2 and on the knife seized from A3 and neck towel (Gamcha) seized from A-4 but the same is of no use since the last seen theory itself has not been established beyond reasonable doubt. As such, the prosecution has failed to establish the five golden principles, which constitute the Panchsheel of proof of a case based on circumstantial evidence laid down by the Supreme Court in Sharad Birdhichand Sarda (supra).
15. Accordingly, the impugned judgment dated 18.01.2018 passed by the Trial Court convicting and sentencing the appellants for the offence under Sections 302 & 201 of IPC is hereby set aside/quashed on the ground of benefit of doubt and the appellants are acquitted from the said offence. Since the appellants are reported to be in jail since 23.03.2017, we direct that they be released from jail forthwith, if not required in any other offence.
16. Accordingly, this Criminal Appeal is allowed.
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17. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where they lodged and suffering jail sentence, for information and necessary action, if any.
Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
Khatai
2 issues framed by the court
Whether the appellants could be convicted for murder and causing disappearance of evidence based on circumstantial evidence including the last-seen theory.
Whether the burnt dead body was sufficiently identified as that of the deceased.
Colour shows how this judgement treated each authority
Sharad Birdhichand Sarda v. State of MaharashtraRelied on¶9
(1984) 4 SCC 116 · Who else cites this
Shivaji Sahabrao Bobade v. State of MaharashtraReferred¶9
2 (1973) 2 SCC 793 · Who else cites this
Navneethakrishnan v. State by Inspector of PoliceRelied on¶13
3 (2018) 16 SCC 161 · Who else cites this
3 provisions across 3 enactments
Rajendra Kewat @ Guddu
Banshram Kewat
Ajay Kumar
Janak Prasad @ Janki
State Of Chhattisgarh Through District Magistrate, Janjgeer District Janjgir Champa Chhattisgarh
Sanjay K. Agrawal
Sanjay Kumar Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
