Allowed

Mohan Yadav v. State of Chhattisgarh

Chhattisgarh HC15 Jul 2024CRA/1855/2018

Case brief

AI extract

What is this about?

Appeal against conviction under Section 302 IPC for strangulation of a woman based solely on circumstantial evidence. Court found no last-seen evidence, no Section 65B certificate for electronic evidence, and incomplete chain of circumstances; acquitted the appellant on benefit of doubt.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant acquitted giving benefit of doubt and to be released from custody if not required in any other case.

Mohan Yadav Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1855 of 2018

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Mohan Yadav, son of Narhari Yadav, aged about 32 years, resident of Village Bhootbeda, P.S. Shobha, District Gariyaband, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through Arakshi Centre, Panduka, District Gariyaband, Chhattisgarh

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---Respondent

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For Appellant	: Shri Basant	Dewangan, Advocate
For Respondent	: Shri Sharad	Mishra, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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(16.7.202 4)

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Sanjay Kumar Jaiswal, J.

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1. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, the Appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 24.11.2018 passed by the Additional Sessions Judge, Gariyaband, Chhattisgarh in Sessions Trial

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No.68 of 2016 by which he has been convicted and

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sentenced as under:

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Conviction		Senten	ce
Under Section 302 of	Life	imprison	ment and
the Indian Penal Code	fine of	i of Rs.500, payment	i in default thereof,
	addi	tional	simple
	impr mon	isonment ths	for 2

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2. Name of deceased is Smt. Savita Joshi. According to the case of prosecution, in the intervening night of 17.7.2016 and 18.7.2016 in Village Nagjhar Shukla Bharri Khar Tikra, Police Station Panduka, District Gariyaband (Chhattisgarh), the Appellant tied up neck of Smt. Savita Joshi with her patku ( gamchha ) (a scarf) and caused her death. On 18.7.2016, in Police Station Panduka, a telephonic information was received that a dead body of an unknown woman was lying in Village Nagjhar. Based on information of Dwarika Kashyap, Dehati Morgue Intimation (Ex.P11) of death of an unknown woman was recorded. Inquest (Ex.P17) was conducted. The dead body was sent to District Hospital Gariyaband for post mortem examination. Application for post mortem

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examination and post mortem report are Ex.P6 in which Dr. M. Manish (PW13) and Dr. Snehlata Humne (PW14), who conducted the post mortem examination, found that cause of the death was asphyxia due to strangulation which led to cardio-respiratory arrest and nature of the death was homicidal. Spot map (Ex.P12) was prepared. From the place of occurrence, vide Ex.P18, one pair bluish slipper, one broken black goggle, one broken black umbrella, one small bluish purse inside having a paper containing a number, one dust-coloured bag made of cloth having 5 photographs and plain and blood stained soil were seized. Morgue Intimation (Ex.P23) was registered and First Information Report (Ex.P24) was registered against an unknown person. During investigation, identification of the dead body of unknown woman was conducted and on identification an identification panchnama (Ex.P2) was prepared. Statements of witnesses were recorded. The mobile number found in the seized purse was sent to the Superintendent of Police, Gariyaband for identification. The Appellant was taken into custody and his memorandum

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statement (Ex.P12) was recorded in presence of witnesses. Based on his memorandum statement, at his instance, vide Ex.P15 one small black mobile handset of Lava make used by the deceased, her aadhaar card, one blue jeans pant and one slaty coloured white lined shirt worn by the Appellant at the time of occurrence, vide Ex.P11 one black mobile handset of Lava make of the Appellant and vide Ex.P13 one square-like shaped brown stone were seized in presence of witnesses. The Appellant was arrested vide Ex.P22. A query of the seized articles was made to District Hospital, Gariyaband vide Ex.P18A. The seized articles were sent to Forensic Science Laboratory (FSL) for examination. FSL Report is Ex.P37. The seized preserved viscera of the deceased was also sent for examination. Report thereof dated 24.8.2016 given by the FSL is Ex.P37. On completion of investigation, a charge-sheet was filed against the Appellant. The Trial Court framed charge against him under Section 302 IPC.

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3. To bring home the offence, the prosecution examined as many as 20 witnesses and exhibited 38

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documents. The Appellant did not examine any witness in support of his defence, but, he exhibited 2 documents.

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4. The Trial Court, after appreciation of the oral and documentary evidence available on record, convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal.

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5. Learned Counsel appearing for the Appellant submits that there is no evidence on record to show that the Appellant and the deceased were last seen together. There is no eyewitness to the alleged incident. The prosecution has not been able to establish the chain of circumstances against the Appellant. As such, the Appellant deserves to be acquitted of the charge framed against him.

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6. Learned Counsel appearing for the State supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the Appellant for the offence under Section 302 IPC.

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7. We have heard the rival contentions put-forth on behalf of the parties and perused the evidence available on record with utmost circumspection.

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8. The f i rst question for consideration i s whether the death of Smt. Savita Joshi was homicidal in nature , which has been answered by the Trial Court in afrmative relying upon the fi post mortem report (Ex.P6) proved by Dr. M. Manish (PW13) and Dr. Snehlata Humne (PW14), which, in our considered opinion, is a correct f i nding of fact based on the evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby afrm the said f fi i nding.

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9. Now, the next question is as to whether the Appellant assaulted the deceased and caused her death ?

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10. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Hon’ble the Supreme Court has held as under:

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“The following conditions must be
fulfilled before a case against an
accused can be said to be fully
establishedoncircumstantial
evidence:

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(1)the circumstances from which
the conclusion of guilt is to be
drawn must or should be and not
merely ‘may be’ fully established,

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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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11. In the instant case, admittedly, there is no eyewitness to the incident. There is also no evidence on record to prove that the Appellant and the deceased were last seen together. The case of the prosecution is purely based upon circumstantial evidence and that circumstantial evidence is mainly seizure of mobile phones of the Appellant and the deceased and the detail of the telephonic call between them. Though

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there is electronic evidence led by the prosecution, that evidence is not supported by a certificate as required under Section 65B of the Indian Evidence Act. The prosecution has not been able to establish chain of circumstances appearing against the Appellant by leading cogent evidence. The death had not occurred in the house of the Appellant. The dead body was found in an open place reachable to anybody. Liquor was found in the stomach of the deceased, but, that was consumed by the deceased in the company of the Appellant or the Appellant made her to consume the liquor, no witness in this regard has been examined by the prosecution. Finding of liquor in the stomach of the deceased is not an incriminating piece of evidence under Section 27 of the Indian Evidence Act and this is also not an incriminating circumstance to hold the Appellant guilty. There is also no supportive evidence on record relating to recovery of aadhaar card of the deceased from the Appellant. We find that none of the above five principles, as discussed in Sharad Birdhichand Sarda (supra), is fulfilled in the instant case. The

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prosecution has not been able to prove its case beyond reasonable doubt. The Appellant is entitled to be acquitted of the charge framed against him under Section 302 IPC on the basis of benefit of doubt.

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12. In the result, the criminal appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge framed against him giving him benef i t of doubt.

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13. The Appellant is reported to be in jail. He be set at liberty forthwith, if not required in any other case.

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14. Records of the Trial Court be sent back along with a copy of this judgment forthwith for necessary compliance.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Gopal

Mohan Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Mohan Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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