Allowed

Kavita Pandey v. State of Chhattisgarh

Chhattisgarh HC21 Nov 2024CRA/207/2019

Case brief

AI extract

What is this about?

The Division Bench disposed of a criminal appeal challenging convictions for murder and consolation by murder. The court held that the prosecution failed to establish the motive of the offence, ownership of the well where the body was found, or the ownership/registration of seized mobile numbers. Consequently, the chain of evidence was incomplete, and the appellants were acquitted based on the ben

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted; directions for release of appellant in jail and continuation of bail for others for six months.

Kavita Pandey Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:45843-DB

NAFR

Digitally signed by PRAKASH KUMAR Date: 2024.11.27 12:58:37 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 207 of 2019

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1 - Kavita Pandey W/o Vijay Pandey, Aged About 20 Years, R/o Village Bawali, P. S. Pathariya, District Mungeli, Chhattisgarh,

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2 - Umesh Choubey S/o Laxman Prasad, Aged About 28 Years, R/o Sinoudha, District Raipur, Chhattisgarh,

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3 - Vijay Pandey S/o Yudhishthir Pandey Aged About 29 Years,

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4 - Yudhishthir Pandey S/o Late Vedprakash, Aged About 60 Years,

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Appellant Nos.3 & 4 are R/o Village Bawali, P. S. Pathariya, District Mungeli, Chhattisgarh,

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... Appellants

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Versus

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State of Chhattisgarh Through The Station House Officer, Police Station Pathariya, District Mungeli Chhattisgarh,

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... Respondent

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For Appellant Nos.1, 3 & 4	: Mr. Rajeev Kumar Dubey, Advocate
For Appellant No.2	: Mr. Jeet Patel, Advocate
For State/Respondent	: Mr. Ashish Shukla, Additional Advocate General and Mr. Amit
	Buxy, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Radhakishan Agrawal,

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Judgment On Board

(22.11.2024)

Sanjay K. Agrawal, J

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1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellants herein calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 30.10.2018 passed by the Sessions Judge, Mungeli, District Mungeli, Chhattisgarh in Sessions Trial No.03/2018 whereby the appellants have been convicted and sentenced for the offence punishable under various Sections of the Indian Penal Code (in short ‘the IPC’) which are as under:

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Appellants	Conviction	Sen	tence
Appellant	U/s 302 of the IPC	Life imprisonm	ent and fine of
Nos.1,3 & 4		Rs.4,000/- eac payment of rigorous impris of four months.	h, in default of fine, additional onment for period
Appellant	U/s 201 of the IPC	Rigorous impri	sonment for four
Nos.1,2,3 &		years and fine o	f Rs.1,000/- each,
4		in default of additional rigor for a period of t	payment of fine, ous imprisonment wo months
Appellant No.2	U/s 212 of the IPC	Rigorous impri years and fine default rigorous two months.	sonment for three of Rs.1,000/-, in imprisonment for

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(All the sentences were directed to run concurrently)

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2. The case of the prosecution, in a nutshell, is that on 09.11.2017 at night at village – Bawali, Police Station Patharia, District Mungeli, Chhattisgarh, appellant Nos.1,3 & 4 conspired together and assaulted Raju @ Misrilal Kaushik (now deceased) by crowbar by which he suffered grievous injuries and died and thereby they committed the offence under Section 302 of the IPC. Thereafter, in order to conceal the evidence, they burnt the dead body, then kept the same in a plastic bag and thrown it into a well which was owned by appellant Nos.1, 3 & 4. The allegation against appellant No.2 – Umesh Choubey is that after the alleged murder, appellant Nos.1, 3 & 4 went to his house and he allowed them to stay/hide in his house and thereby he also committed the offence. Kamal Prasad Kaushik (PW8), who is the cousin brother of deceased Misrilal, reported the matter vide Dehati FIR (Ex.P-24) and subsequently, FIR (Ex.P-34) was lodged before Police Station Pathariya against appellant Nos.1, 3 & 4. Thereafter, dead body of the deceased was taken out from the well which was situated near the house of appellant Nos.1, 3 & 4 and Dehati Merg Intimation (Ex.P-25) was made and inquest report was prepared vide Ex.P-5. The dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P-21) proved by Dr. A. R. Banjare (PW-6) cause of death was

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coma due to head injury and death was homicidal in nature. Memorandum statements of appellant Nos.1, 2 & 3 were recorded vide Exs.P-6, P-7 and P-8 respectively. During dead body panchnama, one PAN Card, ATM Card, Driving License, Aadhar Card of Sushila Kaushik (wife of the deceased), and key of motorcycle were seized vide Ex.P12 (property seizure memo) near the well. Vide Ex.P-14, the articles such as blood stained soil, iron crowbar, plastic jar etc. were seized from the spot. One Samsung Mobile of deceased Misrilal Kaushik was seized vide Ex.P-11 from the possession of appellant No.3. Seized articles were sent for chemical analysis to FSL.

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

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4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 43 documents whereas, the appellants in defence have neither examined any witness nor exhibited any document. S tatements of the appellants were recorded under Section 313 of CrPC in which they

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denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication.

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5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Rajeev Kumar Dubey, learned counsel appearing for appellant Nos.1, 3 & 4 submits that the Trial Court is absolutely unjustified in convicting the appellants for aforesaid offences as the prosecution has failed to prove the offence against them beyond reasonable doubt and they have falsely been implicated in crime in question. He further submits that the appellants are convicted on the basis of conjectures and surmises. Mr. Jeet Patel, learned counsel appearing for appellant No.2 – Umesh Choubey, submits that only on the fact that the sim card of the deceased was seized from the possession of appellant No.2 and, further, he has allowed the other accused persons to stay in his house, he has been wrongly convicted by the Trial Court. He further submits that the prosecution has

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failed to prove that the sim card which was seized from possession of appellant No.2 belongs to the deceased. They jointly submit that the incriminating circumstances culled out by the learned trial Court in the impugned judgment are not established beyond reasonable doubt as prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt, therefore, the appellants are entitled for acquittal on the principle of benefit of doubt and the instant appeal deserves to be allowed.

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7. On the other hand, Mr. Ashish Shukla and Mr. Amit Buxy, learned State counsel, support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and the Trial Court has rightly convicted the appellants for the aforesaid offence, therefore, the appellants have rightly been convicted for the offence in question. Thus, the instant appeal deserves to be dismissed.

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

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9. Now, the first question is, whether the death of the deceased was homicidal in nature?

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10. The said question has been answered by the Trial Court in affirmative in para 21 of its judgment that the death of Misrilal (deceased) was homicidal in nature relying upon the postmortem report (Ex.P-21) proved by Dr. A. R. Banjare (PW-6) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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11. Now, the question for consideration would be whether the appellants have assaulted the deceased?

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12. However, since, appellant Nos.1, 3 & 4 have been convicted for the offence under Sections 302, 201 & 120-B of the IPC and appellant No.2 has been convicted of the offence under Sections 201, 120-B and 212 of the IPC, therefore, firstly we will consider the appeal of appellant Nos.1, 3 & 4 and thereafter, we will consider the appeal of appellant No.2 separately.

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13. In order to convict appellant Nos.1, 3 & 4, the trial Court has found the following incriminating circumstances:-

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(i) motive of the offence.

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(ii) the well from where the recovery of the dead body of the deceased Misrilal was made, is owned by appellant Nos.1, 3 & 4.

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(iii) the deceased was in contact with appellant No.1 through his mobile number 8839112467 and two other mobile numbers 9669126490 and 7771902575 registered in the name of appellant No.3- Vijay Pandey.

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(iv) recovery of PAN Card, ATM Card, Driving License, Aadhar Card of Sushila Kaushik (wife of the deceased) and key of motorcycle of the deceased has been made from the spot.

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(v) recovery of blood smeared articles seized from the house of appellant Nos.1, 3 & 4 vide Ex.P-14 sent for FSL.

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(vi) appellant Nos.1, 3 & 4 absconded from the spot immediately after the incident.

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14. The case of the prosecution is based on the five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence and which have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 in paragraph 153 which state as under:-

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1 (1984) 4 SCC 116

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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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(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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2 (1973) 2 SCC 793

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15. On a careful perusal of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), it would be appropriate to discuss each of the incriminating circumstances one by one:-

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(i) Motive of the offence :-

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16. The first incriminating circumstance which has been found proved by the trial Court is the motive. It has been alleged by the prosecution that the deceased had illicit relationship with appellant No.1 – Kavita Pandey, who is the wife of appellant No.3 – Vijay Pandey for which appellants No.3 and 4 were not happy and taking advantage of the circumstances, they have committed murder of the deceased and thrown the dead body into a well situated near their house which was owned by them. In this regard, the Trial Court has answered in affirmative holding that the motive of the offence has been proved on the basis that the deceased and appellant No.1- Kavita Pandey were in frequent contact with each other, however, in this regard, the statement of brother of the deceased Mochan Prasad (PW-5) may be noticed herein. This witness in paragraph 5 of his statement has stated that appellant No.3 - Vijay Pandey had admitted before the police that the

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deceased Misrilal had illicit relationship with his wife. However, in paragraph 13, he (Mochan Prasad) admitted that he used to use the mobile phone of his brother (deceased) but he has not seen any content, whatsapp message or any document to show that his brother had relationship with appellant No.1- Kavita Pandey. Further, the deceased had never informed him about his relationship with Kavita Pandey. He has further stated that he had good relationship with appellant No.3 – Vijay Pandey as he has assisted him in getting a job in Patholab. Similarly, wife of the deceased Sushila Bai (PW-4) in paragraph 11 of her statement stated that her husband had never told her regarding his relationship with appellant No.1- Kavita Pandey and she had never seen any letter, message etc. about the relationship between her husband and Kavita Pandey. As such, from the statements of Mochan Prasad (PW-5) and Sushila Bai (PW-4) who are the brother and wife of the deceased respectively, it is no where established that the deceased and appellant No.1- Kavita Pandey had illicit relationship with each other and they were in contact Electronically. As such, the finding recorded by the trial Court with regard to motive that on account of illicit relationship between the deceased and appellant No.1- Kavita Pandey, appellant Nos.1, 3 & 4 are

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said to have assaulted the deceased, is clearly contrary to the record and, therefore, motive of offence is not established.

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17. Now, the 2 nd incriminating circumstance that the well from where the recovery of the dead body of the deceased was made, is owned by appellant Nos.1, 3 & 4. In this regard, the Trial Court in paragraph 29 of the impugned judgment, has specifically recorded the finding that the dead body of the deceased was recovered from the well which is owned by appellant Nos.1, 3 & 4. However, in this regard, two documents may be noticed herein. Firstly, Panchnama/Nazri Naksha (Ex.P-1) which has been proved by Patwari Shuddhu Ram Kol (PW-7). A careful perusal of Ex.P-1 shows that the well in question is situated at 140 meters away from the house of appellant No.1, 3 & 4 and it is not within the boundary of the house of appellant Nos.1, 3 & 4. However, Patwari Shuddhu Ram Kol (PW-7), who has prepared Ex.P-1, has not admitted that the well in question is owned by appellant Nos.1, 3 & 4. In his Court statement, he has admitted that the well is situated 140 meters away from the house of appellant No.1, 3 & 4 and the said well is dry where the people use to throw garbage and other waste materials. The said well is near to the house of one Laxminarayan. Further, there is no document

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available showing the ownership of the well in the name of appellant Nos.1, 3 & 4. As such, from the testimony of Patwari Shuddhu Lal Kol (PW-7) who has proved Nazri Naksha (Ex.P-1), it is not established that the well is within the boundary of appellant Nos.1, 3 & 4 and on the date of offence, it is owned/possessed by them. The next document to consider is the Crime Details Form (Ex.P-2), though the said document is firmly proved by Chandrashekhar Kaushik (PW-2), but it has been prepared by the investigating officer Hansraj Gautam (PW-13). This witness (Hansraj Goutam) has clearly admitted in paragraph 11 of his Court statement that he has not produced the document that the well in question was owned by appellant Nos.1, 3 & 4. Though he has stated that the well is situated within the boundary of house of appellant Nos.1, 3 and 4 but it is missing in the Crime Details Form (Ex.P-2) as well as Nazri Naksha (Ex.P-1). As such, from the documents i.e. Ex.P-1 and Ex.P-2, it is not established that the well in question was neither situated within the boundary of appellant Nos.1, 3 and 4 nor it was owned or possessed by them on the date and time of the offence. Further, it was not the case of the prosecution that the dead body of the deceased was recovered pursuant to the memorandum statements of any of the appellants.

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18. Now the 3 rd incriminating circumstance is recovery of mobile number 8839112467 which is owned by the deceased and mobile numbers 9669126490 and 7771902575 owned by appellant No.3 and through these numbers the deceased and appellant No.3 – Vijay Pandey were in contact with each other. However, it would be appropriate to go through Ex.P-30 which is a memo for providing details of Mobile Number, which is proved by Manish Singh Thakur (PW-11). However, there is no document available on record that the sim number 8839112467 was owned and issued by the mobile company in the name of the deceased Misrilal. Similarly, there is no document available which shows that appellant No.3 – Vijay Pandey is said to have owned sim numbers 9669126490 and 7771902575. Though, customer application form (CAF) has been taken by Manish Singh Thakur (PW-11), but the said form has not been brought on record. Though in the cross-examination, Manish Singh Thakur (PW-11) has stated that the above mentioned sim numbers are registered in the name of the deceased and appellant No.3 but it has no basis to claim that the mobile company has issued the said sim numbers in the name of deceased and appellant No.3, there is no document available to demonstrate that those sim numbers are

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owned by the deceased and appellant No.3. Therefore, it is of no use of the prosecution. Similarly, certificate has been issued under Section 65-B of the Indian Evidence Act, by the Incharge Cyber Cell that it has not been issued by the concerned mobile company and even the call details have not been brought on record except the certificate issued by the Cyber Cell. As such, this fact is not established that the above mentioned sim numbers are registered in the name of the deceased and appellant No.3.

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19. The 4 th incriminating circumstance which has been found proved by the trial Court is the recovery of different articles seized from the place of incident. In paragraph 41 of the impugned judgment, the Trial Court has recorded the finding that recovery of PAN Card, ATM Card, Driving License, Aadhar Card of Sushila Kaushik (wife of the deceased) and key of motorcycle of the deceased were seized from the place of incident vide Ex.P-12. However, during inquest proceeding, from the place of incident, as per Ex.P-1, dead body of the deceased was recovered at a distance of 140 meters away from the house of appellant No.1, 3 & 4 and therefore, appellant Nos.1, 3 & 4 cannot be connected with the offence in question and as such, from the articles which are seized from the place of incident, appellant Nos.1, 3 & 4 cannot be implicated.

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20. The fifth incriminating circumstance which has been found proved by the trial Court is, recovery of different articles seized from the house of appellant Nos.1, 3 & 4 vide Ex.P-14 which were said to have been stained with human blood and the same were sent for FSL vide Exs.P-39 and P- 40 on 22.01.2018 which were received at FSL Laboratory on 25.01.2018 vide Ex.P-42 but FSL report has not been brought on record indicating that it was stained with human blood, therefore, recovery of those articles are of no use to the prosecution.

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21. The last incriminating circumstance which has been found proved by the trial Court is abscondence of appellant Nos.1, 3 & 4 immediately after the incident from the house and that is additional circumstance available against them. However, in this regard, the Supreme Court in the matter of Durga Burman Roy v. State of Sikkim³ has held that abscondence by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. It has been observed as under:

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“13. “To abscond” means, go away secretly or illegally and hurriedly to escape from custody or avoid arrest. It has come in evidence that the accused had told others that they were going from their place of work at Gangtok to their home at New Jalpaiguri. They were admittedly taken into custody from their respective houses only, at

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3 (2014) 13 SCC 35

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New Jalpaiguri on the third day of the incident. Therefore, it is difficult to hold that the accused had been absconding. Even assuming for argument's sake that they were not seen at their work place after the alleged incident, it cannot be held that by itself an adverse inference is to be drawn against them.....”

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22. In the matter of Sunil Clifford Daniel v. State of Punjab⁴

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the Supreme Court has held that the mere act of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panicstricken and try to evade arrest, when suspected wrongly of committing a grave crime; such is in the instinct of self-preservation.

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23. As such, merely on the basis that appellant Nos.1, 3 & 4 have absconded from the village / place of occurrence is not an incriminating circumstance to convict them for offence under Section 302 of the IPC.

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24. As per the case of the prosecution, pursuant to the memorandum statement (Ex.P-11) of appellant No.3 – Vijay Pandey, the mobile of deceased Misrilal was seized whose IMEI number is 353278087896465 and 353279087896463. However, there is no document on record to hold that the said mobile having IMEI numbers

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4 (2012) 11 SCC 205

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were purchased by the deceased. In that view of the matter, it cannot be held that the mobile was owned by the deceased. As such, we are of the considered opinion that the prosecution has failed to prove the motive of the offence for conviction, further failed to prove that the well from where the dead body was recovered was owned by appellant No.1, 3 & 4, the sim numbers 8839112467 was registered in the name of the deceased Misrilal and sim numbers 9669126490 and 7771902575 were registered in the name of appellant No.3 - Vijay Pandey, the recovery of the several articles from the place of incident, the appellant No.1, 3 & 4 have no connection and they cannot be implicated on that basis and further, the recovery of articles seized from the house of the appellant Nos.1, 3 & 4 though were subjected to FSL examination, but no FSL report has been brought on record for good reasons and abscondance of appellant Nos.1, 3 & 4 from the place of incident cannot be made basis for conviction of appellant Nos.1, 3 & 4. Accordingly, appellant Nos.1, 3 & 4 are entitled for acquittal on the basis of benefit of doubt as the prosecution has failed to bring home the offence beyond reasonable doubt and also failed to complete the chain of incriminating circumstances in the light of the decisions of the Supreme Court in the matter of Sharad Birdhichand Sardas (supra).

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25. The case of appellant No.2 is that pursuant to the memorandum statement (Ex.P-10) of appellant No.2 – Umesh Choubey, a sim of Jio company was seized. However, no document has been brought on record that the alleged sim number was issued to appellant No.2 and the mobile was owned by the deceased. In that view of the matter, the recovery of the said mobile number is of no use to the prosecution and furthermore, there is no evidence on record which could show that appellant Nos.1, 3 & 4 have stayed in the house of appellant No.2 – Umesh Choubey. Since, appellant Nos.1, 3 & 4 have already been acquitted from the charge of murder, therefore, appellant No.2 is also entitled for acquittal on the basis of benefit of doubt.

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26. Accordingly, t he impugned judgment dated 30.10.2018 passed by the trial Court convicting and sentencing the appellants for the offence mentioned in paragraph one of this judgment, is hereby set aside/quashed and the appellants are acquitted from the said offence on the basis of principle of benefit of doubt. Appellant No.3 – Vijay Pandey is stated to be in jail, we direct that he be released from the jail forthwith, if not required in any other matter. Since, appellant Nos.1, 2 & 4 are reported to be on bail, therefore, their bail bonds shall remain in force for a period

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of six months as per the provisions contained in Section 437-A of the Cr.P.C.

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27. This criminal appeal is allowed .

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28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where appellant No.3 is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Prakash

Kavita Pandey v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kavita Pandey v. State of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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