Jumman @ Raja Khan Vs State of Chhattisgarh

¶1

1

¶2

2024:CGHC:44941-DB

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

CRA No. 299 of 2023

¶6

Jumman @ Raja Khan aged about 20 years, s/o Lateef Khan, resident of Ratnabandha, Mahavir Chowk, Dhamtari, PS Arjuni, District Dhamtari, Chhattisgarh.

¶7

---- Appellant

¶8

versus

¶9

State of Chhattisgarh Through The Station House OfÏcer (SHO), Police Station Dharsiva, District : Raipur, Chhattisgarh

¶10

---- Respondent

¶11

CRA No. 739 of 2023

¶12

Raju Vaishnav S/o Late Mohan Vaishnav Aged About 29 Years R/o Satnamipara, Gudhiyari, Thana Gudhiyari, District Raipur (C.G.)

¶13

---- Appellant

¶14

Versus

¶15

State Of Chhattisgarh Through Police Station Dharsiva, District Raipur (C.G.)

¶16

---- Respondent

¶17

For Appellant : Mr. Arvind Shrivastava, Advocate {Cr.A. No. 739/2023} Mr. Soumitra Kesharwani, Advocate holding the brief of Ms. Soumya Sharma, Advocate {Cr.A. No. 299/2023}

¶18

For Respondent/ State : Mr. Shashank Thakur, Deputy Advocate General

¶19

2

¶20

Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Amitendra Kishore Prasad, Judge

¶21

Judgment on Board

¶22

Per Ramesh Sinha, Chief Justice 19/11/2024

¶23

1. Challenge in these appeals under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, the Cr.P.C.) is to the judgment of conviction and order of sentence dated 13.12.2022 passed in Sessions Trial No. 94/2018 by the learned 4^th Additional Sessions Judge, Raipur, District Raipur, by which the appellants have been convicted and sentenced as under:

¶24

Conviction under Section	Sentence	Fine	In default
302 / 34 of the	Life imprisonment	Rs. 1000/-	6 months additional
Indian Penal Code (for short, the IPC)			rigorous imprisonment (f_or_ short R.I.)
201 / 34 of the IPC	Rigorous imprisonment for 7 years	Rs. 1000/-	6 months additional R.I.
Both the sentences t	o run concurrently.

¶25

2. The accused have been charged for the offences under Sections 302/34, 201/34 of the IPC alleging that on 15.12.2017 at about 6:00 p.m. they formed a common intention to murder Kishore Verma ( hereinafter referred to as ‘the deceased’ ) at New Gen Engineering, Rawabhatha under Police Station Dharsiwa, District Raipur, and in furtherance of their common intention they killed the deceased by hitting him on the head with an iron pipe and a wooden stick causing grievous injury to his body and then destroyed evidence by hiding the body of the deceased in a pit.

¶26

3. The brief case of the prosecution is that, on 15.12.2017 Kishore Verma left home saying that he was going to Banjari Dham and when he did not

¶27

3

¶28

return home, the deceased's wife Hemlata Verma (PW-3) and her family members searched for him and when they could not trace him, they informed the Khamtarai Police Station, Raipur, on which a missing person report was filed by Khamtarai Police Station bearing No. 0/17 and as the incident occurred within the Dharsiwa Police Station, District Raipur area, the crime was transferred to Dharsiwa Police Station, on which a missing person report was registered by Dharsiwa Police Station bearing missing person report No. 76/17 and investigation was started in which the accused/appellants were taken into custody by the Investigation OfÏcer ( for short, the IO ) and interrogated; during the investigation it was found that the deceased had given his tractor bearing registration No. CG 04 DA 7295 on rent to Raju Vaishnav, for which he had gone to Rawabhatha Banjari to collect the rent where acused-Raju Vaishnav along with his companion Jumman @ Raja Khan killed him by hitting him on the head and chest with an iron pipe and wooden pole and buried his body in a pit near New Gen Engineering Ravabhata. The IO sent notice to the witnesses Khoman Verma (PW-1) and Tarakeshwar Verma (PW-2) and letter vide Exhibit P-43 to the Sub Divisional Magistrate, Raipur for permission to exhume the body, on whose order the Executive Magistrate, Hariom Dwivedi (PW-21) prepared the identification panchnama (Exhibit P-1) on the identification of the accused and sent JCB. Through this, a pit was dug near New Gen Engineering and after excavating the dead body of deceased Kishore Verma, the body was identified and identification panchnama Exhibit P.2 was prepared and on recovery of the dead body, missing person recovery panchnama (Exhibit P-3) was prepared at the spot. Thereafter, Dehati Merg Intimation (Exhibit P-44), Dehati Nalisi (Exhibit P-45) and untimely death information was registered and FIR bearing Crime No.

¶29

4

¶30

603/2017 (Exhibit P/48) was also registered and the matter was taken for investigation. After preparing inquest, the body was sent for psotmortem. From the spot, plain soil and blood stained soil, the clothes of the deceased and iron pipe and a wodden pole was seized and sent for FSL examination. The statement of the witnesses were recorded under Section 161 Cr.P.C. and after completion of all the other formalities, on having found evidence against the appellants, charge sheet was filed against them before the Court of Judicial Magistrate First Class, Raipur, on 19.03.2018 for the offences under Section 302, 201 and 34 of the IPC.

¶31

4. The case was registered as Criminal Case No. 5510/2018 which was committed to the Court of Sessions vide order dated 17.04.2018 as it was triable by the Sessions Court. Before the Sessions Court, the same was registered as Sessions Trial No. 94/2018.

¶32

5. Charges were framed against the appellants on 05.06.2018 under the aforementioned Sections of the IPC which was denied by them and they prayed for trial.

¶33

6. In order to bring home the offence, prosecution examined as many as 23 witnesses namely, Komal Verma (PW-01) and Tarkeshwar Verma (PW2), who are the witness to memorandum and seizure, Hemlata Verma (PW-03), who is the complainant/wife of the deceased, Ankita Verma (PW-04), daughter of the deceased, Pradeep Kumar Verma (PW-05), Sarpanch of Gram Panchayat Charuda, Mahesh Kumar Sahu (PW-06), witness regarding digging of a pit with JCB on the instructions of accused Raju Vaishnav, Virendra Nishad (PW-07), JCB driver who excavated the corpse, Omprakash Vishwakarma (PW-08), Supervisor of Bansat Agarwal, Ajay Bahadur Singh (PW-09) Director of New Gen Engineering Co., Nivesh Sharma (PW-10), owner of Suzuki Motor Cycle,

¶34

5

¶35

Satish Sahu (PW-11) whose SIM was used by the accused Raju Vaishnav, Krishna Verma (PW-11-A), brother of the deceased, Sumant Verma (PW-12), witness of seizure of the documents of the tractor trolley, Dilip Kumar Nayak (PW-13) who is the Patwari, Sanjeev Nema (PW-13-A), Nodal OfÏcer of Jio Mobile Company, Fattelal Thakur (PW14) Head Constable who recorded missing person 0/17, Constable Vikas Kshatri (PW-15) who recorded missing person 76/17, Thaneshwar Verma (PW-17), who is the Constable who seized the clothes after postmortem, Rajkumar Sahu (PW-18), Photographer of the spot, Awadh Jain (PW-19) who is the Nodal OfÏcer of Vodaphone-Idea Company, Hariom Dwivedi (PW-21) who is the Executive Magistrate who directed exhumation of the body, Basant Agrawal (PW-22), who worked as the clerk of accused Raju Vaishnav and Investigating OfÏcer, Bhushan Ekka (PW-23), and exhibited as many as 60 exhibits in support of its case alongwith Articles A to E.

¶36

7. The statement of the convicts/appellants were recorded under section 313 CrPC. They have expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they are innocent and have been falsely implicated.

¶37

8. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants / convict as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict.

¶38

9. Mr. Soumitra Kesharwani, learned counsel appearing for the appellantJumman @ Raja Khan, submits that the appellant-Jumman Khan has been implicated merely on the basis of memorandum statement of the co-accused Raju Vaishnav. He had no motive to commit the crime in question. Even there is no eye witness to the incident and the case rests

¶39

6

¶40

merely on circumstantial evidence. He further states that there is recovery of one spade and iron pipe in which there was allegedly blood stains as per the seizure memo but in the FSL report, no blood stains have been found.

¶41

10. Mr. Arvind Shrivastava, learned counsel appearing for the appellantRaju Vaishnav, submits that firstly, there is no eye witness to the incident and there was even no motive for the appellant to commit the murder. The appellant was the Supervisor in a Company and had hired the tractor of the deceased. He was required to pay some dues to the deceased. Even if any amount was to be paid, that was to be paid by the Company where he was working and not by him. The deceased could have claimed his dues from the Company and as such, he had no motive. Further, only on the basis of recovery of the dead body at his instance, he has been falsely roped in this case. Interestingly, in this case, even before recording of the memorandum of the accused/appellants, the police had recovered the dead body in the morning at 8:35 a.m and before exhumation, the body was even identified. Even the IO has not explained this fact in his evidence. The dead body was recovered at 8:35 a.m. and the memorandum was recorded at 11:10 a.m. and as such, the entire prosecution story because false and fictitious. Even in his memorandum, there was no mention about the motorcycle of the deceased alleged to have been recovered on the basis of memorandum and the witnesses to the recovery of seizure of motorcycle have not supported the prosecution case. Even there is no mention with regard to disclosure of the dead body in the memorandum statement. There are lot of omissions and contradictions in the evidence of the witnesses and even if it is assumed that the deceased and the accused had talked over mobile phone or that

¶42

7

¶43

the deceased had informed his wife that he was alongwith the accused persons on mobile, that is not sufÏcient to hold the appellant guilty of the offence. A wooden pole is alleged to have been recovered but no blood stains have been found in the FSL report.

¶44

11. Mr. Kesharani as well as Mr. Shrivastava would submit that there is no material on record to connect the appellants with the crime in question and as such, they deserve to be acquitted.

¶45

12. On the other hand, Mr. Shashank Thakur, learned Deputy Advocate Genearl appearing for the State/respondent would submit that the learned Court below was fully justified in convicting and sentencing the convicts/appellants as mentioned in the opening paragraph. The call details record shows the presence of the accused persons and the deceased on the same spot and further the evidence of Hemlata Verma (PW-3), who is the wife of the deceased, Ankita Verma (PW-4) daughter of the deceased and one Ajay Bahadur Singh (PW-9) is sufÏcient to arrive at a conclusion with regard to the guilt of the appellants. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned Court below needs no interference and the appeals filed by the convicts/appellants be dismissed.

¶46

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

¶47

14. The learned trial Court, after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.S.K.Bagh (PW-20) who conducted postmortem, has come to the conclusion that cause of death was due to head injury and thoracic injury and was homicidal in nature. The Doctor has found the following injuries on the body of the deceased:

¶48

8

¶49

“1. Lacerated wound on left frontal bone vertically oblique 8.5x1.5 c.m. long bone deep against fracture of frontal bone.

¶50

Lacerated wound on the right side supraorbitally 3x1 c.m.

¶51

Fracture of left zygomatic bone and

¶52

fracture of right side mandible bone, artificial denture (Prosthosis) at lower jaw present.

¶53

Nasal bone fractured.

¶54

Fracture of riht clavicle bone mid 1/3rd part with

¶55

Fracture of right 1^st and 2^nd ribs

¶56

Fracture of Left rib 3, 4^th ribs with ecchymosis (blackish) discoloured.”

¶57

15. From the above, we are of the considered opinion that the finding recorded by the trial Court that death of deceased was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby afÏrm that finding.

¶58

16. Now, the next question for consideration would be whether the accusedappellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in afÏrmative.

¶59

17. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand

¶60

Sarda v. State of Maharashtra¹ , which state as under :-

¶61

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

¶62

(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

¶63

1 (1984) 4 SCC 116

¶64

9

¶65

except that the accused is guilty;

¶66

(3) the circumstances should be of a conclusive nature and tendency;

¶67

(4) they should exclude every possible hypothesis except the one to be proved; and

¶68

(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.”

¶69

18. The wife of the deceased is the complainant in this case. Firstly, a missing report was lodged and thereafter, when the dead body was discovered, the FIR was registered and investigation started.

¶70

19. According to the evidence of the complainant/wife, Hemlata Verma, (PW-3) stated that on 15.12.2017, the deceased-husband informed her that he was going to meet Raju Vaishnav for recovery of the rent of the tractor and left the house on his motorcycle. He stated that he would return in one hour. According to this witness, the deceased called her on phone and informed her that he had reached to the ofÏce of Raju Vaishnav and was sitting in his ofÏce. When the deceased did not return by 4 p.m. at that time also, he informed that he would be coming home after realising the money. At about 6 p.m. when she made calls on number of times, the mobile phone was switched off. In cross examination, she has admitted that she had not informed the police in her 161 Cr.P.C. statement that the deceased had informed her that he would return back in one hour and that he was sitting in the ofÏce of the Raju Vaishnav. She tried to explain that she was in a state of shock and as such could not inform the police. She further denied of having informed the police that when she made a phone call to Raju Vaishnav, the accused informed her that he had given Rs. 1500/- to the deceased

¶71

10

¶72

in the evening. In this manner, she has denied various other statements having been given to the police.

¶73

20. Ankita Verma (PW-4) is the daughter of the deceased. She stated that she had received phone call of his father at around 3 p.m. on 15.12.2017. At 5:52 p.m. she again received a call from the deceased that he was coming to pick them but the phone got disconnected. She immediately called back on the phone but no body received the phone and after sometime, it was showing to be out of coverage area. Nothing substantial could be gathered from her evidence.

¶74

21. Another important witness in this case is Ajay Bahadur Singh (PW-9) who stated that he knew the accused-Raju Vaishnav as well as Jumman @ Raja Khan. According to him, the accused persons had asked some money from him over mobile phone and he came in the afternoon to give them the money at that time, the deceased was also with them.

¶75

22. In the present case, the memorandum statement of the accused Raju Vaishnav (Exhibit P/4) was recorded at 11:10 a.m. of 24.12.2017 and the dead body identification (Exhibit P/2) was done on 24.12.2017 at 8:30 a.m. and the spot panchnama (Exhibit P/1) was prepared at 8:00 a.m. Missing person recovery panchnama (Exhibit P/3) was also prepared at 8:35 a.m. It is difÏcult to understand as to how even without the accused/appellants having uttered any word before 11:10 a.m. the body could be discovered and excavated. The said act of the police goes to show that the memorandum statement was a sham and just to cover the lacunas, the same has been prepared in a cursory manner, as in normal course, firstly the memorandum statement should have been recorded and then only the disclosure and identification of the dead body could have been made.

¶76

23. Another important fact is that the Sub Divisional OfÏcer, Raipur, vide his

¶77

11

¶78

order dated 23.12.2017 has granted permission for exhumation of the dead body and a permission in this regard was also sought by the Police of Police Station, Dharsiwa on the same day. If the police had recorded the memorandum of the accused/appellant on 24.12.2017 and they came to know as to where the dead body was hidden, how was it possible for the police to seek permission one day before the recording of the memorandum i.e. on 23.12.2017. This raises grave suspicion on the conduct of the police.

¶79

24. Further, the evidence of the witness Ajay Bahadur Singh (PW-9) who stated that he saw the accused persons alongwith the deceased, would not be sufÏcient to hold the appellant/accused guilty of the offence as according to this witness, he had gone to give money to the accused persons. When the accused had already received the money which they could have used to repay the deceased towards the rent of the tractor, there was no reason to commit murder of the deceased for a petty sum of Rs. 33,000/-. Even there is no eye witness to the incident and even if the appellants/accused were seen last with the deceased, that can not be a ground for holding the appellants guilty of the offence.

¶80

25. Even in the FSL report (Exhibit P/60), no blood has been found on Article ‘E’, which is the iron pipe alleged to have been seized from the accusedJumman @ Raja Khan and Article ‘F’ alleged to have been seized from the accused Raju Vaishnav. One spade i.e. Article ‘P’ alleged to have been seized from accused Raju Vaishnav, though blood has been found, but the group could not be ascertained as the stains were disintegrated. In Article ‘Q’, which is a spade alleged to have been recovered from the accused Jumman @ Raja Khan, no blood stains have been found.

¶81

26. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any

¶82

12

¶83

other theory of the crime. The learned trial Court ought to have to have given the benefit of doubt to the appellants when it is established that one of the links in circumstantial evidence is missing and not proved.

¶84

27. From the facts and circumstances and from the above analysis, this Court is of the considered opinion that the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence awarded to the appellants are hereby set aside and they are acquitted of the charges.

¶85

28. Resultantly, both these appeals are hereby allowed.

¶86

29. The convict/appellants- Jumman @ Raja Khan and Raju Vaishnav are stated to be in jail. They are directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C., the accused-appellants are directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Supreme Court.

¶87

30. Registry is directed to transmit the lower court record along with a copy of this order to the trial court concerned forthwith for necessary information and compliance .

Sd/-

Sd/-

(Ramesh Sinha)

(Amitendra Kishore Prasad) (Ramesh Sinha) JUDGE CHIEF JUSTICE

¶92

Amit

¶93

AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2024.11.27 16:51:53 +0530

Jumman @ Raja Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jumman @ Raja Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Atul Sharma Vs State of Chhattisgarh

Lal Bahadur Tiwari Vs State of Chhattisgarh

Deepti Tamrakar Vs State of Chhattisgarh

Dilharan Sahu Vs State of Chhattisgarh

Smt.anjali Purohit And Anr. Vs State Of Chhattisgarh And Ors.

Ram Khilavan Banjare Vs State Of Chhattisgarh And Ors.