Hemlal Sahu Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 328 of 2016

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{Arising out of judgment dated 03.02.2016 passed in Special Case No.04/2014 by the learned Special Judge, Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, Bemetara}

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Hemlal Sahu, S/o. Dwarika Sahu, Aged About 23 Years, Occupation Labourer, R/o. Village Devkar, Chowki Devkar, P.S. Saja, District Bemetara, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through The Police Station Saja, District Bemetara, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Shikhar Bhaktiyar, Advocate For Respondent : Mr. Afroz Khan, Panel Lawyer

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(Division Bench)

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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 (16.07.2024)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 03.02.2016 passed by learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,

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Bemetara, District Bemetara, in Special Case No.04/2014, by which, the appellant herein has been convicted and sentenced as under :

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CONVICTION	SENTENCE
U/s. 450 of I.P.C.	: Rigorous imprisonment for 7 years and fine of Rs.500/-, in default of payment of fine amount, additional rigorous
	imprisonment for 6 months.
U/s. 394 of I.P.C.	: Rigorous imprisonment for 7 years and fine of Rs.500/-, in default of payment of fine amount, additional rigorous
	imprisonment for 6 months.
U/s. 397 of I.P.C.	: Rigorous imprisonment for 7 years and fine of Rs.500/-, in default of payment of fine amount, additional rigorous
	imprisonment for 6 months.
U/s. 302 of I.P.C.	: Life imprisonment and fine of Rs.500/-, in default of payment of fine, additional rigorous
	imprisonment for 6 months.

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All the sentences to run concurrently.

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2 . Case of the prosecution, in short, is that on 06.03.2014 in between 10:00 a.m. to 6:00 p.m., the appellant tress-passed into the house of Samliya

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Sahu and robbed the gold & silver ornaments owned by Chandrika Bhuarya (now deceased) valued Rs.25,000/- and caused her murder knowing fully well that she is a member of scheduled tribe and thereby committed the offence. Romlal Bhuarya (PW-1), husband of deceased, when came back from school to his house, he found his wife dead in the house with missing gold ornaments and he reported the matter to the police, pursuant tow which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2 against unknown person, Inquest was conducted vide Ex.P-4 and dead body of deceased Chandrika was subjected to post-mortem, which was conducted by Dr. A.K.Verma (PW-13), who proved the post-mortem report Ex.P-14, according to which, cause of death was stated to be hemorrhage and asphyxia due to cut throat. Memorandum statement of the appellant was recorded in presence of Ahilya Bai (PW-2) and Mohan Sinha (PW-4) vide Ex.P-8 and seizure of gold & silver ornaments was made at the instance of appellant and clothes of appellant was also seized. Seizure of two knife, cutter cover, cloth, black stone with threat and holder of earring were also made from the spot, which were

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sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-19), human blood was found on all the seized articles and on the clothes of the appellant, only blood was found. 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 21 witnesses and exhibited 22 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1.

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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 and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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5 . Mr. Shikhar Bhaktiyar, learned counsel for the appellant would submit that the gold & silver ornaments were seized vide Ex.P-9 pursuant to memorandum statement of the appellant (Ex.P-8) from the open place and the seized articles were not subjected to identification proceeding and it was not identified by any of the family members of the deceased in any identification panchnama and there is no other incriminating circumstances except blood was found on the clothes of the appellant, which was also not human blood and in that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. He relied upon the decision rendered by the Supreme Court in the matter of Hansraj v. State of M.P. 1 and submits that the instant appeal deserves to be allowed.

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6 . On the other hand, Mr. Afroz Khan, learned State counsel would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the aforesaid offences and, as such, the instant appeal deserves to be dismissed.

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1 (2024) SCC OnLine SC 562

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7 . We have heard learned counsel for the parties, considered their rival submissions made hereinabove 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 Chandrika was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-14, proved by Dr. A.K.Verma (PW-13), according to which, cause of death was stated to be hemorrhage and asphyxia due to cut throat, 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 and 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 2 which must be fulfilled for

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2 (1984) 4 SCC 116

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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 Maharashtra³ 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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3 (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 incriminating circumstance that has been found

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proved by the trial Court is that the appellant was in need of money, as his wife was pregnant and she was likely to deliver a baby. Furthermore, Golu Sahu (PW-3) had seen the appellant present on the spot and pursuant to memorandum statement of the appellant, as stated in para 55 of the judgment, vide Ex.P-9, the gold & silver ornaments along-with other articles were seized and as per the FSL report (Ex. P-19) blood was found on Article-I & J i.e. Pant & T- shirt of the appellant and human blood was found on Articles – B, E, G, K, L, M & N i.e. clothes of deceased and other seized articles.

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11. The main incriminating circumstance which the trial Court has found proved is that pursuant to memorandum statement of the appellant, the ornaments owned by the deceased was recovered in

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presence of Ahilya Bai (PW-2) and Mohan Sinha (PW-4). However, it would be appropriate to mention the statement of Mohan Sinha (PW-4), who in his cross-examination has clearly stated that the articles were seized from open spot, which is accessible to one and all and, as such, recovery cannot be said to be at the instance of the appellant. Furthermore, the seized articles were not subjected to identification proceeding in presence of the Executive Magistrate and even the prosecution did not take any pain to prepare identification panchnama to be identified by any of the family members of the deceased.

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12. In the matter of Hansraj (supra), the Hon’ble Supreme Court doubting the identification proceeding acquitted the appellant therein and observed in paragraph 14 as under :

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“ 14. As a consequence of the above discussion, we have no hesitation in holding that the prosecution miserably failed to prove the factum of disclosure made by the accused to the Investigating Officer (PW-12) leading to the recovery of the silver articles allegedly looted by the accused from the complainant. It is also important to note that the prosecution did not lead any evidence to show that the recovered articles were sealed at the time of recovery or that they were kept secure in the malkhana of the Police Station till

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the same were subjected to identification before the Executive Magistrate. In addition thereto, it is also relevant that the Executive Magistrate was not examined in evidence. The complainant Bhagu Bai (PW-3) made a categorical admission in her cross examination that she could recognize the silver articles in the test identification proceedings upon being pointed out by the police officials. Thus, the recovery of the ornaments at the instance of the accused and the identification thereof has no sanctity in the eyes of law and cannot be relied upon. No other evidence was led by the prosecution to connect the accused appellant with the crime.”

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13. Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated decision, it is quite that the appellant is basically convicted on the basis of recovery of the gold & silver ornaments owned by the deceased, which were seized from open spot as per the statement of Mohan Sinha (PW-4) and further it was not subjected to identification proceeding to hold that the seized ornaments were owned by the deceased and even no documents/ receipts have been produced by the husband of the deceased Romlal Bhuarya (PW-1) that it was purchased by the them to claim the ownership. Furthermore, on the shirt and pant of the appellant,

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only blood has been found, human blood was not found and on the other seized articles, human blood was found, which is of no use to the prosecution in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh & Anr.⁴

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14. Furthermore, the trial Court has held that appellant was seen by Golu Sahu (PW-3) near the house of the deceased, but careful perusal of the statement of Golu Sahu (PW-3) would show that the appellant was standing near his house, which will not connect the appellant in the instant crime, as it is a natural conduct of a person to be present near his house and, as such, it cannot be held to be incriminating circumstance. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences and, as such, he is entitled for acquittal on the ground of benefit of doubt.

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15. Accordingly, the impugned judgment of conviction and order of sentence dated 03.02.2016 is set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the

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4 (2019) 7 SCC 781

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offences punishable under Sections 450, 394, 397 & 302 of Indian Penal Code. Consequently, the appellant is directed to be released forthwith from jail, unless he is required in any other offence, as he is in jail since 08.03.2014.

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16. In the result, the 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 concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Hemlal Sahu v. State Of Chhattisgarh

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Hemlal Sahu v. State Of Chhattisgarh

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