Hem Kumar Yadav Vs State of Chhattisgargh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.297 of 2018

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Ravi @ Ravishankar Deewan S/o Shri Sevaram Deewan Aged About 25 Years R/o Shalhebhatha Tahsil Bagbahra Thana Tendukona, District Mahasamund Chhattisgarh, District Mahasamund, Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Tendukona, District Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh

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---- Respondent

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CRA No.357 of 2018

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Hem Kumar Yadav S/o Chaitram Yadav Aged About 26 Years R/o Village Salhebhata, P. S. Tendukona, District Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgargh Through P. S. Tendukona, District Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh

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---- Respondent

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CRA No.791 of 2018

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Bhupendra Yadav S/o Lila Ram Yadav Aged About 26 Years R/oVillage Salhebhatha, P.S. Tendukona, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police Station Tendukona, District Mahasamund, Chhattisgarh, District : Mahasamund, Chhattisgarh

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---- Respondent

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For Appellants	Mr. T. K. Jha, Advocate
For Respondent-State	Mr. Pankaj Singh, PL

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Hon'ble Mr. Ramesh Sinha, Chief Justice

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Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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Per Rajani Dubey, J. 03.05.2024

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The present appeals arise out of the judgment of conviction and order of sentence dated 02.02.2018 passed by the learned Additional Session Judge, Fast Track Court, Mahasamund (C.G.) in Session Case No.05/2017, whereby the appellants have been convicted and sentenced in the following manner:-

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Sr.No.	Conviction	Sentence
	Under Section 376	Life imprisonment and fine of
1.	(d) read with Section 34 of IPC	Rs.2,000/-. In default of payment of fine, additional RI for 6 months
	Under Section 302	Life imprisonment and fine of
2.	read with Section 34 of IPC	Rs.2,000/-. In default of payment of fine, additional RI for 6 months

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Both the sentences shall run concurrently.

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The prosecution case, in brief, is that on 01.11.2016, the complainant Torandas Bairagi lodged a report to the concerned police station alleging that on 01.11.2016, when her sister-in-law (Bhabhi) Madhu Bairagi went to the home of deceased to call her, then she saw that the the deceased is lying in the dead condition and empty liquor bottles of countrymade were there. On the report of the complainant, merg intimation was registered and the postmortem was conducted. The statement of the witnesses

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was taken. The memorandum statement of the accused was recorded and the FIR for the offence punishable under Section 302 read with Section 34 of IPC was registered. The accused were arrested and their medical examination was done. The spot map and seizure memo were prepared. After investigation, the charge sheet was submitted before the JMFC, Pithora.

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The Trial Court framed charges against the appellants under Sections 376 (d) read with Section 34 and 302 read with Section 34 of IPC. The appellants abjured the guilt and pleaded innocence.

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After appreciation of the oral and documentary evidence available on record, the learned Trial Court convicted the appellants and sentenced them, as mentioned in para 1 of the judgment.

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Learned counsel for the appellant submits that the appellants have wrongly been convicted by the learned Trial Court despite there being any clinching evidence available against them. The prosecution has absolutely failed to prove its case beyond reasonable doubt and the learned Trial Court has failed to appreciate the fact that there was previous enmity of the deceased with her brothers Sanjay and Ramesh. PW-5 has clearly deposed that he has not given any statement before the Police that the accused persons had left the spot till 5:30 O’clock. The prosecution witnesses PW-1, PW-2, PW-3, PW-4, PW-5, PW-11, PW-12 & PW-13 have not supported the case of the

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prosecution and have turned hostile. The doctor N. Patel (PW22) has not found any injury in the private part of the deceased and has not given any definite opinion about the sexual assault on the deceased, as such no case is made out against the appellants. Therefore, the impugned judgment is liable to be set aside.

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On the other hand, learned counsel for the State supports the impugned judgment and submits that the prosecution has proved its case against the appellants beyond all reasonable doubt, as such there is no illegality or infirmity in the findings of the learned Trial Court. Therefore, the impugned judgment of conviction and order of sentence needs no interference.

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Heard learned counsel for the parties and perused the material available on record.

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Before the Trial Court, the prosecution examined 22 witnesses and exhibited 44 documents to prove its case. Dr. N. Patel (PW22) conducted postmortem of the deceased and found that the death was due to asphyxia by throttling and the nature of death was homicidal and the death would have been between 10 to 16 hours before the chemical examination. The abrasions were found over neck, right hand, knee of the deceased and the contusions were found in thighs, however no internal injuries were found. He stated that the sexual assault opinion can be given only after FSL examination and gave his report vide Ex-P/44. He admitted in his cross-examination that if the neck of

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a person is pressed, then there is a possibility that black spots/scratches may occur on the neck of the deceased and similarly the person who is pressing the neck may also receive some scratches or injuries. The doctor did not give any definite opinion about the sexual assault and has suggested that the sexual assault opinion can be given after FSL examination. In the FSL report (Ex-P/21), semen was found in deceased’s cloth (A2), vaginal slide-B and underwear of the appellant Bhupendra Yadav, as such it is unambiguous from the FSL report that before the death, the sexual intercourse was done with the deceased, but the doctor (PW-22) Dr. N. Patel stated that he did not find any injuries on the private part of the deceased and advised for chemical examination of the vaginal slide and clothes of the deceased. It is unequivocal from the seizure memo (Ex-P/12) that one underwear of Bhupendra Yadav was seized on 04.11.2016 at 20:20 O’clock, whereas the date and time of the death of the deceased is 01.11.2016. It is also clear from the FSL report that no DNA test was conducted and it is written in the FSL report that semen spot and human sperm found are not sufficient for chemical examination and the chemical examination was not done, thus it is clear that the FSL report (Ex-P/21) cannot be used against the appellant Bhupendra Yadav as definite piece of evidence.

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The learned Trial Court relied upon the evidence of PW-11 Maniram who stated in examination-in-chief that on the date of

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the incident, when he was standing in front of his house, at that time, Hemkumar and Bhupendra Yadav came there along with the deceased. The deceased and Hemkumar went inside the home, whereas Bhupendra Yadav came to him and sat with him and when he asked him that how do you come, then he replied that he came there to celebrate picnic and went inside the house of the deceased. Next day Madhu Bairagi informed him that Phool Bai is not responding, then he along with Madhu Bairagi and his brother-in-law (Devar) Toran Bairagi, who was also informed by her, went to the house of the deceased and saw that she has died, thereafter the matter was reported to the concerned police station. He admitted his signature on the memorandum of Hemkumar (Ex-P/7) and seizure memo (Ex-P/8 & P/9) but he denied memorandum of the appellant Bhupendra Yadav, however admitted his signature on the memorandum of Bhupendra Yadav (Ex-P/10) and he also denied any seizure, however admitted his signatures over Ex-P/11 & P/12. He denied memorandum statement of the appellant Ravi Diwan and also denied any seizure on the basis of this memorandum but he admitted his signature on memorandum (Ex-P/13). He denied memorandum statement of appellant Ravi as well as any seizure, however he admitted his signatures over Ex-P/14 and Ex-P/15. The prosecution declared him hostile and cross-examined him but he denied all suggestions of the prosecution and he also admitted suggestions of defence and stated in para 16 that no interrogation of appellants Bhupendra and Ravishankar was

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done in front of him and he himself stated that only interrogation of Hemkumar was done in front of him, but he denied any statement with respect to seizure of clothes from Hemkumar.

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The learned Trial Court also relied upon the statement of PW-5 Balesh Yadav, who stated that when he was sitting at platform/chabutara, then Mahendra, Bhupendra and Gourav had gone to the house of the deceased. He denied his police statement and the prosecution declared him hostile and crossexamined him, then he admitted that when he was sitting at chabutara, at that time the appellants went to the deceased’s house. He also admitted this fact that Ravi had brought liquor and he along with Ravi and Mahendra had gone to the house of the deceased and ate fritter (Bhajiya) and thereafter he and Mahendra went away. He also admitted that when he left the house of the deceased, then Hemkumar, Bhupendra, Ravi and Gourav were present in her house, but when the defence crossexamined, then he admitted the suggestion of defence that they had left the house of the deceased at 5:30 pm and nobody was there. The learned Trial Court relied upon the evidence of both the aforesaid witnesses and convicted the appellant.

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The Hon’ble Supreme Court in the matter of R. Sreenivasa vs State of Karnataka , passed in Criminal Appeal No.859/2011 vide judgment dted 06.09.2023, held in para 16 as under:-

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“16. The cautionary note sounded in Nizam (supra) is important. The ‘last seen’ theory can be invoked only when the same stands proved beyond reasonable doubt. A 3-

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Judge Bench in Chotkau v State of Uttar Pradesh, (2023) 6 SCC 742 opined as under:-

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‘15. It is needless to point out that for the prosecution to successfully invoke Section 106 of the Evidence Act, they must first establish that there was “any fact especially within the knowledge of the” appellant. …’ (emphasis supplied)”

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Recently in the matter of Babu Sahebagouda Rudragoudar and others vs State of Karnataka , passed in Criminal Appeal No(s) No.985/2010 vide judgment dated19.04.2024, the Hon’ble Supreme Court has held in para 65 as under:-

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“65. Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh6, wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.”

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It is clear that from the statement of the complainant Toran Das Bairagi (PW-2) that he stated about memorandum of Hem Kumar vide Ex-P/7 and Bhupendra vide Ex-P/10 in front of him, but he denied the memorandum of Ravishankar (Ex-P/13). He also stated that on the basis of Ex-P/7, police seized pant shirt of the appellant Hemkumar vide Ex-P/8 & P/9 and as per memorandum of Bhupendra Yadav, the police seized shirt vide Ex-P/11. He admitted in para 21 of his cross-examination that before taking statement of the accused, the accused were kept in the police custody prior to 2 days and thereafter the police enquired with the appellants in front of him and got his signature over seizure

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memo. He admitted in para 25 that he may not tell that when the seizure was done and when Bhupendra and Hemkumar were arrested, he does not remember due to the incident being old.

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The statement of the Investigating Officer (PW-21) Indrapal Singh makes it clear that he simply stated that he recorded the memorandum statement of Bhupendra Yadav (Ex-P/10), memorandum statement of Hem Kumar Yadav (Ex-P/7) and memorandum statement of Ravi Kumar (Ex-P/13). Madhu Bairagi (PW-1) stated in her examination-in-chief that there was previous animosity between the deceased and the Sarpanch of village Sanjay Sahu and because of which Phoolbai would have been murdered. This witness has also not stated against the appellants. She also stated that there was no enmity between the deceased and the appellants.

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The learned Trial Court recorded in para 33 that there is no evidence of last seen, but in the second line, it has held that PW5 Balesh yadav last saw the appellant Ravishankar while going to home of the deceased, but he also admitted that at 5:30 pm, everybody went away from the house of the deceased and nobody was there, but the learned Trial Court did not appreciate the contradictory statements of PW-5 Balesh Yadav. It is also clear from the FSL report that mere finding of sperm in underwear of Bhupendra Yadav after 3 days of the incident cannot draw the presumption that the appellants have done sexual intercourse with the deceased.

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Hon’ble Supreme Court in the matter of Sharad Birdhichand Sarda V. State of Maharashtra [(1984) 4 SCC 116] has held that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.”

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In light of the above discussions and on going through the records and close scrutiny of the prosecution witnesses would make it clear that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellants. The chain of circumstances is also missing in the present case. Thus, the finding recorded by the learned Trial Court is perverse and not based upon the evidence available on record as well as the provisions of the Evidence Act.

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For the forgoing reasons, all the appeals are allowed. The

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judgment of conviction and order of sentence dated 02.02.2018 is hereby set aside. The appellants stand acquitted of the charges under Sections 376 (d) read with Section 34 and Section 302 read with Section 34 of IPC. The appellants are reported to be in jail since 05.11.2016. They be released forthwith if they are not required to be detained in any other offence.

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Keeping in view the provisions of Section 437-A CrPC, the appellants are directed to furnish a personal bond each in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable 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 appellants on receipt of notice thereon shall appear before the Hon’ble Supreme Court.

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The Trial Court’s record along with the copy of this judgment be sent back immediately to the Trial Court concerned for compliance and necessary action.

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Sd/Sd/( Rajani Dubey ) ( Ramesh Sinha ) Judge Chief Justice

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Nirala

Hem Kumar Yadav v. State of Chhattisgargh

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Hem Kumar Yadav v. State of Chhattisgargh

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