Allowed

Santosh Kumar Manhar v. State of Chhattisgarh

Chhattisgarh HC8 Sept 2024CRA/66/2019

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against conviction for murder (Section 302 IPC) and causing disappearance of evidence (Section 201 IPC). The court found the prosecution failed to prove the chain of circumstantial evidence under Sharad Birdhichand Sarda, noting lack of evidence regarding the appellant's ownership of the house and his presence during the body's recovery. The conviction was

What did the court decide?

Conviction and sentence under Sections 302 and 201 IPC set aside; appellant acquitted and directed to be released forthwith.

Santosh Kumar Manhar Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 66 of 2019

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Digitally signed by ANKIT ANKIT KUMAR KUMAR SINGH SINGH Date: 2024.09.11 10:41:08 +0530

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2024:CGHC:35047-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 66 of 2019

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(Arising out of judgment dated 29.09.2018 passed in Sessions Trial No.04/2018 by the 2nd Additional Sessions Judge, Bilaspur, C.G.)

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Santosh Kumar Manhar S/o Udiyali Manhar, aged about 37 years, R/o Village - Kenvtadih, Thana - Pachpedi, District Bilaspur Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, through Police Station - Pachpedi, District Bilaspur Chhattisgarh.

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... Respondent For Appellant :- Mr. Sameer Singh, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee.

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For Respondent-State :- Mr. Ashutosh Shukla, 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 Amitendra Kishore Prasad Judgment On Board

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(09.09.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the

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present criminal appeal under Section 374(2) of CrPC has

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CRA No. 66 of 2019

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been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 29.09.2018 passed by the 2^nd Additional Sessions Judge, Bilaspur, Chhattisgarh in Sessions Trial No. 04/2018 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of 100/-; in default of payment of fine amount the₹ appellant has to undergo rigorous imprisonment for 6 months and also convicted for offence punishable under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of 100/-; in₹ default of payment of fine amount the appellant has to undergo rigorous imprisonment for 6 months. Both the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that in the intervening night of 08.09.2017 to 02.10.2017, at village Kenvtadih, Thana - Pachpedi, District Bilaspur Chhattisgarh, the appellant throttled his wife Sukhmani Bai (now deceased) and in order to screen himself from the offence hide the dead body of the deceased in the patio

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CRA No. 66 of 2019

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(पटा�व) of his house and thereby committed the aforesaid offence.

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It is further case of the prosecution that on 02.10.2017 the appellant himself reported the matter to the police that on 28.09.2017, he and his wife (deceased) consumed liquor and after an hour his wife stated him that she had consumed poison and he asked her about the poison, then she replied that there is no reaction of the poison and she is fine, thereafter, leaving his wife at the house, he went to meet Suryavanshi to sell the land and after an hour when he came to the house he did not find his wife, he went in search of his wife, but he could not find her. On 02.10.2017, smell was coming out from his house, then he found the dead body of his wife in the patio (पटा�व) of his house, pursuant to which merg intimation was registered vide Ex.P/15. FIR was registered vide Ex.P/18. Spot map was prepared vide Ex.P/11. Crime details form was prepared vide Ex.P/17. Inquest proceedings (Ex.P/7) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/2) proved by Dr. Nandraj Kanwar (PW-2), cause of death was throttling,

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mode of death was asphyxia and nature of death was homicidal.

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

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 19 witnesses and exhibited 19 documents, whereas, the appellant in defence has neither examined any witness, nor exhibited any document. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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

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CRA No. 66 of 2019

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Mr. Sameer Singh, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that prosecution has failed to prove the offence against the appellant beyond reasonable doubt and the incriminating circumstance, which were found proved by the trial Court, could not be established to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence in question and, as such, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

1 (1984) 4 SCC 116

CRA No. 66 of 2019

The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/2) proved by Dr. Nandraj Kanwar (PW-2), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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The next question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute 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 (supra) in paragraph 153 which state 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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CRA No. 66 of 2019

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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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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 the incriminating circumstances culled out by the trial Court in paragraph 26 of its judgment, which state as under:-

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“26. xxx xxx xxx xxx

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थमपरि�ቝኌ�थिሧ��अिሧ�यु�्ሹ एकम�्ቔ अपनी�पत्नी�म�िሧ�क�क�सा�थ घटानी�क�रि��मक�नीम�िሧनीव�साक��थ�।

2 (1973) 2 SCC 793

CRA No. 66 of 2019

��

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िሧ ��युपरि�ቝኌ�थिሧ��म�िሧ�क�क�न ी " िሧमलनी�प��त्क�लअिሧ�यु�्ሹ म�िሧ�क�क�गु�मीሻ%नी�क& िሧ'क�यु�सा(बं(धि+�थ�नी�म� न ी " िሧकयु�जा�नी�।

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� � �युपरि�ቝኌ�थिሧ��म�िሧ�क�क�'वअिሧ�यु�्ሹ क�मक�नीक�कम��क� पटा�वम�सा़ቡ�ीሻ.ईीሻ�ल�म�िሧमलनी��थ�िሧ0िሧकत्सा�यु सा�ቌኍ�क� ��उ्ሹ म�िሧ�क�क& म�त्यु�क&्ቚ क�िሧ� ीሻत्यु�त्मकबं��यु�जा�नी�।"

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First incriminating circumstance which has been found proved by the trial Court is that the appellant used to live with his wife (deceased) in the house in question and the dead body of the deceased was found in the said house on 02.10.2017, on the report of the appellant. However, there is no clear evidence that on the date and time of offence i.e. from 28.09.2017 to 02.10.2017 the appellant and the deceased had been last seen together. The trial Court has only on the presumption that the deceased was the wife of the appellant, therefore, they were living together in the house in question, convicted the appellant, though there is no evidence available on record that during that period they were seen together. Since there is a complete lack of evidence that the on the date and time of offence the appellant was resided along with his wife in the house in question, we hereby set aside this finding of the trial Court and this circumstance too, to base the conviction of the appellant.

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Next incriminating circumstance which has been found proved by the trial Court is that as per merg intimation (Ex.P/15) lodged by the appellant his wife (deceased) went missing, but he did not report the matter to the police in this regard and the said subsequent conduct of the appellant is the relevant fact under Section 8 of the Indian Evidence Act, 1872 (for short “the IEA”). However, in the matter of Subramanya v. State of Karnataka 3, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the IEA, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :-

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“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

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Last circumstance which has been found proved by the trial Court is that the death of the deceased was found to be homicidal in nature. True, it is that the death of the

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3 2022 SCC OnLine SC 1400

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deceased has been found to be homicidal in nature which has also been affirmed by us in the foregoing paragraph, but the facts remains that the dead body of the deceased was found at the instance of the appellant or not ?

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Admittedly, a careful perusal of the record would show that the appellant reported the matter to the police vide Ex.P/15 by stating that his wife went missing and smell was coming out from the patio (पटा�व) of the house, then he saw the dead body. However, K.D. Prabhakar (PW-12), who recorded the merg (Ex.P/15), he did not say in what manner he conducted the investigation. FIR was lodged and registered by Investigating Officer Bodhan Singh (PW-14). The inquest (Ex.P/7) was also prepared by Bodhan Singh Thakur (PW-14), however, a careful perusal of the inquest report (Ex.P/7), it is quite apparent that neither the presence of the appellant is mentioned nor his signature is appearing and even though the Panchas stated that they have heard the statement of the appellant, but the presence of the appellant is not recorded in the inquest report (Ex.P/7) and also no recovery panchnama of the dead body was prepared for the reasons best known to the prosecution. However, in this regard, the decision of the

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Supreme Court in the matter of Jaharlal Das v. State of Orissa4 should be noticed in which it has been held by their Lordships that the dead body is recovered at the instance of the accused, there should have been panchnama and it must be mentioned in the inquest report and held in paragraph No.10 as under:-

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10. xxx xxx xxx.

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According to this evidence the accused is alleged to have taken P.W. 11 and others to the open paddy field where the dead body was lying. It is only thereafter that the inquest report was drawn up. However, P.W. 11 stated in his evidence that before going to the paddy field the F.I.R. Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery of the body in the F.I.R. itself. But the same is not found in the inquest. There is not even a reference to the accused in the column No. 9 of the inquest report where the information of witness as to the cause of death has to be noticed. We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been at least a mention in the inquest report as to how the body was discovered. Apart from that usually a panchanama is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this case there is no such panchanama nor there is any other evidence of P.Ws 1 and 11. P.W. 6 does not say anything about this aspect. As a matter of fact the trial court has noted the discrepancies in the evidence of P.Ws 1 and 11 and it is observed as under:

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"The Investigating Officer, P.W. 11 has stated something more about the find of the dead body. He speaks that the accused pointed out

4 (1991) 3 SCC 27

CRA No. 66 of 2019

the place where the dead body of the deceased was lying and thereafter led him to the paddy field wherefrom the dead body of the deceased could be recovered. Though this part of this evidence has not been supported by P.W. 1, but from the evidence of both P.Ws 1 and 11 coupled with the evidence of P.W.4, I am persuaded to hold that on the showing of the accused, the dead body of the deceased was recovered from a paddy field."

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We have perused the evidence of P.W. 4. His evidence does not in any manner incriminate the accused. P.W. 4 deposed that the dead body of the deceased was found lying in paddy field and that the police held inquest over the dead body in his presence and that the inquest report is P. 1 in which he put his signature as a witness. Nothing more is stated by him. He does not even refer to the presence of the accused at the place where the dead body was found or at the time of inquest, which was held also there. P.W. 4 does not in any manner help the prosecution case so far as this circumstance is concerned. If realy the body has been discovered at the instance of the accused there should have been panchanama and a mention about the same in the inquest report. P.W. 11 categorically in his evidence has stated that after sending the F.I.R. the accused was questioned and the body was discovered thereafter at the instance of the accused and the inquest was held over the dead body and P.W. 4 was a panch witness to the inquest and he also affixed his signature in the inquest report. But as mentioned above P.W. 4 does not say anything about the accused being present anywhere near the place where the dead body was found nor there is a reference to the accused in the inquest report. The only two remaining witnesses P.Ws 1 and 11 namely the father of the girl and the Investigating Officer respectively have contradicted each other. That is the type of evidence regarding this crucial circumstance. It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused. Having given our careful consideration

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we are of the firm opinion that the prosecution has not established this circumstance conclusively. On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence. We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report. Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt. However, when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established, then the other circumstances are hardly sufficient to establish the guilt of the accused. The courts below have also observed that the accused gave a false explanation. According to the prosecution case the accused is supposed to have stated to P.Ws 1 and 6 that he sent away the deceased in a truck. The courts below held that this explanation is false mainly on the surmise that a minor girl could not have come back on her own in a truck. We are not convinced that on this surmise alone we can hold that the accused has given a false explanation. It is not uncommon in villages for children to go about the field and walk short distances while coming back to the village. In any event the accused had given an explanation that he sent the girl back to the village in a truck and the same cannot be held to be not plausible and therefore false.

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As such, it is quite vivid that the appellant reported the matter to the police pursuant to which merg intimation was registered vide Ex.P/15 and the inquest (Ex.P/7) was conducted in which neither the presence of the appellant is recorded nor his signature is appearing. Though, Bodhan Singh Thakur (PW-14) has prepared the inquest report

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(Ex.P/7), but he did not say that the appellant was present at the time of inquest proceedings. However, he (PW-14) has stated that when nazari naksha (crime details form) (Ex.P/17) was prepared the appellant was present. K.D. Prabhakar (PW-12) registered the merg (Ex.P/15), but the manner of investigation proceedings has not been recorded, even he did not say what he did after the registration of the merg (Ex.P/15). Further, witnesses of inquest report (Ex.P/7) Mahendra Singh (PW-7) did not say that the appellant was present at the time when inquest report was prepared and also Dhunuram (PW-15) did not say that at the time of inquest the appellant was present. Similarly, spot map was prepared vide Ex.P/11 proved by Patwari Shailendra Tandan (PW-9) and PW-9 did not say that the house in question, where the incident has occurred, owned by the appellant himself, however, he said that the house in question was locked and it was opened, but there is no evidence that the lock of the house in question was opened in presence of the panchas and also no recovery of the lock has been made by the investigating officer. In the crime detail form (Ex.P/17) proved by Bodhan Singh Thakur (PW14) though the signature of the appellant is appearing, but there is no evidence available on record that the house in

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question was owned by the appellant. In that view of the matter, we are of the considered opinion that the prosecution has miserably failed to prove that the house in question was owned by the appellant; presence of the appellant on the date and time of offence is not proved; presence of the appellant at the time of recovery of dead body is not proved and also it is not proved that the dead body of the deceased was recovered pursuant to memorandum statement of the appellant. As such, the prosecution has failed to prove its case against the appellant beyond reasonable doubt and also failed to complete the chain of incriminating circumstances in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Consequently, the impugned judgment of conviction and order of sentence dated 29.09.2018 passed by the 2^nd Additional Sessions Judge, Bilaspur, Chhattisgarh, is hereby set aside and also the conviction and sentence awarded by the trial Court to the appellant for offences under Sections 302 and 201 of the IPC are hereby set

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aside. The appellant is acquitted of the charges for offences under Sections 302 and 201 of the IPC on the basis of benefit of doubt. He is reported to be in jail since 05.10.2017, we direct that he be released from jail forthwith, if not required any other matter.

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This criminal appeal is allowed .

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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 sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ankit

Santosh Kumar Manhar v. State of Chhattisgarh

Case brief

What is this about?

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Santosh Kumar Manhar v. State of Chhattisgarh

Case brief

What is this about?

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