Allowed

Rajkumar Dhruw v. State of Chhattisgarh

Chhattisgarh HC3 Oct 2024CRA/724/2019

Case brief

AI extract

What is this about?

The Chhattisgarh High Court allowed an appeal against a life imprisonment conviction by Section 302 IPC. The bench held that the prosecution failed to prove the case beyond reasonable doubt, as the sole eyewitness was unreliable, the extra-judicial confession was not voluntary or credible, and seized clothes were not properly identified, creating reasonable doubt.

What did the court decide?

Appellant acquitted and directed to be released from jail forthwith.

Rajkumar Dhruw Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 724 of 2019

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2024:CGHC:39344-DB

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ANKIT KUMAR SINGH

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Digitally signed by ANKIT KUMAR SINGH Date: 2024.10.07 14:48:26 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 724 of 2019

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(Arising out of judgment dated 26.02.2019 passed in Sessions Trial No.49/2018 by the Sessions Judge, Dhamtari, C.G.)

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Rajkumar Dhruw S/o Shriram Dhruw, aged about 29 years, R/o Village-Sirsida, P.S. Sihawa, District-Dhamtari, Civil and Revenue District-Dhamtari, Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, through Police Station-Sihawa, District-Dhamtari, Chhattisgarh.

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... Respondent

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For Appellant :- Mr. Manoj Kumar Sinha, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee.

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For State-Respondent :- Mr. Sharad Mishra, 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

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Judgment On Board

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(04.10.2024)

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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. 724 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 26.02.2019 passed by the Sessions Judge, Dhamtari, Chhattisgarh in Sessions Trial No. 49/2018 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 ₹1,000/-; in default of payment of fine amount the appellant has to undergo rigorous imprisonment for 3 months and also under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of 1,000/-; in default of payment of fine₹ amount the appellant has to undergo rigorous imprisonment for 3 months.

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The case of the prosecution, in a nutshell, is that between 17.05.2018 to 18.05.2018, at village Sirsida, Police Station Sihawa, District-Dhamtari, Chhattisgarh, the appellant strangulated Jageshwari Dhruw (now deceased) till death and to screen himself from the offence, threw the dead body of the deceased in the Balka river and burned the clothes of the deceased and thereby committed the aforesaid offence. Ratan Lal Dhruv (PW-6), husband of the deceased, reported

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CRA No. 724 of 2019

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the matter the police pursuant to which merg intimation and FIR were registered vide Exs.P/14 & P/27, respectively. Spot map was prepared vide Ex.P/1. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16) proved by Dr. A.K. Gaur (PW-9) cause of death was asphyxia due to respiratory failure. Pursuant to memorandum statement of the appellant (Ex.P/6) pieces of burnt clothes were seized vide Ex.P/7.

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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 16 witnesses and exhibited 28 documents and articles A-1 to A-5, whereas, the appellant in defence has not examined any witness, but exhibited 2 documents. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the

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CRA No. 724 of 2019

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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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Mr. Manoj Kumar Sinha, 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 Roopdas Jangade (PW-1) is not reliable witness and not the eye witness as he did not report the matter even after witnessing the incident and there is a delay of almost 1 month in recording his (PW-1) statement under Section 161 of the CrPC. He further submits that the extra judicial confession which is said to have given by the appellant to Devendra Kurre (PW-4) and Vedvyas Dhruv (PW7) is not true and voluntary and even otherwise in absence of corroboration appellant cannot be convicted that too for offence under Section 302 of the IPC. He further submits that pieces of burnt clothes which were seized

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CRA No. 724 of 2019

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pursuant to memorandum statement of the appellant could not be identified and the identification parade was not conducted in accordance with law, therefore the appellant is entitled for acquittal on the basis of benefit of doubt.

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On the other hand, Mr. Sharad Mishra, 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 aforesaid offence, therefore, 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.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in its judgment at paragraph No.12 relying upon the statement of Roopdas Jangade (PW-1); postmortem report (Ex.P/16) proved by Dr. A.K. Gaur (PW-) and other evidences available on record, which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor

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CRA No. 724 of 2019

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contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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Now, the 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 v. State of Maharashtra 1 in paragraph

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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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(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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2 (1973) 2 SCC 793

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1 (1984) 4 SCC 116

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CRA No. 724 of 2019

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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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The first incriminating circumstance, which the trial Court has found proved, is that Roopdas Jangade (PW-1) had seen the appellant while dragging the dead body of the deceased. However, it is appropriate to mention here that PW-1 had seen the appellant while dragging the dead body of the deceased on 17.05.2018 at about 2:00 pm and his (PW-1) statement under Section 161 of the CrPC was recorded on 12.06.2018 vide Ex.D/1, as such, there is inordinate delay in recording his statement and, even otherwise till 12.06.2018, he did not report the matter to the police or the other responsible person of the village. Furthermore, the deceased was said to have been dragged by the appellant, but as per the statement of Dr. A.K. Gaur

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CRA No. 724 of 2019

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(PW-9), who conducted the postmortem of the deceased, no abrasions were found over the body of the deceased which were caused by dragging, as such, the statement of PW-1 is not supported by the medical evidence. So far as the extra judicial confession is concerned, the same was not made voluntarily by the appellant to PW-1 as according to PW-1 on being asked by him the appellant confessed his guilt that he murdered Jageshwari Dhruv (deceased) and also threatened him. As such, the statement of PW-1 does not inspire confidence as he did not report the matter to the police/competent officer or the other responsible persons of the village for 26 days and also it is not supported by the medical evidence proved by Dr. A.K. Gaur (PW-9) as on the back part or front part of dead body, no abrasion/injuries were found though as per PW-1 the appellant is said to have dragged the dead body for a fairly long distance, therefore, it would be unsafe and risky to rely upon the statement of PW-1 to base the conviction of the appellant that too for offence under Section 302 of the IPC.

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Next incriminating circumstantial which has been found proved by the trial Court is that the appellant is said to have given extra judicial confession to Devendra Kurre (PW4) and Vedvyas Dhruv (PW-7). However, it is appropriate to

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CRA No. 724 of 2019

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mention here that the date of incident was between 17.05.2018 to 18.05.2018 and the extra judicial confession is said to have given by the appellant to PW-4 & PW-7 on 12.06.2018 though they did not report the matter to the police or the other responsible person of the village and their statements under Section 161 of the CrPC were recorded on 22.06.2018. Even otherwise, It is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [ See : Sahadevan and another v. State of Tamil Nadu3 ]

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In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions

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3 (2012) 6 SCC 403

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CRA No. 724 of 2019

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including Balwinder Singh v. State of Punjab 4 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :-

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“15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

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“10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

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15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility.

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The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. ( Ref. Sk. Yusuf v. State of W.B.⁵ and Pancho v. State of Haryana⁶ .)

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The principles

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Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of

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5 (2011) 11 SCC 754

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6 (2011) 10 SCC 165

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4 1995 Supp (4) SCC 259

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CRA No. 724 of 2019

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forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused :

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(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

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(ii) It should be made voluntarily and should be truthful.

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(iii) It should inspire confidence.

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(iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

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(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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(vi) Such statement essentially has to be proved like any other fact and in accordance with law. ”

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Bearing in mind the principles of law laid down by their Lordships of the Supreme Court decision in the matter of Sahadevan (supra), it is quite vivid that the extra judicial confession which is said to have been given on 12.06.2018 at about 2:00 pm by the appellant to PW-4 & PW-7 after delay of 26 days of the incident, but they did not inform the police about the same and it is appropriate to notice that the memorandum statement of the appellant was recorded on 12.06.2018 at 4:30 pm vide Ex.P/6 and he was arrested

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CRA No. 724 of 2019

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on 12.06.2018 at 5:40 pm vide Ex.P/9. In view of the above-stated discrepancies, we are not inclined to accept that the extra judicial confession is true and voluntarily to base the conviction of the appellant and even otherwise, extra judicial is a weak piece of evidence.

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Last piece of incriminating circumstance which has been found proved by the trial Court is that pursuant to memorandum statement of the appellant (Ex.P/6), pieces of burnt clothes were seized (Ex.P/7). However, it is difficult to identify that the same were to the clothes of the deceased in absence of proper identification and also it would be unsafe and risky to base the conviction of the appellant only on that basis in absence of other corroborative piece of evidence that too for offence under Section 302 of the IPC.

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Concludingly, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and also to complete the chain of incriminating circumstance in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) as the evidence of Roopdas (PW-1) is not reliable as an eye witness; the extra judicial confession which is said to have been given by the appellant to Devendra Kurre (PW-4) and

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CRA No. 724 of 2019

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Vedvyas Dhruv (PW-7) is not true and voluntary and also do not inspire confidence to base the conviction of the appellant and only on the basis of seizure of pieces of burnt clothes pursuant to memorandum statement of the appellant which was not properly identified the appellant cannot be convicted in absence of other corroborative piece of evidence that too for offence under Section 302 of the IPC. Accordingly, the appellant is entitled for acquittal on the basis of benefit of doubt from the offence under Sections 302 and 201 of the IPC. He is reported to be in jail since 12.06.2018, 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 he 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

Rajkumar Dhruw v. State of Chhattisgarh

Case brief

What is this about?

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Rajkumar Dhruw v. State of Chhattisgarh

Case brief

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