Allowed

Amir Khan @ Gullu @ Gulla v. State of Chhattisgarh

Chhattisgarh HC12 Jun 2024CRA/810/2018

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against a murder conviction by the trial court, holding that the prosecution failed to prove the case beyond reasonable doubt. The court found deficiencies in motive, the extra-judicial confession, and the recovery of the weapon due to lack of memory disclosure under Section 27 of the Evidence Act.

What did the court decide?

The impugned judgment of conviction and sentence is quashed; the appellant is acquitted and directed to be released forthwith.

Amir Khan @ Gullu @ Gulla Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 810 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 810 of 2018

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(Arising out of judgment dated 21.10.2016 passed in Sessions Trial No.226/2014 by the 1^st Additional Sessions Judge, Sakti, District Janjgir-Champa, Chhattisgarh)

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Amir Khan @ Gullu @ Gulla S/o Peer Khan, aged about 24 years, R/o Village – Kanshigarh, Police Station Jaijaipur, District Janjgir-Champa, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through – Thana In-Charge – Jaijaipur, District – Janjgir-Champa, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Rajkumar Pali, Advocate / Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Afroz Khan, Panel Lawyer.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Agrawal

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Judgment On Board

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(13.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 21.10.2016 passed by the 1^st

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CRA No. 810 of 2018

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Additional Sessions Judge, Sakti, District Janjgir-Chamapa, Chhattisgarh in Sessions Trial No.226/2014 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 5000/-; in default of payment of fine to undergo additional rigorous imprisonment 6 months.

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The case of the prosecution, in a nutshell, is that on 24.09.2014 before 11:00 am at village – Kanshigarh, Police Station Jaijaipur, District Janjgir-Champa, Chhattisgarh, the appellant assaulted his father Peerkhan (now deceased) by crowbar by which he suffered grievous injuries and died and, thereafter, Ramjan Khan (PW-4), cousin of the appellant and nephew of the deceased, informed about the said incident to the police pursuant to which merg intimation and FIR were registered vide Exs.P/9 & P/10, respectively. Nazari naksha was prepared vide Ex.P/2. Inquest proceedings (Ex.P/12) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/5) proved by Dr. Manoj Kumar Rathore (PW-2) cause of death was shock and heamorrhage due to head injury. Articles were seized from the house of the deceased vide Exs.P/17 & 18 (memorandum

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CRA No. 810 of 2018

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statement of the appellant was not recorded). Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/29) on the weapon of offence i.e. crowbar (Article D) only blood was found; on the clothes of the appellant (Articles C1 & C2) and on the clothes of the deceased (Articles E1 & E2) human blood was found.

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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 20 witnesses and exhibited 32 documents whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement 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

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CRA No. 810 of 2018

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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. Rajkumar Pali, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for aforesaid offence as the prosecution has failed to prove the offence against the appellant beyond reasonable doubt and he has falsely been implicated in crime in question. He also submits that the incriminating circumstances culled out by the learned trial Court at paragraph no. 19 of its judgment are not established beyond reasonable doubt as prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt, therefore, appellant is entitled for acquittal on the basis of principles of benefit of doubt and the instant 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 prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the appellant has rightly been convicted for the offence in question. Thus, the instant appeal deserves to be dismissed.

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CRA No. 810 of 2018

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

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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The said question has been answered by the trial Court in affirmative in para 16 of its judgment that the death of Peerkhan (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/5) proved by Dr. Manoj Kumar Rathore (PW-2) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor 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 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

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CRA No. 810 of 2018

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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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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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1 (1984) 4 SCC 116

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2 (1973) 2 SCC 793

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CRA No. 810 of 2018

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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 19 of its judgment, which state as under:-

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“19. अभि�यो�जनकी�ओरसे�इसे प्रकीरणमें�आर�पी�पीरआर�भिपीतउपीर�क्ता�न�से�र अपीर�धकी�से�बं�धमें�ज�पीरिरस्थि !भितयो��भिनभिमें"तकी�गयो�हैं%, वे�इसेप्रकी�रहैं%:(1) में'तकीपी�रखा�नकी�आर�पी�अमें�रखा�नकी�से�! पी)से�की�में��गकी� ले�कीरहैंमें�शा�वे�द-भिवेवे�दहैं�न�। (2) आर�पी�द्वा�र�अपीन�भिपीत�पी�रखा�नकी�में'त्यो�की�रिरतकीरउसेकी�हैंत्यो� कीरन�की�बं�तअपीन�में��की�बंत�यो�ज�न�, तत्पीश्चा�त2 आर�पी�की�में��द्वा�र�अन्यो व्योभिक्तायो5 की�उक्ताबं�तबंत�यो�ज�न�। (3) आर�पी�द्वा�र�पी�शाकीरन�पीर, उसेसे�घटन�में�प्रयो�क्तासेब्बंलेन�में�र�ड बंर�मेंदहैं�न�त!�एफ.एसे.एलेरिरपी�ट" प्र. पी� - 29 में�आर�पी�से�जप्तसेब्बंलेन�में� र�डएवे�आर�पी�की�ट�-शाट" में�रक्तापी�यो�ज�न�। अत= अबंयोहैंद�खान�हैं) भिकीक्यो�उपीर�क्तासेमें तपीरिरस्थि !भितयो��अभि�यो�जन

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द्वा�र�प्र त�तसे�क्ष्यो5 से�से�भिबंतहैं�त�हैं% ?”

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So far as the first incriminating circumstance which has been found proved by the trial Court is motive. The trial Court has relied upon the statements of Ramjan Khan (PW-4) and Jumman Bi (PW-5) to establish the motive. However, Ramjan Khan (PW-4) in paragraph no. 8 of his statement before the Court has clearly stated that relationship between the appellant the deceased was cordial and both were addict of liquor. Similarly, Jumman Bi (PW-5) in paragraph no.5 of her statement before the Court has stated that the relationship between the appellant and the deceased being a son and father

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CRA No. 810 of 2018

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was cordial and both were addict of liquor. As such, the finding recorded by the trial Court with regard to motive that on account of demanding money, the appellant is said to have assaulted the deceased, is clearly contrary to the record and, therefore, motive of offence is not established.

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The next incriminating circumstance which has been found proved by the trial Court that after murdering his father, appellant had given extra judicial confession to his mother Bugdana Bi (PW-3) and thereafter, who informed the same to other persons. However, Bugdana Bi (PW-3) in her statement before the Court, did not say about the extra judicial confession and furthermore, in paragraph no. 7 of her statement before the Court, she has stated that on the date of offence in the morning, she had gone to graze her cattle and her husband (deceased) was all alone at the house, even she stated that when she reached to the house after grazing cattle except dead body of the deceased no one was present in the house. Further, Ramjan Khan (PW-4) in his statement before the Court has stated that it is Bugdana Bi (PW-3) who had informed him that the appellant has given extra judicial confession to her (PW-3) that he (appellant) caused the death of his father (deceased), but in this regard no evidence has

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CRA No. 810 of 2018

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been produced by the prosecution at least to hold that the appellant had given the extra judicial confession to Bugdana Bi (PW-3) admitting his guilt of commission of the offence, even otherwise, it is the settled principle of criminal jurisprudence that extra judicial confession is weak piece of evidence unless it corroborated by other prosecution evidence and in the instant case, there is no corroborative piece of evidence brought by the prosecution, as such, the trial Court has wrongly held that it is the appellant who is the author of crime in question on the basis of extra judicial confession.

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Third incriminating circumstance which has been found proved by the trial Court is that as per the FSL report (Ex.P/29) on the weapon of offence i.e. crowbar blood was found. It is appropriate to mention here that the weapon of offence i.e. crowbar which was allegedly used in commission of offence and seized vide Ex.P/18, has not been seized pursuant to memorandum statement of the appellant herein even the memorandum statement of the appellant has not been recorded. The evidentiary value of the articles which have been seized without any memorandum statement of the accused, has been discussed and laid down by their Lordships of the Supreme Court recently in the matter of Boby v. State of

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CRA No. 810 of 2018

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Kerala 3 wherein following the principle of law laid down in

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Chandran v. The State of Tamil Nadu 4 it has been held as

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under:-

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“21. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.

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22. This Court, in the case of Chandran v. The State of Tamil Nadu (supra) had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of accused No.1. In the said case also, no statement of accused No.1 was recorded under Section 27 of the Evidence Act leading to the recovery of jewels. The Court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the instance of accused No.1 therein in pursuance to the confessional statement (Ex.P-27) recorded before PW-34 therein. It will be relevant to refer to the following observations of this Court in the said case :

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“36. …... Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act.....”

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26. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid

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3 2023 LiveLaw (SC) 50

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4 (1978) 4 SCC 90

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CRA No. 810 of 2018

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requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein). ”

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Since the blood stained weapon of offence i.e. crowbar was not seized pursuant to memorandum statement of the appellant, in view of the principles of law laid down by their Lordships of the Supreme Court in the matters of Boby (supra) and Chandran (supra) it is of no use to the prosecution as the weapon of offence i.e. crowbar has not been recovered at the instance of the appellant and, as such, we hereby reject this circumstance put forth by the prosecution against the appellant. Similarly, as per FSL report (Ex.P/29) blood has been found on the weapon of offence i.e. crowbar and human blood was found on the clothes of the appellant, but in view of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh5 , only on the basis of FSL report and recovery of blood stained articles, the accused/appellant cannot be convicted for offence under Section 302 of the IPC, as such, it is also of no use to the prosecution.

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5 2024 SCC OnLine SC 67

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CRA No. 810 of 2018

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In view of the aforesaid discussion, we are of the considered opinion that the prosecution has 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), as such, the appellant is entitled for acquittal on the basis of principles of benefit of doubt. Accordingly, t he impugned judgment dated 21.10.2016 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of principles of benefit of doubt. Appellant is stated to be in jail since 24.09.2014, we direct that he be released from the jail forthwith, if not required in 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 supplied 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) (Sanjay Agrawal) Judge Judge

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Ankit

Amir Khan @ Gullu @ Gulla v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Amir Khan @ Gullu @ Gulla v. State of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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