Parmeshwar Kewat Vs State of Chhattisgarh

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2024:CGHC:47656-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Order reserved on 18-11-2024

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Order delivered on 04 -12-2024

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CRA No. 872 of 2020

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Parmeshwar Kewat S/o Shri Mohan Kewat Aged About 26 Years R/o Village Katoud, P. S. Navagarh, District Janjgir Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh

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... Appellant

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versus

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State of Chhattisgarh Through P. S. Navagarh, District Janjgir Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh

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... Respondent

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For Appellant : Ms. Sharmila Singhai, Senior Advocate assisted by Mr. Hrishabh Deo Shukla, Advocate.

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For Respondent : Mr. Devesh G. Kela, Panel Lawyer.

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Hon'ble Smt. Justice Rajani Dubey, J

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Hon'ble Shri Bibhu Datta Guru, J CAV Order

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Per Bibhu Datta Guru J

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This appeal is directed against the judgment of conviction and sentence dated 22/09/2020 passed by learned Additional Sessions Judge(F.T.C.), District-Janjgir-Champa, Chhattisgarh in Sessions Case No. 45/2018, whereby the appellant has been convicted and sentenced as under:-

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Sentence	Conviction
Under Section 302 of the IPC	R.I. for Life with fine of Rs. 100/- in default of payment of fine, additional R.I. for two month (two times).
Under Section 201 of the IPC	R.I. for 2 years and fine of Rs. 100/- in de- fault of payment of fine, additional R.I. for 15 days.(two times)

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All the sentences are directed to run concurrently.

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Facts of the case, in brief, is that on 02/04/2018, Dwarika Prasad Kashyap (PW-5), Panch of the village gave information of fire in the house of the appellant to Shiv Kumar (PW-1), Sarpanch of village, thereafter, Rambali (PW-8), Kotwar, went to the house of the appellant and found the burn body of Pramila and Parmeshwari (both are deceased) inside the house. Subsequently, the incident was reported to the police, thereafter, Merg intimation (Ex/P-1 and P/1-A) and FIR (Ex.P-29) was registered against the appellant/accused under Section 302 and 201 of IPC in Crime No.64/18. Inquest proceedings were

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conducted vide Ex.P/4 and P/5. Spot map was prepared vide Ex.P/19. The dead-body of both the deceased were sent for postmortem examination and the postmortem was conducted by Dr. Anita Dhruv (PW-17) with Dr. V.K. Jaiswal. In the postmortem examination report i.e. vide Ex.P/22 and P/23-A), it was opined that the cause and nature of death of both the deceased were homicidal and postmortem burn. Thereafter, appellant-accused was arrested vide Ex.P/35 and his memorandum statement was recorded (Ex.P/16) pursuant to which, Matchbox, Kerosine and Petrol were seized which were sent for chemical examination to FSL and FSL report is vide Ex.P/38. After completing the investigation, the final report was prepared.

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In order to bring home the above-stated offence, the prosecution examined as many as 20 witnesses and exhibited 40 documents. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded his innocence and false implication in the matter.

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After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal.

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(i) Learned counsel for the appellant would submit that the appellant has been falsely implicated in the present case. She submits that as per the medical evidence of Dr Anita Dhruv, which

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stated that there were no marks of strangulation on the neck of both the deceased. She further submit that according to the evidence of Bharat Kashyap (PW-2) states that appellant was not present on the date of incident i.e. 02/04/2018 and the appellant had gone to Raipur on 01/04/2018. During the cross-examination, Bharat Kashyap (PW-2) stated that when the body of deceased were in burning state, the door was locked from inside and the villager tried to open the door but could not open it. (ii) Learned counsel appearing for the appellant, would submit that there is absolutely no evidence against the appellant conclusively connecting them with the commission of crime. She further submit that the circumstantial evidence does not complete the chain nor an inference of guilt can be drawn on the basis of such evidence as has been brought on record by the prosecution, therefore, the conviction of the appellant is not sustainable and he may be acquitted of the charges framed against him.

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On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference.

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We have heard learned counsel for the parties and perused the record.

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The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/22 & 23-A) which is duly proved by the evidence of Dr. Anita Dhruv (PW-17). Accordingly, taking into consideration the postmortem report (Ex.P/22 & 23-A) and the statement of Dr. Anita Dhruv (PW-17), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased was homicidal in nature.

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Now the next question would be whether the accused-appellant herein is the author of the crime in question ?

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Dr. Anita Dhruv (PW-17), who conducted the postmortem examination of both the deceased stated in her cross-examination that during the postmortem, no marks of strangulation were found on the neck of both the deceased.

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Guharam (PW-7) in his evidence stated that he had seen the appellant going towards Shivrinarayan in the morning on the date of incident and has not mentioned the exact time, however, in his cross-examination, he stated that the incident took place in the morning at about 05:30 a.m.

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Shiv Kumar Gond (PW-1) stated that when he went to the house of the appellant, he saw the body of both the deceased were in burning condition and the appellant was not present in his house.

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Bharat Kashyap (PW-2) stated in his evidence that when he went to the house of the appellant, he saw that the dead body of deceased were burning and the appellant was not present in the house. He stated that the appellant had gone to Raipur a day before the incident took place. He further deposed that the room was locked from inside where the incident took place and the villager tried to open the door but could not open it.

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Laxman Kumar (PW-3) stated in his cross-examination that the appellant took her sister Pramila (deceased) and nephew to village Gidhauri. He stated that the appellant left the motorcycle at his house and gone to Raipur by bus in evening. He further stated that the appellant returned to village on the date of incident when the deceased were created.

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Krishnakant Sahu (PW-14), A.S.I., Cyber Cell, District: JanjgirChampa stated in his cross-examination that the location of mobile number 7582867043 was at village Kataud thereafter, on 31/03/2018 at Shivrinarayan and on 02/04/2018, the location of said mobile number was in Raipur.

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Location of the SIM card No.7582867043 operated in the mobile phone which was reported to have been seized from the appellant by the Investigating Officer-R.G. Dewangan (PW-18) was in

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Raipur on the date of incident i.e 02/04/2018.

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Admittedly, there is no ocular version of the crime, as no witness has seen the appellant committing the crime. Case of the prosecution, therefore, rests on circumstantial evidence. The principle as to when an accused can be convicted on the basis of circumstantial evidence has been propounded by the Supreme Court in the celebrated case of Sharad Birdhichand Sarda vs. State of Maharashtra¹ , wherein it has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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

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(1984) 4 SCC 116

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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. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (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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Also in the matter of Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore² , the Supreme Court has reiterated the above principles.

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Reverting to the facts of the present case, the case of the prosecution is based on circumstantial evidence, as there is no ocular version of the crime. The Investigating Officer obtained only one memorandum statement of the appellant. Except this memorandum statement, there is no other evidence against the appellant. On the place of incident, the appellant was not present, in fact, looking to the statement of Bharat Kashyap (PW-2), it is

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(2016) 10 SCC 298

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stated that the appellant had gone to Raipur on the day before the incident took place and the door of the room where the deceased was burning, was locked from inside. Apart from that, considering the statement of Dr. Anita Dhruv, who conduced the postmortem of both the deceased, stated that she was not found any marks of strangulation on the neck of the deceased. Also, location of the said SIM card which has been seized, on the date of incident was tracked in Raipur. Only Guharam (PW-7), in his evidence stated that he had seen the appellant early in the morning on the date of incident when the appellant was going towards Shivrinarayan from the village, but he did not disclose to anyone in the village that he had seen the appellant. Thus, this evidence alone is not sufficient to establish that the appellant/accused was present at the place of occurrence.

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It is the well settled proposition of law that the conviction only on the basis of memorandum and consequent recovery is not permissible unless the recovery is of any article which properly connects the accused to the commission of crime and is duly corroborated with other clinching evidence. The seized articles used for commission of crime has not been recovered from the appellant.

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Moreover, there is no evidence of last seen together or evidence of any other scientific or technical nature, which may connect the appellant with the crime. The present is a case of absolute lack of

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evidence against the appellant. He has wrongly been convicted by the trial Court and hence he deserve to be acquitted of the charges.

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In view of the above, there is no other evidence of conclusive nature by which his guilt of committing murder of the deceased can be proved. In the state of evidence on record, the appellant is entitled for the benefit of doubt.

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For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt.

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In the result, the appeal is Allowed . The impugned judgment of conviction and sentence dated 22/09/2020 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case.

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Keeping in view the provisions of Section 437-A Cr.P.C.(481 of the B.N.S.S), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 aforesaid appellant on receipt of notice thereof

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shall appear before the Hon’ble Supreme Court.

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