Dinesh Bank Vs State Of Chhattisgarh

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 19.08.2015, passed by the learned Sessions Judge, Mahasamund in Sessions Trial No.26/2014, by which, the sole appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.2000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment.

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2 . Case of the prosecution, in brief, is that in the intervening night of 27 & 28 February, 2014 at Bitangipali Nala, village Surangipali, Police Station- Basna, the appellant herein assaulted his friend Rupesh Bank (now deceased) by iron blade/chhura, by which he suffered grievous injuries and died; thereby, the offence has been committed. Sampat (PW1) reported the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-2, FIR was registered vide Ex.P-3, Inquest was conducted vide Ex.P-1 and dead body of deceased Rupesh was subjected to post-mortem, which was conducted by Dr. Santram Sidar (PW-6), who proved the postmortem report vide Ex.P-9, according to which, cause of death

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was stated to be cardio-respiratory failure due to excessive hemorrhage resulting from neck injury and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-5), iron blade/chhura & knife along-with the clothes of appellant & deceased were seized vide Ex.P-6 & Ex.P-7, which were sent for chemical examination to FSL and as per the FSL report (Ex.P-14), human blood was found on the seized iron blade/chhura & knife i.e. Article C & D. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 14 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the

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offence under Section 302 of I.P.C. and sentenced him for life imprisonment against which the present appeal has been preferred.

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5 . Mr. Barun Kumar Chakrabarty, learned counsel for the appellant, would submit that the theory of last seen together is not established beyond reasonable doubt and the alleged seizure of bloodstained weapon pursuant to memorandum statement of the appellant is of no use to the prosecution, as only on the basis of seizure of weapon, the appellant cannot be convicted in light of the decision rendered by the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan 1 which has been followed in the matter of Raja Naykar v. State of Chhattisgarh2 . Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside and the appellant is entitled for acquittal on the basis of benefit of doubt.

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6 . Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the

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1 (2011) 11 SCC 724

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2 2024 SCC Online SC 67

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aforesaid offence and, as such, the appellant is not entitled for acquittal and the appeal deserves to be dismissed.

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

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8 . The first question, for consideration, as to whether the death of deceased Rupesh was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-9, proved by Dr. Santram Sidar (PW6), according to which, cause of death was stated to be cardiorespiratory failure due to excessive hemorrhage resulting from neck injury and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the 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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Birdhichand Sarda v. State of Maharashtra3 , which must be

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fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 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 Sahabrao Bobade v. State of Maharashtra⁴ 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,

3 (1984) 4 SCC 116

4 (1973) 2 SCC 793

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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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10. The two incriminating circumstances which have been found to be established by the trial Court is the theory of last seen together established as per the statement of elder brother of the deceased Sampat (PW-1) and sister of the deceased Ku. Pooja Yadav (PW-14) and secondly, pursuant to memorandum statement of the appellant, weapon of offence i.e. chhura was seized on which human blood was found as per the FSL report (Ex.P-14).

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11. Now, we will consider the correctness of the aforesaid findings.

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Theory of last seen together

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12. The theory of last seen together has been established by the statement of Sampat (PW-1) and Ku. Pooja Yadav (PW-14) who have seen the appellant and deceased together on

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27.02.2014 at the evening. As per the statement of Pooja Yadav (PW-14), the appellant & deceased both have started from house by cycle at about 6:00 P.M. and thereafter, on the next day, the dead body was recovered vide Ex.P-2 on 28.02.2014 at 11:40 A.M. However, Virendra Patel (PW-3) has stated in his statement that prior to the date of recovery of dead body i.e. on 27.02.2014, he had seen the deceased in the liquor shop at Basna and he was taking the liquor. As such, the chain of circumstances has broken in the prosecution case as the deceased was seen all alone in the liquor shop at Basna while he was taking liquor. Furthermore, there is considerable time gap between the last seen together of the appellant & deceased on 27.02.2014 at 6:00 P.M. and recovery of dead body of deceased on 28.02.2014 at 11:40 A.M. vide Ex.P-2 by Sampat (PW-1). As such, it cannot be held that the appellant is the perpetuator of the crime in question in absence of corroboration in light of Navneethakrishnan v. State by Inspector of Police 5, in which, their Lordships of the Supreme Court have clearly held that evidence of last seen is an important piece of evidence, but accused cannot be convicted

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5 (2018) 16 SCC 161

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solely on the basis of evidence of last seen together and it requires corroboration.

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Recovery of bloodstained weapon

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13. It is the case of the prosecution that pursuant to memorandum statement of the appellant, chhura has been seized in which human blood has been found. However, Bahul Lal Chauhan (PW-4), who is village Kotwar, in para 8 of his statement has clearly stated that no seizure has been made in his presence and the appellant was interrogated in the police station and it has been wrongly recorded by the trial Court that he has supported the case of the prosecution. As such, the panchwitness has not supported the case of the prosecution and even otherwise, the appellant could not have been convicted only on the basis of recovery of bloodstained weapon for the offence under Section 302 of I.P.C. in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh6 by relying upon its earlier decision rendered in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan 7, wherein Their Lordships of the Supreme Court have clearly held that sole circumstance of recovery of blood-

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6 2024 SCC Online SC 67

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7 (2011) 11 SCC 724

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stained weapon cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances that too for the offence under Section 302 of I.P.C.

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14. In view of the above, the impugned judgment of conviction and order of sentence dated 19.08.2015 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence under Section 302 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C.

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15. In the result, this criminal appeal is allowed.

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16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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Ashok

Dinesh Bank v. State Of Chhattisgarh

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Dinesh Bank v. State Of Chhattisgarh

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