Sanjay Rajak Vs State of Chhattisgarh

Sanjay Rajak, S/o. Late Shri Samaru Rajak, Aged About 30 Years, R/o. Village Mahamand, (Vimal Kirana Dukaan Ke Pass) Police Station - Toravaa, District - Bilaspur, Chhattisgarh.

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... Appellant

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versus

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State Of Chhattisgarh, Through Police Station Toravaa, Civil And Revenue District Bilaspur, Chhattisgarh.

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... Respondent

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For Appellant	: Mr. Brijesh Kumar Singh, Advocate
For Respondent	: Mr. H.A.P.S.Bhatia, 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 Sanjay Kumar Jaiswal

Judgment on Board

(05.03.2025)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 13.03.2019, passed by the learned Additional Sessions Judge, Bilaspur, in Sessions Trial No.57/2018, by which the appellant herein has been convicted for offence under Section 302 & 201 of Indian Penal Code and sentenced as under :

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CONVICTION		SENTENCE
U/s. 302 of I.P.C.	:	Life imprisonment fine of Rs. 1000/ default of payment of 3 months' addit rigorous imprisonmen	and - in fine, ional t.
U/s.201 of I.P.C.	:	Rigorous imprison for 3 years and fin Rs.1000/-, in defau payment of fine, 3 mo additional rig imprisonment.	ment e of lt of nths' orous
Both the sent	enc	e to run concurrently.

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2 . Case of the prosecution, in brief, is that on 17.02.2018 at about 9:30 P.M. at village Mahamand, Police StationTorwa, District Bilaspur, the appellant herein has assaulted his wife Shruti Rajak (now deceased) by Dumbbell and in order to screen himself from the legal punishment, buried the dead body in the Kitchen of his

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house and thereby, the offences have been committed. Anand Prakash Upadhyay (PW-1), Principal of the School where the deceased working as Aaya, reported the matter to the police vide Ex.P-9 (Dehati Merg Intimation) on the basis of information given by the appellant himself that he has buried the dead body in the Kitchen of his house. Thereafter, Merg Intimation was registered vide Ex.P-25, FIR was registered vide Ex.P-30, Inquest was conducted vide Ex.P-1 and dead body of deceased Shruti was subjected to post-mortem, which was conducted by Dr. A.K.Jha (PW-18), who proved the post-mortem report vide Ex.P-35, according to which, cause of death was stated to be injury to brain (head injury), mode of death was shock & coma and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-3), dead body was exhumed vide Ex.P-16 and dumbbell was seized vide Ex.P-5, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-34), blood was found on the seized dumbbell. After due investigation, appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which,

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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 18 witnesses and exhibited 35 documents along-with Article A-1 to A-3 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 offence under Section 302 & 201 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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5 . Mr. Brijesh Kumar Singh, learned counsel for the appellant, would submit that the prosecution has failed to bring home the offence beyond reasonable doubt, therefore, the appellant is entitled for acquittal. He further submits that the presence of appellant and deceased in the house in question is not established and it is also not established that in the house where the dead body was found was owned by the appellant and furthermore, the Dehati Merg lodged by Anand Prakash

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Upadhyay (PW-1) has already been revealed that the dead body was buried in the kitchen of the house owned by the appellant. As such, the Investigating Officer, Chandrakant Dahariya (PW-13), who registered the dehati merg already knew that the dead body was buried in the kitchen of the house of the appellant much prior to recording of the memorandum statement of the appellant vide Ex.P-3 on 18.02.2018 at 10:30 A.M. Furthermore, the Baramdagi Panchnama (Ex.P-16) has not been held that pursuant to memorandum statement of the appellant, dead body of the deceased was recovered, therefore, it is of no use to the prosecution and furthermore, on the alleged seized dumbbell, only blood was found as per the FSL report (Ex.P-34), no human blood of a particular bloodgroup was found and therefore, the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences.

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6 . Mr. H.A.P.S.Bhatia, 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 aforesaid offences. He further submits that the dead body was recovered pursuant to memorandum statement of the appellant,

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which is a strong incriminating circumstance implicating the appellant for the aforesaid offences and furthermore, the dead body was found buried in the house of the appellant and, therefore, 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 Shruti was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-35) proved by Dr. A.K.Jha (PW-18), according to which, cause of death was stated to be injury to brain (head injury), mode of death was shock & coma 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 . Now, the trial Court has impliedly invoke Section 106 of the Indian Evidence Act to base the conviction, as the dead body was found buried inside the house of the

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appellant, which has been shown in crime details form (Ex.P-10) & spot map (Ex.P-17). In the crime details form (Ex.P-10), place of incident is shown as 'A' whereas on the spot map (Ex.P-17), it has been shown as 'Place 1'. However, Patwari- Suresh Kumar Mishra, who has been examined as PW-11, has clearly stated that vide Ex.P-17 (Spot Map) he has not enclosed the documents demonstrating the title of the house in question. Investigating Officer - Chandrakant Dahariya (PW-13) in his statement before the Court has also admitted in para 9 that with regard to the house in question, he has not produced any document and in merg enquiry, it has been stated by the appellant to be his own house. As such, there is no document demonstrating that the house in question was owned and exclusively possessed by the appellant on the date and time of offence where the dead body was found buried. Accordingly, the prosecution has failed to establish that the place where the dead body was found buried was owned and exclusively possessed by the appellant on the date and time of offence. Even otherwise, there is no evidence on record that the house in question was owned and exclusively possessed by the appellant herein as per the statement of Anand Prakash Upadhyay (PW-1).

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10. Furthermore vide Ex.P-9 (Dehati Merg Intimation), Anand Prakash Upadhyay (PW-1) has already disclosed on 18.02.2018 at 8:30 A.M. that the appellant has informed him on his phone that he has murdered his wife and buried the dead body in the kitchen of his house and thereafter, the merg was registered and wheels of investigation started running. As such, the Police Officer, Chandrakant Dahariya (PW-13), who has registered the Dehati Merg Intimation (Ex.P-9) on 18.02.2018 at 8:30 A.M. already knew that the dead body was buried in the kitchen of the house allegedly owned by the appellant and thereafter, the memorandum statement was recorded on 18.02.2018 at 10:30 A.M. which is after recording and registering of the Dehalti Merg Intimation (Ex.P-9). As such, the memorandum statement has been recorded after disclosure of the place of incident by Anand Prakash Upadhyay (PW-1) to Chandrakaant Dahariya (PW-13), which has been registered in shape of Dehati Merg Intimation vide Ex.P-9.

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11. The Supreme Court in the matter of Aher Raja Khima v. State of Saurashtra1 has held discovery of incriminating articles alleged to have been recovered by the accused is

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1 AIR 1956 SC 217

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inadmissible in evidence if the police already knew where they were hidden and held in para 20 as under :

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"20. Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects)."

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12. Not only this, the Baramdagi Panchnama of dead body (Ex.P-16), which has been proved by the Tahsildar - Dev Singh Ukey (PW-8), in his statement before the Court, he has only stated that on 18.02.2018 at 1:45 P.M. at village Mahmand in the house of the appellant herein, the dead body was exhumed and panchnama was prepared vide Ex.P-16 and the dead body was identified. He did not say that the dead body of Shruti was recovered at the instance of the appellant herein and in Ex.P-16 also, no where it records that the dead body of deceased was recovered at the instance of the appellant herein. As such, for the aforesaid reasons, the recovery of dead body cannot be said to be at the instance of the appellant herein and the finding in this regard is contrary to the

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facts and law available on record. In that view of the matter, the learned trial Court is absolutely unjustified in invoking Section 106 of the Indian Evidence Act, as the prosecution has prima facie failed to prove the offence beyond reasonable doubt; therefore, burden has never shifted to the appellant herein to explain as to why and in what circumstance, deceased has died. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for the offence under Sections 302 & 201 of I.P.C. and, as such, he is entitled for acquittal on the basis of benefit of doubt.

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13. Accordingly, the impugned judgment of conviction and order of sentence dated 13.03.2019 is set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offence punishable under Sections 302 & 201 of Indian Penal Code. The appellant is in jail since 19.02.2018, he is directed to be released forthwith from jail, unless he is required in any other offence.

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14. In the result, the appeal is allowed.

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15. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy

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of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Sanjay Rajak v. State of Chhattisgarh

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Sanjay Rajak v. State of Chhattisgarh

Case brief

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