Ramgopal Patel Vs State of Chhattisgarh

Rajesh Yadav S/o Aghnu Yadav Aged About 19 Years R/o Village Arjuni (Baldakachhaar) Police Station Kasdol, District Baloda Bazar Bhatapara Chhattisgarh.

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--- Appellant

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Versus

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State Of Chhattisgarh Through Police Station Palari, District Baloda Bazar Bhatapara Chhattisgarh.

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--- Respondent

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For Appellants : Ms. Indira Tripathi and Mr. Adil Minhaz Advocate For Respondent(s) : Mr. Devesh G. Kela, P.L.

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DB: Hon’ble Smt. Justice Rajani Dubey and

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Hon'ble Shri Justice Sachin Singh Rajput

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CAV Judgment

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Per Sachin Singh Rajput, J.

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Since these two appeals arise out of the judgment dated 19.03.2019 passed by III Additional Sessions Judge, District – Balodabazar (C.G.) in Sessions Case

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No.18/2018, they are being disposed of by this common judgment.

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2 . By the judgment impugned the accused/appellants in both the aforesaid appeals have been convicted under Sections 302/34, 201/34 & 120-B IPC and each of them have been sentenced to undergo life imprisonment with fine of Rs. 1,000/- u/s 302/34, R.I. for 3 years with fine of Rs. 1,000/- u/s 201/34 & life imprisonment with fine of Rs. 1,000/- u/s 120-B IPC, plus default stipulations.

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The facts in short: Accused/appellant Ramgopal Patel and the deceased Rupesh Kumar Patel happened to be the father and son respectively. On 25.11.2017 a report was made by complainant Kashiram Patel (PW-1) to the effect that his nephew (the deceased) aged about 14 years at the relevant time was lying dead in the courtyard of his house with injuries on his head and private part. On merg intimation being registered at his instance, the matter was taken up for investigation. The accused/appellant Ramgopal at the relevant time was alone in his house and suspecting the effect of some evil spirit he used to get organized certain rituals to drive away the same. Accused Rajesh Yadav who used to practise exorcism, came into contact with accused/appellant Ramgopal Patel and he assured him that if offering of his son’s blood was made to the deities, the effect of evil spirit would subside. For this purpose, accused/appellant Rajesh took some money from accused/appellant Ramgopal and thus hatching a conspiracy, he inflicted injuries on the head and private part of the deceased with sickle and after offering the blood to the deity he hid the sickle used in the offence in the heap of garbage. He also wiped off the blood stains to cause disappearance of evidence. On the memorandum of accused/appellant Ramgopal Patel the sickle was seized from the heap of garbage under Ex. P-11. FIR Ex. P-22 was registered against unknown persons u/s 302 IPC. After conducting the postmortem examination on the body of the deceased and completing the procedural formalities in regard to investigation, the charge-sheet was filed against the accused/appellants for the offences under sections 302, 201, 120-B IPC followed by framing of charge accordingly. Charges however were denied and trial claimed.

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Prosecution examined as many as 21 witnesses in support of its case. Statements of the accused/appellants u/s 313 of the Cr.P.C. were also recorded in which they pleaded their innocence and false implication in the case.

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Learned trial Court after hearing the parties convicted and sentenced the accused/appellants as described above. Hence these appeals.

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Learned counsel for the appellants submits that the conviction of the accused/appellants for the offences mentioned above is not based on the evidence of the witnesses and therefore the trial Court has committed a serious error in ignoring the fact that most of the witnesses have not supported the case of the prosecution and turned hostile. It is submitted that the sickle and the clothes of the accused/appellants seized also did not contain any blood much less the blood of the blood group of the deceased and that even the memorandum witness has not supported the case of the prosecution. She submits that the house where the incident took place is being occupied by the appellant Ramgopal’s family and also that of his brother’s family and therefore the possibility of any outsider coming in and committing the offence cannot be ruled out. She submits that even the FSL report remains un-exhibited. It is further submitted that the seizure of sickle was made from a garbage heap which is an open place and therefore it cannot be said that it was made at the instance of the accused/appellant Ramgopal as it has come in the evidence of one prosecution witness that the sickle was seized by a sniffer dog. In support of her submissions, reliance is placed on the decisions of the Supreme Court in the matter of Reena Hazarika v.The State of Assam reported in (2019) 13 SCC 289 , in the matter of Nusrat Parween v. State of Jharkhand in Criminal Appeal No. 458/2012 rendered on 10.12.2014 reported in 2024 INSC 955.

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On the other hand, supporting the impugned judgment learned counsel for the State submits that while passing the judgment impugned convicting and sentencing the accused/appellants as mentioned above learned trial Court has taken note of the evidence of all the witnesses very elaborately and therefore the

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findings so recorded holding the accused/appellants guilty do not suffer from any illegality or irregularity calling for interference in these appeals. He submits that as at the relevant time the accused/appellant Ramgopal was sleeping in one of the rooms of the house in question, it is he who is required to explain as to how the death of Rupesh occurred, as per the provisions of Section 106 of the Indian Evidence Act. He thus submits that the judgment impugned being a well reasoned one deserves affirmation by dismissing these appeals.

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Heard counsel for the parties and gone through the evidence of the witnesses including the judgment impugned with great diligence. 9. Kansi Ram (PW-1) is uncle of the deceased who had informed the police about the death of Rupesh on the basis of which merg Ex. P-1 was registered. Though he has turned hostile, in cross-examination he has admitted that he was informed by the Kotwar and other villagers that penis of the deceased was chopped and there was blood on his clothes. He has stated that at that time his daughter Kavita, son Dhaneshwar and nephew Dular were watching TV whereas accused/appellant Ramgopal was sleeping in his room. He has admitted that after returning home, his daughter Khushboo and her friend Nandini managed to open the main door which was latched from inside, made and entry, saw Rupesh lying dead in the courtyard and woke up accused/appellant Ramgopal who was sleeping in his room. According to this witness, Rupesh was of freakish temperament and sometimes exhibited abnormal activities.

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Yasoda @ Khusboo (PW-2) though turned hostile, has stated that after she returned home, the main door was found closed from inside and she managed to open the same by inserting hand from the gaping space between the two panels, and after getting inside saw that Rupesh was lying dead in the courtyard. She has stated that when Rupesh was alive, theft took place in his house and for that accused/appellant Ramgopal used to call the exorcist and to find the way out. In cross-examination she has admitted that a week prior to the incident some evil sprit had passed stool in the deity room as also in the courtyard. She has admitted that

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the deceased was mentally weak and sometimes behaved abnormally. She has also stated that once prior to the incident Rupesh had injured his hand by cutting the vein. In examination in chief this witness has stated that accused Ramgopal was sleeping in his room and she woke him up but in the cross examination she stated just the contrary that she did not meet him on the date of incident. Both these witnesses i.e. PW-1 and PW-2 have however made a similar statement as to the deceased being looked after properly and was imparted good education by accused Ramgopal.

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Sukhni Bai Patel (PW-3) also turned hostile but in cross examination she has made almost similar disclosure about the evil spirit making nuisance in the house and also as to the calling of exorcist to find out the remedial measures. According to her also, Rupesh was being taken good care of and given proper education by accused Ramgopal. Khuman Yadav (PW-4) is stated to have been informed by Sunita – wife of accused Ramgopal about someone dirtying her house and also the exorcist being called to find out the remedy. On being asked, this witness had suggested to her the name of accused Rajesh Yadav. He took accused Ramgopal to the house of accused Rajesh on motorcycle along with one Daniram Sahu. According to this witness, on being apprised of the said nuisance accused Rajesh suggested for some ritual to be observed and for that he gave an inventory of the articles required also. Accused Rajesh is also stated to have given some medicine for Rs. 500-600/-. Thereafter, ritual was observed by accused Rajesh costing about Rs. 2,200-2,300/-. As asked for by accused Rajesh, in the midst of that ritual Sunita – the wife of accused Ramgopal gave Rs. 3,000/- to accused Rajesh. While performing the ritual, accused Rajesh is stated to have driven all the persons out of the room of accused Ramgopal. Accused Rajesh in the last gave amulets to be worn by all the family members of accused Ramgopal and while departing he took Rs. 2,000/- more apart from rice and pulses. Even after observance of ritual the problem remained as it is, and this time on being informed accused Rajesh demanded a cock for the further ritual, for that Sunita gave him Rs. 1000/-.

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According to him, about 15 days after the observance of ritual, Rupesh died but he did not know how all that happened. In cross-examination, he has stated that on the date of incident hearing others going to the house of accused Ramgopal, he also went there and saw Rupesh lying in the courtyard covered with a scarf and people were murmuring about his being killed by someone. He however has expressed his ignorance as to how the deceased was kept by his father.

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Sunita (PW-5) has stated that to get rid of the evil spirit creating nuisance in her house accused Rajesh was called but nothing happened. On the date of incident she had gone to the field whereas her husband (accused Ramgopal) was in the house. On being called by one Dani Sahu, she returned home and saw a huge gathering over there, she did not see Rupesh but was informed by the people present there that the one lying covered with scarf was her son, and that the people were weeping and wailing. She has stated that accused Rajesh had come to her house 15 days prior to the incident but not thereafter. She has also expressed her ignorance as to how the death of Rupesh took place. According to her, all in the family lived happily and her children were given good education by accused Ramgopal. Now she states that she was not aware whether at the relevant time her husband was in the house or not. Mohd. Islam Baeg (PW-6), Premlal Sahu (PW-7) and Nagendra Kumar Verma (PW-9) are the persons who used to practice exorcism and are stated to have tried to provide a remedy for the nuisance of the evil spirit in the house of accused Ramgopal. Apart from this, nothing material has been spoken by them and they turned hostile.

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Dilip Sahu (PW-8) is the witness to inquest Ex. P-3 who has admitted his signature thereon. Bhanu Pratap (PW-10) is the seizure witness who has stated that in his presence the police had seized the sickle with handle from the garbage heap of accused/appellant Ramgopal vide seizure memo Ex. P-11 which was signed by him also. As regards deceased, this witness has first stated that accused/appellant Ramgopal had not told anything about his death, then he states that this accused had told him that he had not killed him (deceased Rupesh). At this

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stage, this witness has been declared hostile. In cross examination, he has denied that the seizure of sickle was made from the garbage heap on being taken out by the accused/appellant Ramgopal, rather it was traced out by the sniffer dog. He has then admitted that in his presence the police did not seize anything from accused/appellant Ramgopal. According to him, he was not aware as to whom the sickle and the mobile set so seized belonged and that such articles are available in every household. He has admitted the papers signed by him at the instance of police were not read over to him and he simply put his signature as asked for by the police. Manik Das (PW-12) and Balram Patel (PW-13) have also stated almost the same thing as PW-10. Dwarika Prasad Patel (PW-14) has stated that the police had seized a sickle and a bag from the garbage heap. Except this, nothing specific has been stated by this witness. 14. Fattulal (PW-11) is the witness to inquest who has stated that there was injury on the temple of the deceased, his penis was also cut and that blood stained soil was seized from the spot. He has admitted his signature on the inquest report Ex. P-2 and the seizure memo Ex. P-8. Except this, he has not stated anything specific about the incident. Dr. B.S. Dhruv (PW-18) is the witness who conducted the postmortem examination on the body of the deceased and gave his report Ex. P-19 stating that he noticed multiple abrasions, swelling on the stomach, neck, chest, back etc and penis was also cut. Bone of the left side of the temple was found to be fractured. All the injuries were grievous in nature and were caused by hard and sharp edged weapon and they were ante mortem. He has opined that death was caused by complication of hemorrhage and shock as a result of injury on vital organs, and its mode was asphyxia. Death is opined to be homicidal in nature. While replying to the query, this witness has stated that the injuries present on the body of the deceased could be caused by any other sharp edged object including sickle. R.B. Singh (PW-19) and Ramgopal Soni (PW-20) are the witnesses who carried out investigation have duly supported the case of the prosecution. Ku. Nandini Patel (PW-21) has not supported the case of the prosecution and turned

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hostile. She like other witnesses has however stated that the deceased was being well taken care of and imparted good education by his father (accused/appellant Ramgopal Patel).

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As regards nature of death, looking to the evidence of the doctor (PW-18) who conducted postmortem examination on the body of the deceased and also the report given by him (Ex.P-19) mentioning multiple injuries on various parts of his body including fracture on the temple bone, the argument of the counsel for the appellants that the deceased was of freakish mental temperament sometimes behaving abnormally; that once he had cut the vein of his hand, and as such possibility of injuries being self inflicted ones, is hereby turned down and the finding recorded by the trial Court holding the death to be homicidal, is hereby affirmed.

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Now this Court proceeds to the other aspect of the matter i.e. complicity of the accused/appellants in the crime in question. At the outset it is worthwhile to mention here that there is no eyewitness to the incident and the entire case of the prosecution rests on the circumstantial evidence. It is worth-mentioning here that most of the witnesses examined by the prosecution have turned hostile on some point or the other, but yet it is open for this Court to use their statement made in cross examination lending support to the case of the prosecution. It thus proceeds accordingly. Complainant (PW-1) has stated in his evidence that at the relevant time he was not in the house and that his daughter Kavita, son Dhaneshwar and nephew Dular (all three not examined), were watching TV in one of the rooms whereas accused/appellant Ramgopal was sleeping in his room. He has stated that after his daughter Khushboo (PW-2) along with her friend Nandini (not examined) returned from a bereaved family’s house, the main door being bolted from inside, she managed to open it, made and entry, saw Rupesh lying dead in the courtyard and woke up accused/appellant Ramgopal who was sleeping in his room. This much portion of the statement of PW-1 finds corroboration from PW-2 and PW-21 also. In cross examination PW-2 has clarified that the main door of the house where the incident took place can be bolted and unbolted from outside.

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Accused/appellant Ramgopal Patel and the deceased Rupesh are father and son respectively. From the Court statement of almost all the independent witnesses it is evident that the effect of some evil spirit was there in the house of the accused/appellant Ramgopal which created a nuisance in numerous ways to the annoyance and unrest of the family members. In order to get rid of such evil spirit accused/appellant Rajesh Yadav who was practising exorcism to drive away such unseen negative forces was contacted and acting upon his instructions a ritual was arranged. It is necessary to mention here that before accused/appellant Rajesh Yadav, service of three other persons namely Mohammad Islam Baeg (PW-6), Premlal Sahu (PW-7) and Nagendra Kumar Verma (PW-9) was also taken though unsuccessfully. Thereafter, accused/appellant Rajesh Yadav performed the required ritual by charging some fee in the form of cash and food-grains, but the trouble did not cease to exist. As per the evidence of witnesses in particular that of Khuman Yadav (PW-4), Rupesh died about 15 days after the ritual being over.

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As already said, there is no direct evidence to the incident and the case of the prosecution rests on circumstantial evidence. The first circumstance is that the body of the deceased was lying in the courtyard of the house of the accused/appellant Ramgopal who according to PW-1 and PW-2 was sleeping in one of the rooms at the relevant time. However, in the cross-examination PW-2 has stated that she was not aware as to whether accused/appellant Ramgopal was sleeping in the room or not, and that on the date of incident she did not even meet him. PW-1 has made statement on the basis of information given to him by PW-2 and he himself was not present in the house at the relevant time. As regards PW-2, she has given two opposite statements about the presence of accused Ramgopal in the house on the date of incident, and therefore her version also loses its reliability on this point. Further, according to PW-2 itself, when she returned home, the main door was bolted from inside and she managed to open the same by poking her hand and gained entry to the courtyard where dead body of Rupesh was lying. She herself has stated that the main door of the house could be opened and

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shut from outside itself. Thus from the evidence of PW-1 and PW-2 the possibility of even the outsider making entry to the courtyard by opening the door from outside cannot be ruled out. Entry by an outsider into the house in question further gets fortified from the statement of Patwari (PW-15) who has stated that the rooftops of the house of accused Ramgopal and that of Dwarika are adjoining to each other and one can come and go easily from one to the other. Three children Kavita, Dhaneshwar and Dular who according to PW-1 were watching TV in one of the rooms of the house in question at the relevant time could be of some help to the case of the prosecution but unfortunately they have not been examined by the prosecution. That apart, the witness to seizure namely Bhanu Pratap (PW-10) has also not supported the case of the prosecution and has turned hostile. In cross examination he has stated that in his presence no seizure was made from accused/appellant Ramgopal and that he had no knowledge as to whom the sickle and mobile so seized belonged, and that such articles are available almost in every household.

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Thus in view of this factual analysis in the light of the evidence on record, this Court has no hesitation to say that the prosecution has not been able to prove its case beyond all reasonable doubt as per the requirement of law in respect of the circumstantial evidence. The five golden principles popularly known as Panchsheel as has been propounded by the Constitution Bench of Supreme Court in the matter of Sharad Birdhichand Sharda v. State of Maharashtra reported in (1984) 4 SCC 116 have to be strictly adhered to, which are reproduced 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

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Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807]

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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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(emphasis supplied)

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Now if the facts and circumstances of the case are again adverted to in the light of the evidence of the witnesses, this Court does not find that the chain of circumstances required to be established to hold the accused guilty, to be complete for the reason that almost all the independent witnesses have turned hostile, and even the seizure of the weapon allegedly used in commission of the crime in question is not established as according to one of the prosecution witnesses (PW10), the said sickle was recovered from the garbage heap by the sniffer dog. Recovery of sickle can also not be believed as the garbage heap from which the sickle was seized being located outside the village accessible to the layman. All this apart, though the FSL report is there, it has not been exhibited. Not only this, as per the FSL report, on the sickle marked as “article-D” no blood was found. 21. As regards the argument of the State counsel that the accused/appellant Ramgopal is presumed to have the special knowledge of the incident as at the relevant time he was sleeping in one of the rooms of the house, this Court finds no substance in it for the reason that such presumption will operate only when the prosecution first proves the commission of crime against the accused and only then the burden would shift on him to explain the things. Dealing with this issue, it has

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been held by the Supreme Court in the mater of Nusrat Parween (Supra) as under:-

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The law concerning the invocation of shifting of onus under Section 106 of the Evidence Act has been explained by this Court in the case of Shambu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404, wherein it was held as follows:

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“8. Section 106 is an exception to section 101. Section 101

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lays down the general rule about the burden of proof.

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"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".

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Illustration (a) says-

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"A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

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A must prove that B has committed the crime".

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This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not comm9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means

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facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.

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We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

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Thus, as the prosecution itself has utterly failed to prove its case beyond all reasonable doubt, the burden under Section 106 of the Evidence Act cannot shift on the accused Ramgopal to explain the circumstance under which the death of Rupesh took place, and being so, the argument of the State counsel in this regard is hereby rejected.

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As regards, the conviction under Section 120-B IPC, even the entire evidence available on record does not indicate the fact that the accused/appellants herein have ever been a party to a criminal conspiracy to do away with the deceased. What is manifest from the record is that on account of the nuisance created by some evil spirit in the house of accused-appellant Ramgopal, on being

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suggested by some of the villagers, the accused-appellant Rajesh Yadav who used to practice necromancy, was called to drive away the evil spirit and after performing necessary rituals, accused-appellant Rajesh did not appear on the scene any longer and Rupesh died fifteen days thereafter. Thus, the criminal conspiracy can not be said to be hatched between the two, and being so the finding recorded by the trial Court to this effect can also not be allowed to hold the field.

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In aforesaid view of the factual and legal discussion, this Court is of the considered opinion that the conclusion arrived at by the trial Court holding the accused-appellants guilty under Sections 302/34, 201/34 and 120-B IPC, are not based on the proper appreciation of the evidence adduced by the parties. Being so the judgment impugned is liable to be set aside.

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Appeals are therefore, allowed, judgment impugned is set aside and the accused-appellants are acquitted of all the charges leveled against them. Accusedappellant Ramgopal is in jail and therefore, he is directed to be set free forthwith if not required in any other case. Accused-appellant Rajesh Yadav is reported to be on bail and therefore the bail bonds furnished by him shall remain in force for six months in view of Section 481 of BNSS, 2023.

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Copy of this judgment with record be sent back forthwith for information and necessary compliance.

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Sd/- Sd/-

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Sd/Sd/(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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Jyotishi

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AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.06.13 16:06:29 +0530

Ramgopal Patel v. State of Chhattisgarh

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Ramgopal Patel v. State of Chhattisgarh

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