Ramswarath Vs State Of Chhattisgarh

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Digitally signed by BHOLA BHOLANATH NATH KHATAI KHATAI Date:2025.11.03 10:57:22 +0530

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2025:CGHC:53027-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 723 of 2017

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Ramswarath S/o Gutthal Korva, Aged About 36 Years R/o Village Bhutahi, Police Station Samari, District Balrampur Ramanujganj, Civil And Revenue District Surguja, Chhattisgarh.

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--- Appellant

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versus

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State Of Chhattisgarh Through Police Station Samaripath, District Balrampur Ramanujganj, Chhattisgarh.

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--- Respondent

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For Appellant : Mr. Mirza Kesher Beg, Advocate For Respondent : Mr. Pankaj Singh, P.L.

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CRA No. 786 of 2017

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Ramsundar Korva S/o Shri Mansu Korva Aged About 50 Years R/o Village- Bhutahi, Police Station, Samri, District - Balarampur - Ramanujganj, Chhattisgrarh

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---Appellant

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Versus

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The State Of Chhattisgarh Through The Officer In Charge Of Police Station Samripath, District Balrampur Ramanujganj, Chhattisgarh.

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--- Respondent For Appellant : Mr. Roop Naik, Advocate For Respondent : Mr. Pankaj Singh, P.L.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(30.10.202 5)

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Sanjay K. Agrawal, J.

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1. Appellant Ramswarath has preferred CRA No.723/2017 and appellant Ramsundar Korva has preferred CRA No.786/2017, under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 30.09.2016, passed by the Additional Judge, Ramanujganj of the court of Additional Sessions Judge, Ramanujganj, District Surguja (Ambikapur), Chhattisgarh in Sessions Trial No. R-105/2014, whereby the appellants have been convicted and sentenced in the following manner :-

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Conviction	Sentence
U/s 302 of IPC	Life Imprisonment and fine of Rs.500, in default of fine, 1 month additional R.I.
U/s 201 of IPC	R.I. for 3 years and fine of Rs.100, in default of fine, 5 days additional R.I.

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2. Since both the criminal appeals have arisen out of the same judgment dated 30.09.2016 passed in ST No. R-105/2014 and the question of law and facts also being similar in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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3. The case of prosecution, in short, is that on 20.07.2014 at about 3:00 to 4:00 pm, at village Bhutahi, PS Samaripath, District Balrampur-Ramanujganj, the two Appellants herein, in furtherance of their common intention, committed murder of Maheshwar (now deceased) and in order to screen themselves from the crime, hanged the dead body on a tree in Shukha Jhariya Nala forest, thereby committed the aforesaid offence. Further case of the prosecution is that the deceased had outraged the modesty of appellant Ramswarath’s daughter (PW-10), due to which, out of anger, the two appellants committed murder of deceased Maheshwar by assaulting him with a stick and subsequently hanged the dead body on a tree in Sukha Jhariya forest. Morgue intimation of unnatural death of Maheshwar was recorded under Section 174 of CrPC at the instance of his father Bhorndo (PW-1) vide Ex.13 on 29.07.2014. Named FIR was registered vide Ex. P-12 on 29.07.2014 against the two appellants. Pursuant to the

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memorandum statement of the appellants Ex. P-4 & P-5, a bamboo stick was seized vide Ex.P-6. Inquest was conducted vide Ex. P-2. The decomposed body/skeleton was identified as that of deceased Maheshwar by his brother Tunuwa (PW-2) on 30.07.2014 vide Identification Panchnama Ex.P-3 on the basis of clothes, footwear & garland (Mala). The bones/skeleton of the deceased were sent for postmortem examination which was conducted by Dr. T. Say (PW-06) vide Ex.P-10 but he could not ascertain the cause and mode of death and advised for FSL and returned the bones/skeleton to the Constable who produced it. The bones/skeleton of the deceased was received/seized on 06.08.2014 vide Ex.P-19 and it was sent for forensic examination to Pt. JNM Medical College, Raipur on 25.09.2014. The Department of Forensic Medicine, Pt. JNM Medical College, Raipur submitted its report on 23.07.2016 i.e. after a delay of more than one and a half year, mentioning that the bony skeleton belongs to a human male individual. However, the said report has not been exhibited. After completion of investigation, the appellants were charge - sheeted for the aforesaid offence.

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4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 23 documents. The statements of

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appellants / accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellants in support of their defence have neither examined any witness nor exhibited any document.

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5. Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellants / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Mirza Kesher Beg and Mr. Roop Naik, learned counsel for the appellants, would submit that the prosecution has failed to prove that the death of Maheshwar was homicidal in nature and any murder was caused by the two appellants. They would further submit that it could not be established that the recovered bones/skeleton belonged to deceased Maheshwar as no DNA test was conducted and in the absence of such test, merely on the alleged identification made by his brother Tunuva (PW-2) on the basis of clothes, shoes and garland, the bones/skeleton can't be considered to be that of the deceased. As such, the prosecution has not

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been able to bring home the offence beyond reasonable doubt and the appellants are entitled for acquittal on the basis of benefit of doubt.

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7. On the other hand, Mr. Pankaj Singh, 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 appellants for the aforesaid offence. As such, both the appeals deserve to be dismissed.

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8. 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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9. Now the question for consideration is whether the trial Court has rightly held that the seized bones/skeleton were that of Maheshwar?

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10. Undisputedly, Maheshwar went missing on 20.07.2014. Ultimately, a decomposed human body/skeleton was seen by the villagers on 25^th July, 2014 leading to the lodging of Morgue intimation of unnatural death of Maheshwar under Section 174 of CrPC at the instance of his father Bhorndo (PW-1) vide Ex.13 on 29.07.2014. Wheels of investigation started running and the decomposed body was identified as

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that of Maheshwar by his brother Tunuwa (PW-2) on 30.07.2014 vide Identification Panchnama Ex.P-3 on the basis of clothes, footwear & garland (Mala). The decomposed body/skeleton was sent for postmortem examination which was conducted by Dr. T. Say (PW-06). But the doctor in his report Ex.P-10 could not ascertain the cause and mode of death and advised for FSL and returned the skeleton to the concerned Police Constable. The said skeleton was received/seized by Investigating Officer Sourabh Singh (PW8) on 06.08.2014 and it was sent for forensic examination to Pt. JNM Medical College, Raipur on 25.09.2014 through the Superintendent of Police, Balrampur. According to the report of the Department of Forensic Medicine, Pt. JNM Medical College, Raipur dated 23.07.2016, the bony skeleton belongs to a human male.

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11. In the matter of Rama Nand and others v. State of

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Himachal Pradesh 1, their Lordships of the Supreme Court have held in no uncertain terms that discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Their Lordships further held that the ‘body’ doctrine is merely a rule of caution and not of law. It has also been held that where the dead body of the victim

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1 (1981) 1 SCC 511

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in a murder is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. But where the fact of corpus delicti or homicidal death is sought to be established by circumstantial evidence alone, or by both, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Their Lordships observed as under:-

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“28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. “I would never convict,” said Sir Mathew Hale, “a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead.” This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old “body” doctrine would

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open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. ‘homicidal death’ is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be “proved”, if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. …”

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12. The principle of law laid down in Rama Nand (supra) has been reiterated and followed by the Supreme Court in the matter of Ramjee Rai and others v. State of Bihar 2 and

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2 (2006) 13 SCC 229

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similar proposition has been made in the matter of Rishi Pal v. State of Uttarakhand 3 following Rama Nand (supra) and it has been held that absence of corpus delicti is insignificant if cogent and satisfactory proof of homicidal death of victim is adduced. The decision of the Supreme Court in Rama Nand (supra) has further been followed in the matter of Sanjay Rajak v. State of Bihar 4.

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13. However, in S. Kaleeswaran v. State by the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu 5, their Lordships of the Supreme Court have made exception to the rule of corpus delicti that if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else, and it was held as under: -

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“17. … but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the

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3 2013 Cri.L.J. 1534

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4 (2019) 12 SCC 552

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5 2022 SCC OnLine SC 1511

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skeleton found at the instance of the accused was that of the victim and of none else.”

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14. In the matter of Rambraksh alias Jalim v. State of

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Chhattisgarh 6, the Supreme Court has held that the investigating officer did not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak and their Lordships have held that the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise.

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15. Similarly, in the matter of Rajendra Pralhadrao Wasnik v.

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State of Maharashtra 7, their Lordships of the Supreme Court referring to Sections 53-A and 164-A of the CrPC, held that DNA profiling has now become a part of the statutory scheme and for the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country, and observed in paragraphs 54, 55 & 56 as under: -

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“54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the CrPC. We are not going to the extent of suggesting that if there is no DNA profiling,

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6 (2016) 12 SCC 251

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7 (2019) 12 SCC 460

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the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution.

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In Mukesh v. State (NCT of Delhi)⁸ a separate opinion was delivered by Banumathi, J. and in para 455 of the Report it was held that DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification. It was stated:

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“455. … DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the bloodstained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA fingerprint is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot or any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders.”

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(emphasis supplied

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In the context of importance of scientific and technological advances having been made, we may recall the observation of this Court in Selvi v. State of Karnataka⁹ in para

8 (2017) 6 SCC 1

9 (2010) 7 SCC 263

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220 of the Report that “The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.”

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16. The Supreme Court in the matter of Pattu Rajan v. State of Tamil Nadu10 has held that though a DNA test helps the courts immensely in determining reliability of identification of body of deceased, but rejected the contention that nonconducting of a DNA test and reliance on evidence regarding identification through superimposition is improper. It has been observed in paragraph 57 of the report as under: -

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“57. Therefore, we are of the opinion that the scientific evidence of PW 34 was rightly believed by the trial court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests.”

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17. Coming to the facts of the present case, from the evidence

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available on record, it is quite vivid that though the recovered bones/skeleton were subjected to forensic

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10 (2019) 4 SCC 771

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examination and according to its report dated 23.07.2016 the bony skeleton belonged to a human male but the same was not subjected to DNA profiling. In light of the aforesaid parameters laid down by their Lordships of the Supreme Court in the aforesaid judgments, the prosecution is obliged to prove that the bones were of the deceased alone and of none else which the prosecution has miserably failed in the present case as the bones were not subjected to DNA profiling. The prosecution has also not been able to prove that the death of the deceased was homicidal in nature which was absolutely necessary to establish the charge of murder under Section 302 of IPC.

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18. In view of the above-stated analysis, the prosecution has miserably failed to prove that the death of the deceased was homicidal in nature for want of DNA profiling. Even the decomposed body/skeleton was not found at the instance of the appellants and it was noticed by the villagers who informed the father of the deceased and the decomposed body/skeleton was identified as that of the deceased by his brother Tunuwa (PW-2) only on the basis of clothes, footwear & garland. Deceased Maheshwar was missing from 20.07.2014. The recovered body was decomposed which was identified by Tunuwa (PW-2) on 30.07.2014 vide Ex. P-3. However, in the absence of DNA profiling, it was

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practically difficult to identify by Tunuwa (PW-2) merely on the basis of clothes, footwear & garland. Furthermore, the motive of offence that the deceased had outraged the modesty of PW-10, has not been established as PW-10 herself has not supported the prosecution’s case of outraging her modesty. In that view of the matter, we are of the opinion that the trial Court is absolutely unjustified in convicting the appellants for the aforesaid offence and the two appellants are entitled for benefit of doubt.

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19. Consequently, the two criminal appeals preferred by the two appellants herein are allowed . Conviction and sentences imposed upon the appellants under Sections 302 and 201 of IPC are set aside and they are acquitted of the said charges. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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

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

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Khatai

Ramswarath v. State Of Chhattisgarh

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Ramswarath v. State Of Chhattisgarh

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