Tejram and anr. Vs. State of Chhattisgarh - Court Judgment

Excerpt:
criminal - murder - circumstantial evidence - trial court framed charges against appellants for murder and causing disappearance of evidence - convicted appellants for above said charges - hence, present appeal - whether prosecution has proved offence against appellants as per principles of circumstantial evidence - held, identity of dead body of deceased not established by prosecution - in medical examination deceased was about 35 years whereas father of deceased stated that deceased was 20-22 years old - information memorandum does not bear signature of appellants - recovery of items at instance of appellants stands demolished - contradictions in statements of witnesses - recoveries in memorandum smack manipulation and do not inspire confidence - circumstantial evidence adduced by prosecution in this case failed to prove offence against appellants - conviction of appellants set aside - appeal allowed - - after completion of the investigation, challan was filed against the accused/appellants as well as acquitted accused bhagwat. therefore, the circumstantial evidence adduced by the prosecution in this case in order to prove the offence against the accused persons has not stood up to the test of the principles laid down by hon'ble the apex court and the prosecution has utterly failed to prove the offence against the accused persons based on circumstantial evidence.l.c. bhadoo, j.1. accused/appellants tejram and kheduram have preferred this criminal appeal under section 374(2) of the code of criminal procedure being aggrieved by the judgment of conviction dated 9-6-2001 passed by the learned additional sessions judge, balod, district durg by which the learned additional sessions judge after holding the above accused/appellants guilty of the offence under section 302, in the alternative under section 302 read with section 34 and section 201 of the indian penal code convicted each of them under the said sections and sentenced them to undergo imprisonment for life and to pay fine of rs. 1,000/- each in default of payment of fine to further undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for three years and to pay fine of rs. 500/- each in default of payment of fine to further undergo rigorous imprisonment for three months, respectively. both the sentences were directed to run concurrently. however, accused bhagwat was acquitted of the charge under sections 302 and 201 of the indian penal code.2. the relevant prosecution story for the disposal of this criminal appeal is that on 5-11-1998 complainant time-keeper naresh kumar along with n.r. sahu gave an information to balod police station to the effect that today in the morning when he reached along with labourer to clean the grass from the dam, he found that one dead body of a female was floating on the water of the dam which was without the head. on receiving this report, assistant sub inspector a.p. upadhyaya registered merg intimation no. 17 of 1998 vide ex. p-2 and thereafter issued notice (ex. p-3) for preparation of the panchnama and after reaching the spot he prepared the panchnama (ex. p-4) of the dead body which was in pieces and thereafter vide ex. p-16 the pieces of the body were sent for medical examination. the post-mortem report (ex. p-31) was received. from the eastern bank of channel no. 44 of gondali dam a stone stained with blood and a red ribbon were taken into possession vide ex. p-5. after recording the statements of the witnesses, the first information report (ex. p-24) was registered. during the investigation in presence of the witnesses namely parasram and manrakhan, accused tejram and kheduram gave the information under section 27 of the indian evidence act vide exs. p-7 and p-11 respectively and in pursuance of that information accused tejram got recovered an axe, a cycle, blood stained soil, simple soil, one underwear, one full pant vide exs. p-8, p-9, p-10 & p-13. on the information of accused tejram the panchnama of the place where the head of the deceased was buried was also prepared. accused kheduram also gave the information (ex. p-11) according to which an adze (basula), one full pant and one shirt were recovered vide exs. p-12 & p-14. all the seized articles were sent for chemical examination to the forensic science laboratory, raipur. after completion of the investigation, challan was filed against the accused/appellants as well as acquitted accused bhagwat.3. learned additional sessions judge framed the charges against the accused/appellants and accused bhagwat under section 302 in the alternative under section 302 read with section 34 and section 201 of the indian panel code which was read over to the accused persons and the accused denied the charges and asked for trial.4. the prosecution in order to prove the offences against the accused persons examined in all nineteen witnesses at the trial. the statements of the accused persons were recorded under section 313 of the code of criminal procedure in which they simply denied the statements of the witnesses and said that they are innocent and have been falsely implicated in the crime.5. learned additional sessions judge after hearing the public prosecutor and the learned counsel for the accused persons convicted the accused/appellants as mentioned above, but, however acquitted accused bhagwat of the charges.6. we have heard learned counsel for the parties, perused the records and the judgment of the trial court.7. at the outset it may be pointed out that the whole case rests on the circumstantial evidence and there is no eye-witness or direct evidence against the accused persons for commission of the murder of surjiya bai. in order to prove the case against the accused persons based on circumstantial evidence the prosecution has to prove as per the settled principle laid down by the hon'ble apex court, i.e., in a case based on circumstantial evidence, before the court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. it is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case.8. now we shall proceed to examine the evidence available on record in order to ascertain whether the prosecution has been able to prove the offence against the accused persons up to the hilt as per the principles enunciated in respect of the circumstantial evidence mentioned above.9. in this case even the identity of the dead body of the deceased is disputed. it is an admitted fact that the body which was recovered from the dam was pieces and the head portion above the neck was not traced out. as per the statement of dr. sanjay kumar dadoo (p.w. 19) who conducted autopsy on the body of the deceased has stated that on the right hand there was a sign of black tatoo on flex in the form of 'om'. the parts of the body were in an advanced stage of putrefaction. the body was in nine pieces in which the parts namely head, neck, right arm, left fore arm, the fingers of both the hands, thumb of left hand, vagina along with uterus and the 1/4th part of the left leg were missing. the body was cut into pieces after the death. the head and the neck were separated from the base. the peeling of epidermis present at place. at places the blue colour changes were there. the stink was emanating from the body. there was a white sandd baniyan on the body. in all six stab wounds were found on the parts of the body as mentioned in the post-mortem report. in the opinion of the doctor the age of the deceased was about 35 years. whereas the father of the deceased namely sukhdeo (p.w. 1) has stated that deceased was 20-22 years old. the mother of the deceased namely dheliyabai (p.w. 2) has stated that there was a tattoo of flower in the right hand of the deceased; whereas as per the doctor who conducted the post-mortem the tattoo of 'om' was found on the hand. dheliyabai has further stated that her son had told that surjiya bai was murdered by netram. there was a black scar on the back of deceased surjiya bai. as per the defence counsel there was a difference in the age and black scar on the recovered body as also the mother of the deceased has stated that netram took the deceased to chandrapur, maharashtra. but the learned trial court has observed that all these contradictions are irrelevant. on the point of age of the deceased the trial court has recorded the finding that the father of the deceased being a villager may not be aware about the age of the deceased. in our opinion, these contradictions become material in the facts and circumstances of the case because the investigating officer (p.w. 18) inspector r.k. choubey in para 23 of his statement has stated that the identification of the dead body was not got conducted. the photographs of the dead body were also not taken. therefore, the father, mother, brother and sister of the deceased did not identify the pieces of the body and there is no evidence on record by which it can be said that the prosecution has been able to establish the identity of the deceased, i.e., the body, which was recovered, was of deceased surjiya bai. the prosecution has simply proceeded on the presumption that since the information was given by accused tejram the body was of deceased surjiya bai. therefore, identification of the body was not conducted and the body was not identified by the parents or anybody else who were knowing deceased surjiya bai. therefore, we are of the opinion that the identity of the body of surjiya bai has not established that the dead body was of surjiya bai.10. now coming to the most important point upon which the learned trial court has placed reliance, i.e., the recovery of various items at the instance of accused tejram and kheduram. it is not out of place to mention here that the trial court has disbelieved the recoveries effected by the investigating officer from the other accused bhagwat and has acquitted him. as far as the recoveries based on the information (ex. p-7) given by accused tejram and the recovery from accused kheduram based on the information (ex. p-11) are concerned, it is admitted position that the information memorandum (ex. p-7) does not bear the signature of accused tejram. similarly, the information memorandum (ex. p-11) given by accused kheduram also does not bear his signatures. the recovery witnesses are manrakhan (p.w. 6) and parasram (p.w. 9). manrakhan (p.w. 6) has stated in his statement that he knows accused tejram and kheduram. in his presence tejram informed the police about the axe and the adze (basula) and the memorandum (ex. p-7) was recorded by the police and thereafter accused tejram got recovered the axe, adze and the cycle from his house and ex. p-8 was prepared as recovery memo which bears his signature. this witness has further stated that apart from this, no other recovery was effected by tejram. in third para of his statement he has said that ex. p-11, the information memorandum, and ex. p-12, the recovery memorandum, bear the signature of accused kheduram. ex. p-14 also bears his signature. he has said that except the above recoveries no recovery was effected from accused tejram. after declaring this witness hostile, the public prosecutor cross-examined him. in the cross-examination he has stated that it is incorrect to say that the soil, broken bangles, hairs and the clothes were recovered at the instance of accused tejram. it is also incorrect that the full pant of accused tejram was recovered in his presence. it is also incorrect that accused kheduram gave the information (ex. p-11) regarding the adze (basula) in his house. it is also incorrect that accused kheduram got recovered the adze from his house. the full pant, underwear and the shirt of kheduram was not recovered in his presence. the police brought both the accused persons together. the police brought the axe and the adze from inside the house of tejram. all the papers were prepared in the police station and there he had signed. therefore, in view of the above statements, recovery of the items at the instance of accused persons tejram and kheduram stands demolished because as per the memorandums and the information memorandums the adze was recovered at the instance of accused kheduram vide ex. p-12 and the axe was recovered at the instance of accused tejram vide ex. p-8. whereas this witness has said that the adze (basula) was recovered from the house of tejram at his instance. he has denied about the recoveries made at the instance of accused kheduram and except the axe and the cycle the other recoveries made at the instance of accused tejram has also been denied by this witness. similarly, parasram (p.w. 9) has stated that accused tejram has given the information (ex. p~7) and in pursuance of that the adze (basula) and the axe were recovered from the house of tejram vide ex. p-8. as mentioned above, vide ex. p-8 the axe was recovered and not the adze (basula). in the cross-examination in para 4 this witness has stated that in his presence full pant, soil and underwear were not recovered. the adze was not recovered from accused kheduram. he has stated that exs. p-9, p-11, p-12, p-13, p-14 and p45 bear his signatures. but no recovery and proceedings were taken in his presence. in para 8 of his statement he has said that the police personnel brought the axe and the adze (basula) from the house of accused tejram. therefore, the recovery of these articles as per the information given by the accused persons stands demolished. as mentioned above, the information memorandums (ex. p-7 and p-11) do not bear the signatures of the accused persons. therefore, these recoveries smack manipulation and do not inspire confidence. in this connection we are supported by a decision of the hon'ble apex court in the case of jackaran singh v. state of punjab, reported in air 1995 sc 2345. apart from that, the recovery of the knife which is said to be the weapon of offence by which the accused committed the murder of surjiya bai the deceased was also not believed by the trial court at the instance of accused bhagwat and he has already been acquitted by the trial court. in view of this, the judgment of the trial court convicting the accused/appellants can not be sustained for the reasons stated above. therefore, the circumstantial evidence adduced by the prosecution in this case in order to prove the offence against the accused persons has not stood up to the test of the principles laid down by hon'ble the apex court and the prosecution has utterly failed to prove the offence against the accused persons based on circumstantial evidence.11. in the result, the appeal of the accused/appellants is allowed. the conviction and sentence awarded to the accused/appellants by the learned trial court are set aside. the accused/appellants are acquitted of the charges under sections 302 and 201 of the indian penal code and they be set at liberty forthwith if not required in any other case.