Harish Chandra v. State Of Chhattisgarh

AFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 922 of 2004 • Harish Chandra S/o Bhura Prasad Patel, Aged about 30 years, Occupation-Labourer, Residence of Village Chunia, P.S. Shahdol, Distt. Shahdol (M.P.) ---- Appellant

Versus

• State Of Chhattisgarh, Through : District Magistrate, Durg (C.G.) ---- Respondent For Appellant :

Shri Ravindra Kumar Agrawal, Advocate For Respondent/State :

Shri Arvind Dubey, Panel Lawyer Hon'ble Shri Justice Prashant Kumar Mishra Hon'ble Shri Justice Chandra Bhushan Bajpai Judgment On Board By Prashant Kumar Mishra, J. 22/07/2016 The appellant stands convicted under Section 302 IPC for committing murder of deceased Anasuiya Bai @ Aai, aged about 60 years, and sentenced to life imprisonment. The deceased originally belonged to the State of Maharashtra. She was incarcerated in the Durg jail in connection with some offence. After her release from the jail, she started begging alms and was surviving on the mercy of donors. She used to sleep in the waiting hall of the Durg jail. In the morning of 25.04.2003, Bholaram Deshmukh (P.W.5) witnessed that the dead body of the deceased was lying inside a drain opposite the waiting room of the jail.

2.

Bholaram Deshmukh (P.W.5) informed Ghanshyam Sahu (P.W.3) about the dead body of the deceased, who in turn informed the police, on which, Dehati Nalisi was registered at 8.30 hours on 25.04.2003 vide Ex.P.6.

Dehati merg intimation was registered vide Ex.P.11 at 8.40 AM. Dead body was sent for autopsy which was conducted by Dr. Ashok Kumar Soni (P.W.4), who submitted his report vide Ex.P.8 to the effect that cause of death was shock due to excessive haemorrhage on account of multiple fractures over skull as a result of head injury. There was no reference in the postmortem report as to whether the death was homicidal or accidental. 3.

During investigation, the Police interrogated the present appellant also, wherein he was found to have sustained injuries, for which, he was sent for medico legal examination. He was having blood stains inside nails which were cut and seized. Similarly, shawl belonging to the appellant was also seized. Curiously, the prosecution did not record any memorandum statement of the appellant.

4.

In course of further investigation, statements of witnesses were recorded. However, no incriminating statement against the accused was made by any of the witnesses, however, on account of injuries sustained by the appellant over his person, the Investigating Officer concluded that it was the appellant who has committed the offence. Therefore, the charge sheet was filed against the appellant. F.S.L. report was also submitted wherein the nails and shawl seized from the appellant were found to have blood stains. 5.

In course of trial, the prosecution examined eight witnesses and the appellant examined one defence witness.

6.

Except for proving the seizure of articles from the appellant, lodging of the Dehati Nalisi, Merg intimation, F.I.R. etc., nothing much could be proved against the appellant in the statements of witnesses. There being no memorandum statement and the dead body having been found in an open

place, there is no incriminating evidence on these aspects of the matter as to the recovery of any weapon or dead body. The prosecution has built up its case on circumstantial evidence. However, there is no evidence of last seen together or extra judicial confession. The circumstances against the appellant are only in form of the injuries over the person of the appellant and presence of bloodstains on the nails and shawl seized from his possession. 7.

While convicting the appellant on the above said two circumstances, the trial Court has worked on its own hypothesis that on the date of incident, the appellant might have asked for sexual favour from the deceased and having been denied such favour he might have assaulted the deceased and committed her murder. In a given case, an accused can be held guilty when he fails to explain injuries over his person but there has to be an evidence to the effect that the accused had a quarrel with the deceased and if the deceased is a lady to whom he had demanded sexual favour and later on committed murder but conviction cannot be based solely on a hypothesis that something of this nature might have happened.

In a case where the prosecution has not based its case on evidence of last seen together or extra judicial confession or recovery of weapon or the dead body, the conviction cannot be based solely on suspicion. Moreover, the appellant himself is said to be a mentally challenged person as has been stated by Akhilesh Tomar (D.W.1), who was the Jail Superintendent of Durg jail and has proved the fact that when the appellant was arrested in the present offence, it was found that he is mentally challenged and was, therefore, sent for further examination to Raipur.

8.

On the basis of aforesaid discussion, we reach to the conclusion that it is a case where the prosecution has not been able to lead any cogent and reliable evidence to prove the appellant's complicity in the offence. It is a

case of no evidence even in the nature of circumstantial evidence. The prosecution has not been able to build up the chain of circumstantial evidence so complete which excludes all other hypothesis of guilt of any other person and points out to the guilt of the appellant alone. 9.

In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra1, the Supreme Court has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:

"152.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:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made:

"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."

(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) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and 1 AIR 1984 SC 1622

(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."

10.

When test laid down by the Supreme Court to prove an offence on the basis of circumstantial evidence is applied in the case in hand, it is found that the prosecution has utterly failed to prove the guilt of the accused, therefore, the appeal deserves to be allowed. It is accordingly allowed and the impugned judgment is set aside.

11.

Before parting, we deem it appropriate to deal with another procedural aspect of the matter concerning information required to be sent by the trial Court to the High Court when a convict is released on bail. 12.

In Criminal Appeal No.1523/98, this Court directed the Registry to issue circular to all the subordinate courts to the effect that as and when an order is passed for releasing the accused on bail on furnishing bail bond to the satisfaction of the trial Court, it is the duty of the concerned trial Court to intimate this Court as to whether in compliance of this Court's order the accused has been released on bail or not, or the accused failed to submit the bail bonds.

13.

The above order led to issuance of a circular dated 7.5.2007 to the following effect:

"To, The District & Session Judge, Bilaspur, Raipur, Korba, Janjgir-Champa, Raigarh, Durg, Kanker, Jashpur, Bastar, Sarguja, Korba, Dhamtari, Dantewara, Mahasamund, Kawardha, Rajnandgaon of C.G.

Sub:- Direction with regard to Hon'ble Court order dtd.25.04.2007. As directed by the Hon'ble Division Bench of this High

Court in Cr.A.1523/98 on 25.04.2007 is as under:- It has been observed that as and when the sentence is suspended and accused is granted bail with a rider that accused shall furnish bail bond before the trial Court and thereafter he be released, such orders are sent for compliance to the trial Court, but the trial Court is not sending any compliance report to this Court as to whether in pursuance of the Court order the accused on furnishing bail bond has been released or not, or the accused has not furnished the bail bonds. In view of the above, as and when an order is passed for releasing the accuses on bail on furnishing bail bond to the satisfaction of the trial Court, it is the duty of the concerned trial Court to intimate this Court as to whether in compliance of this Court's order the accused has been released on bail or not, or the accused failed to submit the bail bonds.

All the subordinate Courts are directed to observe and follow the above directions scrupulously.

You are requested to comply the order and submit report. Copy of the order is annexed which be circulated to all the judicial officers posted in the District for strict compliance. Sd/- & dated (H.S.Markam) Registrar General"

14.

In the case at hand, the appellant was directed to be released on bail on 26.03.2008 and as per statement made at the bar he was released from jail on 19.05.2008. However, the concerned trial Court has not sent any information to this Court about the appellant's submission of bail bonds and his release from jail. There is thus apparent violation of the circular issued by the High Court on 07.05.2007, which was based on the order passed in Criminal Appeal No. 1523/98. It is not only violation of the circular issued by the High Court but in implied terms it is the violation of judicial order passed by the Division Bench. For such lapse or default, the Division Bench can direct initiation of departmental enquiry against the erring judicial officers. However, for the present we refrain from passing such order in the hope that all the trial Courts shall sincerely and regularly follow the circular dated 07.05.2007.

15.

A copy of this judgment/order be sent to all the District and Sessions

Judge for circulation amongst all the judicial officers in their districts for necessary compliance.

16.

The appellant is on bail and his bail bond shall remain in operation for a period of six months from today, in view of the provisions contained under Section 437-A of the Cr.P.C. He shall appear before the higher Court as and when directed.

Sd/- Sd/- Judge Judge (Prashant Kumar Mishra) (Chandra Bhushan Bajpai) Anjani

HEADLINES An accused cannot be convicted only on the basis of suspicion, without cogent and reliable evidence.