Ram Kumar Nishad v. State Of Chhattisgarh
N THE HIGH COURT OF JUDICATURE AT 'BILASPUR (CI-H-IATTISGARI-D I .
CRAL L [i& I MN'
APPEA Now3-M i/23 Ramkumar Nishad agedabout 22 years éa WIMEM '/ AT JAL / /O l Mhli dg ) PPELLAN IN I R Vilage oaa distt ur (CG Vs RESPONDENT State o attisgar trou pfs Pugaon dist fChhh hgh l t Durg (CG) v CRHVHNAL APPEAL UNDER SECTION 374 (2) CRIMINAL PROCEDURE CODE
em.
W1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR ruA No. 244 of 2003 o Ram Kumar Nishad ---~ Petitioner
Versus
o State OF Chhattisgarh ---- Respondent For Appellant Ms. Nirupama Bajpayee, Advocate For Respondent ]State Mr. R. Tripathi, Panel Lawyer Hon'ble Shri Justice Prashant Kumar Mishra Hon'ble Shri Justice Anil Kumar §hukla Order On Board By Prashant Kumar Mishra. J.
21 11 1 (201 6 1.
Heard, 2.
The appellant has called in question his conviction under Section 302/34 of IPC and sentence life imprisonment and fine Rs.1000/- for committing murder of deceased -Manharan during the intervening night of 30.1 1 .2000 - O1 .1 2.2000. 3.
The prosecution case, nutshell, is that at about 7:00 p.m. in the evening of 30.11.2000, the present appellant, convicted coaccused Sheikh Firoz Ahmed (since deceased) along with four other persons brought the deceased to his house for recovery loan amount Rs.500/-.
The deceased demanded
assistance From his brother Rajkumar (PW-2), who lodged FIR, however, Rajkumar refused to help him by saying that he not possessed of any money.
The accused persons thereafter took deceased with them went house Sarpanch Nirmala Mishra (PW-6).
Thereafter, all accused persons took the deceased with them by saying that he is taken Police.
At about 11:00 a.m.
on 01.12.2000, one Ramkumar Tailor informed PW-Z Rajkumar that one dead body is lying under the bridge, on which, Rajkumar went to the place found that his brother Manharan lying dead having injuriesover his chin, forehead ribs.
The appellant was named FIR suspect who has murdered deceased. The FIR -EX.P/2 was lodged by Rajkumar at about 13:50'hours on 01.12.2000.
In course ofi'investigation, memorandum statement of co-accused Sheikh Firoz Ahmed was recorded vide EXP/12, pursuant which, the towel used for tying stone assault deceased was recovered vide Ex.P/6.
There no memorandum statement or any recovery from present appellant.
Although only present appellant was named in the FIR, but later on, 05 other persons were sent for trial, however, the prosecution did not conduct any Test Identification parade to ascertain complicity of other k ' aCCUSEd persons.
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The charge sheet was filed against the accused persons mainly on last seen together memorandum statement of co-accused Sheikh Firoj Ahmed.
In the course of trial, prosecution examined PW-1 Dr.
A.P.
Sawant, PW-2 Rajkumar, PW-3 Sunder Lal, PW-4 Bhole Das, PW-5 Dilip Kumar,
PW-6 Smt.
Nirmala Mishra, PW-7 Birjha Bai, PW-8 Shyam Bai, PW-9 Ramnarayan, PW-1O Lokeshwar Nath Khobragade, PW-11 Pahlu Ram, PW-12 Chandrika Prasad Nishad and PW-13 Jagdish "Uikey.
While accused No.2 Narottam Gond, accused No.4 Ramanand Yadav, accused No.5 Naresh Kumar and accused No.6 Poonam Nishad have been acquitted, only two accused persons namely Sheikh Firoz Ahmed present appellant have been convicted by the trial Court. The other convict Sheikh Firoz Ahmed died during pendency of the appeal, therefore, Criminal Appeal No.882 of 2002 preferred by Sheikh Firoz Ahemd has been dismissed, as abated, leaving present appeal for its consideration on merits.
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It is argued by learned counsel for the appellant that there absolute lack of cogent and reliable convict appellant, therefore, the impugned conviction deserves be set-aside.
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Learned counsel for State would support impugned conviction on submission that the evidence of PW-Z Rajkumar, PW-6 Smt. Nirmala Mishra and PW-8 Shyam Bai is sufficient for sustaining the conviction.
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Befbre proceeding to scrutinize the evidence, it is required bear mind principles, on which, case based on circumstantial evidence needs to be considered.
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In the matter of Sharad Birdhichand Sarda, AIR 1984 SC 1622, the Supreme Court has underlined the conditions, which must be fulfilled for convicting an accused on basis n
circumstantial evidence and held in para-1 52 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) circumstances from which conclusion of guilt be drawn should be fully established.
it may be noted here that this Court indicated that circumstances concerned 'must or should' and not 'may be' established. There not only a grammatical but a legal distinction between 'may be proved'
'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade Vs.
State Maharashtra, (1973) 2 SCC : (AIR SC 2622) where the'
following observations were made:
'certainly, it primary principle that accused must be not merely may be guilty before Court can convict mental distance between 'may be' and must be'
long divides vague conjectures from sure conclusions.'
(2) 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) circumstances should be conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be chain so complete not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that all human probability act must have been done by the accused."
9.
In the case hand, there is no ocular evidence the crime, therefore, the entire case of the prosecution is based on only circumstantial evidence of last seen together. i
10. PW-Z Rajkumar is the brother of the deceased, whereas, PW-8 Shyam Bai is the mother of the deceased. These witnesses have deposed that evening 30.11.2000, 5-6 persons including the present appellant have brought the deceased their house were asking For repayment OF loan advanced to deceased Manharan. While FIR speaks about theft of bicycle by the deceased, the Court statements 'of these two witnesses have not made any allegations about commission of theft by the deceased. The accused persons have not assaulted the deceased at his residence nor any threat was extended him as admitted by PW-Z Rajkumar in para 6 of his statement.
11. PW-3 Sunder Lal, who is a villager, speaks about some quarrel or assault made to Manharan by some persons, however, he has not seen as to who were assaulting the deceased. After being declared hostile, this witness has identified co-accused Sheikh Firoz Ahmed person, who slapped deceased.
However, he has not made any incriminating statement against the present appellant. In cross-examination, he has even denied to have seen any assault made to the deceased.
12. PW-4 Bhole Das is also a villager, who has been declared hostile. He would state his cross-examination that few persons who were assaulting the deceased had taken the deceased house of Sarpanch and one Patel. PW-S Dilip Kumar is another brother deceased Manharan.
He also speaks about appellant and few other persons coming to their house to seek refund of the loan advanced to the deceased. However, in para 6 o f his cross-examination, he had denied that the deceased was ,
assaulted or threatened by the accused persons.
13. The Village Sarpanch Nirmala Mishra (PW-6) has also been declared hostile.
She has refused identify present appellant.
PW-9 Ramnarayan PW-1Z Chandrika Prasad Nishad are witnesses memorandum statement Ex.P/12, however, they have not supported prosecution.
Thus, memorandum statement consequent seizure From co-accused Sheikh Firoz Ahmed has not been proved.
14, In Kanhaiya Lal vs State of Rajasthan, (2014) 4 SCC 715, Supreme Court has held that the evidence of last seen together weak kind evidence, therefore, unless necessary corroboration available, it will not be safe convict an accusedonly on the basis of evidence of last seento'g'ether.
15. In case hand, although there last seen together against appellant, however, said piece evidence was against six accused persons, out of them, four accused persons have been acquitted by the trial Court. There is no lead prosecution case to what happened deceased after they left the house of Sarpanch Nirmala Mishra (PW-6).
Q
16. It is not a case where the present appellant alone had taken the deceased his house and both of them left house and thereafter, deceased was not seen by anybody and was found dead. On the contrary, as per the prosecution case itself, atleast six accused persons were seen with the deceased when they left the house of the Sarpanch, therefore, the prosecution i 5'
F7.
should have come Forward with specific allegations against the present appellant that it he who alone could have been responsible for committing murder of deceased Manharan.
17. In the matter of Sujeet Biswas Vs. State of Assam, AIR 2013 SC 3817, it has been held by the Supreme Court that mere suspicion howsoever strong would not be sufficient to convict a person.
18.The available present case does not inspire confidence Court conclude that it appellant alone who was last seen together company deceased. Once the trial Court has acquitted four other accused persons for lack of evidence against them, so to establish their identity, the appellant alone cannot be convicted on basis of same set of evidence of last seen together. Moreover, the Investigating Officer Jagdish Uikey (PW-13) has admitted para 7 of his statement that at the place on the other side of river, where dead body was found, huts several labourers were available and they were inquired about the case, however, nothing important could be elicited from them. it also appears from para 8 of his statement that the place where the dead body was found is hardly 1/2 km away from the village, J'
therefore, it appears highly improbable that no other person in village would have seen accused persons taking deceased with them place of occurrence and more so when witnesses speak about some quarrel between accused persons deceased, where accused persons were seen assaulting him.
7.
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19.For the Foregoing, it will not be safe to convict the appellant oniy on basis OF circumstantial OF last seen together.
20.
Accordingly, appeal allowed conviction sentence imposed on appellant Ramkumar Nishad under Section 302/34 OF the IPC is hereby set aside and he is acquitted of the said charge. The appellant is on bail. Surety and personal bonds earlier Furnished at the time OF suspension OF sentence shall remain operative For a period of six months in view of the provisions of Section 437-A of the Cr.P.C.
The appellant shall appear before the higher Court as and Sd/- '
Prashant Kum'ai' Mishra sa/-.
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Judge L Anil Kuniar Shukla