High Court
Case Details
" i H I G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R D I V I S I O N S h r ' i T . P . H o n ‘ b l e B E N C H : S h a r m a & C h a n d r a k a r y J J H o n ' b l e S h r i R . N . i A c g u i f f u l A g p e a l I s m e o f V s N o . 6 / 2 0 0 8 C h h a t f i s g a r h I g 1 . 2 . 3 . S i n g h P a l K u m a r @ W a f a n S u n i l D h a n i r a m V e r m a K a l e C r i m i n a l A p p e a l N o . 2 3 5 / 2 0 0 8 W a ' r a n P a l S i n g h S ’ r a ‘ r e o f C h h a T T i s g a r h A p p e a l N o . 2 3 9 / 2 o o a D h a n i R a m V e r m a v ’ V s ( J C r i m i n a l > W V s A P P E L L A N T R E S P O N D E N T S ’ A P P E L L A N T « R E S P O N D E N T A P P E L L A N T R E S P O N D E N T S f a T e o f C h h a h ‘ i s g a r ‘ h A P P E L L A N T R E S P O N D E N T & A g g e a l N o . 4 2 9 / 2 0 0 8 S u n i l K u m a r @ K a l e S f a ’ r e o f C h h a f f i s g a r ‘ h C r i m i n a l i V s I 3 J u d g m e n i ' f o r c o n s i d e r a t i o n f ! ” S d l — T . P . S H A R M A J u d e g H o n ‘ b l e S h r i J u s t i c e R . N . C h a n d r a k a r ¥ §~ E g y a w S d / — R . N . C h a n d r a k a r J u d g e P o s f f o r i u g m e n f d o n 2 8 / 1 / 2 0 1 3 HIGH COyRT OF CHHATT1S6ARH AT BILASPUR
Legal Reasoning
NVISION BENCH: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ Acquittal Appeal No.6/2008 APPELLANT State of Chhattisgarh RESPQNDENTS Vs 1. Watan Pal Singh 2. Sunil Kumar @ Kale 3. Dhaniram Verma £rimma\ Appeal No. 235/2008 APPELLANT Watan Pal Singh Vs RESPON&ENT State of Chhattisgarh Crimi'naLAEpeaL No. 239/200^ APPELLANT Dhani Ram Verma Vs RESPONDENT State of Chhattisgarh <& Criminal Appeal No.429/2008 APPELLANT Sunil Kumar ©Kale Vs RE5PONDENT State of Chhattisgarh Reserved on 7.1.2013 Present; Mr. Sushil Dubey, Advocate for the appellant in Acquittal Appeal No.6/08 and for the respondent in Criminal Appeals No.235, 239 <& 429 of 2008. Mr. Yashwant Tiivari, Advocate for the appellant in Cr. A. No. 235 of 08. Mr. J.R. Verma, Advocate for the appellant in Cr. A. No. 239 of 08. Mr~. Raghvendra Pradhan, Advocate for the appellant in Cr. A. No. 429 of 08. j", JUDGMENT (28th January, 2013) T.P, Sharma. J. 1. Since in all the above appeals judgment under challenge is one and the same, they are being disposedof by this common judgment. * L ^ Page 2 of 21 : Acquittal Appeal No.6/08 & Cri. Appeal Nos.235, 239 & 429 of 2008 "I 2. By filing Acquittql Appeal No.6/08 under Section 378 (1) of Cr.P.C. the State has challenged the legality and propriety of judgment dated 22.2.2008 passed in S.T. No.384/06 whereby and whereunder the trial Court, while convicting the respondents herein from the charge under Section 120-B of the IPC, has acquitted them of the charges under Sections 302, 346 and in alternate 346/34 & 201 of IPC. 3. By filing Criminal Appeal Nos.235, 239 & 429 of 2008 the appellants have challenged the aforesaid judgment of conviction and order of sentence whereby and whereunder the trial Court, while acquitting 'e them under Sections 302, 346, 346/34, 201 of IPC, has convicted them under Section 120B of the IPC for hatching-up conspiracy to commit murder of Kewal Chand Jain and sentenced each of them to undergo R.I. for life and fine of Rs.100/-, in default to undergo additional R.I. for one month. 4. The State has challenged the acquittal appeal on the ground that while acquitting the respondents the trial Court has not considered the material evidence available against the accused-respondents sufficient for their conviction for commission of aforesaid offence. Whereas, the accused/ appellants have challenged the legality and propriety of the impugned judgment on the ground that the trial Court has acquitted illegally the charges of substantive offence but the appellants of convicted them ugder Section 120B of IPC. 5. As per case of the prosecution, deceased Kewal Chand Jain was having farm house of 8 acre at Village Bhumiya. He was also a Contractor. Initially, he has leased out the farm house to appellant Sunil Kumar © Kale for Rs.60,000/-. Appellant Sunil has also taken Rs.25,000/- from the wife of deceased Kewal Chand Jain namely Smt. Sangeeta Jain (PW-1) one year prior to the incident. Appellant Sunil ©Kale did not return the said amount. Deceased Kewal Chand Jain demanded aforesaid amount from Sunil but same has not been returned. Thereafter, Kewal Chand Jain leased out the said farm house to one Totaram Thakur. Appellant Sunil & Watan Pal are close friends and Page 3 of 21 Acquittal Appeal No.6/08 Cri. Appeal Nos.235, 239 & 429 of 2008 both are residents of bistrict Sonepat (Haryana). Appellant bhaniram Verma is also friend of appellant Watan Pal Singh. On the ground of repeated demand of Rs.25,000/-, the appellants were not happy. They entered into a conspiracy to commit murder of Kewal Chand Jain. They » called Kewal Chand Jain to Fouzi Dhaba by co-accused Fagwa Dheewar on the ground that Sunil ©Kale is having sufficient money to repay the amount to him. Kewal Chand Jain along with Sunil ©Kale went to appellant Watan Pal Singh by new Hero Honda Super-splendor motorcycle of black colour. They took meals at about 12.00 on 14.7.2006 in the farm house of Ramdeen at Village Kesda along with other appellants. Thereafter, they went to the farm house of appellant Dhaniram Verma where they chained Kewal Chand Jain by rope. On 15.7.2006 they directed Kewal Chand Jain to talk with ©ulshanAgarwal by mobile whereupon he talked uvith (Sulshan Agarwal and told him that he is in Nagpur and requested him to inform his family members that he will return in the evening. When Kewal Chand Jain tried to flee from the spot, all the appellants assaulted him by knife and other weapons and caused his homicidal death. Thereafter they concealed the dead body of the deceased. They took away the motorcycle of the deceased. On account of missing of Kewal Chand Jain, his wife Smt. Sangeeta Jain (PW-1) lodged missing report on 16.7.2006 vide Ex.P-51. Police Station Simga inquired on the missing report and finally Dehati Nalishi Ex.P-28 was recorded. Thereafter FIR (ExP-29) was recorded. Dehati Merg was recorded vide Ex.P-30. Patwari prepared the spot map vide Ex. P- 27. Spot map was prepared by the Investigating Officer is Ex.P-33. The appellants were arrested and interrogated. Juvenile accused Fagwa Dheewar made disclosure statement of the dead body of the deceased vide Ex.P-12 and the same has been recovered at the instance of Fagwa Dheewar from a ditch. After summoning the witnesses vide Ex.P-9, inquest over the dead body of the deceased was prepared vide Ex.P-10. Nylon rope, blood stained & plain soil were seized from the spot vide Ex.P-14. Blood stained soil and plain soil was also recovered near the "::;<e''s, s.*;•>. ^ u Page4of21 Acquittal Appeal No.6/08 Cri. Appeal Nos.235, 239 & 429 of 2008 pump house of appellant Dhaniram vide Ex.P-15. Lock of pump house of Dhaniram was broken and lock, shoe of deceased Kewal Chand Jain, burnt pieces of cigarettes & match-stick, packet of cigarette, match- if stick box, mineral water bottle were seized from the pump house vide Ex.P-16. bamaged ciothes of the deceased were seized near the spot vide Ex.P-17. Ciead body was sent for autopsy to the Community Health Centre, Simga vide Ex.P-31 whe.re Dr. Salil Ram Choudhary (PW-5) conducted autops^ vide Ex.P-21 and found following injuries;- • • • • • • Incised wound on left side of chest of 2xlcm size skin deep. Incised wound below Injury No.l of Zxlcm size, skin deep. Incised wound on left side of stomach of 2x1x2 cm. Incised woynd on left leg below knee of 3x i-cm skin deep. Incised wound on right side of chest at the level of 12 3x1x2 cm. rib of Incised wound behind the right ear of 3xlx2cm. • Right ear lobule & pinna is separated about 2cm length. • Incised woynd on left shoulder of 2xlcm skin deep. • • • • • • Incised wound on left side of scapula region of Zxlcm skin deep Incised wound on left side of neck of 3xlcm skin deep. Incised wound on back of 2xlcm skin deep. Incised wound on back of 2xlcm skin deep, Injury No.p. 1 cm latitude to Incised wound on right index finger of lx2cm, skin deep. Incised wound on light middle finger of 3xlcm, skin deep. Mode of death was shock and death was homicidal in nature. During the course of investigation, appellant Dhaniram was taken into custody ~3 and he made disclosure statement of spade vide Ex.P-13, which was recovered at the instance of Dhaniram vide Ex.P-18. During course of investigation, appellant Sunil Kumar ©Kale was taken into custody, he made disclosur-e statement of L6 Mobile phone <& motorcycie of the deceased Kewal Chand Jain vide Ex.P-8. Mobile phone has been recovered at the instance of the appellant Sunil Kumar ©Kale vide Ex.P-4 and damaged motorcycle with igniting key was recovered fr-om Gadariya Nala under the bridge in hidden position vide Ex.P-5. Challan 'J&f^ V. »*^"*\ y' Page 5 of 21 ' Acquittal Appeal No.6/08 & Cri. Appeal Nos.235, 239 & 429 of 2008 relating to purchase of motorcycle (Ex.P-20) has been seized from Pawan Agarwal (PW-4) vide Ex.P-19. On the basis of disclosure statement of apptellant Watan Pal, knife cover, wrist watch, silver chain & key of pump house were seized at the instance of Watan Pal vide Ex.P-34. Nails of appellant Watan Pal were cut and seized vide Ex.P-36. Seized articles were sent for chemi.cal examination vide Ex.P-48. Presence of blood over seized knife from appellant Watan Pal has been confirmed vide Ex.P-50. Statements of witnesses were recorded under Section 161 of Cr.P.C. 6. After completion of investigation, charge sheet was filed before the Judicial Magistrate 1 Class, Raipur, who, in turn, committed the case to the Court of Sessions Judge, Raipur and from whe.rs the learned Additional Sessions Judge has received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as eighteen witnesses. Statements of the appellants were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution cass and pleaded innocence <& false implication in crime in question. They have examined Chander Singh, Sitaram, Pratima Verma, wife of appellant Dhaniram Verma,.* Neera Bai & Manoj Kumar in their defence and who have stated that Watan Pal, son of Chandar Singh, is resident of Village Kharkhoda, Haryana. He was residing in Haryana and not in Chhattisgarh. Deceased Kewal Chand Jain was not the man of good character. Dhanifam is not having any pump house or farm house,he is a labour and the police personnel stayed at Pahadganj, New Delhi from 19.7.2006 to 21.7200b. 7. After providing opportunity of hearing to the parties, trial Cour-t, while acquitting the appellants of the charges under Sections 302, 346, 346/34 <& 201 of IPC, convicted and sentenced them as mentioned in paragraph-1 of this judgment. 8. We have heard learned counsel for the parties, perused the impugned judgment and record of the trial Court. •( v "'•<>-, ^ ^.^fi^2.J i^^>'f '^^•1! Page6of21 Acquittal Appeal No.6/08 •.'<\ ''? " Cri. Appeal Nos.235, 239 & 429 of 2008 9. Learned counsel for the State vehemently argued that evidence adduced on behalf of the prosecution is sufficient for drawing an inference that all i> the appellants entered into a conspiracy for committing murder of Kewal Chand Jain and in furtherance of conspiracy they committed murder of Kewal Chand Jain and also concealed his dead body in a ditch. Aforesaid evidence is sufficient for drawing definit&' inference that the appellants have committed aforesaid offence but the trial Court has not considered the aforesaid credible and clinching evidence and acquitted the respondents of the charges under Sections 302, 346, 346/34 & 201 of IPC and thereby committed illegality. He further submits that even as per evidence and finding of the trial Court itself, the accused persons have entered into a conspiracy to commit murder of Kewal Chand Jain and as a result of said conspiracy, Kewal Chand Jain has been murdered. This is not a case in which the respondents had only entered into a conspiracy to commit murder and murder has not been committed. The trial Court i ought to have convicted and sentenced the accused/respondents under Sections 302, 346, 346/34, 201 & 120B of IPC but by convicting them only under Section 120B of IPC the trial Court has committed illegality. 10. On the other hand, Mr. Yashwant Tiwari, learned counsel for the appellant Watan Pal Singh has submitted that in the present case conviction is based upon the circumstantial evidence and in order to convict the appellant on the basis of circumstantial evidence, the prosecution is required to prove the complete chain of circumstances sufficient for drawin9 only an inference that only the appellants have committed the offence and none else and it also excludes the possibility of innocence of the appellants. prosecution has failed to adduce evidence of aforesaid natur-e. is not directly or indirectly related In the present case the Undisputedly, appellant Watan Pal or associated with the deceased Kewal Chand Jain. He is resident or State of Haryana and nothing has been seized from appellant Watan Pal. Co-accused Sunil Kumar ©Kale along with juvenile offender Fagua ^^vr:.^; Page7of21 Acquittal Appeal No.6/08 Cri. Appeal Nos.235, 239 & 429 of 2008 Dheewar had taken the field of Kewal Chand Jain on lease for cultivation. Suni'l Kumar was under obligation to pay some amount to Kewal Chand Jainor his wife. The deceased was not seen with the present appellant Watan Pal. Dead body has been recovered at the instance of juvenile offender Fagwa Dheewar near the field of another appellant Dhaniram. Alleged incriminating articles have been seized .1 from the pump house of Dhaniram Verma. Evidence adduced on behalf of the prosecution is not sufficient to connect Watan Pal Singh with crime in question. Even otherwise appellant Watan Pal Singh was not having any motive to commit murder of Kewal Chand Jain. Appellant Watan Pal has no+ been benefited by murder of Kewal Chand. This is a classic example of tampering and concoction of the case at the instance of the Investigating Officer and without any material the police hacl filed charge sheet against the appellant Watan Pal Singh. He further submits that FIR.-registered by the Investigating Officer (PW-11) vide Ex.P-29 itself is a concocted document, FER contains six sheets having 5r. No.37 to 41 but second & third sheets are of the same number i.e. 38, which is not possible unless tampered. Most material document i.e. FIR, shows that the Investigating Officer has tampered and concocted s the case. As per evidence of PW-16 fiulshan Agarwal, Kewal Chand Jain has contacted him last time and has specifically told him that he is in Nagpur but the prosecution has failed to collect any evidence or material to show that Kewal Chand was not at Nagpur and was in the farm house of Dhaniram Verma. Undisputedly, Kewal Chand Jain has contacted Sulshan Agarwal (PW-16) by mobile and tower used by him ought to have been traced-out by the prosecution to show that he has talked with Oulshan Agarwal (PW-16) not from Nagpur but near the place of incident i.e. Villa9e Kesda or Bhumiya. 11. Mr. J.R. Verma, learned counsel for the appellant-Dhaniram Verma has submitted that nothing has been produced by the prosecution to connect appellant Dhaniram in crime in question. l-1e is a landless person. He is no.f having farm house, pump house or agricultural land. / f^^^-- f^^\ •' ^^' >• •>~^ Page 8 of 21 Acquittal Appeal No.6/08 •\ -"I- Cri. Appeal Nos.235, 239 & 429 of 2008 He is a tailor and used to work in the fields of others as labour. He s was neither associated to deceased Kewal Chand Jain nor to any of co- appellants. Dead body has not been recovered at his instance or from his field or house. Even as per evidence of Kayur Bhusan Sharma (PW-3), dead body was recovered from the place situatzd away from the farm house of appellant Dhani Ram Verma. Dead body has not been identified by the relatives and wife of the deceased. Smt. Sangeeta Jain (PW-1), wife of the deceased, has deposed that she did not visit the house of Dhaniram Verma. She has not shown suspicion upon him. ^n Even she has notjSeen the dead body of her husband. FIR (Ex.P-38) is also not against Dhaniram Verma. He further submits that in absence of any evidence of commission of offence of murder, wrongful confinement or conspiracy, his conviction under Sectipn 120B of IPC is not sustainable under the law. .I 12. Mr. R. Pradhan, learned counsel for the appellant Sunil Kumar ©Kale has submitted that dead body of the deceased has not been identified by the wife of the deceased and even any independent witness has not identified the dead body as that of the deceased. Gulshan (PW-16), f partner of deceased Kewal Chand Jain, has specifically deposed that before the death of deceased he talked with the deceased on mobile and the deceased told him that he is in Nagpur and he is not well, but as per case of the prosecution, the deceased was not at Nagpur and was at the farmliouse situated near Village Bhumiya or Kesda, Tehsil Simga, which is far away from Nagpur. The location of the deceased would have been traced by obtaining necessary documents from the concerned mobile company showing tower used by the deceased but reasons best knpwn, the prosecution has not tried to collect such evidence. The prosecution witnesses have not deposed anything against appellant Sunil Kumar to connect him with crime in question. 13. In order to appreciate the arguments advanced on behalf of parties, we have, examined the evidence adduced on behalf of the the parties. L Page9of21 Acquittal Appeal No.6/08 & Cri. Appeal Nos.235, 239 & 429 of 2008 14. Much has been 'urgued on behalf of all the accused/appellants in respect of identity of the dead body. Smt. Sangeeta Jain (PW-1), wife of the deceased, has specifically deposed in Para-34 of her evidence that she has not seen the dead body as the same has not been shown to her. Undisputedly, she has not identified the dead body of the deceased but Kayur Bhusan Sharma (PW-3), Sarpanch of Village Bhumiya, who was knowing the deceased Kewal Chand Jain, has specifically deposed in Para-18 of his examination that dead body, whose inquest has been prepared, was the dead body of deceased Kewal Chand Jain, and this fact has not been challenged by any of the it <s^ appellants. This evidence alone is sufficient to establish that dead body recovered was of the deceased Kewal Chand Jain and not of any other person. 15. Homicidal deatK of deceased Kewal Chand Jain has not been substantially disputed on behalf of the appellants. Even otherwise, as per evidence of Dr. Salil Ram Choudhary (PW-5) and autopsy report (Ex.P-21), it is established that death of the deceased was homicidal in nature. » 16. As regards the complicity of the appellant in crime in question is concerned, the accused/appellants have challenged the legality and propriety of the impugned judgment of conviction and order of sentence whereby the trial Court, while acquitting the accused under Sections 346, 346/34, 302 & 201 of 1PC. has convicted and sentenced the accused/appellants under Section 120B of IPC. 17. By filing acquittal appeal the State has challenged the legality of judgment of acguittal of punishable under Sections 346, 346/34, 302 & 201 of IPC. the accused persons for the offence 18. In case of appeal against judgment of acquittal fited at the instance of the State the appellate Courts are required to keep in mind that the trial Court had tt}®advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box / c Page 10 of21 Acquittal Appeal No.6/08 Cri. Appeal Nos.235, 239 & 429 of 2008 and also requirerf'to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonably person would honestly and conscientiously entertain as to the guilt of the accused. 19. As held by the Supreme Court in C.Antony v. Raghavan Nair , unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective. In Ramanand Yadav v. Prabhunath Jha the Supreme Court has held that the appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interferznce. 'S 20.The scope of interference in appeals against acquittal is well settled. In Tota Singh and another v. State of Punjab , the Supreme Court has held in para 6 as under;- "..........the mere fact that the Appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The in dealing with an appeal jurisdiction of the appellate Court against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal to the unless the approach made by the lower Court consideration of the evidence in the case is vitiated by some illegality or the conclusion recorded by the Court manifest below is such which could not have been possibly arrived at by any Court gcting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legalty interfere within an order of acquittal even if it is of the opinion that the view taken by the Court belouu on its consideration of the evidence is erroneous."