Nafr High Court
Case Details
1 CRA No. 1042 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.06 13:30:02 +0530 2025:CGHC:303-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1042 of 2019 (Ari sing out of judgment dated 23.05.2019 passed in Sessions Trial No.51/2017 by the Sessions Judge, ) Kondagaon, District Kondagaon, Chhattisgarh. Dhineshwar Nag S/o Baliram, aged about 23 years, R/o Village Ghodagaon, Maripara, Police Station and District Kondagaon, Chhattisgarh. ... Appellant versus State of Chhattisgarh through Police Station House Kondagaon, District Kondagaon, Chhattisgarh. ... Respondent For Appellant :- Mr. Gajendra Kumar Sahu, Advocate. For Respondent-State :- Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Sachin Singh Rajput Hon'ble Shri Justice On Board Judgment (03.01.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 23.05.2019 passed by the Sessions Judge, 2 CRA No. 1042 of 2019 Kondagaon, District Kondagaon, Chhattisgarh, in Sessions Trial No. 51/2017 by which the sole appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 200/-; in default of payment of fine amount to undergo additional rigorous imprisonment for three months and also convicted for offence under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 5 years with fine of ₹ 200/-; in default of payment of fine amount to undergo additional rigorous imprisonment for three months. Both the sentences were directed to run concurrently. Prosecution story:- 2. From the intervening night of 04.02.2017 about 7:00 pm to 07.02.2017 about 6:00 am, at village Maripara Makdi, Police Station Kondagoan, District Kondagaon, Chhattisgarh, the appellant caused the death of his wife Purani Nag by pushing her into the well and thereafter to screen himself from the offence lodged the false report that his wife had left the house. During investigation, the dead body of the deceased was found on 07.02.2017. Merg
Facts
intimation and FIR were registered vide Exs.P/13 & P/16, 3 CRA No. 1042 of 2019 respectively. Appellant was arrested vide Ex.P/7. Spot map was prepared vide Ex.P/9. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/27) proved by Dr. Rupendra Kumar Sahu (PW-16), cause of death was asphyxia due to drowning confirmation after diatom test and as per the forensic report (Ex.P/25) bone and water are found positive for diatom test. Pursuant to memorandum statement of the appellant (Ex.P/5) wooden stick was seized vide Ex.P/6. Other articles were also seized. Seized articles were sent for chemical analysis to the FSL, but the FSL report has not been brought on record for the reasons best known to the prosecution. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 16 witnesses and exhibited 27 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. 4 CRA No. 1042 of 2019 The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:-
Legal Reasoning
(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 State of Shivaji Maharashtra2 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 (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.” 1 2
Arguments
6. Mr. Gajendra Kumar Sahu, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offences in question as the prosecution has failed to bring home the offences. He also submits that only on the basis of last seen together the appellant has been convicted for offences in question whereas, the appellant and the deceased were seen last together on 04.02.2017 at about 6:00 pm and as per merg intimation (Ex.P/13) the dead body of the 5 CRA No. 1042 of 2019 deceased was found on 07.02.2017 at about 6:00 am, as such, there is a considerable time gap of 60 hours between the last seen together of the appellant and the deceased and when the dead body was recovered. He further submits that the prosecution has also failed to produce corroborative piece of evidence to prove its case and the case of the prosecution is only based on the surmises and conjectures, therefore, in absence of other corroborative piece of evidence it cannot be held that the appellant is the perpetrator of the crime in question. Thus, the instant criminal appeal deserves to be allowed and the appellant deserves to be acquitted on the basis of benefit of doubt. 7. Per contra, Mr. H.A.P.S. Bhatia, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. He also submits that the incriminating circumstances culled out by the trial Court in paragraph No.45 of its judgment are well established and, therefore, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed. 6 CRA No. 1042 of 2019 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in paragraph No.16 of its judgment relying upon the postmortem report (Ex.P/27) proved by Dr. Rupendra Kumar Sahu (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their 7 CRA No. 1042 of 2019 Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 in paragraph 153 which state as under:- “153. 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 : Sahabrao Bobade v.