Raipur, Chhattisgarh v. State Of Chhattisgarh, Through Police Station
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.06 10:31:01 +0530 2025:CGHC:6293-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1198 of 2019 {Arising out of judgment dated 28.05.2019 passed in Sessions Trial No.152/2018 by the learned Sessions Judge Raipur, District Raipur} Jhamman Pal, S/o. Late Ramcharan Pal, Aged About 35 Years, R/o. Village Devaarbhata, Dhusera, Police Station- Mujgahan, District- Raipur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station- Mujgahan, District- Raipur, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Pawan Shrivastava, Advocate For Respondent : Mr. H.A.P.S.Bhatia, Panel Lawyer (Division Bench)
Legal Reasoning
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 Sahabrao Bobade v. State of 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 2 (1973) 2 SCC 793 7 (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. The appellant has been convicted basically on the basis of statement of Hemin Pal (PW-1) who is said to have seen the appellant assaulting his/her mother and she informed to her husband Chaituram Pal (PW-2). According to Hemin Pal (PW-1), she had seen the incident from the hole of one door out of two doors of her house from electric light which was illuminating from the pole. However, Ravishankar Sahu (PW-10) has prepared spot map vide Ex.P-3 and in the spot map, he has shown only one door in the house of PW-1 & PW-2 and the place of incident from the main door of their house is 32 feet and the light of electric pole coming towards the place of incident is 43 feet. Surprisingly, while preparing spot map/nazari naksha (Ex.P-3), it has not been shown from which place PW-1 had seen the incident by which the appellant has assaulted his/her mother. Patwari- Ravishankar Sahu (PW-10) in the cross- examination has clearly admitted that in the house of Hemin Pal (PW-1) & Chaituram Pal (PW-2) there is only one door which has been shown in the spot map/nazari naksha (Ex.P-3) from where PW-1 had seen the incident which is 8 32 feet away and there was no other door. He has also admitted that without opening the door, the place of incident cannot be seen which is 32 feet away. However, as per the statement of Hemin Pal (PW-1), she had seen the incident by the hole of the door, which has not been shown in the map and as per the statement of PW-10, there is no other such door except the door shown in the spot map (Ex.P-3), which is 32 feet away from the place of incident and no one can see the incident without opening the door. 11. In this regard, the Supreme Court in the matter of Shingara Singh v. State of Haryana and another3 held that the omission to show essential feature in the site plan is more than lapse on the part of the Investigating officer and observed in para-29 as under: “The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined. ” 3 (2003) 12 SCC 758 9 12. Similarly, in the matter of Baldev Singh and another v. State of M.P.4, it has been held by the Supreme Court that site plan is not a mere formality and it is essential feature to highlight the importance of the site plan, and observed as under : “13. … The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident.” 13. The Supreme Court in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh and others5, in para-3, has issued the following guidelines regarding site plan: “3. SCENE MAHAZAR/ SPOT PANCHANAMA i. A site plan of the place of occurrence of an be appended by the incident shall Investigating Officer to the scene mahazar or spot panchnama. ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose a. the place of occurrence, b. the place where the body (or bodies) was / were found, c. the place where material exhibits and/or weapons,
Arguments
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (04.02.2025) 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 28.05.2019 passed by learned Sessions Judge, Raipur, in Sessions Trial No.152/2018, by which the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/- in default of payment of fine, 1 month's additional rigorous imprison- ment. 2. Case of the prosecution, in short, is that on 31.12.2017 in the intervening night at about 11:00 P.M. to 12:30 A.M. at village Devarbhata, Dhusera, Police Station- Mujgahan, District Raipur, the appellant herein murdered his mother Rain Bai (now deceased) and thereby committed the offence. The matter was reported to the police, pursuant to which, zero FIR was registered vide Ex.P-11 and FIR was registered vide Ex.P-13, zero Merg Intimation was registered vide Ex. P-10 and Merg Intimation was registered vide Ex.P-12, Spot Map was prepared vide Ex.P-3, Inquest was conducted vide Ex. P-2 and dead body of deceased Rain Bai was subjected to post-mortem, which was conducted by Dr. Singdha Jain (PW-7), who proved the post-mortem report Ex.P-8, 3 according to which, cause of death was stated to be hemorrhage and shock caused by the sustained injuries and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-4, weapon of offence i.e. crowbar has been seized from the appellant vide Ex.P-5, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-18), blood was found on the seized crowbar. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 20 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced to 4 undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Pawan Shrivastava, learned counsel for the appellant, would submit that Hemin Pal (PW-1), daughter of the deceased, was the only eye-witness and from the place where she had shown to have seen the incident as per the spot map (Ex.P-3), it was not possible that she had seen the incident, as the place of incident was 32 feet away from the place where she had seen the incident. He further submits that Patwari- Ravishankar Sahu (PW-10), who has prepared the spot map (Ex.P-3) has clearly stated that the hole of the door from which Hemin Pal (PW-1) had seen the incident, it was not possible to see unless the door was opened and there is no other door in the house to see the incident. Therefore, the evidence of PW-1 that she had seen the incident by which appellant has assaulted his/her mother is doubtful and, as such, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the 5 appellant for the aforesaid offence and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Rain Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-8, proved by Dr. Singdha Jain (PW-7), according to which, cause of death was stated to be hemorrhage and shock caused by the sustained injuries and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 , 1 (1984) 4 SCC 116 6 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.