State of Chhattisgarh v. Santosh Kumar Choudhary and
Case Details
Page No.1 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 SAIFAN KHAN Digitally signed by SAIFAN KHAN 2025:CGHC:18174-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR [Arising out of a common judgment dated 28.01.2017, passed in Sessions Case No.36 of 2016 (State of Chhattisgarh v. Santosh Kumar Choudhary and 02 others) by the Additional Sessions Judge, Saraipali, District Mahasamund (CG)] Criminal Appeal No. 190 of 2017 Subhash Patel S/o Shri Chaitram Patel, Aged About 33 Years R/o Village Kodopali, Police Chowki Baloda, Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) Versus State of Chhattisgarh, through The Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) --- Respondent --- Appellant WITH Criminal Appeal No. 262 of 2017 Santosh Kumar Chowdhary S/o Shri Gayaram Chowdhary, Aged About 37 Years R/o Village Kodopali, Police Chowki Baloda, Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) Versus State of Chhattisgarh, through the Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) --- Respondent ---Appellant WITH CRA No. 769 of 2017 Shyam Lal Nand S/o Vibhishin Nand, Aged About 40 Years R/o Village Kodopali, Police Chouki Baloda Thana Saraipali, District Mahasamund, (Chhattisgarh) ---Appellant Page No.2 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 Versus State of Chhattisgarh, through Police Station House Saraipali, District Mahasamund, (Chhattisgarh) --- Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------ For Appellants : Mr. Jamil Akhtar Lohani and Mr. Ashok Verma, Advocates respectively For Respondent -------------------------------------------------------------------------------------------- Division Bench
Legal Reasoning
Mr. Ashish Shukla, Addl. Advocate General : Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (22.04.2025) Sanjay K. Agrawal, J (1) Regard being had to the similitude of the questions of fact and law involved and being arising out of common impugned judgment dated 28.01.2017, on the joint request of learned counsel for the parties, all these 03 criminal appeals are clubbed together, heard together and being decided by this common judgment. (2) In these criminal appeals filed under Section 374(2) of Cr.P.C., total 03 accused-appellants, namely, Santosh Kumar Choudhary (A- 1), Subhash Patel (A-2) and Shyamlal Nand (A-3) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 28.01.2017, passed in Sessions Case No.36 of 2016 (State of Chhattisgarh v. Santosh Kumar Choudhary and 02 others) by the Additional Sessions Judge, Saraipali, District Mahasamund (CG), whereby they all have been convicted and sentenced as under: Page No.3 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 Conviction U/s. 302/34 of IPC Sentence Imprisonment for life with fine of Rs.2,000/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each. U/s. 201/34 of IPC Rigorous imprisonment for 05 years with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each. [Both the sentences are directed to run concurrently] (3) The case of the prosecution, in a nutshell, is that in the intervening night of 16-17.05.2016, at Village Kodopali, which comes within the ambit of Police Station Saraipali, District Mahasamund (CG), the 03 accused-appellants herein, firstly shared common intention of killing one Laxman Choudhary (herein after referred to as the “deceased”) and, in furtherance thereof, committed his murder and, in order to screen themselves from the legal punishment, burnt the dead-body of the deceased and, thereby, said to have committed the aforesaid offences. (4) It is further case of the prosecution that initially on 17.05.2016, when the deceased was not found, search was made and, ultimately, on 18.05.2016, a missing person report was lodged by Gangaram (PW-01) [uncle of the deceased]. However, on the same day, one dead-body of unknown person was found in burnt condition at adjoining fields of the courtyard of Gayaram (PW-01), therefore, the same was reported to the police vide Ex.P/01 and, wheels of investigation started running in the matter, in which, Page No.4 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 dehati nalsi was recorded vide Ex.P/27. Summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were also conducted vide Ex.P/07. FIR was also registered vide Ex.P/35. Since only bones and other remains of the said dead-body was found, PW-13- Dr. Sudhir Kumar (Medical Officer), who conducted postmortem, sent all the material to Medical College Hospital, Raipur vide Ex.P/09. Thereafter, vide Ex.P/13, Dr. Ullas Gonnade (PW-20) examined the said bones and opined that bones are of the same person who died, but cause of death could not been determined, therefore, need for DNA test was emphasized. However, no DNA test was conducted for the reasons best known to the prosecution. Thereafter, accused-appellants were arrested vide Ex.P/28 to Ex.P/30 and their memorandum statements were recorded vide Ex.P/02 to Ex.P/04 respectively. Pursuant to the memorandum statement of the appellant- Santosh (A-1), one gamcha was seized vide Ex.P/05. The said scarf gamcha was subjected to chemical examination and, as per FSL report (Ex.P/08), it has been opined that no stains of blood were found on the aid gamcha. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by Page No.5 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 26 witnesses and exhibited 35 documents, whereas the appellants/accused in support of their defence, though not examined any witness, but exhibited 05 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Sections 302/34 & 201/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Jamil Akhtar Lohani and Mr. Ashok Verma, learned counsel appearing for the respective appellants jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302/34 & 201/34 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. They further submits that: (i) even the dead-body of the deceased has not been found and merely on the basis of some pieces of bone, a conclusion has been drawn by the prosecution that the bones were of the deceased; (ii) no DNA test has conducted and, in absence of which, conclusion drawn by the prosecution as well as by the learned trial Court is contrary to the law; (iii) though at the instance of the appellant- Santosh (A-1) one gamcha has been Page No.6 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 seized, but the FSL report is negative in relation to said gamcha, therefore, recovery of said article is of no help to the prosecution and (iv) though it is alleged that the appellant- Santosh (A-1) has given confessional statement before the police vide Ex.P/02 that he alongwith other appellants- Subhash (A-2) and Shyamlal (A-3) have committed the crime in question, but the same is inadmissible in evidence, as hit by Section 30 of the Indian Evidence Act, 1872 (for short the “IE Act”). As such, in view of aforesaid illegalities and perversity in the impugned judgment qua case of the prosecution, all the appeals deserve to be allowed and all the appellants are liable to be acquitted of the charges on the basis of benefit of doubt. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences under Sections 302/34 & 201/34 of IPC and, therefore, all the appeals are liable to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) In order to answer the plea raised at the bar, we will consider each of the submissions putforth on behalf of the appellants one by Page No.7 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 one. Submissions No.(i) & (ii): (11) So far as submissions No.(i) & (ii) are concerned, it has been argued on behalf of the appellants that the dead-body of the deceased has not been recovered, indeed, only bones of an unknown person were recovered and, therefore, PW-13- Dr. Sudhir Kumar (Medical Officer), who conducted postmortem of same, sent all the material (bones and remains) to Medical College Hospital, Raipur vide Ex.P/09, whereby, Dr. Ullas Gonnade (PW-20) examined the said bones and vide Ex.P/13 opined that though the said bones are of the same person who died, but cause of death could not been ascertained, therefore, need for DNA test was emphasized. However, no DNA test has been conducted in the present case for the reasons best known to the prosecution. In this regard decision of the Supreme Court may be noticed herein profitably. (12) In the matter of Rama Nand and others v. State of Himachal Pradesh1, their Lordships of the Supreme Court have held in no uncertain terms that discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Their Lordships further held that the ‘body’ doctrine is merely a rule of caution and not of law. It has also been held that where the dead body of the victim in a murder is not found, other cogent and 1 (1981) 1 SCC 511 Page No.8 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 satisfactory proof of homicidal death of the victim must be adduced by the prosecution. But where the fact of corpus delicti or homicidal death is sought to be established by circumstantial evidence alone, or by both, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Their Lordships observed as under:- “28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. “I would never convict,” said Sir Mathew Hale, “a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead.” This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old “body” doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other Page No.9 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. ‘homicidal death’ is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be “proved”, if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. …” (13) The principle of law laid down in Rama Nand (supra) has been reiterated and followed by the Supreme Court in the matter of Ramjee Rai and others v. State of Bihar2 and similar proposition has been made in the matter of Rishi Pal v. State of Uttarakhand3 following Rama Nand (supra) and it has been held that absence of corpus delicti is insignificant if cogent and satisfactory proof of homicidal death of victim is adduced. The decision of the Supreme Court in Rama Nand (supra) has further been followed in the matter 2 (2006) 13 SCC 229 3 2013 Cri.L.J. 1534 Page No.10 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 of Sanjay Rajak v. State of Bihar4. (14) However, in the matter of S. Kaleeswaran v. State by the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu5, their Lordships of the Supreme Court have made exception to the rule of corpus delicti that if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else, and it was held as under: - “14. … but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else.” (15) In the matter of Rambraksh alias Jalim v. State of Chhattisgarh6, the Supreme Court has held that the investigating officer did not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak and their Lordships have held that the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise.