Durg, Chhattisgarh v. State of Chhattisgarh Through S.H.O. Kumhari District Durg Chhattisgarh, Distric
Case Details
1 2025:CGHC:6237-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1533 of 2019 Manoj Verma @ Kharru S/o Khilavan Verma Aged About 28 Years R/o Near D.M.C. Talab, Kumhari, P.S. Kumhari, District Durg Chhattisgarh............Accused In Jail, District : Durg, Chhattisgarh ... Appellant(s) versus State of Chhattisgarh Through S.H.O. Kumhari District Durg Chhattisgarh, District : Durg, Chhattisgarh ...Respondent(s) For Appellant For Respondent/State : : Mr. Ravindra Sharma, Advocate. Mr. Hariom Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 04 .02.2025 BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.02.07 18:15:57 +0530 1.
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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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, 10 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.” 21. When we examine the circumstantial evidence available in the case vis-a-vis the defects in the investigation, it is seen that the report of the Fingerprints Expert though is positive for the prosecution, but the prosecution has not filed the memo of obtainment of fingerprints from the spot. More importantly, if on the date of obtaining the impressions, the accused was in judicial custody, the said impressions could not have been obtained without order from the Magistrate. Thus, the document does not satisfy the test of legal and procedural sanctity in either of the terms. If on the said date the accused was in Police custody then the document should carry the signatures of witnesses as well as the accused and if he was in judicial custody there should have been permission from the concerned Magistrate. Since, it is not proved that the admitted 11 fingerprints said to be of the accused were obtained from him while he was in custody, the report of the Finger Print Expert is not such evidence which can be relied upon as one of the circumstances in the chain of circumstantial evidence to establish the guilt of the accused. 22. On the above aspect, it would be profitable to refer to the law laid down by the Hon'ble Supreme Court in the matter of Mohd. Aman & Another vs. State of Rajasthan, reported in (1997) 10 SCC 44 wherein the Hon’ble Supreme Court has held thus at paragraphs 8 & 9:- “8 ....… It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.............… 9....… So far as the footprints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample footprints were not taken before a Magistrate...........” 23. Reverting to the facts of the present case, in light of principles of law laid down by their Lordships of the Hon’ble Supreme Court in the above- stated judgments (supra), it is evident from record that on the date of obtaining the impressions, the accused was in judicial custody, the said impressions could not have been obtained without order from the Magistrate. Hence, the document does not satisfy the test of legal and procedural sanctity in either of the terms. If on the said date the accused 12 was in Police custody then document should carry the signature of witnesses as well as the accused and if he was in judicial custody there should have been permission from the concerned Magistrate. Since, it is not proved that the admitted fingerprint said to be of the accused were obtained from him while he was in custody, the report of Fingerprint Expert is not such evidence which can be relied upon as one of the circumstances in the chain of circumstantial evidence to establish the guilt of the accused. 24. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 25. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 21.12.2012 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith, if not required in any other case. 26. Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Cr.P.C. of sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 13 27. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan
Arguments
Heard Mr. Ravindra Sharma, learned counsel for the appellant. Also heard Mr. Hariom Rai, learned Panel Lawyer, appearing for the respondent/State. 2. On 20.01.2025, this Court had passed the following order: 2 “Heard Mr. Ravindra Sharma, learned counsel for the appellant. Also heard Mr. Hari Om Rai, Panel Lawyer, for the respondent/State. The Director General of Police is directed to file his personal afÏdavit as to what efforts have been made by the Police to arrest the appellant who has been convicted and sentenced under Sections 449, 302 and 392 of I.P.C. for life imprisonment as he was released on short term parole for 16 days on 06.02.2023 and thereafter he did not surrender, as per the PUD received from the Jail Superintendent, Central Jail, Bilaspur (C.G.) dated 19.02.2024. Registry is directed to sent the copy of this order to the Authority concerned. The matter be listed again on 04th of February, 2025 for final hearing.” 3. Learned State counsel submitted that in compliance of the order dated 20.01.2025, an afÏdavit has been filed by the Director General of Police, Chhattisgarh on 29.01.2025 stating that what steps have been taken to arrest of the appellant. Learned State counsel also place a letter of Additional Superintendent of Police, City, District Durg (C.G.), whereby it has been informed that the appellant has been arrested on 02.02.2025 and has been lodged in the Jail. 3 In view of the same, we proceed to hear the matter. This criminal appeal preferred under Section 374(2) of the Code of 4. 5. Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 21.12.2012, passed by the learned Fourth Additional Session Judge, Durg, District Durg (C.G.) in Session Trial No. 68 of 2012, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 449 of the Indian Penal Rigorous imprisonment (for short, ‘R.I.’) Code (for short, ‘IPC’) for life imprisonment and fine of Rs.1,000/-, in default of payment of fine, 06 months R.I. more. Section 302 of the IPC R.I. for life imprisonment and fine of Rs.1,000/-. In default, 01 year R.I. more. Section 392 of the IPC 10 years R.I. and fine of Rs. 1,000/-. In default, 06 months R.I. more. 6. Brief facts of the case are that, on 05.06.2011, at around 11:00 p.m., accused Manoj Verma, accompanied by his accomplice Babin Khan, entered the residence of Nitin Gajjar, situated at Himmat Colony, Police Station Kumhari, through the open rear door with an intention of committing theft. Nitin Gajjar woke up upon hearing the sound of the accused, breaking the cupboard handle lock with the help of rod and caught hold of accused Manoj Verma from behind, shouting “thief, thief.” The accused pushed Nitin Gajjar into his room and throw him on the floor. Accused Babin Khan climbed onto Nitin Gajjar's chest. Nitin Gajjar 4 became unconscious. Manoj Verma tied Nitin Gajjar's neck tightly with a thin iron wire kept near the cooler, resulting into death of Nitin Gajjar. The accused did not find any valuable jewellery during their search of the house. However, they found Rs. 150/- kept in a flower pot hanging on a hook in Nitin Gajjar's room. Manoj Verma kept the yellow-colored jacket, two small and big gamchas, and a handkerchief, while Babin Khan kept a red and black-colored mobile phone. Thereafter, the accused left through the back door at 4:00 a.m. and walked to the bridge of the Kharun river, where Manoj Verma hide the yellow-colored jacket, both gamchas, and a handkerchief between two stones under the bridge. The accused then left for Bilaspur. 7. On 06.06.2011, niece of Nitin Gajjar, Devisha Gajjar (PW-5), found the back door of Nitin Gajjar's quarter opened and informed her uncle, Kamlesh Gajjar (PW-6), about the incident. Kamlesh Gajjar (PW-6) then informed the police. A report was lodged at Kumhari Police Station on 14.06.2012, at 14:30 hours, regarding the killing of Nitin Gajjar by strangulation with a thin wire, breaking the cupboard, and scattering items to steal valuables from the house. The First Information Report (FIR) vide (Ex.P/17) was registered against unknown accused under Crime No. 164 of 2011 for the offences punishable under Sections 449 and 302 of the IPC. 8. Investigating OfÏcer, Lallan Singh (PW-8), prepared a crime details form vide Ex.P/18 and seized various items, including the wire used for strangulation, a blood-stained cloth, and a broken lock. The postmortem report (Ex.P/22) confirmed that death of Nitin Gajjar was caused by 5 suffocation. During the investigation, Manoj Verma made a memorandum statement (Ex.P/5), leading to the recovery of stolen items, including a jacket, gamchas, and a mobile phone. Babin Khan also made a memorandum statement (Ex.P/7), leading to the recovery of the mobile phone. The Investigation OfÏcer arrested the accused and prepared seizure memos (Exs.P/6 and P/8) and arrest memos (Exs.P/26 and P/27). The fingerprints of Manoj Verma were matched with those found at the crime scene. Statements of witnesses, including Kamlesh Gajjar (PW-6), Shailesh, and Devisha (PW-5), were recorded during the investigation. 9. After due investigation, the Police filed charge-sheet against the accused persons before the jurisdictional criminal Court and the case was committed to the Court of Sessions for trial from where the learned Fourth Additional Session Judge, Durg, District Durg (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 10. The accused abjured guilt and entered into defence. But, the prosecution against accused Babin Khan has failed to prove the charges under Sections 449, 302 and 392 of the IPC beyond reasonable doubt. Therefore, accused Babin Khan is acquitted by giving the benefit of doubt for the charges under Sections 449, 302 & 392 of the IPC by the trial Court. 11. In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 27 documents. However, he examined none in his defence. 12. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 21.12.2012 convicted the 6 appellant for the offences punishable under Sections 449, 302 and 392 of the IPC and sentenced him as mentioned in the paragraph 05 of this judgment which is sought to be challenged in this criminal appeal preferred by the appellant. 13. Learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubts. The motive and intention which is the essential ingredient to prove an offence has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on the statement of finger print expert S.K. Jain (PW-4), though there is material discrepancy in his statement. He further submits that the learned trial Court erred in ignoring that the discovery of the incriminating article is inconsistent with the confessional statement and the clothes and other items seized from open place. The seizure of the incrementing article despite the fact that the no blood stain has been found and the medical evidence have also not supported the story of the prosecution. Therefore, merely on the basis of statement of finger print expert S.K. Jain (PW-4) and in absence of any direct evidence, conviction of the appellant under Sections 449, 302 and 392 of the IPC cannot be sustained. Hence, the judgment of conviction recorded and sentence awarded deserves to be set aside being contrary to the material available on record. 14. Learned State counsel would support the impugned judgment and submits that the Fingerprint Expert opinion is a very strong piece of evidence against the appellant. He would also submit that the prosecution 7 has been able to bring home the offence and there is sufÏcient evidence available on record to hold him guilty and he has rightly been convicted by the learned Second Additional Sessions Judge and the appeal deserves to be dismissed. 15. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 16. The appellant has solely been convicted on the basis of the statement given by the S.K. Jain (PW-4) is the Fingerprints Exert and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellant. 17. S.K. Jain (PW-4) is the Fingerprints Expert, who has proved that the fingerprints obtained from the Almirah at the place of occurrence is the fingerprint of the accused i.e. left index finger of the left hand. In his cross- examination, he admitted that the original photo of the finger print image (Ex.P/14) marked with ‘A’ was not taken by him. As per the rules, the photo was taken by the Police photographer, Constable P.K. Verma who has not been not examined. He received the developed photo from him. He does not recall the date when the photo was taken, but he remembered the date when received the photo. In Ex.P/14, he signed and dated as 06.06.2011. He signed and dated the developed article ‘A’ and marked it, but no panchnama or other records were prepared. 18. Kamal Kamleshia (PW-3), had stated in his deposition that he knew the accused Manoj Verma alias Kharru. According to him, Manoj Verma had given a statement at the Bhatthi Police Station that he entered the 8 house of Nitin Gajjar through the back door with an intention of committing theft. When Nitin Gajjar woke up due to the noise of breaking the cupboard, Verma was caught from behind, leading to a scufÒe. Gajjar fell down, and Verma claimed that he does not want to kill him. He admitted signing the memorandum statement (Ex.P/5) and seizure memo (Ex.P/6) in front of the Police. However, he claimed that the Police did not prepare any seizure memo in his presence. When the Police were taking Manoj Verma to the Kharun river, he followed them and was shown a jacket and a diary with Gajjar's photo by the Police. The Police had seized these items and prepared a seizure memo (Ex.P/6), which he signed. During cross-examination, he admitted that he had signed the documents (Exs.P/5 and P/6) after the Police had written them. He also stated that the Police did not coerce him into signing the documents and he also stated that he did not know the contents of the documents as he was illiterate. 19. From the above, it is apparent that the case of the prosecution rests mainly on the evidence of Fingerprints Expert, memorandum and seizure. It is settled law that for a conviction to sustain on the basis of circumstantial evidence the prosecution has to prove that the chain of circumstantial evidence is so complete that it eliminates all hypothesis of the innocence of the accused and points to only one conclusion that it is the accused who has committed the crime. 20. In its celebrated judgment in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622, the Hon’ble Supreme Court has underlined the conditions, which must be 9 fulfilled for convicting an accused on the basis of circumstantial evidence and held in paragraph 152 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)the circumstances from which the conclusion of guilt is to be drawn should be fully established.