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2017 Supreme(Chh) 468
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Pritinker Diwaker, Ram Prasanna Sharma, JJ.
Shankarlal s/o. Phool Singh & Ors. - Appellants
Versus
State of Chhattisgarh - Respondent
CRA No. 497 of 2008
Decided On : 06-10-2017
Advocate Appeared:
For the Appellants :Mr. Rakesh Thakur, Advocate
For the Respondent: Mrs. Smita Ghai, Panel Lawyer
Headnote:
Indian Evidence Act – Section 106 – Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 – Section 5 – Penal Code, 1860 – Sections 302, 34, 201 – Code of Criminal Procedure, 1973 – Section 313 – Murder – Order of Conviction – Challenge in this appeal is to the judgment of conviction and order of sentence passed by the Sessions Judge, Rajnandgaon in Sessions Trial, whereby the trial Court after holding the appellants guilty for commission of murder and causing disappearance of evidence of the offence, convicted the accused/appellants under Sections 302 read with Section 34, 201 of the IPC and Section 5 of Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2000/-, RI for two years and to pay fine of Rs.1000/- and RI for two years and to pay fine of Rs.1000/- respectively, with default stipulations – Held, It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. – In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused/appellants. – Court thus consider it to be wholly unsafe to maintain conviction of the appellants as recorded by the trial Court and benefit of doubt should be extended to them and they are liable to be acquitted. – Appeal Allowed
Ram Prasanna Sharma, J.
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 3-3-2008 passed by the Sessions Judge, Rajnandgaon (for short, “the trial Court”) in Sessions Trial No.101 of 2006, whereby the trial Court after holding the appellants guilty for commission of murder and causing disappearance of evidence of the offence, convicted the accused/appellants under Sections 302 read with Section 34, 201 of the IPC and Section 5 of Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2000/-, RI for two years and to pay fine of Rs.1000/- and RI for two years and to pay fine of Rs.1000/- respectively, with default stipulations.
2. In the present case, name of the deceased is Basanti Bai. The appellant No.1 Shankarlal is husband of the deceased and the appellant No.2 Itwari Ram is elder brother of Shankarlal. Death of Basanti Bai took place in the intervening night of 25/26-7-2006 at village Korguda (Dharmutola). On 26-7-2006 at about 2.20 pm one Gopal, uncle of the deceased gave information to Police Station Gaindatola about the death of Basanti Bai whereupon merg intimation (Ex.P/3) was registered. After merg intimation Executive Magistrate of Chhuriya reached the spot and got prepared inquest report of the dead body which was lying on the mat in the bed room of the house as per Ex.P/2. Thereafter, postmortem was conducted as per Ex.P/7-A and first information was lodged as per Ex.P/6.. During investigation, statements of the witnesses were recorded.
3. After completion of investigation, charge-sheet was filed against appellants before the Court of Judicial Magistrate First Class, Rajnandgaon, who in turn committed the case to the Court of Sessions. The trial Court framed charge under Section 302 of the IPC in alternate under Sections 304-B, 201 of IPC and Section 6 of the Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005, to which appellants did not plead guilty and trial was conducted.
4. To substantiate the charge, prosecution examined 13 witnesses in all. After recording the statements of prosecution witnesses, statements of the appellants were recorded under Section 313 of the Cr.P.C. The trial Court after considering the material available on record by the impugned judgment convicted and sentenced the accused/appellants as mentioned above.
5. Learned counsel appearing for the accused/appellants submits as under:
| (I) | The cause of death of Basanti Bai is not established, as per post-mortem conducted by Dr. S.S. Devdas (PW/10), he simply mentioned in his report that cause of death was due to asphyxia and admitted in his statement that the same may be caused due to general disease, therefore, it cannot be held that death is homicidal. |
| (ii) | That if the evidence of the witnesses adduced by the prosecution is taken as it is, they are hearsay witnesses and the same is not legally admissible evidence and no finding can be recorded on the basis of such statements. |
| (iii) | Not a single witness of village Korguda (Dharmutola) where incident took place has been examined in support of the prosecution case and the witnesses adduced from other village are not real witnesses of the issues in question. |
6. Per contra, State counsel supporting the impugned judgment has submitted that the impugned judgment is strictly in accordance with law and there is no illegality or infirmity in it warranting any interference by this Court.
7. We have heard counsel for the parties and perused the material on record.
8. Shyamlal (PW/1) is father of the deceased who has stated that after receiving information of death of the deceased, his brother rushed to the place of incident. He further deposed that when her daughter (deceased) visited his house prior to the incident, she spoke
