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2018 Supreme(Chh) 617
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
PRASHANT KUMAR MISHRA, VIMLA SINGH KAPOOR, JJ.
Kheduram Soni @ Rabi Soni, S/o Late Chhedilal Soni & Ors. - Petitioners
Versus
State of Chhattisgarh - Respondent
CRA No. 97 of 2011
Decided On : 22-06-2018
For the Appellants :Shri Sachin Singh Rajput, Advocate
For the Respondent: Shri Bhaskar Payashi, Panel Lawyer
Headnote:
Indian Penal Code,1860 – Section 302 & 201 r/w 34 – Criminal Procedure Code,1973 – Section 437-A – Dead body founded -Murder - Appellant No.1 his brothers were residing in one common premises having separate portions occupied by each of them - After death of one his wife was occupying one part of the house whereas brother (PW-6), being mentally disturbed, was not allotted any room and was living on the mercy of appellant or brother Deceased was Headmistress in the Shishu Mandir – Appellant has a cloth shop in the same town whereas one has a jewellery shop – Said one has one son and one daughter (PW-2) and (PW-3), respectively - While (PW-3) resides in a different place after her marriage; (PW-2) has engaged himself as a Document Writer in the premises of office of the Sub Registrar - Merg intimation was recorded on the information of appellant to the effect that Aditi (PW-8) informed him that the dead body of is floating in the well – One went towards the well and saw the dead body floating in the well with only blouse & petticoat over her body and one bucket was also found inside the well - Appellant was treated to be a suspect and the bloodstains on door frame of his house were scratched by using a wet cotton - Curtain, trouser & lungi were also recovered from the house mentioning that said one is an accused even though till this time there was no evidence that he might have committed the crime - By Ex.P/7, wrist watch, cargo jeans pant & blackish brown trouser were recovered from the bed room of the appellant - Whether prosecution has successfully proved by producing an article co-relating with the medical report – Held, Supreme Court has reiterated, time and again, that suspicion, strong cannot take the place of requirement of legal proof for commission of crime - It is the burden of the prosecution to prove the guilt of accused by producing lawfully admissible evidence and a conviction is not permissible in law merely on the basis of suspicion - Theory of last seen appellant having gone with the deceased in the manner noticed hereinbefore, is singular piece of circumstantial evidence available against him - Conviction of the appellant cannot be maintained merely on suspicion, strong it may be, or on his conduct - These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time - Fact situation bears great similarity to that in Madho Singh v. State of Rajasthan - In view of the above discussion, present is a case where prosecution has not been able to conclusively prove such circumstantial evidence which points towards the guilt of the accused, therefore, the prosecution has utterly failed to prove its case beyond reasonable doubt - As a sequel, the appeal is allowed - Appellants are on bail - Appellants shall appear before the higher Court as and when directed – Appeal allowed.
PRASHANT KUMAR MISHRA, J.
1. Assail in this appeal is to the judgment of conviction rendered by the Sessions Judge, Mahasamund, convicting the appellants under Section 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code ('the IPC' in short) for committing murder of Mokshada Soni (since deceased) during the period between 13.00 hours to 17.00 hours on 4-3-2010.
2. Facts necessary to appreciate the prosecution case are that appellant No.1 Kheduram Soni, his brothers Mohan Soni, Beena Lal Soni & Late Shital Prasad Soni were residing in one common premises having separate portions occupied by each of them. After death of Shital Prasad Soni, his wife Mokshada Soni was occupying one part of the house whereas brother Beena Lal Soni (PW-6), being mentally disturbed, was not allotted any room and was living on the mercy of appellant Kheduram or brother Mohan. Deceased Mokshada Soni was Headmistress in the Saraswati Shishu Mandir, Komakhan. Appellant Kheduram has a cloth shop in the same town whereas Mohan has a jewelery shop. Mokshada Soni has one son and one daughter namely; Alok Kumar Soni (PW-2) and Roshni Soni (PW-3), respectively. While Roshni Soni (PW-3) resides in a different place after her marriage; Alok Kumar Soni (PW-2) has engaged himself as a Document Writer in the premises of the office of the Sub Registrar, Mahasamund.
3. The merg intimation (Ex.P/12) was recorded at 19.15 hours on 4-3-2010 on the information of appellant Kheduram to the effect that Aditi Soni (PW-8) informed him that the dead body of Mokshada Soni is floating in the well. Kheduram went towards the well and saw the dead body floating in the well with only blouse & petticoat over her body and one bucket was also found inside the well. Kheduram apprehended that the deceased might have fallen into the well while drawing water and nobody has witnessed the deceased falling into well otherwise efforts would have been made to save her. After receiving the information, the police went to the spot; brought out the dead body; and prepared the inquest (Ex.P/4) in the morning of 5-3-2010. The inquest could not be prepared in the evening/night of 4-3-2010 because it was getting dark and the minute inspection of the dead body may not be possible. On 5-3-2010 itself appellant Kheduram was treated to be a suspect and the bloodstains on the door frame of his house were scratched by using a wet cotton (Ex.P/5). Curtain, trouser & lungi were also recovered from the house of Kheduram vide Ex.P/6 mentioning that Kheduram is an accused even though till this time there was no evidence that he might have committed the crime. By Ex.P/7, wrist watch, cargo jeans pant & blackish brown trouser were recovered from the bed room of the appellant Kheduram. One Alpha Plus Phenyle bottle having 10 gms. of Phenyle was recovered vide Ex.P/8. From Kheduram's shop another trouser was recovered vide search memo (Ex.P/9) & seizure memo (Ex.P/10). One chocolate coloured saree allegedly belonging to the deceased was recovered at 15.15 hours on 5-3-2010 vide Ex.P/11.
4. Postmortem of the dead body was conducted by Dr. V.P. Singh (PW-17) who submitted his report (Ex.P/17) finding the following injuries :
(1) Above right eyebrow region lateral aspect incised wound in the size of 3 x 1/2 x 1 cm. Sharp clear cut margin present.
(2) Left side lower jaw superficial incised wound present in the size of 3 x 1/2 x 1cm. Sharp margin.
(3) In right hand at the base of index finder dorsum side incised wound present in the size of 4 1/2 x 1 x 1 cm.
(4) Abrasion present in right hand between wrist and forearm mid portion and blood stain present. Abrasion size 13 x 4.5 cm.
(5) In left hand between index and thumb incised would present size 4 x 1 x 2 cm. Regular sharp margin.
(6) Back side abdomen right side post trunk incised wound present in the size of 6 x 2 x 1 cm, sharp margin.
(7) Below incised wound right side post trunk abrasion present in the size of 17 x 6 cm.
(8) Over t
