1 2025:CGHC:8139-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1053 of 2019 T. Yaqub S/o T. Venkat Raju Aged About 20 Years R/o Aditya Nagar, Titurdih, Near The House Of Govind Doctor, Police Station Mohan Nagar, District Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Mohan Nagar District Durg Chhattisgarh. ... Respondent For Appellant : Ms. Aditi Singhvi, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (17.02.2025) Sanjay K. Agrawal, J. 1 This criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 10.04.2019, passed Digitally signed by BHOLA NATH KHATAI Date: 2025.02.22 11:34:54 +0530 2 by learned 2nd Additional Sessions Judge, Durg (CG) in Sessions Trial No.65/2018, whereby the appellant herein has been convicted and sentenced in the following manner: Conviction Sentence u/s 302 IPC Life imprisonment and fine of Rs.500, in default of payment of fine, 1 year additional R.I. u/s 201 IPC R.I. for 2 years with fine of Rs.300, in default of payment of fine, 3 months additional R.I. u/s 498A IPC R.I. for 1 year with fine of Rs.200, in default of payment of fine, 1 month additional R.I. u/s 4 of the Dowry Prohibi- tion Act R.I. for 1 year with fine of Rs.300, in default of payment of fine, 2 months additional R.I. 2 By the impugned judgment dated 10.04.2019, co-accused T. Venkat Raju and T. Mahakali, who are the parents of the appellant and father-in-law and mother-in-law of the deceased, have been convicted for offence under Section 498A of IPC and Section 4 of the Dowry Prohibition Act and sentenced for the period already undergone. Hence, they have not preferred any appeal. 3 The case of prosecution, in short, is that the appellant along with the two co-accused subjected T. Mamta (now deceased) W/o the appellant to cruelty in connection with demand of dowry which led to her unnatural death by strangulation on 06.02.2018 within 7 years of her marriage. It is alleged that in order to screen themselves from the offence, the accused persons hanged the dead body to demonstrate it to be a case of suicide, thereby, the offence has been committed. The matter was reported to Police Station, Mohan Nagar by K. Jyoti (PW-6)- sister-in-law of the deceased, based on which, 3 Merg Intimation was recorded vide Ex.P-12 and FIR was registered vide Ex.P-11. Spot map was prepared vide Ex.P- 4. The dead body was sent for postmortem examination which was conducted by Dr. B. R. Sahu (PW-8), who proved the post-mortem report Ex.P-14, according to which, the mode of death was asphyxia and the cause of death was strangulation by legature. After completion of investigation, the accused persons were charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law. 4 During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 31 documents in support of its case. The statements of accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. The accused persons in support of their defence have not examined any witness but exhibited 3 documents. 5 Learned trial Court, after appreciation of the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment. Co-accused T. Venkat Raju and T. Mahakali have been convicted for offence under Section 498A of IPC and Section 4 of the Dowry Prohibition Act and sentenced for the period already undergone by them. Hence, they have not preferred any appeal. 4 6 Ms. Aditi Singhvi, learned counsel appearing for the appellant, would submit that though the appellant has been convicted under section 302 of IPC based on the statement of C. Geeta (PW-7), yet her statement is not reliable as there is contradiction in her statement recorded by the Police under section 161 CrPC and her statement given in the Court regarding the fact that she was informed by the deceased that on the date of incident her husband had come to the house of deceased and she saw the appellant absconding from the said house. Therefore, C. Geeta (PW-7) is not reliable and there is no other evidence on record based on which the appellant can be convicted for offence under section 302 of IPC. Hence, the appellant is entitled for acquittal on the basis of benefit of doubt and the present appeal deserves to be allowed in full or in part. 7 On the other hand, Mr. Arvind Dubey, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. Therefore, the instant appeal deserves to be dismissed. 8 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9 The case of 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 5 Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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. 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 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 6 (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 Now, we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). 11 The first and foremost circumstance for consideration is as to whether the death of deceased T. Mamta was homicidal in nature? 12 Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-14 proved by Dr. B. R. Sahu (PW-8), according to which, the mode of death was asphyxia and the cause of death was strangulation by legature and held that the death was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 13 The main circumstance for conviction of the appellant under Section 302 of IPC which has been found proved by the trial Court is that though the deceased died in suspicious circumstances at her maternal house but on that day, the sister of the deceased C. Geeta (PW-7) was in the house to whom the deceased informed that her husband i.e. the appellant had come in the night and she had also seen the appellant absconding from the house in the morning and soon thereafter the dead body of T. Mamta was found in the house. Now, we look into the statement of C. Geeta (PW-7) 7 who, in para-6 of her Court statement, has stated that in the night, deceased Mamta, while going to the terrace with a mat from the house, informed her that her husband had come and she was going to meet him and asked her not to come. After that she slept inside the house. In the morning, her sister-in-law told her that the deceased was not at home and the main door of the house was locked. Then she went to the window so that if someone came, she could ask him/her to open the door. At that time, the appellant was absconding from the stairs. However, in her statement recorded by the Police under Section 161 CrPC (Ex.D-5) she has not stated that she had seen the appellant absconding from the stairs. When she was confronted with her 161 CrPC statement (Ex.D-5), in para-17 of her court statement, she has clearly stated that if such statement is not written in her 161 CrPC statement (Ex.D-5), she cannot tell the reason. Similarly, when the Investigating Officer Bhojram Patel (PW- 16) was confronted with the said 161 CrPC statement (Ex. D-5), he in para-13 of his court statement has clearly stated that while giving statement under Section 161 CrPC, C. Geeta (PW-7) did not inform him that in the night of the date of incident, she was sleeping in their maternal house and she had seen the appellant absconding from the spot. However, the trial Court proceeded to convict the appellant under section 302 of IPC on the basis that on the date of occurrence the appellant came into the maternal house of his wife in the night as informed to C. Geeta (PW-7) by the deceased while going to the terrace and furthermore, in the morning, C Geeta (PW-7) had seen the appellant absconding from the spot which is not sustainable. There is a clear contradiction in the statements made by C. Geeta (PW-7) before the Police under Section 161 CrPC and in the Court, 8 hence, her statement becomes doubtful and unreliable. In this regard, the decision of the Hon’ble Supreme Court in the matter of V. K. Mishra and another v. State of Uttarakhand and another3 has to be noticed wherein in paragraphs - 16, 17 & 19 it has been observed as under: “16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 17. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 3 (2015) 9 SCC 588 9 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.” 14 In light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, the statement of C. Geeta (PW-7) is not found to be reliable and admissible in evidence. There is no other evidence available on record to hold that 10 the appellant was present in the maternal house of the deceased in the night of the incident and strangulated the deceased. 15 In that view of the matter, we find that as per the principle of ‘Panchsheel’ laid down by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances are not so complete in which the appellant can be held guilty for offence under Sections 302 & 201 of IPC. Consequently, we are unable to uphold the conviction of the appellant for offence under sections 302 & 201 of IPC and he is entitled for acquittal on the basis of the principle of the benefit of doubt. 16 Accordingly, the conviction of the appellant for offence under Sections 302 & 201 of IPC is hereby set-aside and he is acquitted from the said offence on the basis of benefit of doubt. However, considering the statements of K. Dargaiya Laxman Raj (PW-2), K. Rajesh (PW-3), K. Samaiyya (PW-5), K. Jyoti (PW-6) & C. Geeta (PW-7), the conviction and sentence of appellant for offence under section 498A of IPC and Section 4 of the Dowry Prohibition Act is maintained. 17 The appellant is reported to be in jail since 07.02.2018. As such, he has already served the jail sentence of one year imposed under Sections 498A of IPC and Section 4 of the Dowry Prohibition Act. Hence, the appellant be released from jail forthwith, if his detention is not required in connection with any other offence. 18 This criminal appeal, accordingly, stands partly allowed to the extent indicated herein-above. 11 19 Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Khatai Judge Judge