Allowed

Gulabbu @ Santosh v. State of Chhattisgarh

Chhattisgarh HC7 Jan 2015CRA/679/2010

Case brief

AI extract

What is this about?

High Court allowed appeals by appellants convicted of murder. The Court set aside convictions based on contradictions in the last seen theory regarding the deceased and the failure to uphold a clear connection between the appellants and the weapons despite disclosure and recovery.

What did the court decide?

Conviction and sentence of appellants under Sections 302 and 201 IPC set aside. Appellants set at liberty.

Gulabbu @ Santosh Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2015)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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DB: Hon'ble Mr. T.P.SHARMA & Hori'ble Mr. I.S, UBOWEJA, JJ.

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Criminal Appeal No.525/10

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APPELLANT .Santosh (In^Jail) Vs RESPONDENT State of Chhattisgarh Criminal Appeal No.679/10 APPELLANT • f'S lAulajbHy^^antosh : • (In Jail) Vs . RESPONDENT State of Chhattisgarh & AcquittalAppealNo.124/12 APPELLANT State^of Chhattisgarh ; Vs ,., RESPQNDENTS . I, Karan Pal - ' 2.AmarKurre SyiSaijwaFQ^

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Mr. Dhirendra Pandey, Advocate for appellant in Cr. Appeal No.525/1 0. Mrs. Hamida Siddique, Advocate for appellant in Cr. Appeal No.679/10. Mr. Satish Gupta, Govt, Advocate for appellant-State in Acq. Appeal No. 124/12 and for the respondent-State in Cr. Appeal No.525/10 & 679/10. Mr. Akhil Mishra& Mr. Vinay Dubey, Advocates for the respondents No.1 to 3 in Acquittal Appeal NQ. 124/12.

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T.P.Sharma,J.

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JUDGMENT (07.01 2015)

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Since the above appeats have been filed against the judgment dated 15.07.2010 passed by the 2nd Additional Sessions Judge, FTC, Munegli in S.T. No.42/2009, the same are being disposed of by this common judgment.

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By filing Cr. Appeal Nos.525/10 & 679/10 appellantsSantosh Pali & Gulabbu @ Santosh have challenged the legality and propriety of judgment of conviction and order of sentence dated 15.07.2010

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passed by the 2nd Additional Sessions Judge, FTC, Munegli in S.T. No.42/2009 whereby & whereunder the trial Court after holding the appellants guilty for causing homicidal death, amounting to murder, of Tanna alias Tarun Yqdav, convicted them under Sections 302 & 201 of the Indian Penal Code (for short^'the IPC') and sentenced to undergo R.l. for Life & fine of Rs.2,000/-, in default to uhdergo additional R.l. for 06 months and R.l. for 03 years & fine of Rs.500/-, in default to undergo additional R.l. for 06 months respectively.

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By filing Acquittal Appeal No.124/2010 the appellant-State has challenged the legality and propriety of the judgment of acquittal of respondents No.-l <oi3i5c:]aieidN5.07%'lC^pa5sed by the 2nd Additional Sessions Judge; FTC, Munegli in S.T. Noi42/09,

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As per ease of the prosecution, on 12.6.2009 at about 8.00 p.m. all the accused persons were present along with deceased Tanna alias Tarun Yadav near the bus stand and thereafter the deceased was not seen alive and on the second day atabout'6.45 a.m., his dead body was noticed. Merg & FIRwas lodged by Rajkumar (PW-3) vide Ex.P1 & Ex.P-3 respectively. The investigating Officer left for scene of occurrerice and after summonjng thS witnesses vide Ex.P-18, inquest of the dead body of the;'eteceasedwas prepared vide Ex. P-29. Spot map was prepared vid@ BxP-2., One bamboo stick, rope used fbr chaining the cattle, bloodstained & plain soil were recovered from the spot vide Ex.P-24. Dead body was sent to the Community Health Centre, Pathariya for autospy vide Ex.P-24 where Dr. A.S. Manjhi ' (PW-9)^{conductedautopsy videEx.P-21andfoundfollowinginjuries;-} •',

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Incised wound over scalp. of 8%" x 11/2" size.

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Incised wound below Injury No.1 of 8"x 11A" size.

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Incised wound over right scapular region of 2%" x 0.4" size

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Incised wound over darsum of right ring finger of 1" x^1/4" size.

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Incised wound over right middle finger of 1"x %" size.

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Cause of death was excessive bleeding and cardio respiratory arrest and the death was homicidal in nature. During the course of investigation, appellant Santosh Pali was taken into custody, he made, disclosure statement of Gadasa vide Ex. P-4, the same was recovered

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at the instance of appellant Sartosh Pali vide Ex.P-8. Appellant Gulabbu alias Santosh also made disdosure statement of small battleaxe & rope used for chaining thecattle vide Ex.P-5 and the same were recovered at his instance vide Ex.P-7. Bloodstained clothing of appellant Santosh Pali were seized vide Ex.P-6. Bloodstained clothingof appellant Gulabbu @ Santosh were seized vide Ex.P-9. Patwari prepared spot map vide Ex.P-11. Sealed clothes of the deceased were seized vide Ex.P-26. Seized articles were sent for chemical examination and presence of blood has been confirmed upon the articles seized from the appellants vide Ex. P-30. Rope seized frQR''£ttie,;sp |aj('idj rdpe^ejzedl from appellant Gulabbu @ Santosh were compared by the FSL'and as per report of Ex.P-31, both the ropes were not one and the same. Statements of witnesses have been recorded underSection 161 ofCr.P.C.

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After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate 1steiass,Mungeli, who, in turn, committed the case to the Court of AdditiQnal Sessions Judge for trial. In order to prove guilt ofthe appellants,;the prosecution had examined as many as 10 witnesses. StaterneiTts of the,appellants were recorded under Section 313 of the Cr.1:>.C.,;Jn wtiiicli they denied the circumstances appearing against them.and'plearfed innocence & false implication in the crime in question.

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S.After providing opportunity of hearing to the parties, the trial Court while acquitting accused Karan Pal, Amar Kurre & Sarjuram, had convicted and sentenced the appellants herein as mentioned above.

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We have heard learned counsel for the parties and perused the judgment impugned &record ofthe trial Couri:.

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Mr. Pandey, learned counsel for appellant-Santosh Pali in Cr. Appeal No.525/10 vehemently argued that conviction is substantially based on the evidence of last seen theory. As per evidence of Bablu (PW4), the deceased was seen last time alive in the company of the appellants at about 8.00 p.m. at Bus Stand but as per evidence of Sunny (PW-2), acquitted accused Amar Pal and one another person was seen along with the deceased last time near the well at about 9.30 p.m., which shows that the deceased was last time seen alive in

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;^z

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the company of acquitted accused Amar Pal and one another person. The prosecution had collected evidence of disclosure of facts and recovery of weappns but the prosecution failed to prove that the appellants had used the weapons for causing homicidal death of the deceased. In absence of such evidence, disclosure and recovery of weapons isofno use in the present case.

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Mrs. Siddique, learned counsel for appellant- Gulabbu @ Santosh in Cr. Apipeal No.679/10 also made similar'submission and further submits that Rajkumar Yadav (PW-4) had lodged FIR & Merg against unknown person. In absenoe of credible and clinching evidence to connect the present'ajlkReltenK imf-erH|ne".in.question, conviction of appellant-Gufahbtf iS not sustainable underffie law.

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Mr. Gupta, learned counsel for the appellant-State in Acquittal Appeal No.124/12 and also for the respondent-State in criminal appeals submits fhat the prosecution had adduced sufficient evidence to prove guilt of the appellants and acquitted respondents but the trial Court has not considered the afQresaid evidence. Evidence of Bablu (PW-4) is sufficient to prove the fact that the deceased was seen last time alive in the company of;all thegccused persons and thereafter he was not seen alive, which has;Fjot;|:>een'eonsidered by the trial Court.

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11.0ri the other hand, MERlV!;ishw;& Dubey, learned counsel for the respondents in Acquittal AppealNo.124/12 opposed the appeal and submits that the trial Court has rightly acquitted the respondents.

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In order to appreciate arguments advanced on behalf of the parties, we have to examine evidence adduced on behalfofthe prosecution.

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In the present case homicidal death as a result of fatal injuries found on the dead body of the deceased has not been substantially disputed on behalf 6f the appellants. Even otherwise from the evidence of Smt. Rekha (PW-1), Sunny (PW-2), Rajkumar (PW-3), Bablu (PW-4), Merg (Ex.P-1), FIR (Ex.P-3), Dr. A.S. Manjhi (PW-9), and autopsy report (Ex.P-21), it is established that death of the deceased was homicidal in nature.

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l4.As regards the complicity of the appellants in crime in question, the prosecution had led evidence relating to disclosure of fact and recovery of articles. As per Ex.P-4, P-5, P-6, P-7, P-8 & P-9, on the

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basis of disclosure statements of appellants Santosh Pali & Gulabbu @^Santosh, gadasa,^{battleaxe&ropeuse.dforchainingthecattle} have been recovered but the prosecution failed to show that the appellants had used the aforesaid articles at the time ofcommission of offence. As per Ex.P-30, the FSL ha'd affirmed presence of blood on-the aforesaid articles but the prosecution had failed to prove the blood group and in absence of such proof, evidence of disclosure of facts and recovery is of no use.

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Conviction is substantially based on the evidence of last seen theory. As per evidence of Bablu (PW-4), all the accused persons were present at busstaFKt^atRpCF-wit^theslieceased at about 8.00 p.m. but as perevidenG&ofSunny (PW-2), he lias'seen respondent-Amar Kurre, 'ohe another person and the deceased riear the well at about 9;30 p.m. which shows that Sunny (PW-2) is the witness of last seen theory who has not depQse&aRyttiing against the present appellants. !n the light of evidence ot Synny (PW-2), evidence of Bablu (PW-4) cannot be considered as an eyidehce of last seen theory.

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After appreciating the evidence ayailable on record and availability of evidence against resp6,ndentAmar Kyrre, the trial Court has acquitted respondent Amar Kurre. .Qn.close scrutiny of evidence, we do not find any ground for takiBg diKerent view or to hold that the view taken by the trial Court was illegal. In absence of any other evidence and in the light of only evidence of Sunny (PW-2), conviction and sentence of the appellants Santosh Pali & Gulabbu @ Santosh is not well founded inter alia the same is unfounded.We also do not find any ground for taking different view in respect of the acquitted respondents No.1 to 3 in acquittal appeal.

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Inthe result;

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Acquittal Appeal No.124/12 is hereby dismissed.

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Criminal Appeal Nos.525/10 & 679/10 are allowed. Conviction and sentence of the appellants under Sections 302 & 201 of the IPC are hereby set aside. They be set at liberty at once if not required in any other case. .

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Sd/-

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Sd/-

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Sd/Inder Singh Uboweja T.P. Sharma JudgeJudge

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Gulabbu @ Santosh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Gulabbu @ Santosh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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