Allowed

Swayamwar Jha v. State of Chhattisgarh

Chhattisgarh HC1 Oct 2021CRA/1118/2001

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Chhattisgarh allowed the appellant's challenge to a conviction under Section 307 IPC. The apex bench found the conviction unsustainable due to a delayed FIR, contradictory medical reports, and witness evidence suggesting the victim fell while intoxicated and not by the appellant.

What did the court decide?

The judgment of conviction and sentence of the trial court is set aside. The appellant is reported to be on bail with bonds discharged.

Swayamwar Jha Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1118 of 2001

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Order reserved on : 26/07/2021 Order delivered on : 01/10/2021

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Swayamwar Jha, S/o Umesh Jha, Aged About 37 Years, R/o S.E.C.L. Colony, Q.No. 19/2, District- Korba, C.G.

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---- Appellant

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Versus

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State of Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Dhiraj Kumar Wankhede, Advocate For Respondent/State : Mr. Vikash Bhashkar, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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CAV Order

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01.10.2021

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Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 09.11.2001 passed by Special Judge (Atrocities), Bilaspur (C.G.) in Sessions Trial No. 36/2000 whereby, the trial court has convicted and sentenced the appellant as under:-

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S.No.	Conviction	Sentence
1.	Under Section	Rigorous Imprisonment for 7 years and to pay fine
	307 of IPC	of Rs.500/-

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Brief facts of the case are that appellant and complainant are neighbours and working at S.E.C.L., Kusmunda. It is alleged that on 14.05.2000, there was a dispute between them relating to captivation of water and appellant abused the victim and pushed him, as a result of which, he fell down and sustained injuries. Thereafter, he was admitted in hospital. FIR (Ex. P/6) was registered against the appellant under Section 307 of IPC r/w Section 3 (2)(V) & 3(1)(X) of Scheduled Caste and Scheduled Tribe

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(Prevention of Atrocities) Act, 1989. Spot-map was prepared vide Ex. P/8. Victim (PW-6) was medically examined by Dr. A.K. Sharma (PW-2) & Dr. D. Das (PW-3) and gave their reports vide Ex. P/1 & Ex. P/2. Discharge ticket of the victim (PW-6) is vide Ex. P/4. After investigation, charge-sheet was filed against the appellant and charges were framed against the appellant under Section 307 of IPC r/w Sections 3 (2)(V) & 3(1)(X) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded innocence and false implication in the case.

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On the basis of oral and documentary evidence, trial court has convicted the appellant under Section 307 of IPC and acquitted him from the charges punishable under Sections 3 (2)(V) & 3(1)(X) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 of IPC and convicted and sentenced the appellant as mentioned in para 1. Hence, this appeal filed by the appellant.

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Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. Learned court below failed to consider that the prosecution could not prove its case beyond all reasonable doubts and, therefore, the appellant deserves to be acquitted. It is clear from the statement of prosecution witnesses that complainant was intoxicated at the time of incident and it is supported by medical report of Dr. D. Das (PW-3). The defence of the appellant is supported by prosecution witnesses that complainant was not conscious at the relevant time. On 08.06.2000, X-ray report of the complainant was obtained in which the Radiologist has opined that the patient has suffered fracture on thorasic spine at T-6, T-9 whereas after examining the X-ray report at Govt. Hospital, it was found that there was no sign of fracture in the said part. Learned trial court has failed to consider the statement of eye-witness Niranjan Singh (P.W.-9). It is clear from the statement of eye-witness and medical evidence that the complainant has created false and fabricated story against the appellant, therefore, the judgment and sentence of trial court is liable to be set aside. He has also placed reliance in the matters of Prem Singh V. State (Govt. of NCT of Delhi) reported in 2016 SCC Online Del 6213 , Mehraj

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Singh V. State of U.P. reported in (1994) 5 SCC 188 , Hari Kishan and Anr V. Sukhbir Singh and Ors. reported in (1988) 4 SCC 551 , Jage Ram and Ors. V. State of Haryana and Ors. reported in (2015) 11 SCC 366 , Takdir Samsuddin Sheikh V. State of Gujarat reported in (2011) 10 SCC 158 & Raju and Ors. V. State of Madhya Pradesh reported in (2008) 15 SCC 133.

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Per contra, learned Counsel appearing for the State supported the impugned judgment and submits that the sentence awarded by the trial Court is just and proper and requires no interference.

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Heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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Learned trial court framed the charges against the appellant punishable under Section 307 of IPC r/w Section 3(2)(5) & 3 (1)(10) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Learned trial court acquitted the appellant from the charges punishable under Section 3(2)(5) & 3 (1)(10) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and convicted him for the offence punishable under Section 307 of IPC.

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Complainant Agardas (PW-6) has stated that appellant pushed the complainant due to which he fell down and suffered injuries. Dr. D.P. Thakur (PW-10) stated that on 15.05.2000 on receiving a hospital memo (Ext. P/2), he wrote jkstukepk lkUgk (Ext. P/5) is as under:-

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dzaekd	fdLe	fjiksVZ	le;	fooj.k
585 fodkluxj	fjiksVZ S.E.C.L vLirky vkgr djus NCH nsus VsyhQksu izHkkjh c;ku gsrq	ckcr~ nsus . eseks dks jsQj MkW- }kjk xso'k lwpuk lsOP nhid dks rLnhd	12%50	cts lwpuk gS fd /kus'oj izlkn vk0 xksdqy izlkn d';i mez 45 o"kZ lk0M/508fodkluxj Mªk;ojS.E.C.L. vLirky fodkluxj dk mi- Fkkuk vkdj vLikrky eseks is'k fd;k ftlesa ys[k gS fd vxj nkl Mªk;oj mez 43 o"kZ dk lk0GRN MKB 8 RCQ CMPG1usg: uxj dqleq.Mk dk fpfdRlky; esa 14-05- 2000 dks HkrhZ fd;k x;k Fkk ftls vkt 15-05-2000 dksNCH esojk vLikrky jsQj fd;k x;k gS fjiksVZ ntZ dj vkgr dk c;ku rLnhd gsrqO.P. nhid dks VsyhQksu ds tfj, lwpuk nh xbZA

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Dr. D. Das (PW-3) has stated in his evidence that on 14.05.2000 at 11:45 P.M., Agardas was brought before him, he examined him and found the following injuries:-

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(i) lacerated wound above the oxypital region at the back of the head

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was 5"x3”x1/2” (T shape), which was bleeding.

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(ii) There was two swellings in the left leg, there was abrasion in the same part.

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(iii) The smell of alcohol was coming from the mouth of the injured person. He was in consciousness, but could not speak properly due to alcohol.

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He gave primary treatment to the complainant and referred him for further treatment vide Ex.P/2.

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On 20.05.2000, FIR (Ex.P/6) was lodged against the appellant after delay of 6 days from the date of incident. D.P. Thakur (PW-10) has stated in his examination that he lodged FIR on 20.05.2000 and registered Crime No. 179/2000 for the offence punishable under section 307 of IPC which is Ex.P/6. He admitted in his examination that,

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“;g dguk lgh gS fd izn'kZ ih-&2 ds eseks ds vk/kkj ij jkstukepk lkUgk Mkyk x;k mlds i'pkr dk;eh dh xbZA ;g dguk lgh gS fd mDr Kkiu esa Qfj;knh ds 'kjkc fi;s tkus dk mYys[k gSA”

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Sanjeev Shukla (PW-12) has stated in his examination that he has recorded the statements of R.D. Sahu, Sunil Singh, Agardas, Ajay, Ashok Pandey, Sunil, Niranjan Singh, Badrinath, Lusalkumar, Dhaneshwar and Ishwarlal.

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Sunil Singh (PW-5) has stated in his examination that :

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1- “eSa lM+d ij [kM+k Fkk] mlh le; Loa;oj vkSj vxjnkl ds chp >xM+k gksus dh vkokt vkbZ] nksuksa ml le; Nr ij Fks] og Nr nksuksa dh Fkh D;ksafd og ljdkjh DokVZj gSA mlh le; Loa;oj >k us vxjnkl dks dgk fd ^^ lkys pekj rqe eq>s feJk le> jgs gks D;k] ;gha ls <dsy nwaxk rks ej tk;sxk^^A fQj esus ns[kk fd vxjnkl Nr ls uhps fxj x;kA fxjus ds igys vxjnkl vkSj Loa;oj >k ,d&nwljs ds lkeus [kM+s FksA”

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4- eSa ugha crk ldrk fd vxjnkl 'kjkc fi;k Fkk fd ugha fi;k FkkA eSa ? kVuk ds le; yxHkx 15&20 QhV dh nwjh ij FkkA eSa uhps FkkA vxjnkl ,oa Loa;oj nkl mij FksA ;g dguk lgh gS fd ogka va/ksjk Fkk vkSj ogka dksbZ ykbZV ugha FkhA

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8- ;g dguk xyr gS fd fujatu us vxjnkl dks /kDdk fn;k Fkk cksy&pky ls ,slk yx jgk Fkk fd vxjnkl T;knk 'kjkc ugha fi;k FkkA eSaus Loa;oj dks /kDdk

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nsrs ugha ns[kk FkkA

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Complainant Agardas (PW-6) has also admitted in para 10 of his cross-examination that he was drunk at the time of incident.

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Sunil Ratre (PW-7) has stated in his cross-examination that,

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2- “eSa nks&rhu lkS QhV dh nwjh ij Fkk fpYykus dh vkokt vk jgh <dsy nwaxk <dsy nwaxkA mlds ckn fdlh ds uhps fxjus dh vkokt vkbZ eSa nkSM+rs gq, tkdj ns[kk rks vxjnkl uhps fxjk gqvk FkkA”

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4- tc eSa Nr ij igqapk rks Nr ij dksbZ ugha FkkA vxjnkl Nr ds mij ls

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dSls fxjk vkSj Nr ds mij dkSu vkneh Fks eq>s ugha ekyweA

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Niranjan Singh (PW-9) has stated in para 2 of his cross-examination that,

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“eSa vkSj Loa;oj >k cSBs gq, Fks brus esa vxjnkl vk;k og 'kjkc fi;k gqvk FkkA mlus vkus ds ckn xkyh nsrs gq, dgk fd esjh V a dh ls ikuh D;ksa fudkys] mlds ckn vxjnkl viuh lh<+h ls Nr ds mij x;k FkksM+h nsj ckn mlds fxjus dh vkokt vkbZA”

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It is stated in the impugned judgment passed by learned trial court that the witnesses have admitted that there is a slight gauze on the roof and that Agradas was also in a drunken condition and it is clear that Agradas climbed the stairs to the terrace. If he falls from the stairs, he will automatically fall from the roof. Learned trial court finds a spine fracture on 08.06.2000 and there was no fracture found by the doctor.

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Dr. A.K. Sharma (PW-2) has stated in his examination that on 08.06.2000, he examined X-ray report of Agardas and opined that there was fracture of thorasic spine T-9 and T-6 on it and gave his report (Ext. P/1).

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Dr. D. Das (PW-3) has stated in his cross-examination that,

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3- “eSaus vxjnkl dk MkWDVjh mipkj fd;k FkkA ?kko dks eSaus fjis;j fd;k Fkk] djhc 12%15 Vkads yxs FksA mlds ckn vkgr dks eSaus xsojk vLirky mipkjkFkZ ,oa vfxze VªhVesaV ds fy, Hkstk FkkA esjh fjiksVZ izn'kZ ih-&2 gSA ftlds v ls vk Hkkx ij esjs gLrk{kj gSaA”

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4- eSaus vxjnkl ds ijh{k.k ij mDr pksVksa ds vykok dksbZ pksV ugha ik;k FkkA eSaus izn'kZ ih&2 esa vkbZ pksVksa dk izdkj ;kuh og lk/kkj.k izdfr dh Fkh ;k xaHkhj izdfr dh Fkh] ugha fy[kk gSA

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In this case, on 24.05.2005, no fracture has been found and the

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prosecution did not examine any medical evidence. There is no sufficient material available on record to prove that the fracture caused by the appellant, was of the date of incident.

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It has been held by Hon'ble the Apex Court in the matter of State of Himachal Pradesh v. Raj Kumar reported in (2018) SCC 69: 2018 SCC Online SC 9 :(2018) 1 SCC (Cri) 452 in para 16 which reads as under:-

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“While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinise the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case.”

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Hon'ble the Apex Court in the matter of Meharaj Singh (L/Nk.) v. State of U.P. reported in (1994) 5 SCC 188: 1994 SCC (Cri) 1391 in para 12 has held that,

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“FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged

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at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is th receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by

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the local Magistrate.”

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In this case, it is clear from jkstukepk lkUgk (Ext. P/5) that name and act of the accused has not been mentioned in jkstukepk lkUgk (Ext. P/5). FIR was lodged after a delay of 6 days of incident i.e. 20.05.2000. In primary examination, it is written by the doctor that complainant fell down from the roof and he was in drunken condition. It was defence of the appellant that complainant was in drunken condition due to which he fell down from the roof and this evidence was supported by eye-witness Niranjan Singh (PW-9) who has stated that when he sat with appellant, at that time, Agardas came there in a drunken condition and started abusing the appellant about captivation of water. Thereafter, Agardas went to the top of the roof from his ladder, after a while the sound of his falling came.

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It has been held by Hon'ble the Apex Court in the matter of Hari Singh v. Sukhbir Singh And others reported in (1988) 4 SCC 551: 1988 SCC (Cri) 984 in para 7 which reads as under:-

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On the first question as to acquittal of the accused under Sections 307/149 IPC, some significant aspects may be borne in mind. Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”.

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Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue.”

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For the purpose of conviction under Section 307 of IPC, the prosecution has to establish the intention to commit murder and the act done by the accused but in the present case, it is clear from the independent witnesses that none of them has supported the prosecution case and only complainant has stated against the appellant. His statement is also not supported by medical evidence. FIR was also lodged after delay of 6 days from the date of incident and no satisfactory ground of delay in lodging the FIR has been established by the prosecution and defence of the appellant is supported by the prosecution witnesses and medical evidence that complainant fell from the roof in drunken condition.

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In view of the contradictory statements made by the prosecution witnesses with the unmatched medical evidence and delay in lodging the FIR does not establish the guilt of the appellant. The conviction of the appellant by the trial Court is not based on proper appreciation of oral and documentary evidence. The prosecution has failed to establish the guilt of the accused/appellant. Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the trial court is set aside. Appellant is reported to be on bail. His bail bonds shall stand discharged.

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Thus, appeal is allowed.

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Sd/(Rajani Dubey) JUDGE

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R/-

Swayamwar Jha v. State of Chhattisgarh

Case brief

What is this about?

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Swayamwar Jha v. State of Chhattisgarh

Case brief

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