Allowed

Murli v. State Of Chhattisgarh

Chhattisgarh HC9 Nov 2022CRA/3/2014

Case brief

AI extract

What is this about?

In appeals against conviction, the High Court set aside the judgment of the trial court. The Court held that the sole eyewitness's testimony was unreliable due to material contradictions, omissions, and failure to explain why certain names were added later, failing to meet the standard of reliability required for conviction based on a single witness.

What did the court decide?

Conviction and sentence under IPC sections 147, 148, 324/149, and 302/149 set aside. Appellants acquitted and remanded to bail.

Murli Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 52 of 2013

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Judgment Reserved On : 31/10/2022 Judgment Delivered On : 09/11/2022

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Amit Singh S/o Ramsnehi Singh Aged About 19 Years R/o Hardware Line, Supela Bhilai, Ps Supela, Distt Durg, Cg

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---- Appellant

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Versus

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State Of Chhattisgarh Through PS Supela, Distt Durg, Cg,

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---- Respondent

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CRA No. 3 of 2014

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Murli S/o Deodas Bharti Aged About 20 Years R/o Shastri Nagar, Camp-1, Bhilai, Ps Supela, Distt. Civil And Rev. Distt. Durg C.G.

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---- Appellant

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Versus

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State Of Chhattisgarh Through Ps Supela, Distt. Civil And Rev. Durg C.G.

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---- Respondent

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For Appellants : Shri Rajesh Jain and Smt. Kiran Jain, Advocates. For Respondent : Shri Arjit Tiwari, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ

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CAV JUDGMENT

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Deepak Kumar Tiwari, J

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By these Appeals under Section 374 (2) of the CrPC, the appellants herein would call in question the legality, validity and correctness of the impugned judgment dated 20.12.2012 passed by the 3^rd ASJ, Durg in ST No.197/2011 whereby the appellants have been convicted and sentenced as under:-

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Conviction	Sentence
Section 147 of the IPC	RI for 6 months
Section 148 of the IPC	RI for 6 months
For accused Amit Singh Section 324/149 of the IPC	RI for 1 year
For accused Murli Section 324 of the IPC	RI for 1 year
Section 302/149 of the IPC	RI for life & fine of Rs.1,000/-, in default, RI for 6 months

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Case of the prosecution, in brief, is that injured Jaiyo Sona (PW-2) lodged an FIR on 9.6.2011 at 8.15 pm at Police Station Supela, District Durg, vide Ex.-P/2 stating that 3 days prior to the date of incident, a quarrel took place between the deceased Gopi and co-accused Pintu, a juvenile in conflict with law and on the date of incident i.e. 9.6.2011 at 7.45 pm when he and deceased Gopi, after finishing the work of glass house, were returning to their home, near Supela house, Nehru Bhawan Road, Pintu and 2 other friends, whose names he was not aware, stopped them on the way and started quarrelling by abusing in filthy

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language in the name of mother and sister and also threatened them to kill. When deceased Gopi objected for the same, Pintu, who was hiding a knife in his waist, took out the same and started assaulting Gopi in his back for 5-6 times. When he tried to save him, Pintu also assaulted in his back 3-4 times. Friend of Pintu caught hands of deceased Gopi. Deceased Gopi immediately fell down and blood started oozing out from his back. When he shouted, the accused persons ran away. Deceased Gopi became unconscious and nearby people took him to the District Hospital, Durg. The deceased was primarily examined by Dr. Smt. B.N. Wahne (PW-5) at Government Hospital, Supela vide Ex.-P/19, from where he was referred to Sector-9 Hospital, Bhilai. The deceased died during treatment on 9.6.2011 at 10.30 hours. Merg intimation (Ex.-P/33) was given by K.K. Dixit (PW-16). Injured Jaiyo Sona (PW-2) was also medically examined vide Ex.-P/26 by Dr. B.P. Tiwari (PW-9). The postmortem was conducted on the dead body of the deceased vide Ex.-P/38 by Dr. A.K. Mishra (PW-17), who opined that the cause of death is due to shock and haemorrhage as a result of ante-mortem stab injury. In the FSL report (Ex.-P-/31), knife seized from appellant Amit Singh and Juvenile Shambhu contained blood stains.

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During investigation, statements of witnesses were recorded. Clothes of the deceased and the injured were seized which contained blood stains. Identification proceeding of the accused persons was conducted vide Ex.-P/23 wherein the injured identified the accused persons and at his

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instance, the accused persons and 5 juveniles in conflict with law namely, Pintu, Navin Agrawal, Shambhu Prasad, Rahul Gautam and Vikky @ Saurabh Das were arrested. On the basis of memorandum statements (Ex.-P/5 to Ex.-P/9), blood stained two knives were recovered from appellant Amit Singh and Shambhu Prasad (juvenile) and the wearing apparels of the accused persons containing blood stains were seized. Blood stained soil and plain soil were seized from the place of occurrence in presence of witnesses. The weapon of offence i.e. knife was sent for examination to ascertain whether death and injuries could be caused by the said weapon. Spot map was prepared. Clothes of the accused persons, deceased and the injured, as also the weapon of offence i.e. knife were sent for chemical examination to the FSL, Raipur.

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After completing investigation, charge sheet was filed and the case was committed to the Sessions Court for trial in respect of the present appellants. However, trial in respect of accused persons namely, Pintu, Navin Agrawal, Shambhu Prasad, Rahul Gautam and Vikky @ Saurabh Das was conducted separately before the Juvenile Justice Board since they were juveniles on the date of the incident. The appellants abjured their guilt. In their statements recorded under Section 313 of the CrPC, the appellants pleaded innocence and false implication.

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In order to prove its case, the prosecution has examined as many as 17 witnesses and exhibited 38 documents. The appellants have not adduced any evidence and exhibited 3 documents.

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After completion of trial and after appreciating the oral and documentary evidence on record, the appellants were convicted and sentenced as mentioned above, against which these Appeals have been preferred by them.

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Shri Rajesh Jain, learned counsel for the appellants would submit that the trial Court has not appreciated the evidence in proper perspective. There are various contradictions and omissions in the evidence of star witness namely, Jaiyo Sona (PW-2). Except Jaiyo Sona (PW-2), no independent witness has supported the case of the prosecution. Even the memorandum and seizure witnesses have turned hostile and not supported the case of the prosecution. There is no recovery from appellant Murli and knife was recovered from accused Amit Singh which contained blood stains, however, the prosecution has failed to produce serologist report to establish that the blood found on the knife is human blood and also not determined the origin of the blood. He would further submit that according to the case of the prosecution, accused Pintu (juvenile) assaulted the deceased and accused Murli assaulted Jaiyo Sona (PW-2). It is not the case of the prosecution that appellant Amit Singh assaulted the deceased or injured witness Jaiyo Sona (PW-2). Therefore, considering the aforesaid infirmities, it may be held that the prosecution has entirely failed to prove its case beyond reasonable doubt. So, learned counsel prays to allow the Appeals and set aside the impugned judgment.

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Per contra, learned State Counsel supported the impugned judgment on

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submission that the prosecution has been able to prove its case beyond all reasonable doubt by leading clinching evidence and the trial Court has correctly convicted the accused/appellants for the offences mentioned hereinabove. Thus, the present Appeals deserve to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection.

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The first and foremost question for consideration is as to whether the death of deceased Gopi was homicidal in nature and Jaiyo Sona (PW-2) was caused injury by the sharp edged knife? The trial Court has recorded an affirmative finding with respect to this question on the basis of postmortem report (Ex.-P/38) of the deceased wherein Dr. A.K. Mishra (PW-17), who has conducted the postmortem, has opined that the cause of death is shock and haemorrhage as a result of ante-mortem stab injury on the right side of abdomen. K.K. Dixit (PW-16) has given medico legal information on 10.6.2011 at 10.30 am stating that the deceased died on account of stab injury on 9.6.2011 at 10.30 hours. Upon such information, merg intimation (Ex.-P/37) was recorded at Police Station Bhilai Nagar by (PW-13) Ishwar Lal Yadav, ASI. Dr. Smt. B.N. Vahne (PW-5) had initially examined the deceased on the date of the incident i.e. 9.6.2011 at 8.20 pm at Government Hospital, Supela. Due to critical condition, the deceased was referred to higher centre and the deceased died on the same day at 10.30 pm at Sector-9

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Hospital, Bhilai. (PW-5) Dr. Smt. Vahne had also examined the knife and opined that the death may be caused by the said weapon vide Ex.-P/ 19. (PW-9) Dr. B.P. Tiwari has examined injured Jaiyo Sona (PW-2) vide Ex.-P/26 and found 3 incised injuries caused by the hard and sharp object. He has also examined the knife seized and answered the query report (Ex.-P/27) that the injury suffered by deceased Gopi and injured Jaiyo Sona (PW-2) may be caused by the knife seized from Pintu (juvenile) and accused Murli.

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Having considered the aforesaid medical evidence and the fact that the defence has not seriously challenged the said finding, we are of the considered opinion that the learned trial Court is justified in holding that the death of the deceased is homicidal in nature and Jaiyo Sona (PW-2) was caused injury by the sharp edged knife and the same is correct finding of fact based on evidence and the same is neither perverse nor contrary to the record. We accordingly affirm the said finding.

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Now the next question for consideration is whether the appellants are perpetrator of the crime in question?

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In the matter of Harbeer Singh v. Sheeshpal , {(2016) 16 SCC 418} , the Hon’ble Supreme Court has reiterated the well settled principles that burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts, and observed in para-11 as under:-

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“ 11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case

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beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P. [ Kali Ram v. State of H.P. , (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ; State of Rajasthan v. Raja Ram [ State of Rajasthan v. Raja Ram , (2003) 8 SCC 180 : 2003 SCC (Cri) 1965] ; Chandrappa v. State of Karnataka [ Chandrappa v. State of Karnataka , (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ; Upendra Pradhan v. State of Orissa [ Upendra Pradhan v. State of Orissa , (2015) 11 SCC 124 : (2015) 4 SCC (Cri) 309] and Golbar Hussain v. State of Assam [ Golbar Hussain v. State of Assam , (2015) 11 SCC 242 : (2015) 4 SCC (Cri) 384] .)”

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Taking into consideration the aforesaid principle, we shall now examine the evidence led by the prosecution. Jaiyo Sona (PW-2), who has also received injuries in the said incident, is the only eyewitness in the case and he has lodged the FIR (Ex.-P/2) on the date of incident itself i.e. 9.6.2011 at 8.15 pm at Police Station Supela. (PW-7) JN Pandey, ASI, who has recorded the said FIR, has categorically stated that the said witness has named only Pintu and 2 others, who have caused injury to the deceased and Jaiyo Sona (PW-2). Jaiyo Sona (PW-2) in his crossexamination has stated that he has neither read the contents of the FIR (Ex.-P/2) nor was he explained the contents of the FIR. He further denies that at the time of lodging the report (Ex.-P/2), he has named only 3 persons i.e. Pintu and his 2 friends and has stated that he has named Pintu and his 5-6 friends. Later on, he corrected his version in para-11 and stated that while lodging the report, he has named only

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Pintu and no other person was named by him. He has further corrected his version in para-14 and has stated that at the time of recording the report (Ex.-P/2), he has given information to the Police Station that Pintu and his 6 other friends stopped them on the way, however, if the said fact was not recorded in the report (Ex.-P/2), he does not know the reason.

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Jaiyo Sona (PW-2) has not named appellant Murli in the FIR (Ex.-P/2) and he specifically asserted that Pintu has caused the injury to deceased Gopi and when he tried to save him, he was also assaulted by Pintu and his friends. In the FIR (Ex.-P/2), Jaiyo Sona (PW-2) has specifically stated that Pintu has caused stab injury to deceased Gopi and to him in his back. During his deposition, he has changed the story and stated that Pintu has caused stab injury to deceased Gopi and appellant Murli has assaulted him by means of knife on his left waist and back of right shoulder. He has named Murli for the first time while recording his statement under Section 161 CrPC. In his cross-examination, he has failed to explain as to who has named the appellant Murli and stated that at the time of hospitalization after the incident, he heard the name of appellant Murli, so he disclosed his name at the time of recording of his statement. (PW-8) Shivanand Tiwari, Sub Inspector, has categorically admitted the fact that he has recorded the statement of injured Jaiyo Sona (PW-2) prior to the Test Identification Parade (Ex.-P/ 23).

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During test identification parade (Ex.-P/23), Jaiyo Sona (PW-2) has identified the appellant Amit Singh and Murli with 4 others juveniles. The TIP was conducted by the Executive Magistrate namely, Shrikant Verma (PW-10) on 10.6.2011 during 11.45 to 12.15 hours at District Hospital, Durg. Jaiyo Sona (PW-2) in his Court statement again changed his version to save the appellant Amit Singh and categorically stated that except Amit, other accused persons started beating them. He further deposed to such an extent that appellant Amit came for their rescue. He has further resiled from his earlier police statement (Ex.-D/1) and stated that he has not named the appellant Amit. This witness has not been declared hostile by the prosecution on this point. Therefore, the evidence given by the star witness i.e. Jaiyo Sona (PW-2) demolishes the case of the prosecution that appellant Amit is also one of the assailants.

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(PW-12) Smt. Reeta Naik, who is the sister-in-law (Bhabhi) of the deceased Gopi, has stated that on 9.6.2011, i.e. the date of the incident, she was at her home and deceased Gopi came alone in an injured condition. At that time, he has disclosed the name of Pintu and Rahul, who have caused injury to him and also stated that after recovery, he would tell the names of others. This witness was also not declared hostile by the prosecution. In her statement, only two persons i.e. Pintu and Rahul (Juveniles) were named by the deceased after the occurrence.

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The prosecution has not examined any other witness except injured

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Jaiyo Sona (PW-2) and (PW-12) Smt. Reeta Naik. Jaiyo Sona (PW-2) has stated in his evidence that near the place of incident various shops are situated and at late night i.e. at 11 pm normally public are present on such spot. Memorandum and seizure witness namely Khirashendu Sona (PW-3) and Gokul (PW-4) have turned hostile and not supported the case of the prosecution about the memorandums (Ex.-P/5 to P/9) and seizure of articles vide Ex.-P/10 to P/14. Though in the FSL report (Ex.-P/31) blood stain was found on the knives seized from the appellant Amit and juvenile Shambhu, but no serologist report has been produced by the prosecution to show that the blood found on the knives was human blood. So, the prosecution fails to prove that the knife seized from appellant Amit was actually used in commission of crime.

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In the matter of Joseph v. State of Kerala , {(2003) 1 SCC 465}, their lordships of the Supreme Court has laid down the principle that where there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of evidence tendered by other witnesses or the material evidence placed on record and following was observed at para 13 :-

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“ 13 ...................Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on

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the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.”

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In the matter of State of Haryana v. Inder Singh , {(2002) 9 SCC 537} (SCC p.538, para 5), it was held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidenceinspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court.

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In the case of Ramnaresh v. State of Chhattisgarh , {(2012) 4 SCC 257} their lordships after referring the judgments in the matters of Joseph (supra) and Inder Singh (supra) finally held as under :

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“ 27 . The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eyewitness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.”

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In the case of Amar Singh v. State (NCT of Delhi) , {(2020) 19 SCC

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165} the following was observed at para-16:

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“ 16. Thus, the finding of guilt of the two appellantaccused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule

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the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi) [ Sunil Kumar v. State (NCT of Delhi) , (2003) 11 SCC 367 : 2004 SCC (Cri) 1055] ].”

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Taking into consideration the aforesaid guiding principles laid down by the Hon’ble Supreme Court, it is established law that the Court can and may act on the testimony of single eyewitness provided he is wholly reliable. In the present case, Jaiyo Sona (PW-2), injured eyewitness, has not named the appellants in the FIR and on the later part of his deposition improvised his version and also increased the number of assailants. He also changed the story and mentioned the name of Murli as an assailant. Though the prosecution has conducted the test identification parade vide Ex.-P/23 to ascertain the real assailants, as Jaiyo Sona (PW-2) has not named the other accused persons in the FIR except the name of Pintu, but prior to test identification parade, in the police statement, he has named appellant Murli, but failed to satisfactorily explained as to from which source he has come to know the name of appellant Murli, though in the report (Ex.-P/2), he has categorically stated that Pintu has assaulted him and deceased Gopi. He

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has further materially changed the story of the prosecution and stated that appellant Amit has not participated in any manner as assailant. Considering the aforesaid infirmities, contradictions and omissions, which are material in character, his evidence is not cogent, credible and trustworthy to inspire confidence of the Court. He is not wholly reliable witness.

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The test identification parade is only a supporting evidence and not substantive piece of evidence. The aforesaid principle has been held in the matter of Sampat Tatyada Shinde v. State of Maharashtra , {(1974) 4 SCC 213} and the following was held at para-16 :

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“ 16 . The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in Court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also.”

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It is also well settled that the FIR is neither an encyclopedia nor substantive evidence and can, strictly speaking, be only used as a previous statement for the purpose of either corroborating or contradicting its maker in judging the veracity of prosecution case. The aforesaid principle has been reiterated in the matter of State of Maharashtra v. Ahmed Shaikh Babajan , {(2009) 14 SCC 267} and the following was observed at para-26:-

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“ 26 . Apart from the fact that lodging of information under Section 154 CrPC keeps the District Magistrate and the Superintendent of Police informed of the occurrence and when recorded, is the basis of the case set up by the informant and provides material to the police to commence investigation, its fundamental object is that it acts as a safeguard against embellishment, exaggeration and forgetfulness. True, that it is not the requirement of law that every minute detail of the occurrence needs to be recorded in the first information report and as observed by this Court in State of A.P. v. Golconda Linga Swamy [(2004) 6 SCC 522 : 2004 SCC (Cri) 1805] that the FIR is not intended to be an encyclopædia of the background scenario. Nevertheless, having regard to the fact that it is one of the modes by which a person aggrieved sets the criminal law in motion, it must disclose the commission of an offence. Though it is trite that the first information report does not constitute substantive evidence and can, strictly speaking, be only used as a previous statement for the purpose of either corroborating or contradicting its maker, yet omission of material facts pertaining to the crime is undoubtedly relevant in judging the veracity of prosecution case.”

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In view of the aforesaid discussion, we are of the view that the trial Court has wrongly relied on the evidence of Jaiyo Sona (PW-2) and other evidence, which is not sufficient to establish the prosecution case beyond reasonable doubt that the appellants are perpetrator of the crime in question.

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For the aforementioned reasons, the Appeals succeed and the same are allowed. Conviction and sentence imposed on the appellants under Sections 147, 148, 324/149 for accused Amit Singh & 324 for accused Murli and 302/149 of the IPC are set aside and they are acquitted of the said charges. The appellants are on bail. Their bail bonds shall remain

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in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC.

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Sd/Sd/( Sanjay K. Agrawal ) ( Deepak Kumar Tiwari ) Judge Judge

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Barve

Murli v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Murli v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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