Partly allowed

Babla @ Babulal Mahant and Ors. v. State Of Chhattisgarh

Chhattisgarh HC5 Jan 2023CRA/1062/2013

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh heard an appeal against conviction and sentence for murder. It affirmed the conviction of Appellant No. 1 but acquitted Appellants No. 2 and No. 3 due to insufficient evidence linking them to the crime, while setting aside the conviction for criminal conspiracy against all.

What did the court decide?

Conviction of Appellant 1 affirmed. Conviction and sentences of Appellants 2 and 3 set aside and they are acquitted. Conspiracy charge against all set aside.

Babla @ Babulal Mahant and Ors. Vs State… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

Cr.A.No.1062/2013

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1062 of 2013

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{Arising out of judgment dated 1-10-2013 in Sessions Trial No.96/2012 of the Additional Sessions Judge (Fast Track Court), Raigarh}

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Babla @ Babulal Mahant, S/o Kurhardas Mahant, aged about 46 years,

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Sanjay Mahant, S/o Ghurvind Das @ Vishwanath Mahant, aged about 37 years,

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Vishnudas Mahant, S/o Kurhardas Mahant, aged about 53 years,

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All are residents of Village Junadih Lailunga, Police Station Lailunga, District Raigarh (C.G.)

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---- Appellants

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Versus

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State of Chhattisgarh, through the District Magistrate, Raigarh, District Raigarh (C.G.)

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---- Respondent

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-------------------------------------------------------------------------------------------------For Appellants No.1 and 2: Mr. A.S. Kachhawaha, Advocate. For Appellant No.3: Mr. Vivek Tripathi, Advocate. For Respondent / State: Mr. Anmol Sharma, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Rakesh Mohan Pandey, JJ.

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Judgment On Board (05/01/2023)

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Sanjay K. Agrawal, J.

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The appellants herein namely, Babla @ Babulal Mahant (A-1), Sanjay Mahant (A-2) & Vishnudas Mahant (A-3) have preferred this appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 1-10-2013 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Sessions Trial

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Cr.A.No.1062/2013

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No.96/2012, by which they have been convicted under Sections 302 & 120B of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 10,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for six months and rigorous imprisonment for ten years & pay a fine of ₹ 5,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for four months, respectively.

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Case of the prosecution, in short, is that on 7-2-2012 at 11.00 a.m. at Village Junadih Lailunga, Police Station Lailunga, District Raigarh, the appellants conspired together and appellant No.1 assaulted deceased Phuleshwari Bai Mahant by axe, appellant No.2 assaulted by bahinga wooden log and appellant No.3 abused her by which she suffered grievous injuries and succumbed to death. It is admitted position on record that deceased Phuleshwari Bai was a widow woman residing all alone and she had 50 decimal of land in her possession after partition which she got after the death of her husband and which she was intended to give to appellant No.2 and as such, it was disputed by appellants No.1 & 3 which led to demarcation of land. On the fateful day, demarcation was going on and firstly, appellant No.3 came and abused Phuleshwari Bai and thereafter, appellant No.1 armed with iron axe and appellant No.2 armed with wooden log came there and assaulted her by which she suffered injuries and died. It is the further case of the prosecution that appellant No.2 threw the wooden log on the spot and fled away from the spot. Thereafter, first information report (FIR) was registered and bloodstained soil &

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Cr.A.No.1062/2013

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Page 3 of 9

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plain soil and the wooden log were recovered from the spot. Panchnama was conducted and dead body was subjected to postmortem which was conducted by Dr. Manoj Kumar Patel (PW6) vide Ex.P-11 in which cause of death was stated to be due to neurogenic & haemorrhagic shock due to injury No.4 and death was homicidal in nature. Memorandum statement of appellant No.1 was recorded vide Ex.P-3 pursuant to which axe was recovered from him vide Ex.P-4. Other articles were recovered and sent for chemical examination to the Forensic Science Laboratory, Raipur and human blood was found on axe and wooden log, however, FSL report was not exhibited.

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Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellants before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial from where the learned Additional Sessions Judge (FTC) received the case on transfer for trial and for hearing and disposal in accordance with law.

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The trial Court has framed charges against the appellants for offences punishable under Sections 120B & 302 of the IPC and and proceeded on trial. The appellants abjured guilt and entered into defence stating that they have not committed the offence and they have been falsely implicated.

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The prosecution in order to bring home the offence examined as many as 8 witnesses and exhibited 26 documents Exhibits P-1 to P-26. No witness has been examined on behalf of the defence,

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however, documents Exs.D-1 to D-3 – statements of Roopdhar Das Mahant, Vedram Patel & Kusma Bai Mahant, respectively, recorded under Section 161 of the CrPC have been exhibited on behalf of the defence. Statements of the appellants were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence.

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The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, convicted and sentenced the appellants in the manner mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment.

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Mr. A.S. Kachhawaha, learned counsel appearing for appellants No.1 & 2, would submit that the prosecution has failed to bring home the offence against appellants No.1 & 2 as eyewitnesses Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW-3) – husband & wife, are not reliable witnesses, they have not seen the incident and appellants No.1 & 2 have been falsely implicated. He would further submit that there is no evidence against appellant No.2 Sanjay Mahant and the wooden log was seized from the spot, moreover, Sanjay Mahant has no motive to commit the murder of deceased Phuleshwari Bai. As such, the impugned judgment so far as it relates to appellants No.1 & 2 deserves to be set aside and the appeal deserves to be allowed qua appellants No.1 & 2 by acquitting them of the charges levelled against them.

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Mr. Vivek Tripathi, learned counsel appearing for appellant No.3,

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Cr.A.No.1062/2013

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would submit that there is no evidence against appellant No.3 that he is said to have abused deceased Phuleshwari Bai, but he had left the place of occurrence before the assault was made by appellants No.1 & 2, therefore, he is liable to be acquitted.

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Mr. Anmol Sharma, learned State counsel, would support the impugned judgment and would submit that conviction of the appellants is well founded and well supported by the evidence on record leading to inference that the appellants have committed the aforesaid offences, as such, the trial Court has rightly convicted the appellants and therefore conviction cannot be competently questioned by the appellants herein and the appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question is, whether the death of the deceased was homicidal in nature, which the trial Court has recorded in affirmative relying upon the statement of Dr. Manoj Kumar Patel (PW-6) proved by his postmortem report Ex.P-11 holding the death of the deceased to be homicidal in nature, which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question is, whether the trial Court is justified in holding that the appellants are perpetrators of the crime?

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Considering the nature of evidence available on record, it would be

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Cr.A.No.1062/2013

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appropriate to deal with the cases of all the three appellants separately. Accordingly, the cases of appellants No.1, 2 & 3 will be taken-up one by one in seriatim.

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Appellant No.1 – Babla @ Babulal Mahant

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Admittedly, the deceased was widow at that point of time, as she had already lost her husband Sahis Das Mahant and she was owning 50 decimal of land and she was possessing that land to which appellant No.1 disputed as she was intending to give the said land to appellant No.2. On the date of incident, the land was subjected to demarcation and while demarcation was going-on, firstly, appellant No.3 came there and abused the deceased and went back to his home, thereafter, appellant No.1 armed with iron axe and appellant No.2 armed with wooden log came there and assaulted the deceased by which she suffered five incised wounds and one lacerated wound out of which injury No.4 was said to be fatal by Dr. Manoj Kumar Patel (PW-6) in his postmortem report Ex.P-11.

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Roopdhar Das Mahant (PW-1), who is eyewitness to the incident, has clearly stated that while demarcation was going-on, his motherin-law Phuleshwari Bai (deceased) was standing near the mango tree, then appellant No.1 came with axe and gave 5-6 axe blows to her by which she suffered injuries and appellant No.2 also assaulted her by wooden log. Pursuant to the memorandum statement of appellant No.1, bloodstained axe has been recovered. As per the query report Ex.P-12, the injuries found on the body of the deceased could be caused by the said axe and furthermore, the

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said axe was sent for forensic examination to the FSL and the FSL report dated 11-9-2013 demonstrates that human blood of Group ‘A’ has been found on Art.D – axe recovered from appellant No.1 and on Art.G2 – blouse of the deceased. As such, it has been proved that the axe seized from appellant No.1 was used in the commission of offence.

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Kusma Bai Mahant (PW-3) – wife of Roopdhar Das Mahant (PW-1) has also supported the incident that it is appellant No.1 who has assaulted the deceased by axe and nothing has been extracted in the statements of Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW-3) that they have not witnessed the incident.

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In view of the aforesaid evidence available on record from the statements of eyewitnesses Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW-3) and that pursuant to the memorandum statement of appellant No.1 seizure of axe has been made on which human blood that too of Group ‘A’ has been found which was also found on the clothes of the deceased, we are of the considered opinion that appellant No.1 has rightly been convicted under Section 302 of the IPC.

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Appellant No.2 – Sanjay Mahant

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Though Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW3) have named appellant No.2 – Sanjay Mahant also that he has also assaulted the deceased by wooden log, but it is the case of the prosecution and the statement of Roopdhar Das Mahant (PW-1) that the deceased had already intended the land to be given to Sanjay Mahant (A-2) and that was the reason why appellant No.1

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became angry and came on the spot armed with axe and assaulted the deceased by axe by which she suffered grievous injuries. Though Roopdhar Das Mahant (PW-1) has stated that appellant No.2 assaulted the deceased by wooden stick and Kusma Bai Mahant (PW-3) has only said that appellant No.2 has also assaulted the deceased, but only one lacerated wound i.e. injury No.6 was found on the person of the deceased and furthermore, wooden log was seized from the spot. Investigating Officer K.P. Jaiswal (PW-8) has stated that it was the broken wooden log.

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The prosecution could not establish that the wooden log which was allegedly used by appellant No.2 and which has been thrown on the spot was the same wooden log which has been seized from the spot after two hours of the incident, particularly when wooden log (bahinga) is usually and commonly available in villages with the villagers. As such, considering the statements of seizure witnesses – Roopdhar Das Mahant (PW-1) & Dharam Das Mahant (PW-7), it is not established that the wooden log which has been seized from the spot and upon which human blood was found, was actually the weapon which was used in the commission of offence and appellant No.2 has assaulted the deceased by such wooden log. Therefore, the prosecution has failed to establish the case against appellant No.2 Sanjay Mahant beyond reasonable doubt and we accordingly grant him the benefit of doubt.

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Appellant No.3 – Vishnudas Mahant

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Admittedly, as per the statement of Roopdhar Das Mahant (PW-1), appellant No.3 left the place of occurrence after abusing the

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deceased and before the assault took place and no overt-act is said to have been caused by appellant No.3 and even his presence on the spot has not been established by the prosecution. There is no other evidence on record as far as appellant No.3 is concerned. Accordingly, there is no evidence to connect appellant No.3 with the offence in question. As such, conviction of appellant No.3 is not sustainable.

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In the result,

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The prosecution has been able to prove the offence against appellant No.1 under Section 302 of the IPC beyond reasonable doubt and we hereby affirm his conviction and sentences under Section 302 of the IPC.

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Conviction and sentences of appellants No.2 & 3 under Section 302 of the IPC are set aside and they are acquitted of the said charge. They are already on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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Conviction and sentences imposed upon all the three appellants under Section 120B of the IPC are hereby set aside and they are acquitted of the said charge.

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The criminal appeal is partly allowed.

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Sd/Sd/(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

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Soma

Babla @ Babulal Mahant and Ors. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Babla @ Babulal Mahant and Ors. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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