High Court allowed criminal appeal challenging conviction and life imprisonment for murder. Bench held eyewitness testimony unreliable due to delayed reporting, set aside impugned judgment, and acquitted appellant on benefit of doubt.
Impugned judgment dated 27.10.2016 set aside; appellant acquitted; shall be set at liberty.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1392 of 2016
Maniram, S/o. Chaituram, Aged About 35 Years, R/o. Village Bodara Chowki Ghotiya, Police Station Lohandiguda, Revenue & Civil District Bastar Chhattisgarh.
---Appellant
Versus
State Of Chhattisgarh, Through Police Station Lohandiguda, District Bastar Chhattisgarh.
---Respondent
For Appellant : Smt. Savita Tiwari, Advocate
For Respondent : Shri Sudeep Verma, Dy.Govt.Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Agrawal
Judgment On Board (07.12.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 27.10.2016, passed by the Sessions Judge, Bastar, Place Jagdalpur, in Sessions Trial No.60/2016, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of
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payment of fine amount, 2 months’ additional rigorous imprisonment.
2. Case of the prosecution, in brief, is that on 04.06.2016 at night about 11:00 p.m., at village Bodra, Police Chowki Ghotiya, Police Station Lohandiguda, District Bastar, the appellant herein assaulted Bhudhram (now deceased) by wooden stick, by which, he suffered grievous injuries and died on 05.06.2016 at 9:00 a.m. while undergoing treatment at Maharani Hospital Jagdalpur. Further case of the prosecution is that the said assault was witnessed by Hardev Ram (PW-1) and Daso (PW-2) and it is the case of the prosecution that in the night of 04.06.2016, village Kotwar - Kurso Ram Baghel (PW-9) and Kailash (PW-10) brought deceased Budhram into the house of his brother-in-law Jaidev Baghel (PW-3) in an injured condition and informed that he fell down near his house under the influence of liquor. Thereafter, in the morning, deceased was admitted to Maharani Hospital Jagdalpur and during course of treatment, he died. The matter was reported to the police by Jaidev Baghel (PW-3), pursuant to which, dehati merg intimation was registered vide Ex.P-1, merg intimation was registered vide Ex.P-15, FIR was registered vide Ex.P-10 & Ex.P-16, inquest was
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conducted vide Ex.P-3 and dead body of deceased Budhram was subjected to post-mortem, which was conducted by Dr. Gyanendra Kumar (PW-6), who proved the post-mortem report Ex.P-8, according to which, cause of death was due to cardio respiratory failure as a result of cranial injury. Pursuant to memorandum statement of the appellant Ex.P-18, wooden stick was seized vide Ex.P-19, which was sent for examination to FSL, but in the FSL report in Article C (Danda), no blood was found. On query report Ex.P-9, Dr. Gyanendra Kumar (PW-6) opined that death of deceased may not be caused by that type of weapon i.e. Nilgiri wooden stick seized from the appellant. After due investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.
3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited the documents Ex.P-1 to Ex.P-28-A and appellant-accused
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in support of his defence has neither examined any witness nor has exhibited any document.
4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.
5. Smt. Savita Tiwari, learned counsel for the appellant, would submit that the deceased sustained injury due to fall and the post-mortem report of the deceased does not support prosecution’s case. She submits that the eyewitnesses Hardev Ram Mourya (PW-1) and Daso (PW-2) are not reliable and had they actually saw the occurrence, they would have reported the matter immediately and further from the statement of Kurso Ram Baghel (PW-9), it is apparent that there exists old enmity between the two villages. She further submits that the prosecution has failed to bring home the offence against the appellant beyond reasonable doubt and the learned trial Court is absolutely unjustified in convicting the appellant by recording a finding, which is perverse to the record and, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed.
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6. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that considering the number of injuries sustained by the deceased, it is apparent that the same could not have been sustained because of fall and Hardev Ram Mourya (PW-1) and Daso (PW-2) are reliable witnesses and their evidence cannot be ignored. He further submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for the aforesaid offence and, as such, the appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
8. The first question for consideration as to whether the death of the deceased Budhram was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-8 proved by Dr. Gyanendra Kumar (PW-6), according to which, death was caused due to cardio respiratory failure as a result of cranial injury, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor
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contrary to the record and accordingly, we hereby affirm the said finding.
9. Now, the next question is, whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the testimony of Hardev Ram Mourya (PW-1) and Daso (PW-2) to hold the they have clearly seen the incident.
10. The date of incident is 04.06.2016, at night 11:00 p.m. at village Bodra and as per the statement of Hardev Ram Mourya (PW-1), deceased Budhram came to his house and they had gone to mango garden along-with Daso (PW-2) where the sole appellant came and abused Budhram and assaulted him by wooden stick and immediately after assault, according to Hardev Ram (PW1) and Daso (PW-2) both have, on account of fear, ran away from there. It is the case of the prosecution that Kotwar of the village Kurso Ram Baghel (PW-9) and Kailash (PW-10) both have seen Budhram near the house of Kotwar, as he was hiding in the husk of paddy, then the police was called and thereafter, Kurso Ram Baghel (PW-9) caught hold of deceased Budhram and on being informed by him that he is brother-in-law of Jaidev @ Pandru (PW-3), they had taken him with the help of police in the house of Jaidev Baghel (PW-3) and handed
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over to them and Jaidev Baghel (PW-3) also identified him to be his brother-in-law.
11. Jaidev Baghel (PW-3) has also been examined and he stated before the Court that on the intervening night of 04.06.2016 to 05.06.2016, Kotwar of village Bodhra - Kurso Ram Baghel (PW-9) and other persons along-with the police came with Budhram, who had suffered injuries in his hand and head and Kotwar informed that he fell down and suffered injuries. In the crossexamination also, he has admitted that when KotwarKurso Ram Baghel (PW-9) had brought Budhram, he informed him that Budhram fell down from the vehicle and suffered injuries. Similarly, Kumar Vivek Patkar (PW-11), Investigating Officer, has also stated in paragraph 14 that Kurso Ram Baghel (PW-9) and Kailash (PW-10) in their statement have stated that deceased fell down after consuming liquor and, as such, from the statement of PW-9, PW-10 & PW-11, it is quite clear that Budhram has consumed liquor and fell down under the influence of liquor and suffered injuries.
12. In this regard, the statement of Dr. Gyanendra Kumar (PW-6), who has conducted the post-mortem of deceased Budhram is also relevant, as in his cross-examination, he has clearly admitted that if a person falls in bushes
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under the influence of liquor then he may suffer the injuries like the injuries caused to the deceased, except the injury No.11 mentioned in the post-mortem report (Ex.P-8). He further stated that the wooden stick which was sent to him for examination, death is not possible on account of the injuries caused by such type of wooden stick. As such, the statement of village KotwarKurso Ram Baghel (PW-9), which is supported by the statement of Kumar Vivek Patkar (PW-11) and furthermore, it is also substantially supported by medical evidence of Dr. Gyanendra Kumar (PW-6) that the injuries suffered by the deceased except injury No.11 could not be caused by falling down after consuming liquor and further death cannot be caused by the seized wooden stick .
13. Furthermore, Jaidev Baghel (PW-3) and Sukay Bai (PW4) both have cited as eye-witnesses by the prosecution that they have seen the incident on 04.06.2016 at 11:00 p.m. and in their presence the appellant has assaulted deceased Budhram, which has been accepted by the trial Court also, but surprisingly they did not report the matter either to village Kotwar or any other person to whom they have confidence and faith and also did not report the matter to the police. The dehati merg
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intimation was lodged on 05.06.2016 at 12:30 p.m. by Jaidev Baghel (PW-3) and thereafter, FIR was registered on 07.06.2016 on the basis of merg enquiry. The nondisclosure of the incident either to the Kotwar or any other person is highly objectionable and the statement under Section 161 Cr.P.C. was recorded on 07.06.2016 and, as such, not disclosing the murderous attack on deceased Budhram by the present appellant for 2 ½ days is extremely serious. In this regard, the decision of the Supreme Court in the matter of State of Orissa v.
Mr. Brahmananda Nanda 1 may be noticed profitably, in which, their Lordships have held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable and held that such non-disclosure was a serious infirmity, which destroyed the credibility of the evidence of the witness and held as under :
“The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to
1 AIR 1976 SC 2488
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this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the rooming of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.”
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14. Reverting to the facts of the case in light of the aforesaid principles of law, it is quite vivid that Hardev Ram (PW-1) and Daso (PW-2) did not offer any explanation for nondisclosing the commission of murderous attack by the appellant over Budhram for 2 ½ days and it is also not on record that appellant is known to be a gangster or a confirmed criminal. In that view of the matter, we are of the considered opinion that the testimony of Hardev Ram (PW-1) and Daso (PW-2) are not reliable and inspire confidence and furthermore, though pursuant to memorandum statement of the appellant, wooden stick has been recovered, which was sent for FSL, but no blood much less human blood was found, as per FSL report Ex.P-28A and even the recovery witnesses Laikhan Bharati (PW-13) and Bhagat Ram (PW-14) have not supported the case of the prosecution and also not supported the memorandum and seizure and, as such, recovery is of no use to the prosecution and the other incriminating circumstances has not been established.
15. In view of the aforesaid principles of law laid down by the Supreme Court and in view of the discussion made herein above, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment
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dated 27.10.2016 is hereby set aside. The appellant stands acquitted of the charge framed against him for the offence punishable under Section 302 of I.P.C. and he shall be forthwith set at liberty, unless he is required in connection with any other case.
16. The appeal is allowed.
17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.
Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge
Ashok
3 issues framed by the court
Whether the death caused to the deceased was homicidal in nature based on the post-mortem report.
Whether the witnesses who claimed to see the incident were reliable in view of their failure to report the occurrence immediately.
Whether the appellant is entitled to acquittal on the ground of benefit of doubt.
Colour shows how this judgement treated each authority
State of Orissa v. Mr. Brahmananda NandaFollowed¶43
State of Orissa v. Mr. Brahmananda Nanda 1 AIR 1976 SC 2488 · Who else cites this
2 provisions across 2 enactments
Maniram
State Of Chhattisgarh
Sanjay K. Agrawal
Sanjay Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
