Allowed

Somaru Kerketta v. State Of Chhattisgarh

Chhattisgarh HC12 Jul 2023CRA/188/2015

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against a conviction for murder. The trial court relied heavily on the seizure of a weapon and a post-mortem report. The High Court held that the seizure was insufficient without an FSL report and termed it unreliable based on Supreme Court precedents. Unreliable on evidence. The witness turned hostile. No direct evidence. The appeal allowed. The appellant

What did the court decide?

Appellant acquitted of offence under Section 302 IPC and directed to be released from jail forthwith.

Somaru Kerketta Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

CRA No. 188 of 2015

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

CRA No. 188 of 2015

¶6

Somaru Kerketta S/o Bodhiya Kerketta, aged about 33 years, R/o Village Lodhichuwa, Khamhar, P.S. and Tahsil Dharamjaigarh, Civil & Revenue District Raigarh, Chhattisgarh.

¶7

---- Appellant

¶8

Versus

¶9

State of Chhattisgarh, through the Station House Officer, Police Station Dharamjaigarh, Civil & Revenue District Raigarh, Chhattisgarh

¶10

---- Respondent

¶11

For Appellant :- Mr. Manoj Kumar Jaiswal, and Mr. Ravi Kumar Banjare, Advocates. For State/Respondent :- Mr. Afroz Khan, Panel Lawyer.

¶12

Division Bench

¶13

Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal

¶14

Judgment On Board (12.07.2023)

¶15

Sanjay K. Agrawal, J

¶16

This criminal appeal under Section 374(2) of the CrPC preferred

¶17

by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 02.09.2014 passed by the learned Sessions Judge, Raigarh, District Raigarh

¶18

¶19

CRA No. 188 of 2015

¶20

Chhattisgarh in Sessions Trial No. 133/2014 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of ₹ 5000/- in default of payment of fine additional rigorous imprisonment for two years.

¶21

Case of the prosecution, in nutshell, is that on 24.05.2014 in the late night at 3:00 am at village Lodhichuwa Khamhar, Thana Dharamjaigarh, District Raigarh, C.G., appellant assaulted his wife – Maankuwar Bai (deceased) by sharp and blunt edged weapon 'tabbal' by which she suffered grievous injuries and died and thereby, committed the aforesaid offence.

¶22

Further case of the prosecution is that on the date of offence i.e. on 24.05.2014 on account of domestic dispute, appellant quarreled with his wife deceased and assaulted her by tabbal by which she suffered grievous injuries and died. Roopsai Kerketta (PW-2), elder brother of the appellant herein, reached to the spot immediately after the incident and saw body of the deceased lying down in injured condition and appellant was also present there armed with tabbal. Roopsai Kerketta (PW-2) reported the matter to Police Station, Dharmjaigarh. FIR and Merg Intimation were registered vide Ex.P/3 & Ex.P/4. Inquest proceedings were conducted vide Ex.P/6 and body of the deceased was sent for postmortem. As per postmortem report (Ex.P/1) conducted by Dr.

¶23

¶24

CRA No. 188 of 2015

¶25

Chandrashekhar Sidar (PW-1) cause of death was due to hemorrhagic shock as a result of severe bleeding and nature of death is homicidal. Pursuant to memorandum statement of appellant (Ex.P/9) weapon of offence i.e. tabbal has been seized vide Ex. P/10 which was sent for chemical analysis to the FSL but FSL report has not been brought on record for the reasons best known to the prosecution.

¶26

After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

¶27

In order to bring home the offence prosecution has examined as many as 5 witnesses and exhibited 17 documents and defence in support of its case has neither examined any witness nor exhibited any document.

¶28

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

¶29

¶30

CRA No. 188 of 2015

¶31

Mr. Manoj Kumar Jaiswal, learned counsel for the appellant, would submit that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He would also submit that Roopsai Kerketta (PW-2), who is stated to be eye witness, has turned hostile and not supported the case of the prosecution. He would further submit that appellant is in jail since 25.05.2014 and there is no direct evidence against the appellant and the trial Court has convicted the appellant on the basis of surmises and conjectures, as such, the impugned judgment deserves to be set aside and appellant deserves to be acquitted.

¶32

On the other hand, Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt, therefore, the instant appeal deserves to be dismissed.

¶33

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

¶34

The first question is whether the death of deceased Maankuwar Bai was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/1) which was proved by Dr. Chandrashekhar Sidar

¶35

¶36

CRA No. 188 of 2015

¶37

(PW-1) which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

¶38

Now, the next question for consideration would be whether the appellant is author of the crime in question?

¶39

Case of the prosecution is based on the testimony of Roopsai Kerketta (PW-2), elder brother of the appellant, as well as pursuant to the memorandum statement of the appellant (Ex.P/9) blood stained tabbal has been seized (Ex.P/10) from the possession of the appellant. True it is that the appellant's elder brother Roopsai Kerketta (PW-2) reached to the spot immediately after the incident and saw the dead body of the deceased and his brother was armed with tabbal but he has turned hostile and not supported the case the prosecution. Apart from this, the appellant used to stay with his father and motherBedobai, as per the statement of Jageshwar Uraon (PW-3) and as per the statement of Roopsai Kerketta (PW-2) motherBedobai used to stay with the appellant, who has not been examined for the reasons best known to the prosecution, as such, Section 106 of the Evidence Act, 1872 would not be applicable as in the house of the appellant his father and mother were staying and even the trial Court in paragraph 18 has recorded a finding that though the appellant's mother-Bedobai

¶40

¶41

CRA No. 188 of 2015

¶42

was residing in the house of the appellant but she has not been examined for the reasons best known to the prosecution. As such, it could not be proved that the appellant had assaulted deceased Maankuwar by which she suffered injuries and died.

¶43

Next piece of evidence is that pursuant to the memorandum statement of the appellant (Ex.P/9), tabbal has been recovered from the possession of the appellant herein on which blood stain was found which was sent for chemical analysis to the FSL, but FSL report has not been brought on record for the reasons best known to the prosecution, as such, it could not be proved that on the weapon of offence was stained with human blood.

¶44

The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another 1 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:-

¶45

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9

1 (2019) 7 SCC 781

CRA No. 188 of 2015

and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

¶50

Further, the Supreme Court in the matter of Mani v. State of Tamil Nadu2 , considering the nature, scope and applicability of

¶51

Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

¶52

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

2 (2009) 17 SCC 273

CRA No. 188 of 2015

Returning to the facts of the case in the light of the aforesaid discussion, it is quite vivid that pursuant to the memorandum statement (Ex.P/9) tabbal has been seized vide Ex. P/10 which was sent for chemical analysis to the FSL, but FSL report has not been brought on record, as such, it could not be proved that on the weapon of offence was stained with human blood. In view of the decisions rendered by the Supreme Court in the matters of Balwan Singh (supra) & Mani (supra), recovery is no use to the prosecution. The sum and substance of the aforesaid discussion is that there is no direct evidence against the appellant that he has assaulted his wife deceased Maankuwar and caused her murder as Roopsai Kerketta (PW-2), who is stated to be eye witness, has not supported the case of the prosecution and turned hostile. Section 106 of the Evidence Act, 1872 is not applicable in the instant case as the appellant herein was residing with his father and mother who were not examined for the reasons best known to the prosecution. Consequently, we are unable to uphold the conviction of the appellant for offence under Section 302 of the IPC and he is entitled to benefit of doubt. The appellant is reported to be in jail since 25.05.2014, we direct that he be released from jail forthwith, if not required in any other matter.

¶57

¶58

CRA No. 188 of 2015

¶59

This criminal appeal is allowed to the extent indicated herein-

¶60

above.

¶61

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

¶62

Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge Ankit

Somaru Kerketta v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Somaru Kerketta v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Madhumangal @ Uday Bhoi Vs The State Of Chhattisgarh

Parsu Ram Vs State Of Chhattisgarh

Shiva Ram Pando @ Ganjedi Vs The State Of Chhattisgarh

Karan Yadav Vs State Of Chhattisgarh

Jila Bhaskar Vs State of Chhattisgarh

Bali @ Bali Ram Vs State Of Chhattisgarh