Allowed

Nahar Singh v. State Of Chhattisgarh

Chhattisgarh HC7 Dec 2023CRA/27/2017

Case brief

AI extract

What is this about?

Four appellants appealed a conviction for murder under IPC 302 read with 34. The High Court held the conviction unsustainable as it relied solely on an eyewitness whose testimony contained material omissions, contradictions regarding the weapon used, and unexplained delay in reporting the incident. The appeals were allowed and the appellants acquited.

What did the court decide?

Impugned judgment of conviction set aside; appellants acquitted and set at liberty forthwith if not detained in any other case.

Nahar Singh Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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CRA No.1574 of 2016 & CRA No.27 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.1574 of 2016

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Rajnath S/o Late Sagarsai Gond, Aged About 22 Years R/o Village Maniharidand, Police Station Prem Nagar, District Surajpur, Chhattisgarh.

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Jageshwar S/o Dayal Gond, Aged About 22 Years R/o Village Maniharidand, Police Station Prem Nagar, District Surajpur, Chhattisgarh.

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---- Appellants (In Jail)

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Prem Nagar, District Surajpur, Chhattisgarh.

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---- Respondent

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CRA No.27 of 2017

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Nahar Singh S/o Siyaram Gond, Aged About 20 Years R/o Village Maniharidand, Police Station Prem Nagar, District Surajpur, Chhattisgarh.

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Munna @ Prabhu S/o Basantram Gond, Aged About 20 Years R/o Village Maniharidand, Police Station Prem Nagar, District Surajpur, Chhattisgarh.

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---- Appellants (In Jail)

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Prem Nagar, District Surajpur, Chhattisgarh

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---- Respondent

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CRA No.1574 of 2016 & CRA No.27 of 2017

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For Appellants :-Shri Vikas Pandey, Advocate For State :- Shri Sudeep Verma, Dy. Government Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (07/12/2023)

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Sanjay K. Agrawal, J.

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Since common question of law and fact is involved in these two appeals and they arise out of one and same sessions trial, therefore, they have clubbed together, heard together and being disposed off by common judgment.

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Appellants-Rajnath (A-1) and Jageshwar (A-2) have preferred Criminal Appeal No.1574 of 2016 and appellantsNahar Singh (A-3) and Munna @ Prabhu (A-4) have preferred Criminal Appeal No.27 of 2017 under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 26.11.2016 passed by the learned Second Additional Sessions Judge, Surajpur in Sessions Trial No.72/2016, by which, they have been convicted for offence punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo

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CRA No.1574 of 2016 & CRA No.27 of 2017

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imprisonment for life and to pay fine of Rs.100/- each, and in default of payment of fine, they have to undergo additional imprisonment for two months.

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The case of the prosecution, in brief, is that in the intervening night of 23^rd and 24^th April, 2016 in the field of Pando at Village Maniharidand Prem Nagar, the appellants herein formed unlawful assembly and in furtherance of common intention, one of the co-accused-Munna (A-4) and Rajnath (A-1) have caught hold of Balwant and another accused-Nahar Singh (A-3) and Jageshwar (A-2) strangulated Balwant, as a result of which, Balwant died. Further case of the prosecution as stated by Nawal Say (PW-10) is that Balwant’s father Devsharan, the complainant herein, called Rajnath (A-1) to work as labourer, but, in the house of Devsharan, father of the appellant, there was quarrel took place between the appellant No.1 and Balwant and in turn, the appellant No.1 threatened him to see. On 22.04.2016, Balwant (deceased), Amar Singh (PW-3) and other persons of his village had gone to attend the marriage of Nemsai and thereafter, on the next day i.e. on 23.04.2016, Balwant and Amar Sai

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CRA No.1574 of 2016 & CRA No.27 of 2017

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came back to his village and all the appellants have stayed in the house of Nemsai and in the same night, after taking meals, Amar Singh and Balwant (deceased) went to hand pump wherein the appellants herein were already present and near the hand pump, there was some altercation took place between the appellants and Balwant and thereafter, the appellants caught hold of Balwant and took him to nearby field, where the appellants namely Nahar Singh and Jageshwar strangulated him and other appellants namely Rajnath and Munna have assisted them and thereby, they committed the offence and thrown the dead body in the field of Pando. On the next day i.e. 24.04.2016, Devsharan, father of the deceased-Balwant reported the matter to Police Station Prem Nagar, District Surajpur and First Information Report was lodged vide Ex.P-11 against the appellantRajnath (A-1) on 24.04.2016 and offence under Section 302 of IPC was registered against him and the wheels of investigation started running. Thereafter, inquest was conducted vide Ex.P-3 and Morgue intimation was recorded vide Ex.P-10. Towel (gumchha) used for the purpose of strangulation was seized from the place of incident vide

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CRA No.1574 of 2016 & CRA No.27 of 2017

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Ex.P-1. Dead body was subjected to postmortem and postmortem of the dead body of the deceased-Balwant was conducted by Dr. Umashankar Singh (PW-6) and his report is Ex.P-8 and cause of death was stated to be asphyxia due to strangulation and death was stated to be homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellants herein under Section 302 read with Section 34 of the IPC before the Court of Chief Judicial Magistrate, Surajpur, who in turn, committed the case to the Court of Sessions for hearing and trial in accordance with law. The appellants abjured their guilt and entered into defence by stating that they have not committed the offence and falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 17 documents Ex.P-1 to P-17 and Ex.D-1 & D-2 were exhibited on behalf of defence. Statements of the appellants-accused were recorded under Section 313 of the Cr.P.C., wherein they denied guilt, however, they examined none in their defence.

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CRA No.1574 of 2016 & CRA No.27 of 2017

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellants herein under Section 302 read with Section 34 of the IPC in the manner mentioned in the opening paragraph of this judgment, against which, the instant two appeals have been preferred.

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Mr. Vikash Pandey, learned counsel appearing for the appellants, would submit that the sole Eye-witness Amar Singh (PW-3) is not a reliable witness as there are material contradictions and omissions in his evidence. He further submits that the conduct of Amar Singh (PW-3) is very important where he kept quite for some time and deposed before the police only after lodging of FIR. He also submits that had Amar Singh (PW-3) would have seen the incident, it is he, who ought to have lodged a report. It is lastly submitted by learned counsel for the appellants that Amar Singh (PW-3), Ishwar Singh (PW-5) and Chandra Bhan (PW11) are the witnesses related to the deceased and therefore, their statements are doubtful as after hatching conspiracy, they have falsely implicated the appellants as such the impugned judgment is liable to be set aside and the

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CRA No.1574 of 2016 & CRA No.27 of 2017

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appellants deserves to be acquitted.

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Mr. Sudeep Verma, learned State counsel, would submit that the learned trial Court is absolutely justified in convicting the appellants for offence punishable under Section 302/34 of the IPC as the prosecution has been able to bring home the offence beyond reasonable doubt, as such, the instant appeal deserves to be dismissed.

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

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The first question for consideration as to whether the death of deceased Balwant was homicidal in nature, has been answered by the trial Court in affirmative, relying upon the postmortem report (Ex.P-8) proved by Dr. Umashankar Singh (PW-6), according to which, cause of death was asphyxia due to strangulation, which in our considered opinion, is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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CRA No.1574 of 2016 & CRA No.27 of 2017

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Now, the next question is, whether the appellants have been rightly convicted by the learned trial Court under Section 302 read with Section 34 of the IPC on the basis of evidence available on record ?

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Conviction of the appellants is based on the statement of Amar Singh (PW-3), who has been cited and accepted by the trial Court as eye-witness and on that basis, they have been convicted under Section 302 read with Section 34 of IPC.

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The Supreme Court in the matter of Joseph vs. State of Kerala1, it has been held that when there is a sole witness to the incident, his testimony has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded and conviction can be based on the testimony of the sole eye-witness, if it is wholly reliable, as under:-

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“In a case of this nature when 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 the evidence tendered by other witnesses or evidence as recorded. What is urged

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1 (2003) 1 SCC 465

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CRA No.1574 of 2016 & CRA No.27 of 2017

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before the Court is that FIR Exhibit P-1 contained signature of a doubtful character which PW 1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. How far reliance can be placed upon his evidence when PW 1 stated that he had rushed to the junction to inform PWs 2 to 4 and thereafter rushed back to the place of the incident, while the deceased also ran to the western side of the place of incident though he was profusely bleeding and he got hold of his wound by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of PW 1 could have been caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly belie the statement made by him that he was profusely bleeding. If really the witness (PW-1) was wearing bloodstained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion, is possible and not that the finding concluded by the trial Court was impossible.

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To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. 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 impermissible 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 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

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CRA No.1574 of 2016 & CRA No.27 of 2017

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on his sole testimony cannot be stated to be unreasonable”.

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Now, we will examine the testimony of sole eyewitness-Amar Singh (PW-3) on the touchstone and principles of law laid down by their Lordships of the Supreme Court in the matter of Joseph (supra).

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As per the statement of Amar Singh (PW-3), the incident took place in the night of 23.04.2016 in the field of Pando at Village Manihari Dand, Thana Prem Nagar and thereafter, in the morning, morgue intimation was registered on 24.04.2016 at 09.30 AM by Devsharan, father of the deceased-Balwant vide Ex.P-10 and the FIR was registered on 24.04.2016 at 09.40 AM vide Ex.P-11 by Devsharan. The prosecution has cited Amar Singh (PW-3) as eye-witness to the incident, but, he did not disclose the fact of murderous attack by the appellants herein to Balwant either before the village Kotwar or to the police station or any other person(s).

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A careful analysis of the statement of Amar Singh recorded under Section 161 of the Cr.P.C. (Ex.D-1) on

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CRA No.1574 of 2016 & CRA No.27 of 2017

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24.04.2016, also reveals that though, Amar Singh was a witness to the incident of murderous assault on the deceased-Balwant, but there is no reason as to why he did not disclose such fact either to the village Kotwar or to the police station or to any other person(s), therefore, his conduct is quite unnatural and the act of not reporting the matter to the police causes dent on the prosecution. (see

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State of Orissa vs. Mr. Brahmananda Nanda2) . The

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statement of Amar Singh under Section 161 of the Cr.P.C. was recorded on 24.04.2016, in which, he has clearly stated that Rajnath (A-1) and Munna (A-4) both caught hold of deceased Balwant and Jageshwar (A-2) and Nahar Singh (A3) strangulated the deceased by hand. Thereafter, statement of Amar Singh was also recorded under Section 164 of the Cr.P.C. on 21.06.2016 vide Ex.P-6, in which, he has made similar statement that Rajnath and Munna both have caught hold of the deceased-Balwant and Nahar and Jageshwar have strangulated Balwant to death by hand. Amar Singh (PW-3) neither in his statement recorded under Section 161 of the Cr.P.C. nor in his statement recorded under Section 164 of the Cr.P.C. on 06.09.2016 disclosed

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2 AIR 1976 SC 2488

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CRA No.1574 of 2016 & CRA No.27 of 2017

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that the aforesaid two appellants namely Nahar and Jageshwar have used the neck-towel/stole for causing strangulation of Balwant, however, in his statement made before the Court on 06.09.2016 as PW-3, he has stated that the appellant-Nahar has used neck-towel to strangulate Balwant along with Jageshwar, which was completely missing in the statement recorded under Section 161 (Ex.D1) of the Cr.P.C. as also in the statement recorded under Section 164 (Ex.P-6) of the Cr.P.C. There is material contradiction and omission in the statement of Amar Singh under Section 161 of the Cr.PC.(Ex.D-1)/under Section 164 of the Cr.P.C. (Ex.P-6), who has been cited by the prosecution as eye-witness as also there is improvement in his statement before the Court. The fact neck towel having been used in the commission of offence, has neither been disclosed in the statement of Amar Singh recorded under Section 161 of the Cr.P.C. nor in his statement recorded under Section 164 of the Cr.P.C. Neck-towel/stole has been recovered from the spot vide Ex.P-1 on 24.04.2016 at 1.35 PM, which has been proved by Jagsai (PW-2) and it has not been recovered from the possession of the appellants

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CRA No.1574 of 2016 & CRA No.27 of 2017

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herein.

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Dr. Umashankar Singh (PW-6), in his statement before the Court has clearly stated that the cause of death is strangulation by use of soft cloth and on account of respiratory failure, but the same is missing in the statement of Amar Singh recorded under Section 161 of the Cr.P.C. (Ex.D-1) before the police as also in his statement recorded under Section 164 of the Cr.P.C. (Ex.P-6) before the Magistrate that Balwant was strangulated by use of soft cloth and it has been seized from the place of occurrence. As such, medical evidence also does not support the case of the prosecution. Amar Singh (PW-3) did not say in his statement recorded under Section 161 of the Cr.P.C. (Ex.D1) before the police as also in his statement recorded under Section 164 of the Cr.P.C. (Ex.P-6) before the Magistrate that the two appellants-Nahar and Jageshwar have strangulated the deceased-Balwant by using neck-towel.

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Ishwar Singh (PW-5), a resident of the same village, has stated in his statement that one Shiv Mangal Singh has informed about the incident on 24.04.2016, but he did not

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CRA No.1574 of 2016 & CRA No.27 of 2017

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even state that these four appellants have used neck-towel for the purpose of strangulation of Balwant and delay in disclosing the statement has also not been explained. In the FIR lodged by Devsharan, father of the deceased-Balwant, Rajnath (A-1) has only been named, but other appellants have not been named in the FIR.

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Motive of murderous assault has been sought to be established from the statement of Naval Sai (PW-10) and the statement of Devsharan (PW-1). Devsharan (PW-1) has stated that he has called Rajnath for some earthwork in the house and altercation took place in his house between Rajnath (A-1) and Balwant while taking their meals and at that time, Rajnath (A-1) threatened his son-Balwant to see him. Though, this has been projected as a motive for commission of offence, but the said motive has not been established as the date and time, when the appellantRajnath has threatened the deceased-Balwant to see has not been brought on record by the prosecution and even otherwise, there is no such motive attributed against other appellants (A-2 to A-4) with regard to commission of offence of murder.

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CRA No.1574 of 2016 & CRA No.27 of 2017

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We are of the considered opinion that the death of the deceased-Balwant is homicidal in nature but conviction based on the sole testimony of eye-witness Amar Singh (PW3) is not sustainable as PW-3 is not reliable witness and there is material contradiction and omission in his statement and his conduct is not free from doubt as he has witnessed the incident happened on 23.04.2016 in the night and the matter was reported after more than 12 hours and FIR came to be lodged on 24.04.2016 at 09.40 AM suspecting Rajnath (A-1) only and no reason has been given by Amar Singh (PW-3) as to why he did not disclose the murderous attack by the four appellants on Balwant for more than 24 hours and also did not lodge report to the police station. During investigation, neck-towel has been recovered from the place of incident as it was not seized from the possession of the appellants. Therefore, it would be unsafe to base conviction of the four appellants herein on the sole testimony of Amar Singh (PW-3), eye-witnes, who is not reliable witness and there was material contradiction and omission in his statement recorded under Section 161 of the Cr.P.C. (Ex.D-1) before the police as also in his

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CRA No.1574 of 2016 & CRA No.27 of 2017

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statement recorded under Section 164 of the Cr.P.C. (Ex.P6) before the Magistrate and statement made before the Court. As such, the aforesaid four appellants are entitled for acquittal on the basis of benefit of doubt.

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Consequently, the impugned judgment of conviction and order of sentence dated 26.11.2016 passed by the learned Second Additional Sessions Judge, Surajpur in Sessions Trial No.72/2016 is hereby set aside. We direct that the appellants shall be set at liberty forthwith, if not required in any other case.

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The aforesaid two appeals are accordingly allowed .

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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 appellants are suffering the jail sentence.

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SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Nahar Singh v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Nahar Singh v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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