Allowed

Faguram Kevat v. State Of Chhattisgarh

Chhattisgarh HC5 Jan 2023CRA/326/2013

Case brief

AI extract

What is this about?

The High Court acquitted the appellant of the charge of murder under Section 302 IPC. The court observed that prosecution failed to prove guilt beyond reasonable doubt as the sole eyewitness did not see the killing, and the recovered weapon was not scientifically linked to the occurrence due to the absence of an FSL report.

What did the court decide?

The conviction and sentence were set aside; the appellant was acquitted of the charge under Section 302 of the IPC.

Faguram Kevat Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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Cr.A. No. 326 of 2013

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 326 of 2013

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Faguram Kevat, S/o Bhagela Kevat, Aged 45 years, R/o Village Sagar Awaspara, Thana Hirri, District Bilaspur (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh, through – District Magistrate, Bilaspur, District Bilaspur (C.G.)

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---- Respondent

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For Appellant : Mr. Dheerendra Pandey, Advocate For Respondent : Mr. Ishan Verma, Panel Lawyer

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Division Bench: Hon’ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey

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Judgment on Board (05.01.2023)

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Rakesh Mohan Pandey, J.

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1. This criminal appeal has been filed under Section 374(2) of the Cr.P.C. challenging therein judgment of conviction and order of sentence recorded by the IV^th Additional Sessions Judge, Bilaspur, District Bilaspur (C.G.) in Sessions Trial No. 78/2012 dated 29.12.2012, whereby the appellant stands convicted and sentenced as under:-

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	Conviction	Sentence
Under Indian	Section 302 of the Penal Code (for short	Life Imprisonment and fine of Rs.500/-, in default of payment
'IPC')		of fine to undergo additional R.I. for Six months.

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Cr.A. No. 326 of 2013

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2. The case of the prosecution, in nutshell, is that one year prior to the date of incident i.e. 08.02.2012 there arose dispute between deceased Dhannu Ram Kenvat and the appellant with regard to becoming priest of a temple and quarrel also took place between them. Later on, the dispute between them was resolved, but on 08.02.2012 at about 03:30 hours on account of previous enmity the present appellant assaulted the deceased by means of a wooden club ( lathi ) and the deceased succumbed to the injuries. The incident was witnessed by PW-6 Rajkishor Kaushik. Information regarding the murder of Dhannu Ram Kenvat was given by PW-2 Shriram Kenvat to the police and it was recorded in Roznamchasanha vide Ex.-P/24. The incident was informed to the police on 08.02.2012 at about 11:45 am by PW-4 Phekuram. Consequently, PW-14 Ishak Khalko, Investigating Officer, registered Dehatinalishi vide Ex.-P/10. Thereafter, Dehati Merg Intimation was recorded vide Ex.-P/09. Notice to the witnesses was issued vide Ex.-P/3 and the inquest was conducted vide Ex.-P/4. F.I.R. (Ex.P/17) was registered on the basis of Dehatinalishi (Ex.-P/10). The sample of soil, blood stained soil, two pieces of bricks and battleaxe were seized from the spot vide Ex.-P/5. The memorandum statement of the appellant was recorded vide Ex.-P/7 in presence of PW-7 Ramayan Prasad and PW-3 Chhotelal and on the instance of the appellant, a wooden club was seized vide Ex.-P/6 containing blood like stains. Shirt and trousers of the appellant were also seized. The dead body of the deceased was sent for postmortem

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Cr.A. No. 326 of 2013

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and it was conducted by PW-13 Dr. Sunil Kumar and his report is Ex.-P/15. The seized wooden club was sent for query to the Doctor vide Ex.-P/21. Clothes of the deceased were also seized vide Ex.P/9. The seized articles were sent for FSL vide Ex.-P/13.

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3. After completion of the investigation, charge-sheet was filed against the appellant for offence punishable under Section 302 of the IPC before the Judicial Magistrate First Class, Bilha, District Bilaspur and it was committed to the Sessions Court for hearing and disposal in accordance with law.

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4. The trial Court has framed charge under Section 302 of the IPC on 11.06.2012 against the appellant. The accused/appellant abjured the guilt, pleaded non-guilty and entered into defence. The prosecution in order to bring home the offence examined as many as 14 witnesses and exhibited 24 documents in support of the case, whereas the defense exhibited three documents which are D1 to D3. Statement of the accused/appellant under Section 313 of Cr.P.C. was recorded in which he abjured the guilt and pleaded innocence.

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5. The trial Court after appreciation of oral and documentary evidence available on record, particularly relying upon the evidence of PW-6 Rajkishor Kaushik, seizure of wooden club ( lathi ) on the instance of the appellant and blood stains found over wooden club, convicted the present appellant as mentioned in opening paragraph of this judgment. Hence, the appellant has preferred the instant appeal under Section 374(2) of Cr.P.C. against the impugned judgment of

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Cr.A. No. 326 of 2013

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conviction and order of sentence recorded by the trial Court.

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6. Learned counsel for the appellant would submit that from the evidence of PW-6 Rajkishor Kaushik and his statement recorded under Section 161 Cr.P.C., it is apparent that the appellant was sleeping in his house which is situated near the house of this witness and on 08.02.2012 at about 03:30 hours the deceased and the present appellant were quarrelling. This witness has further stated in his 161 Cr.P.C. statement that the appellant was having wooden club, whereas battle-axe was in the hand of the deceased. He would further submit that this witness has not seen the entire incident and he entered into his house. Learned counsel for the appellant would further submit that though seized articles were sent for FSL, but there is no FSL report. He would further submit that from the map and site plan, it is apparent that the dead body of the deceased was found between the house and road, and it was not lying in the house of the present appellant, therefore, the learned trial Court has committed illegality in recording conviction solely on the basis of evidence of PW-6 Rajkishor Kaushik. He would pray of order of acquittal in favour of the appellant.

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7. On the other hand, learned counsel for the State would submit that there is eyewitness, wooden club was seized on the instance of the present appellant and seizure has been proved by the seizure witnesses. He would further submit that ocular evidence has been corroborated by the medical evidence. He would also submit that the appeal preferred by the appellant deserves to be dismissed.

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Cr.A. No. 326 of 2013

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8. 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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9. The questions arise for consideration :-

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(i) Whether the death of Dhannu Ram Kenwat was homicidal?

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(ii) Whether appellant Faguram Kevat was perpetrator/author of the crime?

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Answer to Question No. (i):

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10. The learned trial Court has recorded a finding of homicidal death of Dhannu Ram Kenvat relying upon the evidence of Dr. Sunil Kumar (PW-13) who conducted the postmortem and gave his report is Ex.P/15. As postmortem report (Ex.-P/15), Dr. Sunil Kumar (PW-13) opined that cause of death of the deceased was homicidal in nature. The finding of homicidal death recorded by the learned trial Court is finding of fact based upon the substantial evidence is neither arbitrary nor contrary to evidence. Hence, it is held that the death of Dhannu Ram Kenvat is homicidal and the finding recorded by the learned trial Court is hereby affirmed.

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With regard to Question No. (ii):

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11. PW-1 Puniya Bai is the wife of deceased Dhannu Ram Kenvat. She has stated in para-3 that she does not know as to how her husband died.

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12. PW-2 Shriram Kenvat is a hearsay witness who has stated that at about 05:00 am Sarpanch came to his house and narrated the fact

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Cr.A. No. 326 of 2013

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that Dhannu Ram Kenvat is lying near pond of Awaspara and when they went there, they found the dead body of the deceased, but in para-3, he has stated that he does not know as to how Dhannu Ram Kenvat died.

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13. PW-3 Chhote Lal Ratre is seizure witness and he has supported the seizure of the wooden club from the possession of the appellant.

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14. PW-5 Mahendra Kumar Tiwari has stated that on the date of incident, he was called by Golu, who informed that Dhannu and Fagu were fighting and when he reached there along with other villagers, he found that Dhannu was unconscious. Thereafter, Dhannu was taken to the hospital.

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15. PW-6 Rajkishor Kaushik, who is eyewitness according to the prosecution, has stated that at about 03:30 am he woke up for urine, he saw that the appellant and the deceased were fighting. He has further stated that due to fear, he entered into his house and called the Sarpanch Mahendra Tiwari through mobile phone and thereafter he left his house along with his children. He has further stated that when he came back, he found that the dead body of deceased Dhannu was lying in the kitchen garden of the appellant.

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16. PW-13 Dr. Sunil Kumar who conducted the postmortem has found five lacerated wounds and three contusions over the body of the deceased and according to this witness; cause of death was rupture of lungs and excessive bleeding. He has further stated that nature of death was homicidal.

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Cr.A. No. 326 of 2013

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17. PW-14 Ishak Khalko conducted the investigation and filed chargesheet.

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18. The proper scrutiny and appreciation of the evidence and judgment passed by the learned trial Court would reveal that the basis of the conviction is evidence of PW-6 Rajkishor Kaushik and seizure of wooden club from the present appellant. It is not in dispute that PW6 was sleeping in his house. PW-6 has seen the present appellant and the deceased fighting, but he has not seen the present appellant committing murder of the deceased. It is also not in dispute that the dead body of the deceased was found between the house of the appellant and the road. The previous enmity is double edged sword, therefore, on the basis of previous enmity, it cannot be said that the present appellant is the author of crime in question. The wooden club which was seized on the instance of the present appellant was sent for FSL along with other articles, but there is no FSL report to connect weapon with the occurrence.

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19. In the matter of Balwan Singh Vs. State of Chhattisgarh reported in (2019) 7 SCC 781 their lordships of the Hon’ble Supreme Court have observed that 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 which reads thus :-

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“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

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Cr.A. No. 326 of 2013

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PWs 9 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.”

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20. In the matter of State of Rajasthan Vs. Wakteng reported in (2007)

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14 SCC 550 the Hon’ble Supreme Court has considered the issue where the sword recovered was not sent for FSL and no report was exhibited and even no question in that regard was put to the accused and held as under :-

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17. So far as recovery of the sword is concerned, the same was not sent for any examination by the Forensic Science Laboratory and the report if any was not exhibited and even no question in that regard was put to the accused while he was examined under Section 313 of the Code.

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18. Above being the position, the High Court has rightly held that the prosecution has failed to establish the accusations against the respondent. The appeal is sans merit and is dismissed.

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21. Above being the legal position, in light of the above stated discussion it appears that the prosecution utterly failed to prove the guilt of the present appellant beyond reasonable doubt. PW-6 Rajkishor Kaushik has not seen entire incident and seizure of

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Cr.A. No. 326 of 2013

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wooden club is not sufficient to hold the appellant guilty for the offence punishable under Section 302 of the IPC, therefore, in our considered opinion the benefit of doubt can be extended to the present appellant. Hence, by extending benefit of doubt to the present appellant, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant vide the impugned judgment dated 29.12.2012. The appellant is acquitted of charge under Section 302 of the IPC. Presently he is on bail, therefore, there is no need to surrender, however, his bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 437A of Cr.P.C.

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22. Accordingly, the criminal appeal is allowed.

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

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vatti

Faguram Kevat v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Faguram Kevat v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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