Dismissed

Neelkanth Sahu v. State Of Chhattisgarh

Chhattisgarh HC27 Jul 2023CRA/430/2015

Case brief

AI extract

What is this about?

In a criminal appeal under Section 374(2) CrPC against a conviction for murder and hurt, the Chhattisgarh High Court affirmed the trial court's judgment. The court held that the homicidal nature of death was proven and the prosecution evidence, including injured eyewitnesses, was reliable and sufficient for conviction under IPC Sections 302 and 323.

What did the court decide?

The appeal failing, it was dismissed; conviction and sentence under Section 302 and 323 IPC were affirmed.

Neelkanth Sahu Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.430 of 2015

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Neelkanth Sahu, aged about 42 years, s/o Shri Sukalurm, r/o near Thakurdiya talab Daldal Sivnee, Raipur, P.S. Pandri, Distt. Raipur C.G. Civil and Revenue District Raipur C.G.

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---- Appellant

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Versus

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State of Chhattisgarh Through P.S. Pandri, Raipur (C.G.) ---- Respondent

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For Appellant Mr. Ajay Mishra, Advocate. For State Mr. Saumya Rai, P.L.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ. Judgment on Board (27.07.2023)

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Radhakishan Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 14.01.2015 passed in Sessions Trial No.37/2014 by the Sessions Judge, Raipur (C.G.), by which the appellant stands convicted & sentenced as

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under:-

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Conviction Sentence Under Section 302 of Indian Imprisonment for life Penal Code Under Section 323 IPC RI for six months.

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Both sentences were ordered to run concurrently.

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Case of the prosecution, in brief, is that, on 27.09.2013 at 09:45

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pm, at Thakurdiya pond situated at Daldal Seoni, Raipur, P.W.2 Poonam Chand, deceased – Sitaram Vishwakarm, P.W.3 Shubham Dhritlahre and one Domar Dhiwar were talking with

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each other, at that time the appellant came to the spot while having Gudakhu and went back after washing his face near the bore-well, again returned to the spot carrying something like a Tangia, Lathi or rod and assaulted Sitaram Vishwakarma on his head, as a result of which, he suffered grievous injuries over his body and fell into the pond. On seeing this, Shubham and Monu ran way from the spot. On refusal by Poonam Chand (P.W.2), the appellant also assaulted on him, due to which, he also suffered injuries. Thereafter, the accused/appellant got into the pond and started assaulting again on Sitaram, on seeing this, Poonam Chand also ran away. Matter was reported to the Police Station Pandri at 22:35 hours where F.I.R. vide Ex.P.6 was lodged. Further case of the prosecution is that on 28.09.2013 at 09:05 am, on receipt of information by Kotwar, dead body of Sitaram was taken out from the pond and found that there are injuries over his head. Merg intimation was recorded vide Ex.P.14. Investigating Officer, after visiting the spot, prepared inquest proceedings vide Ex.P.2 and the dead body of deceased Sitaram was sent to Dr. Ambedkar Hospital, Raipur where Dr. Nitin Barmate (P.W.5) conducted the postmortem examination and gave his report vide Ex.P.9 opining that the cause of death was homicidal in nature due to head injury. Memorandum statement of the appellant was made vide Ex.D.3, on the basis of which, seizure memo vide Ex.P.7 was prepared, based on which, Tangia stained with blood was

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seized. This apart, spot map was prepared vide Ex.P.16. Seized articles were sent for examination to the F.S.L. vide Ex.P.17 and F.S.L. report was brought on record, according to which, blood was found on the seized articles including Tangia. During course of investigation, the appellant was arrested vide arrest memo Ex.P.8.

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After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he is innocent and pleads false implication.

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In order to bring home the offence, prosecution has examined as many as 09 witnesses and brought on record 19 documents whereas the appellant-accused person in support of his defence has exhibited three documents Ex.D.1, Ex.D.2 and Ex.D.3, statements of Poonamchand Sahu and Shubham Dhritlahre under Section 161 Cr.P.C. whereas Ex.D.3 is memorandum statement of the appellant.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 & 323 of IPC and sentenced as above against which the present appeal has been preferred.

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Shri Ajay Mishra, learned counsel for the appellant would submit that the conviction of the appellant is based on P.W.2 Poonam Chand and P.W.3 Shubham Dhritlahre, whose evidence does not inspire confidence, untrustworthy and not reliable. Despite that, the trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 IPC. There are major contradictions and omissions in the statements of prosecution witnesses. Hence, the impugned judgment deserves to be set aside and the appellant may be acquitted of the charge.

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Per contra , Shri Saumya Rai, learned State counsel would support the impugned judgment of conviction and order of sentence and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC as the prosecution has proved the offence beyond reasonable doubt by leading cogent and clinching evidence, therefore, 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 that falls for our consideration would be, whether the death of the deceased - Sitaram was homicidal in nature? P.W.5 Dr. Nitin Barmate conducted the post-mortem examination on 28/09/2013 at 11:00 am upon the dead body of

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Sitaram Vishwakarma (deceased) and found the following

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external and internal injuries/wounds :

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External injuries

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Chop wound was present over left side of fronto-parietal region, which was obliquely placed, lower end 6 cm. Above lateral end of left eyebrow, Size 6 x 0.6 cm x bone deep. Margin was regular and well defined with c/o underlying fronto-parietal bone fractured. Blood was infiltrated at margin of wound.

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Incised wound was present over left side of parietal region, 2 cm lateral to lower and of injury No.1. Lower end 11 cm above, lateral end of left eyebrow, obliquely placed, Size 2.5 x 0.5 cm x bone deep. Margin was regular and well defined and blood was infiltrated.

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Chop wound was present over left side of occipital region, which was obliquely placed. Upper end 9 cm above tip of left mastoid process. Lower end 7 cm above external occipital protrubance, Size 6.5 x 0.6 cm x bone deep. Margin was regular and well defined and blood was infiltrated with c/o underlying occipital bone fractured.

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Chop wound was present over right side of occipital region, which was obliquely placed. Lower end 9 cm above tip of right mastoid process. Size 2.5 x0.6 cm x bone deep. Margin was regular and well defined and blood was infiltrated.

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Two linear abrasions were present over right side of neck, which were obliquely placed. 1 cm apart from each other & 4 cm above suprasternal potch. Size 7 x0.1 cm and 5 x 0.1 cm, reddish.

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Abrasion was present over right side of abdomen. 4 cm above. Right anterior superior iliac spine. Size 2.5 x 2 cm, reddish.

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Abrasion was present over left scapular region. 2.5 x 2 cm, reddish.

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Internal injuries

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Underscalp contusion was present over frontal, both parietal and left occipital region. Size 17 x 12cm, soft and reddish.

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Depressed cut fracture of frontal and left parietal bone of skull. 6 x0.7 cm.

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Depressed cut fracture of left occipital bone. Size 5 x 0.6 cm.

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Subdural haemorrhage was present over both frontal, parietal and occipital lobe. Size 120 cc and reddish.

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Brain contusion was present over left parietal lobe. Size 4 x 2 cm. Blood extravasation was present.

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According to his opinion, cause of death was due to head injury and death was homicidal in nature.

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Looking to the statement of P.W.5 Dr. Nitin Barmate, who found the multiple injuries on the body of deceased and the opinion with respect to nature of death to be homicidal, the trial Court relying upon the postmortem report (Ex.P-9) proved by Dr. Nitin Barmate (PW-5) considered the nature of death to be homicidal, which is a 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.

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Now, the next question would be whether the learned trial Court is justified in convicting the appellant here for offence punishable under Section 302 & 323 of IPC being the author of the crime in question ?

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Conviction of the appellant is based on the evidence of P.W.2 Poonam Chand and P.W.3 Shubham Dhritlahre. P.W.2 Poonam Chand, in his statement, has stated that the incident occurred on 27.09.2013 and at 9:00 pm after having dinner, he went for a walk near the Thakurdiya pond where he called on his friends, namely, Sitaram Vishwakarma (deceased), Shubham (P.W.3) and one Monu who sat on top of the wall built near the pond. He has further deposed that when they were talking, at the same time, the accused / appellant while rubbing Gudakhu came to bore-well located in their front to wash his face and

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asked Monu to run the bore-well and after washing his face he left for his home, at that time, there was no object in his hand and after five minutes he came back to the spot where they were sitting and he (accused) suddenly started assaulting by something like iron object on Sitaram Vishwakarma on his head. Upon seeing this, this witness (P.W.2) was trying to stop the appellant, but the appellant/accused also assaulted him causing injuries to his right elbow and back. He has further deposed in his statement that the accused assaulted the deceased with such speed that they could not see with what object he was assaulting the deceased. He has further deposed that because of the incident being happened at night, therefore, he could not have seen with what object the appellant was attacking but he was sure that it was like something iron. Upon seeing the incident, he ran away from the spot out of fear and informed the incident to all concerned and thereafter he went to Pandri Police Station and lodged F.I.R. vide Ex.P.6. It has also come in his evidence that due to assault made by the appellant/accused on the deceased Sitaram, he fell into the pond and despite that accused/appellant did not stop and continuously assaulting him. After receiving injuries caused by the appellant, this witness was also examined by Dr. Snehlata Singh (P.W.8) and found two injuries on his right elbow and right back. In his cross-examination, this witness remained firm.

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Similar is the statement of Shubham Dhritlare (P.W.3), who is one more eye-witness to see the incident. The evidence of P.W.2 Poonam Chand was fully corroborated by the evidence of P.W.3 Shubham Dhritlahre.

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Memorandum statement of the appellant was made vide Ex.D.3 and Tangia stained with blood was seized vide Ex.P.7. It is the account of investigating officer that the seized article was sent for examination to Dr. Nitin Barmate (P.W.5) and sought query from him and query report has been obtained vide Ex.P.11, according to which, the injuries found on the head of the deceased could have been caused by this weapon.

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From a bare perusal of the evidence of P.W.2 Poonam Chand, P.W.3 Shubham Dhritlahre coupled with the evidence of Dr. Nitin Barmate (P.W.5), it emerged that the place where the body of deceased was found, at the same place, the weapon of offence, i.e., Tangia was also found, which strengthens the possibility that the serious and fatal injury that was inflicted on the head of the deceased was likely to be done by this weapon itself, i.e., Tangia.

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The first circumstance that has been found by the trial Court, after analysis of the evidence that has been brought by the prosecution, is that on the date, time and place of the occurrence, Sitaram Vishwakarma (deceased) along with eyewitnesses Poonam Chand (P.W.2), Subham Dhritlahre (P.W.3)

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and Monu was present when the accused/appellant, after reaching the place, assaulted him with Tangia and continued to assault him even after he fell down. The second circumstance that has been found by the trial Court that after the incident, Sitaram Vishwakarma (deceased) was not seen by anyone in the living state, but on the second day of incident, i.e., on 28.09.2013, between 8.00 and 9.00 pm, the dead body of Sitaram Vishwakarma was found in Thakurdiya pond and in the post-mortem report (Ex.P.9), 4 cut wounds on the head of the deceased along with fractured bones and internal bleeding were found.

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The trial Court has relied upon the evidence of P.W.2 Poonam Chand, who is injured eye-witness to the incident and his evidence is very significant. In the matter of Balu Sudam Khalde and another vs. The State of Maharashtra, reported in 2023 LiveLaw (SC) 279, the Supreme Court in paras 26 & 27, while dealing with evidentiary value of injured eye-witness, has laid down some principles and held as under :-

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“ 26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:

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(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

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(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

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are not be discarded lightly.

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(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

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(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

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(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.

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27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or reliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. ”

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Returning to the facts of the present case in the light of above referred decision by the Supreme Court, it is quite clear that on the date, time and place of the occurrence, Sitaram Vishwakarma (deceased) along with eye-witnesses Poonam Chand (P.W.2), Subham Dhritlahre (P.W.3) was present when the accused/appellant, after reaching the place, assaulted him with Tangia and continued to assault him even after he fell down and on account of sudden continuous assault, the

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deceased suffered injuries and succumbed to them. It is also pertinent to mention here that after the incident prompt F.I.R. has been lodged and the Doctor after examination has found two injuries over the body of Poonam Chand (P.W.2), which shows the aggressiveness of the appellant. The learned trial Court, after considering the documents and evidence produced before it, has held that the prosecution has been able to bring home the offence against the accused person and has rightly come to the conclusion that it was the appellant who had inflicted injuries by Tangi on the head of deceased and because of such assault by the appellant, the deceased suffered grievous injuries and succumbed to the injuries.

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We are of the considered opinion that the learned trial Court was absolutely justified in convicting and sentencing the appellant under Section 302 and 323 of IPC and we see no infirmity in the judgment impugned warranting interference by this Court.

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In the result, this appeal fails and is hereby dismissed.

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

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Anjani

Neelkanth Sahu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Neelkanth Sahu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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