Allowed

Samaylal v. State Of Chhattisgarh

Chhattisgarh HC11 Jan 2023CRA/432/2014

Case brief

AI extract

What is this about?

High Court of Chhattisgarh set aside murder convictions of two appellants due to lack of identification and blood evidence, acquitting them. A third appellant was acquitted of murder but convicted and sentenced for attempt to murder.

What did the court decide?

Conviction and sentences for murder quashed for Satish Kumar, Laxman, and Samaylal. All three acquitted of Section 302 IPC charges. Satish Kumar and Laxman convicted of 307 IPC acquitted of 302 IPC, S

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

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Cr.A.Nos.615/2014 & 432/2014

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NAFR

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Page 1 of 12

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.615 of 2014

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{Arising out of judgment dated 13-3-2014 in Sessions Trial No.436/2012 of the 3^rd Additional Sessions Judge, Ambikapur}

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Satish Kumar, S/o Basant Lal Uraon, Age 20 years, R/o Village Lalpur, P.S. Udaypur, Civil & Revenue District Sarguja (C.G.)

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Laxman, S/o Dhansingh Agaria, Age 19 years, R/o Village Sair Bhudumar, P.S. Udaypur, Civil & Revenue District Sarguja (C.G.) ---- Appellants

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Versus

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State of Chhattisgarh, Through Police Station Udaypur, District Sarguja (C.G.)

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---- Respondent

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AND

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Criminal Appeal No.432 of 2014

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Samaylal, S/o Nohar Say, Age 40 years, R/o Village Sayar Bhudumar, Out Post Kedma, P.S. Udaypur, Civil & Revenue District Sarguja (C.G.)

(In Jail)

---- Appellant

Versus

State of Chhattisgarh, Through Police Station Udaypur, District Sarguja (C.G.)

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---- Respondent

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---------------------------------------------------------------------------------------------For Appellants: Mr. R.V. Ram Rajwade, Advocate. For State / Respondent: -

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Ms. Ruchi Nagar, Deputy Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Rakesh Mohan Pandey, JJ.

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Judgment On Board (11/01/2023)

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Cr.A.Nos.615/2014 & 432/2014

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Page 2 of 12

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Sanjay K. Agrawal, J.

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Two appellants namely, Satish Kumar (A-1) & Laxman (A-2) in Cr.A.No.615/2014 and sole appellant namely, Samaylal (A-3) in Cr.A.No.432/2014, have preferred these appeals under Section 374(2) of the CrPC calling in question the impugned judgment dated 13-3-2014 passed by the 3^rd Additional Sessions Judge, Ambikapur, in Sessions Trial No.436/2012, by which the learned Additional Sessions Judge has convicted the appellants herein under Sections 302 read with Section 34 & 307 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life & pay a fine of ₹ 500/- each, in default of payment of fine to further undergo rigorous imprisonment for three months and to undergo rigorous imprisonment for ten years & pay a fine of ₹ 500/- each, in default of payment of fine to further undergo rigorous imprisonment for three months, respectively.

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Since both the two criminal appeals have arisen out of one and same judgment dated 13-3-2014 passed by the 3^rd Additional Sessions Judge, Ambikapur, in Sessions Trial No.436/2012 and since common question of fact and law is involved in both the two appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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Case of the prosecution, in short, is that on 3-10-2012 at 9.00 p.m., at Village: Sair Bhudumar, Chowki: Kedma, Police Station: Udaipur, in furtherance of common intention, the appellants caused the death of Urmila Bai – wife of Nohri Ram (PW-6) and

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Cr.A.Nos.615/2014 & 432/2014

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Page 3 of 12

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also assaulted Nohri Ram, and thereby committed the offence. It is the further case of the prosecution that on 3-10-2012 after taking meals, Nohri Ram (PW-6) and his wife were sleeping in separate cots and at 9.00 p.m., on torchlight, he noticed appellant Samaylal (A-3) who assaulted him on his neck and when he stood up for taking up the axe lying therein, then Samaylal (A-3), Komalsai & Basant (not arrayed as accused) assaulted his wife Urmila Bai by sword by which she suffered injuries and succumbed to death. Nohri Ram (PW-6) reported the matter to Police Station Udaipur, Outpost Kedma on which first information report (FIR) under ‘0’ number was registered against Samalsai (A-3), Komalsai & Basant for offences under Sections 307, 302 & 34 of the IPC vide Ex.P-24 and thereafter, numbered FIR was registered vide Ex.P-25. Morgue intimation under ‘0’ number was recorded vide Ex.P-26 and registered morgue was recorded vide Ex.P-27. Inquest was conducted vide Ex.P-2 and dead body was sent for postmortem which was conducted vide Ex.P-17 by Dr. A.R. Jayant (PW-13) in which cause of death was stated to be coma due to fracture of skull and death was stated to be homicidal in nature. Nohri Ram (PW-6) was medically examined vide Ex.P-18. Pursuant to the memorandum statements of appellants Satish Kumar (A-1) & Laxman (A-2), swords were seized and same were sent for chemical analysis to the Forensic Science Laboratory (FSL), but the FSL report was not brought on record. Query report Ex.P-19

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Cr.A.Nos.615/2014 & 432/2014

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Page 4 of 12

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was obtained from Dr. A.R. Jayant (PW-13) in which it has been stated that the injuries mentioned in postmortem report Ex.P-17 and the MLC report of injured Nohri Ram (PW-6) – Ex.P-18, could be caused by the swords seized from appellants Satish Kumar (A-1) & Laxman (A-2).

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The investigating officer after completion of investigation, chargesheeted the three appellants herein before the jurisdictional criminal court from where the case was committed to the court of sessions and from where the learned Additional Sessions Judge received the case on transfer for trial and for hearing and disposal in accordance with law.

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The prosecution, in order to bring home the offence, has examined as many as 17 witnesses and exhibited 34 documents Exs.P-1 to P-34. The appellants abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have examined none, but exhibited two documents Exs.D-1 & D-2 – statements of Nohri Ram and Himmatlal Giri in support of their case. Statements of the appellants were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence.

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The trial Court after appreciating ocular, oral and documentary evidence on record, convicted and sentenced the appellants in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred.

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Cr.A.Nos.615/2014 & 432/2014

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Page 5 of 12

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Mr. R.V. Ram Rajwade, learned counsel appearing for the appellants, would submit that Nohri Ram (PW-6) is the injured eyewitness, though he has lodged FIR vide Ex.P-24, but he did not name appellants Satish Kumar (A-1) & Laxman (A-2) and has lodged report against Komalsai & Basant who have not been arrayed as accused. Furthermore, though pursuant to the memorandum of A-1 & A-2, swords have been seized vide Exs.P-8 & P-10 and same have been sent for chemical analysis to the FSL, but no FSL report has been brought that it was human blood and the memorandum witnesses have also turned hostile and have not supported the case of the prosecution. Moreover, no direct evidence is available as Nohri Ram (PW-6) though has stated that it is Satish Kumar (A-1) who has assaulted him, but in the FIR (Ex.P-24) lodged by him he has not named Satish Kumar and in the statement recorded under Section 161 of the CrPC (Ex.D-1), he has not named Satish as assailant and stated that unidentified assailant has assaulted his wife, therefore, test identification parade was required to be held to identify the accused which has not been done, in absence of that, the direct evidence of Nohri Ram (PW-6) cannot be accepted. Therefore, as far as A-1 & A-2 are concerned, there is no evidence available on record to connect them with the offence in question. So far as Samaylal (A-3) is concerned, there is no allegation of causing injury by him in the statement of Nohri Ram (PW-6) recorded under Section 161 of the CrPC, who is the sole

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Cr.A.Nos.615/2014 & 432/2014

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Page 6 of 12

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eyewitness of the prosecution. Furthermore, no incriminating articles has been recovered from A-3, as such, on the basis of no evidence, he has been implicated, therefore, he is liable to be acquitted.

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Ms. Ruchi Nagar, learned State counsel, supporting the impugned judgment would submit that Nohri Ram (PW-6) is the injured eyewitness, merely on the basis of some irregularities and omissions, his testimony cannot be discarded. Furthermore, swords have been recovered from A-1 & A-2 pursuant to their memorandum statements, though the memorandum & seizure witnesses have turned hostile, but Himmatlal (PW-8) – one of the memorandum & seizure witnesses, has accepted the fact that pursuant to the statements of the accused A-1 & A-2, seizure has been made from them. The investigating officer has corroborated the memorandum of Samalsai (A-3), though the memorandum statement has been made made, but no seizure has been made from him, however, the investigating officer has supported the prosecution case. As such, the appeals deserve to be dismissed.

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

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The first question as to whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-17 proved

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Cr.A.Nos.615/2014 & 432/2014

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Page 7 of 12

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by Dr. A.R. Jayant (PW-13) holding the death of the deceased to be homicidal in nature, which in our considered opinion is a finding of fact based on the 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 question is, whether the appellants are the authors of the crime as projected by the prosecution and found proved by the trial Court. Since there are three accused persons, we will take up the cases of A-1 & A-2 together and the case of A-3 separately.

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Cr.A.No.615/2014 – Appeal of A-1 & A-2

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In order to bring home the offence, the prosecution has brought the direct evidence as well as the circumstantial evidence to prove the guilt of A-1 & A-2 – Satish Kumar & Laxman.

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Nohri Ram (PW-6) is the injured eyewitness as well as husband of deceased Urmila Bai. He is also the first informant who lodged FIR Ex.P-24 on 3-10-2012 at late night 11.30 p.m. immediately after the incident. The incident is of 3-10-2012 at 09.00 p.m. and after 2½ hours, report has been lodged in which he has stated that in the night firstly, Samalsai (A-3) assaulted him by sharp-edged weapon and thereafter, A-3, Komalsai & Basant (not arrayed as accused) assaulted his wife Urmila Bai by which she suffered injuries and died. Thereafter, statement of Nohri Ram (PW-6) was recorded under Section 161 of the CrPC (Ex.D-1) on the next day i.e. 4-10-2012 in which he made

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Cr.A.Nos.615/2014 & 432/2014

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Page 8 of 12

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statement that one unknown assailant assaulted him on his left shoulder and thereafter, he assaulted his wife Urmila Bai by which she suffered injuries and died. Further, in Ex.D-1, he has clearly stated that his son has sexually exploited the daughter of A-3, therefore, on account of enmity, he has lodged report against A-3, Komalsai & Basant and on investigation, he came to know that Satish Kumar (A-1), Laxman (A-2) and one Radheshyam Giri – juvenile accused, have assaulted his wife Urmila Bai by which she suffered injuries and died. Surprisingly, in the statement before the court which was recorded on 13-62013, he took somersault and made statement that Samalsai (A3) assaulted him on his shoulder and Satish (A-1) assaulted his wife by sword, and thereafter, he threatened him, but thereafter, she died.

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A careful perusal of the statement of Nohri Ram (PW-6) would show that Nohri Ram is the first informant to lodge FIR Ex.P-24 after 2½ hours of the incident in which he named Samalsai (A-3), Komalsai & Basant. In the statement recorded on the next day under Section 161 of the CrPC, Nohri Ram (PW-6) did not name any person, even Samalsai (A-3) and also did not name Komalsai & Basant, but in the statement before the Court, apart from Samalsai (A-3), he has implicated Satish Kumar (A-1) & Laxman (A-2). Thus, from a perusal of the statement of Nohri Ram (PW-6) – injured eyewitness, it is quite vivid that Satish Kumar (A-1) & Laxman (A-2) were neither named in the FIR

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Cr.A.Nos.615/2014 & 432/2014

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Page 9 of 12

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(Ex.P-24) lodged by Nohri Ram (PW-6) immediately after 2½ hours of the incident nor in the statement of Nohri Ram (PW-6) recorded under Section 161 of the CrPC on the next day of the incident i.e. 4-10-2012 as assailants in the offence in question. Even Laxman (A-2) was not named by Nohri Ram (PW-6) in his statement before the court recorded on 13-6-2013. As such, presence of Satish Kumar (A-1) & Laxman (A-2) on the scene of occurrence on 3-10-2012 at 09.00 p.m. has even not been established by the prosecution beyond doubt as per the injured eyewitness / husband of the deceased. Even otherwise, in the statement under Section 161 of the CrPC, Nohri Ram (PW-6) has failed to identify the assailant, the prosecution was obliged to conduct test identification parade to identify the assailant which has not been done by the prosecution for reasons best known to it. Therefore, the statement made by Nohri Ram (PW-6) before the court that Satish Kumar (A-1) has assaulted his wife by sword becomes doubtful and suspicious, if Nohri Ram had identified the assailant well in time that Satish Kumar (A-1) was the assailant of himself and his wife, he could have made statement in his statement recorded Section 161 of the CrPC before the investigating officer on the next date of incident. Furthermore, from Satish Kumar (A-1) & Laxman (A-2), pursuant to their memorandum statements, only swords have been recovered which have been sent for chemical examination to the FSL, but the FSL report has not been brought on record holding

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Cr.A.Nos.615/2014 & 432/2014

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Page 10 of 12

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that the said swords were stained with human blood. As held by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 1, if recovery is proved beyond doubt and if the recovered article is found to be stained with human blood, then recovery may be useful, even though the blood group is not ascertained, but in absence of proof of human blood found on the swords recovered on the basis of seizure memos Exs.P-8 & P-10 at the instance of A-1 & A-2, it cannot be established that the said swords were used as weapons of offence, particularly, when in the medical evidence of Dr. A.R. Jayant (PW-13) only one incised wound was found that too on right hand elbow and rest of the injuries are lacerated wounds.

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In that view of the matter, it is unsafe to hold that Satish Kumar (A-1) & Laxman (A-2) are assailants of deceased Urmila Bai, as Nohri Ram (PW-6) – injured eyewitness, could not identify them, though only named Samalsai (A-3) in the FIR and in the statement recorded under Section 161 of the CrPC, he could not name any of the assailants and the assailant(s) remain unidentified. In the statement before the court, he has improved his version holding that it is Satish Kumar (A-1) who assaulted his wife by sword, but no human blood was found on the sword. Therefore, it cannot be held that Satish Kumar (A-1) & Laxman (A-2) are authors of the offence in question and the trial Court is absolutely unjustified in convicting them under Sections 302 & 307 of the IPC. We hold so accordingly.

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1 (2019) 7 SCC 781

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Cr.A.Nos.615/2014 & 432/2014

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Page 11 of 12

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Cr.A.No.432/2014 – Appeal of A-3

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Though Nohri Ram (PW-6) has named Samaylal (A-3), Komalsai & Basant (not arrayed as accused) in the FIR Ex.P-24 that they have assaulted his wife by sharp-edged weapon, but in the statement recorded under Section 161 of the CrPC, he has simply stated that one unknown person has assaulted him and his wife by sharp-edged weapon and has named Samalsai (A-3) as well as Basant & Komalsai and confirmed the report Ex.P-24 by stating that as his son has committed sexual intercourse with the daughter of Samalsai (A-3) and absconded, he has lodged report against A-3, his brother Basant and Komalsai. Further, in his statement before the court, he has implicated Satish Kumar (A-1) and only stated about Samalsai (A-3) that he has assaulted him on his shoulder by which he suffered injuries, the MLC report of which is Ex.P-18. However, Nohri Ram (PW-6) did not say that it is Samalsai (A-3) who has caused sword blow to his wife Urmila Bai by which she died. He has only named Satish Kumar (A-1) whose case has already been dealt with in the earlier paragraphs. Though memorandum statement of Samalsai (A-3) has been recorded vide Ex.P-6, but no incriminating article has been recovered nor any incriminating information has been derived which was not in the knowledge of the police. As such, there is no evidence, direct or circumstantial, to implicate A-3 with the offence in question. Accordingly, the trial Court is also unjustified in convicting appellant Samaylal (A-3) under Section

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Cr.A.Nos.615/2014 & 432/2014

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302 of the IPC, however, his conviction under Section 307 of the IPC is absolutely well merited.

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In the result, conviction and sentences imposed upon the three appellants herein for offence under Section 302 read with Section 34 of the IPC are hereby set aside and they are acquitted of the said charge. Conviction and sentences imposed upon appellants Satish Kumar (A-1) & Laxman (A-2) under Section 307 read with Section 34 of the IPC are also hereby set aside and they are acquitted of the said charge. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. However, Samaylal (A3) is convicted under Section 307 of the IPC and sentenced to the period already undergone by him. Since he has already suffered sentence, no further order is necessary. He is in jail. He be released forthwith, if his detention is not required in any other offence.

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The appeals are finally disposed of.

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

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Soma

Samaylal v. State Of Chhattisgarh

Case brief

What is this about?

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Samaylal v. State Of Chhattisgarh

Case brief

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