Allowed

Rajkumar Sarva And Anr. v. State Of Chhattisgarh

Chhattisgarh HC27 Jul 2023CRA/612/2015

Case brief

AI extract

What is this about?

In this criminal appeal against murder conviction, the High Court held that the prosecution failed to prove guilt beyond reasonable doubt. Convictions were quashed due to lack of human blood analysis on seized articles, inadmissible reliance on solitary res gestae testimony, and highly doubtful recovery procedures with hostile witnesses. Both appellants were acquitted on the basis of benefit of do

What did the court decide?

Convictions of both appellants under Section 302/34 IPC are set aside and they are acquitted from the charge. They are granted release forthwith if detention is not required in any other case.

Rajkumar Sarva And Anr. Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 612 of 2015

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1 . Rajkumar Sarva S/o Late Shri Brajlal Sarva, Aged about 21 years, R/o Village Nayapara, Bhanupratappur, P.S. Bhanupratappur, Civil and Revenue District Uttar Bastar Kanker, Chhattisgarh.

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2 . Jaggu Netam S/o Rakesh Netam, Aged about 20 years, R/o Village Nayapara, Bhanupratappur, P.S. Bhanupratappur, Permanent Address – Village Jawanga, P.S. Geedam, Civil and Revenue District Dantewada, Chhattisgarh.

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--Appellants

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Versus

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State of Chhattisgarh through the District Magistrate, Uttar Bastar Kanker, District Kanker, Chhattisgarh.

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---Respondent

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For Appellant No. 1 :- Mrs. Savita Tiwari, Advocate For Appellant No. 2 :- Mrs. Indira Tripathi, Advocate For respondent/State :- Mr. Sameer Uraon, G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board

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27/07/2023

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Sanjay K. Agrawal, J.

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This criminal appeal has been preferred by the two appellants herein under Section 374(2) of IPC against impugned judgment dated 13/04/2015 passed by

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learned Additional Sessions Judge, Uttar Bastar Kanker in Sessions Trial No. 91/2014 whereby they have been convicted for offence punishable under Section 302/34 of IPC and have been sentenced to undergo life imprisonment with fine of Rs. 2000/- each and in default of payment of fine, additional R.I. for 3 months.

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Prosecution case :-

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Case of the prosecution, in brief, is that in the intervening night of 12-13/06/2014 at village Nayapara within the ambit of Police Station Bhanupratappur, the appellants herein, in furtherance of their common intention, caused the death of Brijlal and his wife Geetabai in their house, who are parents of appellant No. 1, and thereby, committed the aforesaid offence.

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Further case of the prosecution is that in the intervening night of 12-13/06/2014 at about 3 AM, Surendra Singh Thakur (P.W.-1), who is a Police Constable, was returning from patrolling duty, saw appellant No. 1 Rajkumar coming out from his house and on suspecting some foul play, he went inside the house of A1 and saw that dead bodies of Brijlal and Geetabai were lying therein soaked in blood. He suspected that their son Rajkumar has caused the death of his parents Brijlal and Geetabai and ran away. Immediately thereafter, Surendra Singh Thakur (P.W.-1)

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went to Police Station Bhanupratappur and registered merg intimation (Ex. P/1) and first information report (Ex. P/2) against appellant No. 1. Pursuant thereof, inquest was conducted vide Ex. P/11 and P/12 and the dead bodies of Brijlal and Geetabai were subjected to postmortem which was conducted by Dr. Surendra Singh Nag (P.W.-6) and as per the postmortem reports (Ex. P/18 and P/19), cause of death of both the deceased persons namely Brijlal and Geetabai is said to be hemorrhage and neurogenic shock due to head injury and nature of death is said to be homicidal. Memorandum statement of appellant No. 1 was recorded vide Ex. P/13 pursuant to which recovery of iron rod and blood stained clothes was made vide Ex. P/17. The said articles were sent for forensic examination and as per the FSL report (Ex. P/25), blood was found on the iron rod and the clothes seized from appellant No. 1. Thereafter, memorandum statement of appellant No. 2 was recorded on 01/08/2014 vide Ex. P/21 and on that basis, recovery of gold ornaments was made from the roof of the building adjoining the house of the deceased and recovery of mobile phone belonging to appellant No. 1 was made from the possession of appellant No. 2 vide Ex. P/6. The said gold ornaments seized from appellant No. 2 were identified by Laxmi Sahu (P.W.-2) vide Ex. P/7. After due investigation, both

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the appellants were charge-sheeted for offence punishable under Section 302/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence.

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In order to bring home the offence, prosecution examined as many as 10 witnesses and brought on record 26 documents. The statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and neither brought any document on record.

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Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased persons Brijlal and Geetabai to be homicidal in nature and further finding the appellants to be the authors of crime in question, proceeded to convict them for offence punishable under Section 302/34 of IPC and sentenced them as aforesaid.

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Submissions of the parties :-

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Mrs. Savita Tiwari, learned counsel for appellant No. 1, would submit that the case is based on circumstantial evidence and prosecution has failed to establish the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence as laid down by their Lordships of the Supreme Court in the

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matter of Sharad Birdhichand Sarda v. State of

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Maharashtra 1. The first piece of evidence that the trial Court has relied upon is the statement of Surendra Singh Thakur (P.W.-1) who has allegedly seen the appellant coming out of his house late at night which finds place at merg intimation (Ex. P/1) and first information report (Ex. P/2) cannot be made the basis for conviction of appellant No. 1 and even if the statement of Surendra Singh Thakur (P.W.-1) is believed, it is not unusual for a person to come out of his house at night and it does not create suspicion. Secondly, the trial Court has relied upon the seizure of iron rod and blood stained clothes made from the possession of appellant No. 1 vide Ex. P/17 pursuant to his memorandum statement (Ex. P/13) as well as upon the FSL report (Ex. P/25) in which blood has been found on the iron rod as well as the seized clothes, however, in view of the decision rendered by the Supreme Court in the matters of Balwan Singh v. State of Chhattisgarh 2 and Mani v. State of Tamil Nadu3 , recovery is a weak piece of evidence and cannot be made sole basis for conviction. As such, the instant appeal be allowed and appellant No. 1 be acquitted from the charge framed against him.

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1 (1984) 4 SCC 116

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2 (2019) 7 SCC 781

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3 (2009) 17 SCC 273

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Mrs. Indira Tripathi, learned counsel for appellant No. 2, would submit that it is not the case of the prosecution that appellant No. 2 was also seen by Surendra Singh Thakur (P.W.-1) coming out from the house of the deceased persons at the night of the incident and he has been convicted only on the basis of his memorandum statement (Ex. P/21) which has been recorded after 1 and half months of the incident on 01/08/2014 and pursuant to which mobile phone of appellant No. 1 has been seized from his possession vide Ex. P/6 and gold ornaments have been seized from the building adjoining the house of the deceased which is not at all established by the prosecution as both the memorandum and seizure witnesses namely Laxmi Sahu (P.W.-2) and Prakash Sahu (P.W.-10) have turned hostile and they have clearly not supported the case of the prosecution qua memorandum and seizure. Moreover, the ownership of the mobile phone seized from appellant No. 2 has also not been duly established by the prosecution, as such, the prosecution case is liable to be thrown out and appellant No. 2 be acquitted by allowing the instant appeal.

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Mr. Sameer Uraon, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and therefore, both the appellants have rightly been convicted by the trial Court

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on the basis of statement of Surendra Singh Thakur (P.W.-1) and on the basis of memorandum statements of the appellants pursuant to which objectionable substances have been seized from their possession, as such, the instant appeal is liable 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 record with utmost circumspection.

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Nature of death :-

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10. Learned trial Court has held the death of deceased persons Brijlal and his wife Deepabai to be homicidal in nature relying upon the expert medical opinion of Dr. Surendra Singh Nag (P.W.-6) who has proved the postmortem reports (Ex. P/18 & P/19) in which cause of death is said to be hemorrhage and neurogenic shock due to head injury and nature of death is said to be homicidal. Considering the statement of Dr. Surendra Singh Nag (P.W.-6) as well as the postmortem report (Ex. P/18 & P/19) and the injuries suffered by the deceased persons on their heads, we are of the considered opinion that the trial Court has rightly held the death of deceased persons Brijlal and Deepabai to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court particularly when it

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has been not been seriously questioned by learned counsel for the appellants.

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11. The question that requires consideration herein is, whether it was the appellants who caused the death of deceased persons Brijlal and Deepabai in their house on the fateful day ?

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12. Considering the nature of the evidence brought on record against the appellants, it would be appropriate to consider their case one-by-one.

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Case of Appellant No. 1 - Rajkumar :-

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13. Appellant No. 1 is the son of deceased persons Brijlal and Geetabai and admittedly, their murder took place at their house where appellant No. 1 also resided with them. Surendra Singh Thakur (P.W.-1), who is a police constable and who was on patrolling duty at the fateful night, saw appellant No. 1 coming out from his house late at night and suspecting some foul play, he immediately went inside their house and saw that both Brijlal and Geetabai were lying in an injured condition and their bodies were soaked in blood. He suspected appellant No. 1 to be their assailant and immediately went to the Police Station and registered merg intimation (Ex. P/1) and first information report against appellant No. 1 vide Ex. P/2 and thereafter, wheels of investigation started running. Though Surendra Singh

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Nath (P.W.-1) has been subjected to some extent of cross-examination on behalf of the appellants but nothing has been extracted from his statement to hold that he has not seen appellant No. 1 coming out from his house at late night or that he did not find the dead bodies of Brijlal and Geetabai thereafter. As such, the statement of Surendra Singh Thakur (P.W.-1) is admissible by virtue of Section 6 of the Evidence Act.

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14. At this stage, it would be appropriate to notice Section 6 of the Evidence Act, which states as under :-

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“ 6. Relevancy of facts forming part of same transaction. - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

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Illustrations

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(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”

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15. The aforesaid provision deals with the relevancy of facts forming part of the same transaction. Facts, though not in issue, if they are so connected with a fact in issue as to form part of the same transaction, are relevant, whether those facts occurred at the same time and place or at different times and places. This section admits those facts the admissibility of which comes under the technical expression res gestae (i.e. the things done, including words spoken in the course of a transaction), but such

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facts must “form part of the same transaction”. (See:

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Sardul Singh v. State 4)

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16. Section 6 of the Evidence Act is an exception to the rules of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form the part of the same transaction ruling out any possibility of concoction and it is usually known as rule of res gestae .

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17. In the matter of Javed Alam v. State of Chhattisgarh

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and another 5 their Lordships of the Supreme Court have held the rule of res gestae as under :-

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“19. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentele Vijayvardhan Rao v. State of A.P. 6 it was held in para 15 as follows : (SCC pp. 246-47)

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“Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to “hearsay” rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae

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4 AIR 1957 SC 747

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5 (2009) 6 SCC 450

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6 (1996) 6 SCC 241

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does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.”

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18. As such, by virtue of Section 6 of the Evidence Act, the statement of Surendra Singh Thakur (P.W.-1) is admissible in evidence meaning thereby that he had seen appellant No. 1 coming out from his house and immediately thereafter, the dead bodies of Brijlal and Deepabai were found inside the house. However, the effect of this piece of evidence will be considered at the appropriate stage.

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19. Pursuant to the memorandum statement of appellant No. 1 vide Ex. P/13, recovery of iron rod and his clothes have been made vide Ex. P/16 which was sent for forensic examination, however, in the FSL report (Ex. P/25), only blood has been found on the said iron rod as well as clothes of appellant No. 1 and it could not be ascertained whether it was human blood or not.

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20. The Supreme Court in the matter of Balwan Singh (supra) has held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation is 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

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proved because of disintegration of blood and observed in paragraph 24 as under :-

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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 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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21. Furthermore, In the matter of Mani (supra), considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, their Lordships of the Supreme Court have 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 :-

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“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.”

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22. Thus, in view of the aforesaid legal discussion in light of the principle of law laid down by their Lordships of the Supreme Court in Balwan Singh (supra) and Mani (supra), it is quite clear that recovery of iron rod and clothes of appellant No. 1 are of no use to the prosecution as human blood has not been found on them. Recovery, in itself, is a weak piece of evidence and would not further the case of the prosecution. Moreover, the seized clothes which are said to be of appellant No. 1's have not been identified by Surendra Singh Thakur (P.W.-1) to prove that appellant No. 1 was wearing the same clothes when he saw him on the night of the offence rather he has clearly stated in paragraph 12 of his statement that appellant No. 1 was not wearing a shirt and he was only wearing a banyan. As such, memorandum and seizure have not been duly proved by the prosecution and cannot be made basis for conviction of appellant No. 1.

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23. However, the fact remains that evidence of Surendra Singh Thakur (P.W.-1) who had seen appellant No. 1 coming out from his house on the night of the offence would be admissible under Section 6 of the Evidence Act and the behaviour of appellant No. 1 would be relevant under Section 8 of the Evidence Act, but that alone cannot be made basis for his conviction. (See : Subramanya v. State

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of Karnataka 7 and Veerendra v. State of Madhya

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Pradesh 8). As such, considering the entire evidence

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7 AIR 2022 SC 5110

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8 AIR 2022 SC 2396

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available on record, we are of the considered opinion that the trial Court has erred in convicting appellant No. 1 for offence punishable under Section 304/34 of IPC and he is entitled for acquittal on the basis of benefit of doubt.

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Case of Appellant No. 2 – Jaggu Netam :-

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24. The only piece of evidence against appellant No. 2 is that pursuant to his memorandum statement (Ex. P/21), which was recorded on 01/08/2014 i.e. after one and a half months from the date of incident, recovery of mobile phone belonging to appellant No. 1 has been made vide Ex. P/6 and recovery of gold ornaments belonging to deceased Geetabai has been made vide Ex. P/22 which has been identified by Laxmi Sahu (P.W.-2) and her husband Prakash Sahu (P.W.-10). It is not the case of the prosecution that he was also seen coming out from the house of the deceased persons on the night of the incident as his name has neither been recorded in merg intimation (Ex. P/1) nor in first information report (Ex. P/2). It is not the case of the prosecution either that appellant No. 2 absconded after the incident prior to registration of merg intimation (Ex. P/1) or lodging of FIR (Ex. P/2). Appellant No. 2 came into the scene of offence for the first time on 01/08/2014 the date of which his memorandum statement was recorded vide Ex. P/21 and pursuant to which recovery of appellant No. 1's mobile phone and gold ornaments belonging to

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the deceased Geetabai have been seized vide Ex. P/6 and P/22, respectively.

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25. Though recovery of mobile phone belonging to appellant No. 1 has been made from appellant No. 2 vide Ex. P/6 pursuant to his memorandum statement (Ex. P/21), but in the seizure memo, only the sim No. has been mentioned. Neither the IMEI No. of the mobile phone has been mentioned nor it has been proved that the said mobile phone was owned by appellant No. 1. Prosecution was obliged to bring evidence on record to hold that the said mobile phone seized from the possession of appellant No. 2 was actually purchased by appellant No. 1 and as such, in absence of any such evidence, merely on the basis of recovery, it cannot be held that the mobile phone was owned by appellant No. 1 which he had given to appellant No. 2 and therefore, appellant No. 2 cannot be convicted on the basis of alleged recovery of mobile phone vide Ex. P/6. This piece of evidence which has been found proved by the trial Court is hereby rejected.

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26. Again pursuant to the memorandum statement of appellant No. 2, recovery of gold ornaments belonging to deceased Geetabai have been seized vide Ex. P/22 in the presence of Laxmi Sahu (P.W.-2) and Prakash Sahu (P.W.-10) and which has been identified by Laxmi Sahu (P.W.-2) vide Ex. P/7. In order to prove that the said

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ornaments belonged to deceased Geetabai, they should have been identified in a duly constituted identification proceeding by mixing the seized ornaments with similar other ornaments and thereafter, getting them identified by Laxmi Sahu (P.W.-2) but that legal procedure was not followed and a rather simple proceeding of identification was conducted vide Ex. P/7 which cannot be said to be identification proceeding in accordance with law. Laxmi Sahu (P.W.-2) has simply stated in Ex. P/7 that all the seized ornaments were owned by her mother Geetabai. As such, the said identification proceeding (Ex. P/7) is not in accordance with law. Moreover, both the memorandum and seizure witnesses Laxmi Sahu (P.W.-2) and Prakash Sahu (P.W.-10) have completely become hostile and have not supported the case of the prosecution and clearly stated in their statements before the Court that officials of Police Station got their signatures in blank papers and neither the mobile phone nor the gold ornaments have been seized from appellant No. 2 in their presence. Furthemore, the offence was committed in the intervening night of 12-13/06/2014 whereas seizure of gold ornaments have been made on 01/08/2014, that too, from the building adjoining the house of the deceased persons which was under construction and the ornaments were found under a heap of sand kept on

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the roof of the said building and even the owner of the said building has not been examined, as such, memorandum and recovery proceeding with regard to appellant No. 2 are highly doubtful and improbable. In that view of the matter, we reject the evidence of recovery of gold ornaments at the intance of appellant No. 2 and we are of the considered opinion that the trial Court has erred in convicting appellant No. 2 for offence punishable under Section 302/34 of IPC as well.

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Conclusion :-

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27. In conclusion of the aforesaid legal discussion, we are of the considered opinion that motive of offence has not been established and prosecution has failed to prove memorandum statements and seizure made from both the appellants and on the basis of subsequent conduct, conviction of appellant No. 1 cannot be sustained. In that view of the matter, we are of the considered opinion that appellants are entitled for acquittal on the basis of benefit of doubt. Accordingly, conviction of appellant No. 1 and appellant No. 2 for offence punishable under Section 302/34 of IPC is hereby set aside. They are acquitted from the charge levelled against them. They be released forthwith if their detention is not required in any other case.

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28. Accordingly, this criminal appeal is hereby allowed.

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29. Let a certified copy of this judgment be sent to the concerned trial Court as well as the jail authorities for information and compliance.

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

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Harneet

Rajkumar Sarva And Anr. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajkumar Sarva And Anr. v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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