Dulari Kashyap Vs State of Chhattisgarh

---------------------------------------- For Appellants	---- :-	------------------------------------- Mr. Ravindra Sharma,
[In Cr.A. No.956/2018]		Advocate.
For Appellants	:-	Ms. Ranjana Jaiswal,
[In Cr.A. No.1166/2018]		Advocate.
For Respondent/State	:-	Mr. Ashish Shukla,
[In both Cr.As.]		Addl. Advocate General.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board [20-08-2024]

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Sanjay K. Agrawal, J.

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1. Since these two Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CrPC’) arise out of the same impugned Judgment and since common question of law and fact is involved in both these appeals, they have been clubbed together, heard together and are being disposed of by this common Judgment.

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2. There are total seven accused appellants in the present two appeals out of which, A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi have preferred Cr.A. No.956/2018 whereas A-1 Dulari Kashyap, A-2 Komal Prasad Mannewar, A-4 Sajan Mannewar, A-6 Filesh Kashyap and A-7 Nagesh

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(Cr. A. Nos. 956 & 1166 of 2018)

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Kashyap have filed Cr.A. No.1166/2018 calling in question the legality, validity and correctness of the impugned Judgment dated 13.6.2018 passed by learned Second Additional Sessions Judge, District Korba (Trial Court) in Sessions Case No.88/2016 by which each of them has been convicted for offence punishable under Sections 341, 364, 365, 120B, 302 & 201 of the Indian Penal Code, 1860 (in short ‘IPC’) and sentenced thereunder in the manner as mentioned in the following chart:-

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Conviction	Sentence
1. Under Section 341 IPC.	1. Simple Imprisonment for One month.
2. Under Section 364 IPC.	1. Imprisonment for Life. 2. Fine of Rs.500/-. 3. Rigorous Imprisonment for 6 months, in default ofpayment of fine.
3. Under Section 365 IPC.	1. Rigorous Imprisonment for 3 years. 2. Fine of Rs.300/-. 3. Rigorous Imprisonment for 2 months, in default ofpayment of fine.
4. Under Section 120B IPC.	1. Imprisonment for Life. 2. Fine of Rs.500/-. 3. Rigorous Imprisonment for 6 months, in default ofpayment of fine.
5. Under Section 302 IPC.	1. Imprisonment for Life. 2. Fine of Rs.500/-. 3. Rigorous Imprisonment for 6 months, in default ofpayment of fine.

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(Cr. A. Nos. 956 & 1166 of 2018)

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6. Under Section 201 IPC. 1. Rigorous Imprisonment
for 3 years.
2. Fine of Rs.300/-.
3. Rigorous Imprisonment
for 2 months, in default
ofpayment of fine.

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All substantive sentences have been directed to run concurrently.

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3. Case of the prosecution, in a nutshell, is that on 4.7.2016 around 20:00 p.m. at the main road of Champa-Korba near Saragbundia under Police Station Urga, all the accused appellants herein are said to have wrongfully restrained Harihardas Vaishnav alias Kali Maharaj (deceased) and abducted him with intent to cause him to be secretly and wrongfully confined and to commit his murder and thereafter all the accused appellants in agreement of their criminal conspiracy to cause his murder, assaulted him by wheel spanners on his head, face and jaw on account of which he suffered grievous injuries and died and further in order to screen themselves from legal punishment, they kept hidden his dead body in the chhaal forest and the wheel spanners used in the commission of murder as well as the clothes which they had worn during the time of incident were also hidden with an intention to cause the evidence of his murder to disappear, thereby they committed the

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aforesaid offences.

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(Cr. A. Nos. 956 & 1166 of 2018)

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4. PW-1 Kailash Vaishnav, son of deceased Kali Maharaj, had reported the matter at Police Station Chhaal where Dehati Merg Intimation was registered vide Exhibit P-1 on the basis of which Merg Intimation bearing No.20/2016 was recorded vide Exhibit P-46 and thereafter at the instance of PW-1 Kailash Vaishnav, FIR was registered at Police Station Urga vide Exhibit P-2. Dead body of deceased Kali Maharaj was recovered and inquest proceeding was conducted vide Exhibit P-4. Vide Exhibit P-29, post-mortem of the deceased was conducted by PW-16 Dr. S.K. Paikra who opined the cause of his death to be cardiorespiratory failure on account of head injuries and excessive hemorrhage and the nature of death to be homicidal. Pursuant to the memorandum statement of A-1 Dulari Kashyap recorded vide Exhibit P-10, a bloodstained wheel spanner and clothes were seized vide recovery memo Exhibit P-11. Similarly, pursuant to the memorandum statement of A-6 Filesh Kashyap recorded vide Exhibit P-12, a white colour Bolero vehicle No.CG12-D/1309, a mobile phone and bloodstained wheel spanner and clothes were seized vide recovery memo Exhibit P-13. Likewise, bloodstained clothes of A-7 Nagesh Kashyap were

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(Cr. A. Nos. 956 & 1166 of 2018)

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seized vide recovery memo (Exhibit P-15) pursuant to his memorandum statement (Exhibit P-14). Vide Exhibits P-30, 31, 32 & 33 query reports were obtained from PW-16 Dr. S.K. Paikra in respect of the wheel spanners seized from A-1 Dulari Kashyap and A-6 Filesh Kashyap. As per Forensic Science Laboratory (FSL) report, which is Exhibit P-45, on chemical examination only blood was found on the seized articles, except the control earth seized from the spot.

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5. On completion of the investigation, all the accused appellants were charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. The accused appellants appeared before the Trial Court where charges were framed against them for offence punishable under Sections 341, 364, 365, 120B, 302 & 201 of IPC to which they denied and claimed to be tried.

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6. During the course of trial, in order to prove its case, the prosecution examined as many as 23 witnesses as PW-1 to PW-23 and exhibited 46 documents vide

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(Cr. A. Nos. 956 & 1166 of 2018)

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Exhibits P-1 to P-46. After closure of the prosecution evidence, respective statement of the accused persons was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, statements of four witnesses have been relied on as Exhibits D-1 to D-4.

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7. After conclusion of trial, learned Trial Court, by impugned judgment dated 13.6.2018, on appreciation of the evidence available on record, held all the accused appellants guilty for offence punishable under Sections 341, 364, 365, 120B, 302 & 201 of IPC and accordingly convicted and sentenced them in the manner as mentioned at the chart given in paragraph-2 of this Judgment, which led to filing of the present two appeals, one by A-1 Dulari Kashyap, A-2 Komal Prasad Mannewar, A-4 Sajan Mannewar, A-6 Filesh Kashyap and A-7 Nagesh Kashyap and the other by A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi against the impugned Judgment passed by learned Trial Court.

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(Cr. A. Nos. 956 & 1166 of 2018)

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8. Mr. Ravindra Sharma, learned Counsel appearing for A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi in Cr.A. No.956/2018, would submit that as per the statement of PW-6 Jawahar and PW-9 Balram itself it is duly established that A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi had already run away from the spot when the incident had first taken place near Barpali where the deceased was being assaulted by the other accused persons and therefore there is no role of A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi in commission of the alleged crime. Furthermore, except A-1 Dulari Kashyap and A-6 Filesh Kashyap, no material object has been recovered from the possession of A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi so as to connect them with the instant crime. Therefore, conviction of A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi is absolutely unjustified and as such they are entitled to be acquitted of the alleged offence and their appeal deserves to be allowed.

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9. Ms. Ranjana Jaiswal, learned Counsel appearing for A-1 Dulari Kashyap, A-2 Komal Prasad Mannewar, A-

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4 Sajan Mannewar, A-6 Filesh Kashyap and A-7

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(Cr. A. Nos. 956 & 1166 of 2018)

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Nagesh Kashyap in Cr.A. No.1166/2018, would submit that PW-2 Jeevanlal, who has been projected as eye-witness by the prosecution and accepted by learned Trial Court, is not at all an eye-witness and therefore his testimony could not have been relied upon by learned Trial Court to base conviction of A-1 Dulari Kashyap and A-6 Filesh Kashyap. Furthermore, on the wheel spanners allegedly seized pursuant to the memorandum statements of A-1 Dulari Kashyap and A-2 Filesh Kashyap only blood has been found including the other articles seized and therefore, in absence of human blood, recovery of the alleged weapon of offence would be of no use to the prosecution. The recovery of the alleged weapon of offence also cannot be said to be duly proved by PW-4 Chudamani Rathore and PW-5 Ashish Rathore. As such, A-1 Dulari Kashyap and A-6 Filesh Kashyap are entitled to be acquitted of the alleged offence. Similarly, so far as the other accused appellants are concerned, no active role has been played by them in commission of the alleged crime, except their presence during the initial incident. Thus, all the accused appellants are entitled to be acquitted of the alleged offence and their appeal deserves to be allowed.

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(Cr. A. Nos. 956 & 1166 of 2018)

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10. Mr. Ashish Shukla, learned Additional Advocate General, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the conviction of the accused appellants is absolutely justified. PW-3 Rohit Yadav has clearly stated that he was driving the Scorpio vehicle in which deceased Kali Maharaj was also sitting and their vehicle was stopped by A-1 Dulari Kashyap and A-6 Filesh Kashyap by standing their Bolero vehicle in front of the Scorpio vehicle and thereafter A-1 Dulari Kashyap and A-6 Filesh Kashyap came out of their Bolero vehicle and pulled deceased Kali Maharaj out of the Scorpio vehicle and assaulted him and the other accused persons have also played active role in commission of the crime. Moreover, in the FSL report, blood has been found on the wheel spanners and the clothes seized pursuant to the memorandum statement of A-1 Dulari Kashyap and A-6 Filesh Kashyap. As such, learned Trial Court is absolutely justified in convicting the accused appellants for the said offences and therefore both the appeals are liable to be dismissed.

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(Cr. A. Nos. 956 & 1166 of 2018)

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11. We have heard learned Counsel for parties, considered their rival submissions and also perused the record of the case carefully and thoroughly.

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12. As regards the first and foremost question as to whether the death of deceased Kali Maharaj was homicidal in nature, learned Trial Court has answered the said question in affirmative relying upon the statement of PW-16 Dr. S.K. Paikra who has opined the cause of death of deceased Kali Maharaj to be cardio-respiratory failure on account of head injuries and excessive hemorrhage and the nature of his death has been opined to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to record. We, therefore, affirm the finding of the Trial Court holding that the death of deceased Kali Maharaj was homicidal in nature.

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13. From careful perusal of the record of the case including the impugned Judgement as well as the contentions put forth by learned Counsel for parties, it is quite clear that case of the prosecution is based on the testimony of eye-witness PW-2 Jeevanlal as well as on the circumstantial evidence. Similarly, motive of the offence is also available as per the

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(Cr. A. Nos. 956 & 1166 of 2018)

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statement of PW-1 Kailash Vaishnav and PW-8 Lalji Kashyap who have clearly stated that A-1 Dulari Kashyap had taken Six Lakh rupees from deceased Kali Maharaj. A-1 Dulari Kashyap had sold his agriculture land to PW-8 Lalji Kashyap in lieu of which he had also received some cash amount from PW-8 Lalji Kashyap. The deceased Kali Maharaj had gone along with PW-8 Lalji Kashyap to Korba in the Scorpio vehicle for the purpose of registration of the said agriculture land and while returning from the registry office, a dispute had arisen between the parties on the question of returning money.

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14. We think it appropriate to first consider on the issue of motive of the offence and thereafter the testimony of eye-witness PW-2 Jeevanlal and the circumstantial evidence of the recovery of weapon of offence from A-1 Dulari Kashyap and A-6 Filesh Kashyap, on which blood has been found in the FSL report and also on the role played by the other accused persons in commission of the instant crime.

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Motive of the offence

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15. PW-1 Kailash Vaishnav, son of deceased Kali Maharaj, has stated in his statement before the Court that A-1 Dulari Kashyap had taken Six Lakh rupees from his

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(Cr. A. Nos. 956 & 1166 of 2018)

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father and he had called his father to return the money as he had sold his agriculture land to PW-8 Lalji Kashyap and the aforesaid fact has also been brought on record in shape of corroboration in the cross-examination of PW-1 Kailash Vaishnav. PW-8 Lalji Kashyap to whom A-1 Dulari Kashyap had sold his land has clearly stated that he had given certain amount of cash to A-1 Dulari Kashyap in lieu of purchase of agriculture land from A-1 Dulari Kashyap. He has also stated that deceased Kali Maharaj had demanded his money back from A-1 Dulari Kashyap but he (A-1) had not given money back to the deceased. Further, he has stated that A-1 Dulari Kashyap had pulled out deceased Kali Maharaj from his Scorpio vehicle and started quarreling. As such, it is quite clear that A-1 Dulari Kashyap had taken money from deceased Kali Maharaj. A-1 Dulari Kashyap had received money from PW-8 Lalji Kashyap in lieu of sale of his agriculture land to PW-8 Lalji Kashyap. The deceased Kali Maharaj had also accompanied PW-8 Lalji Kashyap to the office of the Sub Registrar at Korba to get his money back from A-1 Dulari Kashyap and on account of demanding his money back, a dispute had arisen between them.

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(Cr. A. Nos. 956 & 1166 of 2018)

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Thus, in view of the testimony of PW-1 Kailash Kashyap and PW-8 Lalji Kashyap, we find that there was a strong motive for A-1 Dulari Kashyap and his son A-6 Filesh Kashyap to commit the intant crime and as such motive of the offence stands duly established.

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Testimony of PW-2 Jeevanlal as eye-witness

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16. As per the statement of PW-2 Jeevanlal, on the date of offence, PW-2 Jeevanlal had also accompanied PW-8 Lalji Kashyap in the Scorpio vehicle to the office of the Sub Registrar at Korba for the purpose of registration of the agriculture land sold to PW-8 Lalji Kashyap by A-1 Dulari Kashyap. PW-8 Lalji Kashyap had given certain cash amount to A-1 Dulari Kashyap in lieu of purchase of his said agriculture land. Subsequently, on the way back near Barpali, A-1 Dulari Kashyap overtook them and stopped their Bolero vehicle in front of the Scorpio vehicle in which deceased Kali Maharaj was also sitting along with PW-2 Jeevanlal, PW-8 Lalji Kashyap and other witnesses including PW-3 Rohit Yadav who was the driver of the Scorpio vehicle and has also supported the case of the prosecution. Thereafter, A-1 Dulari Kashyap and A-6 Filesh Kashyap pulled out deceased Kali Maharaj

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(Cr. A. Nos. 956 & 1166 of 2018)

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from the Scorpio vehicle and assaulted him with wheel spanners while the other accused persons were standing there. After that, A-1 Dulari Kashyap and A-6 Filesh Kashyap had taken deceased Kali Maharaj to Chhaal forest where A-1 Dulari Kashyap and A-2 Filesh Kashyap again assaulted deceased Kali Maharaj and took him into the forest and left him out there. PW-2 Jeevanlal has been subjected to crossexamination on behalf of A-1 Dulari Kashyap and A-6 Filesh Kashyap, but nothing could be extracted to hold that A-1 Dulari Kashyap and A-6 Filesh Kashyap have not assaulted deceased Kali Maharaj. A-1 Dulari Kashyap and A-2 Filesh Kashyap not only assaulted deceased Kali Maharaj with wheel spanners while he was pulled out from the Scorpio vehicle near Barpali but they also abducted and took him on their Bolero vehicle to Chhaal forest where he was again assaulted by them and left out in the forest and thereafter his dead body was recovered. The incident was informed by PW-2 Jeevanlal to PW-1 Kailash Vaishnav, son of deceased Kali Maharaj, who along with him lodged the FIR (Exhibit P-2) in which also the name of A-1 Dulari Kashyap and A-6 Filesh Kashyap finds place as the assailants of deceased Kali Maharaj. As such, we find

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(Cr. A. Nos. 956 & 1166 of 2018)

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no reason to disbelieve the testimony of PW-2 Jeevanlal as an eye-witness to the incident, which is wholly reliable and trustworthy.

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17. In that view of the matter, it is clear that A-1 Dulari Kashyap and A-6 Filesh Kashyap had abducted deceased Kali Maharaj from Scorpio vehicle and took him to their Bolero vehicle and assaulted him with wheel spanners on his head, face and jaw on account of which he sustained serious injuries and died. The injuries sustained by deceased Kali Maharaj also stand corroborated from the autopsy report (Exhibit P-29) of deceased Kali Maharaj in which PW-16 Dr. S.K. Paikra found seven injuries over the skull qua multiple fractures over his parietal and occipital bone and opined the cause of his death to be cardiorespiratory failure as a result of head injuries and excessive hemorrhage, homicidal in nature. Moreover, pursuant to the memorandum statements of A-1 Dulari Kashyap (Exhibit P-10) and A-6 Filesh Kashyap (Exhibit P-12), bloodstained wheel spanners were recovered vide recovery memos, Exhibits P-11 & P-13, including their bloodstained clothes and other articles. PW-4 Chudamani Rathore and PW-5 Ashish Rathore, the two memorandum and seizure witnesses,

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(Cr. A. Nos. 956 & 1166 of 2018)

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have also duly supported the case of the prosecution in respect of the memorandum and recovery of the weapon of offence made from A-1 Dulari Kashyap and A-6 Filesh Kashyap. Query reports (Exhibits P-30 & 31) submitted by PW-16 Dr. Paikra in respect of the wheel spanners seized pursuant to the memorandum statements of A-1 Dulari Kashyap and A-2 Filesh Kashyap also opined that the injuries sustained by deceased Kali Maharaj resulting to his death could be caused by the seized wheel spanners on which blood was also found in the FSL report (Exhibit P-45).

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18. Thus, we are of the considered opinion that so far as A-1 Dulari Kashyap and A-6 Filesh Kashyap are concerned learned Trial Court has rightly held them guilty of the offence under Sections 341, 364, 365, 120B, 302 & 201 of IPC and we affirm the conviction of A-1 Dulari Kashyap and A-6 Filesh Kashyap for the said offences.

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19. However, so far as the conviction of A-2 Komal Prasad Mannewar, A-3 Suraj Kumar Suryavanshi, A-4 Sajan Mannewar, A-5 Naresh Kumar Suryavanshi and A-7 Nagesh Kashyap are concerned, PW-2 Jeevanlal, the eye-witness, has only stated that they were present at

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(Cr. A. Nos. 956 & 1166 of 2018)

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the time when the incident had first occurred near Barpali. However, their presence was not there on the second occasion when deceased Kali Maharaj was again assaulted by A-1 Dulari Kashyap and A-6 Filesh Kashyap in Chhaal forest and left out in the forest from where his dead body was recovered the next day. As per the statement of PW-6 Jawahar and PW-9 Balram, A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi had already run away from the spot when the incident had first taken place near Barpali. Similarly, so far as A-2 Komal Prasad Mannewar, A-4 Sajan Mannewar and A-7 Nagesh Kashyap are concerned, from the testimony of PW-2 Jeevanlal, it is also duly established that these accused persons have also not played any active role in commission of the said offence and also there is no recovery of any material object was made from these accused persons, except the clothes seized pursuant to the memorandum statement of A-7 Nagesh Kashyap on which blood was found in the FSL report. In that view of the matter, we are of the considered opinion that learned Trial Court has deeply erred in convicting A-2 Komal Prasad Mannewar, A-3 Suraj Kumar Suryavanshi, A-4 Sajan Mannewar, A-5

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(Cr. A. Nos. 956 & 1166 of 2018)

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Naresh Kumar Suryavanshi and A-7 Nagesh Kashyap for offence under Sections 341, 364, 365, 120B, 302 & 201 of IPC and therefore their conviction for the said offence deserves to be set-aside and they are entitled to be acquitted of the said offences on the basis of benefit of doubt and it is accordingly held so.

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20. Resultantly, in view of the above discussion and analysis of evidence available on record, we conclude as follows:-

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(1) Cr.A. No.956/2018 of A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi is allowed.

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(2) Cr.A. No. 1166/2018 is allowed so far as A-2 Komal Prasad Mannewar, A-4 Sajan Mannewar, and A-7 Nagesh Kashyap are concerned and stands dismissed so far as A-1 Dulari Kashyap and A-6 Filesh Kashyap are concerned.

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(3) Conviction and sentence of A-1 Dulari Kashyap and A-6 Filesh Kashyap for offence under Sections 341, 364, 365, 120B, 302 & 201 of IPC are affirmed. Since they are already in jail since 13.6.2018, no action is required.

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(Cr. A. Nos. 956 & 1166 of 2018)

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(4) Conviction and substantive sentence of A-2 Komal Prasad Mannewar, A-3 Suraj Kumar Suryavanshi, A-4 Sajan Mannewar, A-5 Naresh Kumar Suryavanshi and A-7 Nagesh Kashyap for offence under Sections 341, 364, 365, 120B, 302 & 201 of IPC are set-aside and they are acquitted of the said offences on the basis of benefit of doubt.

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(5) A-2 Komal Prasad Mannewar, A-3 Suraj Kumar Suryavanshi and A-5 Naresh Kumar Suryavanshi are already on bail by virtue of Order dated 22.1.2019 passed by this Court. They need not surrender. However, their bail-bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of CrPC.

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(6) A-4 Sajan Mannewar and A-7 Nagesh Kashyap are reported to in jail since 13.6.2018. They are directed to be released from jail forthwith, if their detention is not required in connection with any other offence.

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(Cr. A. Nos. 956 & 1166 of 2018)

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21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the

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earliest.

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Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Sharad

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Digitally signed SHARAD by SHARAD KUMAR KUMAR YADAVDate: YADAV 2024.08.23 10:40:45 +0530

Dulari Kashyap v. State of Chhattisgarh

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Dulari Kashyap v. State of Chhattisgarh

Case brief

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