Rajkumar Kathe Vs State of Chhattisgarh

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(Cr. A. No. 1431 of 2019)

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2024:CGHC:45508-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 1431 OF 2019

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(Arising out of Judgment dated 26.8.2019 passed by Sessions Judge, District Janjgir-Champa in Sessions Case No.81/2018)

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 Rajkumar Kathe, S/o Sugreev Kathe, aged about 32 years, R/o Cheudih, near Sheetla Mandir, Cheudih, Police Station Pamgarh, District Janjgir Champa (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Pamgarh, District Janjgir-Champa (C.G.)

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... Respondent(s)

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For Appellant	:-	Ms. Sharmila Singhai, Senior Advocate, with Ms. Ishita Niyogi, Advocate.
For Respondent-State	:-	Mr. Ashish Shukla, Addl. Advocate General,
		with Mr. HAPS Bhatia,
		and Mr. Sharad Mishra,
		Panel Lawyers.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board [21.11.2024]

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(Cr. A. No. 1431 of 2019)

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Sanjay K. Agrawal, J.

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1. The present Criminal Appeal, filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) assails the legality, validity and correctness of the Judgment dated 26.8.2019 passed by learned Sessions Judge, District Janjgir-Champa (Trial Court) in Sessions Case No.81/2018, by which the sole Appellant herein has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder to undergo Imprisonment for Life and to pay Fine of Rs.10,000/- and in default of payment of fine amount to suffer additional Rigorous Imprisonment for 01 year, for committing offence of murder of Shyamacharan @ Utta (deceased), after exonerating the co-accused Pawan Khare of the offence under Section 302/34 of IPC.

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2. Factual matrix of the prosecution case, in a nutshell, is that in the intervening night of 5^th & 6^th of October, 2018 around 1:30 O’clock near Sheetla Mandir, Cheudih under the limits of Police Station Pamgarh, the present Appellant and the acquitted co-accused

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(Cr. A. No. 1431 of 2019)

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Pawan Khare are said to have assaulted the deceased Shayamacharan with axe on account of which he suffered grievous injuries and died. The incident is said to have witnessed by PW-1 Jawab Singh, brother of deceased Shyamacharan and PW-3 Ravi Tandon. PW-1 Jawab Singh, immediately reported the matter at Police Station, Pamgarh and lodged Merg Intimation (Ex. P-1) followed by FIR (Ex. P-2) in which PW-1 Jawab Singh has stated that the entire incident has been witnessed by PW-3 Ravi Tandon. Thereafter, Crime Details Form (Ex. P-3) was prepared by the Investigating Officer, PW-10 A.S. Khan. Inquest Panchnama (Ex. P-4) was conducted and dead-body of deceased Shyamacharan was subjected to postmortem which was conducted by PW-9 Dr. Saurabh Yadav vide Ex. P-19 in which cause of his death has been opined to be shock due to severe hemorrhage from the incised wounds, homicidal in nature. Memorandum statement of the Appellant was recorded vide Ex. P-9 pursuant thereto, a bloodstained axe was recovered vide seizure memo (Ex. P-10) and his bloodstained full-shirt and full-pant were also seized vide seizure memo (Ex. P-12). Nazri Naksha (Ex. P-6) was prepared by the Patwari, PW-2

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(Cr. A. No. 1431 of 2019)

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Shobharam Dewangan. Vide query report (Ex. P-27), PW-9 Dr. Saurabh Yadav opined that the injuries caused to deceased Shyamacharan could be caused by the seized axe and advised for the forensic examination of the axe to establish the presence of blood on it. As per the FSL report (Ex. P-34), human blood was found on the full-shirt (Art. C), full-pant (Art. D) and axe (Art. E) seized from the Appellant as well as on the T-shirt (Art. H), barmuda pant (Art. I1) and underwear (Art. I2) of deceased Shyamacharan including the full-shirt (Art. F) of the acquitted coaccused Pawan Khare.

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3. On completion of the investigation, the two accused persons 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. After committal, both the accused persons appeared before the Trial Court where charges were framed against them for offence under Sections 302/34 of IPC to which they denied and entered into trial.

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(Cr. A. No. 1431 of 2019)

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4. During the course of trial, in order to prove its case, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited 34 documents vide Exhibits P-1 to P-34. After closure of the prosecution evidence, statements of the accused persons were 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 three witnesses have been relied on vide Exbts. D-1 to D-3.

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5. On conclusion of the trial, learned Trial Court, vide impugned Judgment dated 26.8.2019, after hearing the arguments and appreciating the evidence came on record, found the present Appellant guilty of committing the offence of murder of deceased Shyamacharan and accordingly while acquitting the co-accused Pawan Khare of the offence under Section 302/34, only convicted the present Appellant for offence under Section 302 of IPC and sentenced him thereunder for Life Imprisonment and Fine of Rs.10,000/- with default stipulation, which led to the filing of the present appeal by the Appellant assailing the impugned judgment passed by the Trial Court.

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(Cr. A. No. 1431 of 2019)

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6. Ms. Sharmila Singhai, learned Senior Counsel appearing on behalf of the Appellant, would submit that the sole testimony of PW-1 Jawab Singh, being the brother of deceased Shyamacharan, cannot be said to be reliable and trustworthy and his testimony is also contradictory to the testimonies of other prosecution witnesses. She would further submit that PW-3 Ravi Tandon has not seen the incident and the bloodstained axe was not seized at the instance of the present Appellant as per the statements of PW-7 Awadhram and PW-8 Dulichand. Similarly, the Crime Details Form (Ex. P-3) and Nazri Naksha (Ex. P-6) both do not show as to from which place PW-1 Jawab Singh had seen the incident and there is also no source of light at the spot has been shown in those two site plans. As such, the prosecution has failed to establish the alleged offence against the Appellant beyond reasonable doubt and the learned Trial Court has wrongly convicted him for offence under Section 302 of IPC of which he is entitled to be acquitted extending him the benefit of doubt, as there is no sufficient and cogent evidence available on record for his conviction in the alleged offence.

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(Cr. A. No. 1431 of 2019)

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7. Mr. Ashish Shukla, learned Additional Advocate General, would however submit that the prosecution has been able to bring home the offence against the Appellant beyond reasonable doubt and learned Trial Court has rightly convicted him for offence under Section 302 of IPC, relying upon the testimony of PW-1 Jawab Singh who is in-fact a reliable witness and as such the appeal is liable to be dismissed.

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8. We have heard learned counsels appearing for parties, considered their rival submissions made herein above and also perused the record of the case with utmost care and circumspection.

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9. The two questions that arise for our consideration are:

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(i) Whether the death of deceased Shyamacharan was homicidal?

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(ii) Whether learned Trial Court has rightly convicted the Appellant for offence under Section 302 of IPC on the basis of evidence available on record?

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10. As regards the first and foremost question as to whether the death of deceased Shyamacharan was homicidal, learned Trial Court has relied on the statement of PW-9 Dr. Saurabh Yadav who has conducted the post-mortem examination of deceased Shyamacharan and also proved the post-mortem report (Ex. P-19) in which he found three incised

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(Cr. A. No. 1431 of 2019)

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wounds on the neck and head of deceased Shyamacharan and opined that the cause of his death was shock due to severe hemorrhage from the said incised wounds and the nature of his death has been opined to be homicidal. Thus, from the medical evidence of PW-9 Dr. Saurabh Yadav, who in his postmortem report (Ex. P-19) has clearly opined that the death of deceased Shyamacharan had occurred due to shock and hemorrhage and the nature of his death was homicidal, we are of the considered opinion that the finding recorded by learned Trial Court holding the death of deceased Shyamacharan to be homicidal in nature is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to record.

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11. So far as the next question as to whether learned Trial Court is justified in convicting the Appellant for offence under Section 302 of IPC is concerned, the conviction of the Appellant is based on the testimony of PW-1 Jawab Singh as well as on the seizure of bloodstained axe (pursuant to the memorandum statement of the Appellant) on which human blood has been found as per the FSL report (Ex. P-34).

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(Cr. A. No. 1431 of 2019)

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12. To form the basis of conviction of the Appellant for offence of murder of deceased Shyamacharan, learned Trial Court has prominently relied upon the testimony of PW-1 Jawab Singh as an eye-witness to the incident, which has been seriously questioned on behalf of the Appellant on various grounds that he is not an eye-witness.

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13. It is the case of the prosecution that on the date of offence at the time of incident, the present Appellant, the acquitted co-accused Pawan Khare, PW-4 Kishore Khare (brother-in-law of deceased Shyamacharan) and the deceased Shyamacharan all were playing cards near chhote talab of village Cheudih and, at that time, a dispute arose between the Appellant and the deceased Shyamacharan and PW-4 Kishore Khare on the concern that they should stop playing cards in the late night. During the scuffle, the Appellant got pushed and fell down in the canal and thereafter he is said to have assaulted PW-4 Kishore Khare on his head with stone on account of which, PW-4 Kishore Khare suffered injuries and was escorted by the Appellant and deceased Shyamacharan to Community Health Centre, Pamgarh and from where PW-4 Kishore Khare was referred to CIMS, Bilaspur.

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(Cr. A. No. 1431 of 2019)

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According to the prosecution, there again a dispute arose between deceased Shyamacharan and the Appellant in respect of incurring of the expenses of treatment of his brother-in-law PW-4 Kishore Khare and lodging of the FIR regarding the said incident of assault made by the Appellant on PW-4 Kishore Khare and thereafter the deceased Shyamacharan was taken by the acquitted co-accused Pawan Khare near Sheetla Mandir, Cheudih where PW-1 Jawab Singh and PW-3 Ravi Tandon reached and found that the Appellant was also standing there armed with axe and the Appellant had assaulted deceased Shyamacharan with axe resulting in his death, which was witnessed by PW-1 Jawab Singh as well as PW-3 Ravi Tandon. Immediately thereafter, Merg Intimation (Ex. P-1) was lodged by PW-1 Jawab Singh at 2:00 a.m. followed by FIR (Ex. P-2) at 2:20 a.m. in which PW-1 Jawab Singh has stated that the entire incident has been witnessed by PW-3 Ravi Tandon.

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14. From perusal of the entire record, it is quite vivid that immediately after the incident ( i ) Merg Intimation (Ex. P-1) was lodged by PW-1 Jawab Singh but in which he has not expressly stated that he had seen the entire incident and ( ii ) FIR (Ex. P-2) was also lodged by PW-1

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(Cr. A. No. 1431 of 2019)

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Jawab Singh after 20 minutes of the lodging of Merg Intimation (Ex. P-1) and in the FIR he has expressly stated that the entire incident was seen by PW-3 Ravi Tandon. However, PW-3 Ravi Tandon has turned hostile and stated before the Court that later on when he and PW-1 Jawab Singh were returning home, en route near Sheetla Mandir the dead-body of deceased Shyamacharan was seen lying there by PW-1 Jawab Singh and then they went to the house of the deceased and informed his father (Ganesh, father of deceased Shyamacharan, has not been examined). In paragraph 7 of his statement, PW-3 Ravi Tandon has reiterated that near Sheetla Mandir, PW-1 Jawab Singh had noticed the dead-body of deceased Shyamacharan and informed him and at that time the Appellant was not present there. The Supreme Court in the matter of Balu Sonba Shinde v. State Maharashtra 1 has held that the testimony of a hostile cannot be ipso facto rejected. The portion of hostile witness’s evidence being advantageous to the parties may be taken advantage of, but the Court shall have to be extremely cautious and circumspect in such acceptance.

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1 (2002) 7 SCC 543

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(Cr. A. No. 1431 of 2019)

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15. PW-1 Jawab Singh has been termed to be an eyewitness to the incident. He was accompanied by PW-3 Ravi Tandon at the time of incident. According to PW3 Ravi Tandon, it is PW-1 Jawab Singh who had seen the dead-body of deceased Shyamacharan lying near Sheetla Mandir and informed him and in turn they informed the father of deceased Shyamacharan. PW-1 Jawab Singh has also made statement confirming the statement of PW-3 Ravi Tandon to the extent that he and PW-3 Ravi Tandon both had reached near Sheetla Mandir following the acquitted co-accused Pawan Khare and deceased Shyamacharan. But, thereafter PW-1 Jawab Singh has taken u-turn stating that near Sheetla Mandir, the present Appellant was also present there and he had assaulted deceased Shyamacharan with axe. PW-1 Jawab Singh had immediately after the incident lodged FIR (Ex. P-2) in which he has stated that the entire incident was seen by PW-3 Ravi Tandon, but he has not expressly stated that he also was present at the spot and had seen the incident. In the Merg Intimation (Ex. P-1) lodged just 20 minutes before lodging of FIR (Ex. P-2) by PW-1 Jawab Singh, there was no mention that the entire incident was seen by PW-3 Ravi Tandon or PW-1

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(Cr. A. No. 1431 of 2019)

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Jawab Singh was also present at the spot and he had also seen the incident. It is well settled law that FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Indian Evidence Act, 1872 (for short ‘IEA’) in judging the veracity of the prosecution case. ( See : Ram Kumar Pande v. The State of Madhya

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Pradesh2, Para 9 ). As such, the statement of PW-1 Jawab Singh to the extent of the omission of fact that he is the eye-witness to the incident is relevant fact under Section 11 of IEA and similarly the statement that PW-3 Ravi Tandon had seen the entire incident is also a relevant fact which however PW-3 Ravi Tandon has not at all supported stating that he and PW-1 Jawab Singh had reached the spot and it is PW-1 Jawab Singh who had pointed out the dead-body of Shyamacharan lying near Sheetla Mandir. Thus, the statement of PW-1 Jawab Singh to that extent cannot be said to be reliable and trustworthy, more particularly when he is real brother of deceased Shyamacharan.

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2 AIR 1975 SC 1026

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(Cr. A. No. 1431 of 2019)

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16. Another fact which needs consideration is that Nazri Naksha (Ex. P-6) was prepared by PW-2 Shobharam Dewangan, the Patwari, at the instance of PW-1 Jawab Singh, the alleged eye-witness to the incident. The said Nazri Naksha though could have been prepared at the instance of PW-3 Ravi Tandon who has been termed to be a witness who has seen the entire incident, nonetheless even if PW-1 Jawab Singh is taken to be an eye-witness to the incident, his house as per Nazri Naksha (Ex. P-6) is situated at 900 meter away from the place of incident and as to from which place he had seen the incident is not mentioned in the Nazri Naksha (Ex. P-6) or for that matter in the Crime Details Form (Ex. P-3) prepared by PW-10 A.S. Khan, the Investigating Officer. In this regard, the decision of the Supreme Court rendered in the matter of Pratap Singh and Another v. State Madhya Pradesh 3 is noticeable wherein their Lordships have held that the prosecution was duty bound to show the places in the site plan wherefrom the eye-witness had witnessed the incident. On this aspect also, the prosecution has miserably failed.

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3 (2005) 13 SCC 624

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17. Similarly, it is the case of the prosecution that the incident had occurred in the late night around 1:30 a.m. and the prosecution has projected that there was no light available at the spot as per the site plans (Ex. P-3 & P-6). In this regard, the prosecution has contradictory statement of PW-1 Jawab Singh who in his statement has stated that near Sheetla Mandir/shop of Himanshu and Amesh there were lights on, but this fact was omitted in both the site plans (Ex. P-3 & P-6) wherein nowhere it is depicted that there was source of light available at/near the spot which helped PW-1 Jawab Singh in witnessing the incident as alleged. This also puts a dent on the prosecution case.

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18. Likewise, PW-1 Jawab Singh is said to have informed about the incident to PW-7 Awadhram but the said witness (PW-7) did not state that he was informed by PW-1 Jawab Singh about the incident that it was the present Appellant who had caused death of deceased Shyamacharan. So also, according to PW-1 Jawab Singh, he had informed his father (Ganesh) regarding the incident, but Ganesh has not been examined to depose.

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(Cr. A. No. 1431 of 2019)

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19. Furthermore, according to the prosecution, pursuant to the memorandum statement of the Appellant, a bloodstained axe was recovered at his instance vide seizure memo (Ex. P-10) and his bloodstained fullshirt and full-pant were seized vide seizure memo (Ex. P-12) and as per the FSL report (Ex. P-34), human blood was found on the full-shirt (Art. C), full-pant (Art. D) and axe (Art. E) seized allegedly from the Appellant. However, PW-7 Awadhram, who is one of the two witnesses of memorandum and seizure proceedings, though has admitted his signatures on the memorandum and seizure memos but has stated that the memorandum statement of the Appellant was not recorded in his presence and the recovery of bloodstained clothes of the Appellant was also not made in his presence. As regards the recovery of bloodstained axe, PW-7 Awadhram has stated in paragraph 4 of his statement that the recovery of the axe was in-fact made at the instance of co-accused Pawan Khare who stands acquitted by learned Trial Court. PW-8 Dulichand, who is another witness of the memorandum and seizure proceedings, has also turned hostile and deposed in similar fashion, while admitting his signatures, that it is the co-accused

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(Cr. A. No. 1431 of 2019)

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Pawan (acquitted) at whose instance the recovery of axe was made from the roof top of Sheetla Mandir. As such, the prosecution has totally failed to establish the recovery of bloodstained clothes and axe from the exclusive possession of the Appellant and therefore the human blood found on the clothes and axe allegedly recovered from the possession of the Appellant is inconsequential and it would not help the prosecution case. Even otherwise learned Trial Court has already acquitted the co-accused Pawan Khare who, as per the prosecution, was actively involved in commission of the offence, though PW-1 Jawab Singh in paragraph 11 of his statement has stated that coaccused Pawan Khare had caught hold of his brother (deceased Shyamacharan) while the present Appellant was assaulting the deceased with axe.

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20. Concludingly, we are of the considered opinion that the credibility of PW-1 Jawab Singh as an eye-witness to the incident is questionable as there is material contradictions in the statements of PW-1 Jawab Singh and PW-3 Ravi Tandon who was admittedly an eyewitness as per the FIR lodged by PW-1 Jawab Singh with regard to the commission of the offence and they both have contradictory statements to each other. It is

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(Cr. A. No. 1431 of 2019)

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settled law by the Supreme Court that credibility of eye-witnesses is questionable when they contradicted themselves not only as regards the very commission of the offence but had given contradictory versions at different stages and therefore conviction of an accused cannot be based on such testimony. Apart from that, in both the site plans (Exbts. P-3 & P-6), neither is there any mention as to from which place PW-1 Jawab Singh had allegedly seen the incident nor is there mention of any source of light that was available at/near the place of incident. In addition, the recovery of bloodstained clothes on which human blood was found in the FSL report, has not been established from the possession of the Appellant as per the statements of PW-7 Awadhram and PW-8 Dulichand and the recovery of the alleged axe, as per the said witnesses, was actually made at the instance of coaccused Pawan Khare who has already been acquitted by learned Trial Court finding no evidence against him in commission of the instant crime. In this view of the matter, the present Appellant is entitled for acquittal of the offence under Section 302 of IPC on the basis of benefit of doubt, as learned Trial Court is absolutely

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(Cr. A. No. 1431 of 2019)

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unjustified in convicting him for the said offence in view of the evidence available on record.

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21. Resultantly, we allow this Criminal Appeal and setaside the impugned Judgment dated 26.8.2019 passed by learned Trial Court. Consequently, the Appellant stands acquitted of the offence under Section 302 of IPC. He is stated to be in jail since 6.10.2018. We direct him to be released forthwith from jail, unless he is required in connection with any other offence.

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22. 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 served with a 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) (Radhakishan Agrawal) Judge Judge

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sharad

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Digitally SHARAD signed bySHARADKUMAR KUMAR YADAV YADAV Date:2024.11.26 16:13:40 +0530

Rajkumar Kathe v. State of Chhattisgarh

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Rajkumar Kathe v. State of Chhattisgarh

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