Appellant convicted of murdering his uncle by axe assault; sole eyewitness wife turned hostile, and FSL report showed only blood (origin unverified) on the seized weapon. Relying on Balwan Singh, the High Court held the recovery useless to the prosecution and acquitted the appellant on benefit of doubt.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1580 of 201 7
(Arising out of judgment dated 24.07.2017 passed in Sessions Trial No. 28/2017 by the Sessions Judge, Bastar)
Somaru Nag S/o Baisakhu Nag aged about 35 years, CasteBhurwa, Tribes, Occupation Agriculturist, R/o Village – Bade kawali, Tongopara, P.S. Frezarpur, District – Bastar, Chhattisgarh.
---- Appellant (In Jail)
Versus
State of Chhattisgarh, Through: Station House Officer, Police Station- Frezarpur, District-Bastar, Chhattisgarh.
| ----Respondent | |
|---|---|
| ---------------------------------- | ----------------------------------------------------- |
| For Appellant : |
Mr. Shashi Kumar Kushwaha Advocate/Panel Lawyer appointed by |
| Chhattisgarh High Court Legal Services Committee |
|
| For Respondent-State : ---------------------------------- |
Mr. Sharad Mishra, Panel Lawyer. ------------------------------------------------------- |
DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (05.03.2024)
Sanjay K. Agrawal, J.
(1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 24.07.2017, passed by learned Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Trial No. 28/2017, whereby the appellant has been
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convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/and, in default of payment of fine, to undergo additional rigorous imprisonment for six months.
(2) The case of the prosecution, in short, is that on the date of offence i.e. 15.01.2017 at about 11:45 PM, in village Bade Kawali, Tongopara, Police Station Frezarpur, District Bastar, the appellant assaulted his father’s brother Lamru Nag (now deceased), by means of axe, by which he suffered grievous injuries and died, thereby committed the offence under Section 302 of IPC.
(3) Further, the case of the prosecution, in a nutshell, is that on the date of offence i.e. 15.01.2017, Lamru Nag (now deceased) and his wife Smt. Baisakhi Bai was sleeping in their house after having their meal. At about 11:45 PM, the appellant came to the house of the deceased and assaulted him (deceased), by means of axe, on account of previous enmity, by which he suffered grievous injuries and died. At that time, Smt. Baisakhi Bai (PW-02), the wife of the deceased was also present in the house and witnessed the incident. After that the matter was reported by Jayram Nag (PW-01), son of the deceased to the police. Merg intimation was registered vide Exs.P/02 & P/13 and FIR was lodged vide Exs.P/01 & P/12. Inquest proceeding
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was conducted vide Ex.P/05. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/14A), Dr. J.L. Dariyo (PW-06) opined that the cause of death is shock (hemorrhagic) due to excessive bleeding and nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/10 and his memorandum statement was recorded (Ex.P/07) pursuant to which, seizure of axe was made vide Ex.P/08 and sent for chemical examination. In FSL report (Ex.P/22) blood was found on axe (Article-E).
(4) After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.
(5) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 09 witnesses and exhibited 25 documents. The statement of the appellant/ accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has neither examined any witness nor
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exhibited any document.
(6) By impugned judgment, the learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant herein for offence punishable under Sections 302 of IPC and sentenced him as mentioned in the opening para of this judgment against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.
(7) Learned counsel for the appellant submits that there is no direct evidence in the case. The conviction of the accused was based on circumstantial evidence. The chain of circumstances has not been completed even human blood was not found on the weapon of offence i.e. axe which was seized at the instance of the appellant, hence it is of no use to the prosecution. He further submits that the conviction of the appellant for the offence punishable under Section 302 of IPC has not been proved by the prosecution as the eye witness of the incident, namely Smt. Baisakhi Bai (PW-02), wife of the deceased has not supported the case of the prosecution in her cross-examination and turned hostile. Thus, the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the appeal deserves to be allowed and the appellant is entitled to be acquitted on the basis of benefit of doubt.
(8) Per-contra , learned State counsel, would submit that the
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prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court is absolutely justified in convicting the appellant for the said offence and therefore the appellant is not entitled to be acquitted on the basis of benefit of doubt and appeal deserves to be dismissed.
(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has answered in affirmative taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.P/14A) which is duly proved by the evidence of Dr. J.L. Dariyo (PW-06). Accordingly, taking into consideration the postmortem report (Ex.P/14A) and the statement of Dr. J.L. Dariyo (PW-06), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding.
(11) Now, the question is as to whether the appellant is the author of the crime?
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(12) In the instant case, it is clear from the entire evidence that the case is based upon the direct evidence of Smt. Baisakhi Bai (PW-02), wife of the deceased, however, she supported the case of the prosecution in examination-in-chief, but she turned hostile in her cross-examination by clearly stating that she has not seen the appellant assaulting her husband (deceased). Furthermore, there in no other direct evidence, but in the shape of corroborative piece of evidence, the learned trial Court relied upon the fact that pursuant to the memorandum statement (Ex.P/07) of the appellant, the weapon of offence i.e. axe was seized vide Ex.P/08 and sent for chemical examination to FSL and in FSL report (Ex.P/22), only blood is stated to have been found in the said axe. There is no other clear evidence available on record to show whether the said blood was human blood or not, due to the stain having disintegrated.
(13) The Supreme Court in the matter of Balwan Singh V. State of Chhattisgarh and another , reported in (2019) 7 SCC
781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not 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 proved because of disintegration of blood and held in para 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. ”
(14) Reverting to the facts of the present case, in the light of the aforesaid discussion, it is quite vivid that the human blood was not found on the weapon of offence i.e. axe which was reported to have been seized vide Ex.P/08, based on the memorandum statement of the appellant (Ex.P/07). In such a situation, the said recovery is of no use to the prosecution in view of the decision rendered by the Supreme Court in the matter of Balwan Singh (supra). In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of IPC and the appellant is entitled to be acquittal from the aforesaid offence on the basis of benefit of doubt.
(15) Accordingly, the impugned judgment dated 24.07.2017 passed by the Sessions Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of benefit of doubt. Appellant is stated to be in jail since 17.01.2017. He be released from jail forthwith, if his
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detention is not required in connection with any other offence.
(16) This criminal appeal, accordingly, stands allowed .
(17) Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith and to the Superintendent of Jail where he lodged and suffering jail sentence, for information and necessary action, if any at the earliest.
Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
H.L. Sahu
2 issues framed by the court
Whether the death of the deceased was homicidal in nature.
Whether the appellant could be convicted when the sole eye witness turned hostile and FSL report did not confirm human blood on the seized axe.
Colour shows how this judgement treated each authority
Balwan Singh V. State of Chhattisgarh and anotherRelied on¶13
(2019) 7 SCC 781 · Who else cites this
3 provisions across 2 enactments
Somaru Nag
State of Chhattisgarh
Sanjay K. Agrawal
Sanjay Kumar Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
