Durjo Bhatra Vs State of Chhattisgarh

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(Cr.A. No.1783 of 2019)

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2024:CGHC:36000-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 1783 OF 2019

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( Arising out of Judgment dated 2.5.2014 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Case No.99 of 2013 )

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 Durjo Bhatra, S/o Kamlu Bhatra, aged about 40 years, Caste Bhatra, Occupation Labourer, R/o Village Kosmi, Outpost Bakawand, Police Station Nagarnar, District Bastar (C.G.)

... Appellant(s)

(In jail)

Versus

 State of Chhattisgarh, through: Incharge, Outpost Bakawand, Police Station Nagarnar, District Bastar (C.G.)

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... Respondent(s)

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For Appellant :- Ms. Anubhuti Marhas Advocate. For Respondent/State :- Mr. Ashish Shukla, Addl. Advocate General with Mr. Sharad Mishra, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Amitendra Kishore Prasad

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(Cr.A. No.1783 of 2019)

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Judgment on Board [13.09.2024]

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Sanjay K. Agrawal, J.

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1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC, in brief) has been filed by the appellant calling in question the legality, validity and correctness of the Judgment dated 2.5.2014 passed by learned Sessions Judge, Bastar at Jagdalpur (Trial Court) in Sessions Case No.99 of 2013, by which the appellant has been convicted for offences under Sections 302 and 323 of the Indian Penal Code, 1860 (IPC, in brief) and has been sentenced to undergo Imprisonment for Life (till death) with fine of Rs.2000/for offence under Section 302 of IPC and further to undergo Rigorous Imprisonment for 01 year for offence under Section 323 of IPC, with a direction to run both the sentences concurrently.

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2. A brief factual background of the case is that on 8.5.2013 around 2:00 p.m. in the night at Village Kosmi under Police Station Nagarnar, District Bastar, the appellant assaulted Goverdhan, father of PW-1 Dungru Rana, with axe (tangia) when he was sleeping

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in a cot in the courtyard outside the house, due to which he suffered grievous injuries and died and that the appellant is also said to have caused simple injuries to his sister-in-law (bhabhi), PW-2 Raila Bai, thereby committed the aforesaid offences.

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3. On the report of PW-1 Dungru Rana, Merg Intimation (Ex. P-14) followed with FIR (Ex. P-15 & P-1) were registered against the appellant. Inquest panchnama (Ex. P-7) was prepared and the dead-body of deceased Goverdhan was subjected to post-mortem which was conducted by PW-7 Dr. Radheshyam Bhanwar vide Ex. P-16 in which cause of his death was opined to be due to cardio-respiratory arrest and excessive bleeding and the nature of his death was opined to be homicidal. Memorandum statement of the appellant was recorded vide Ex. P-8 pursuant to which, a bloodstained axe was recovered vide recovery memo, Ex. P-9. Spot map was prepared vide Ex. P-2. Statements of the concerned witnesses were recorded. In the FSL report (Ex. P-25), blood was found on the seized axe (Art. ‘F’).

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4. On completion of the investigation, the appellant was charge-sheeted before the concerned Magistrate who

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(Cr.A. No.1783 of 2019)

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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 appellant appeared before the Trial Court where charges were framed against him to which he denied and claimed to be tried.

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5. During the course of trial, in order to prove its case, the prosecution examined as many as 08 witnesses as PW-1 to PW-8 and exhibited 25 documents vide Exhibits P-1 to P-25. After closure of the prosecution evidence, statement of the accused appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. In defence, however, neither any witness has been examined nor has any document been relied on by the appellant.

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6. After conclusion of the trial, learned Trial Court, by impugned judgment dated 2.5.2014, on appreciation of oral and documentary evidence came on record, held the appellant guilty of the offences punishable under Sections 302 and 323 of IPC and accordingly convicted

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and sentenced him in the manner as mentioned in the opening paragraph of this judgment, which led to filing of the present appeal by the appellant assailing the impugned judgment passed by the Trial Court.

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7. Ms. Anubhuti Marhas, learned counsel appearing for the appellant, would submit that PW-1 Dungru Rana is a res gestae witness as he has not seen the incident and there is no corroborative piece of evidence available on record in absence of which, conviction of the appellant for the alleged offences is not at all sustainable as not proved beyond reasonable doubt and the same therefore deserves to be set-aside, acquitting the appellant of the alleged offences on the basis of benefit of doubt.

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8. Mr. Ashish Shukla, learned Additional Advocate General, appearing along with Mr. Sharad Mishra, Panel Lawyer, for Respondent/State, would however submit that the 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 offences on the basis of the evidence which have come on record. The appellant as

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such does not deserve to be acquitted of the said offences and the appeal is liable to be dismissed.

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9. We have heard learned counsel for parties, considered their rival submissions and also perused the record of the case with utmost care and circumspection.

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10. The primary question, as to whether the death of deceased Goverdhan was homicidal in nature or not, has been answered by learned Trial Court in affirmative relying upon the statement of PW-7 Dr. Radheshyam Bhanwar who has conducted post-mortem examination of deceased Goverdhan and proved the post-mortem report (Ex. P-16) in which cause of his death has been opined to be due to cardio-respiratory arrest and excessive bleeding 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 the record. We, therefore, affirm the said finding of learned Trial Court, holding that the death of deceased Goverdhan was homicidal in nature.

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11. Now, the substantive question is, as to whether the appellant is author of the crime and has caused murder of deceased Goverdhan?

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12. In the instant case, PW-1 Dungru Rana has been projected by the prosecution and accepted by learned Trial Court as an eye-witness to the incident. However, a careful perusal of the statement of PW-1 Dungru Rana would reveal that in paragraph-3 of his examination-in-chief he has clearly stated that on hearing the noise when he along with his wife came outside the house, he saw the appellant running away from the spot armed with axe, though in his crossexamination he has admitted that the appellant had not assaulted the deceased before him.

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13. Considering the statement of PW-2 Dungru Ram, at best, he would fall under the category of res gestae and though his statement is admissible under Section 6 of the Indian Evidence Act, 1872 (the Evidence Act, in short) and is relevant fact, but in view of the decisions of the Supreme Court rendered in the matters of

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Badruddin Rukonddim Karpude v . State of

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1 2 Maharashtra and Sukhar v . State of UP , his

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statement at the most being an admissible evidence and relevant fact under Section 6 of the Evidence Act, no conviction can be recorded on that basis unless it is corroborated by direct or circumstantial evidence.

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14. In the matter of Sukhar (supra), their Lordships of the Supreme Court, while considering Section 6 of the Evidence Act, have held that for conviction on the basis of admissible evidence under Section 6 of the Evidence Act, it must be corroborated either from oral evidence or from any other circumstances, and observed in paragraphs 10 & 11 as under:-

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“10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant.

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11 . The next question that arises for consideration is whether even if the statement becomes admissible, can the statement be held to be so reliable that a conviction under Section 307 can be based thereupon. PW 2 in the crossexamination candidly admitted that Sukhar, the present appellant and he are inimical to each

1 AIR 1981 SC 1223

2 (1999) 9 SCC 507

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other since long before. It was also elicited in the cross-examination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet none of them has been examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. The witness also stated in the cross-examination that Nakkal was naming the accused as his assailant in front of all those people who had gathered but it is not understood as to why the prosecution has chosen not to examine any one of them but to examine only PW 2 who was admittedly inimically disposed towards the accused/appellant. In this view of the matter, the evidence of PW 2 cannot be held to be of such an unimpeachable character on whose testimony alone the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on account of what has been elicited in his crossexamination, his evidence requires corroboration before being accepted. Admittedly there is not an iota of corroboration either from any oral evidence or from any other circumstances. In this view of the matter, we have no hesitation to come to the conclusion that the conviction of the appellant on the unreliable and shaky evidence of PW 2 without any corroboration, cannot be sustained. We accordingly set aside the conviction and sentence of appellant and acquit him of the charges levelled against him. The accused who is in jail should be released forthwith. The appeal is allowed accordingly.”

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15. Now, the question would be whether in light of Badruddin Rukonddim Karpude (supra) and Sukhar

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(supra), the prosecution has been able to support the

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testimony of res gestae witness by any corroborative piece of evidence.

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16. Though in respect of corroboration, the memorandum statement of the appellant has been brought on record pursuant to which a bloodstained axe is said to have been seized from the appellant, however, in the FSL report (Ex. P-25), only blood was found on the seized axe (Art. ‘F’). As such, in absence of human blood on the alleged weapon of offence, i.e., axe, its recovery would not be helpful for the prosecution in this case inasmuch as there is no evidence to show that the said weapon was stained with human blood, and more particularly with blood of the same blood group as that of the deceased, as held by the Supreme Court in the matter of Balwan Singh v . State of Chhattisgarh and

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Another 3 . As such, the recovery of alleged weapon of offence i.e. axe, in the instant case, cannot be held to be a corroborative piece of evidence to support the statement of res gestae witness PW-1 Dungru Rana.

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17. Another fact which needs consideration is that though

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pursuant to the memorandum statement of the

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3 (2019) 7 SCC 781

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appellant, axe was recovered on 9.5.2013 but it was sent for forensic examination to the Forensic Science Laboratory, Jagdalpur by the Superintendent of Police, Bastar (Jagdalpur) on 18.5.2013 along with the other seized articles as per Ex. P-23 and which were received by the office of the Forensic Science Laboratory, Jagdalpur on 21.5.2013 as per receipt (Ex. P-24). There is no legal evidence on record that the seized articles were kept in a safe custody during the said period and there is no reason shown for keeping the seized articles for more than a week with the police without any rhyme or reason and therefore possibility of fabrication and tampering with the alleged weapon of offence cannot be ruled out.

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18. In view of the discussion made herein above, it is quite established that even if PW-1 Dungru Rana is held to be the witness who has seen the appellant running away from the spot where the dead-body of deceased Goverdhan was found, but in absence of corroboration he could only be considered as a res gestae witness and as held in Badruddin Rukonddim Karpude (supra) and Sukhar (supra), conviction cannot be maintained

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in absence of corroboration either from oral evidence or from circumstantial evidence. As such, the testimony of PW-1 Dungru Rana cannot be relied upon unless there is any other corroborative piece of evidence available on record, which is not there in the present case.

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19. Accordingly, we set-aside the conviction and sentence of the appellant for offences under Sections 302 and 323 of IPC, setting aside the impugned Judgment dated 2.5.2014 passed by learned Trial Court. The appellant stands acquitted of the said charges on the basis of benefit of doubt. He is stated to be in jail since 9.5.2013. We direct him to be set at liberty forthwith, if his detention is not required in any other offence.

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20. As a consequence, this criminal appeal is allowed .

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

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sharad

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Sd/- Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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SHARAD Digitally signedby SHARAD KUMAR KUMAR YADAVDate: YADAV 2024.09.1717:28:55 +0530

Durjo Bhatra v. State of Chhattisgarh

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Durjo Bhatra v. State of Chhattisgarh

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