Allowed

Ram Swarup Sahu v. State of Chhattisgarh

Chhattisgarh HC9 Sept 2024CRA/232/2019

Case brief

AI extract

What is this about?

The Division Bench of the Chhattisgarh High Court allowed the criminal appeal filed by the appellant against a conviction under Section 302 IPC. The court set aside the conviction, holding that prosecution evidence consisting of an unreliable witness testimony, unnatural extra-judicial confession, and merely blood-stained articles did not meet the burden of proof.

What did the court decide?

The appeal is allowed; the judgment and sentence of conviction under Section 302 IPC are set aside; the appellant is acquitted and directed to be released from jail.

Ram Swarup Sahu Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 232 of 2019

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ANKIT KUMAR SINGH

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Digitally signed by ANKIT KUMAR SINGH Date: 2024.09.13 15:52:30 +0530

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2024:CGHC:35213-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 232 of 2019

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(Arising out of judgment dated 16.01.2019 passed in Sessions Trial No.50/2018 by the Sessions Judge, Janjgir-Champa, C.G.)

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Ram Swarup Sahu S/o Shri Mohan Lal Sahu, aged about 35 years, R/o Kulipota, Police Station Janjgir and District Janjgir Champa, Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, through Station House Officer, Police of Police Station Janjgir, District Janjgir Champa, Chhattisgarh.

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... Respondent

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For Appellant :- Mr. Rishi Rahul Soni, Advocate.

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For Respondent-State :- Mr. Pankaj Singh, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad Judgment On Board

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(10.09.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the

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present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality,

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validity and correctness of the judgment of conviction and order of sentence dated 16.01.2019 passed by the Sessions Judge, Janjgir-Champa, Chhattisgarh in Sessions Trial No. 50/2018 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹100/-; in default of payment of fine amount the appellant has to undergo rigorous imprisonment for 10 days.

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The case of the prosecution, in a nutshell, is that on 14.04.2018 between 8:30 pm to 9:00 pm at village Kulipota, Police Station Janjgir and District Janjgir Champa, Chhattisgarh, the appellant assaulted Surendra Das Mahant (now deceased) by wooden stick, by which he suffered grievous injuries and died. Chhatbai (PW-1), wife of the deceased, reported the matter to the police pursuant to which Dehati merg and merg intimation were registered vide Exs.P/2 & P/1, respectively. Dehati Nalsi was registered vide Ex.P/8. FIR was registered vide Ex.P/25. Spot map was prepared vide Ex.P/12. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report

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CRA No. 232 of 2019

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(Ex.P/14) proved by Dr. Sandeep Sahu (PW-11) cause of death was severe head injury by blunt and hard object and nature was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/9), weapon of offence i.e. wooden stick and clothes of the appellant were seized vide Exs. P/10 & P/11, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/24) on the weapon of offence i.e. wooden stick (Article D) and on the clothes of the appellant (Articles E1 & E2) only blood was found.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 31 documents, whereas, the appellant in defence has not examined any witness, but exhibited one document. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the

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CRA No. 232 of 2019

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circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Rishi Rahul Soni, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that prosecution has failed to prove the offence against the appellant beyond reasonable doubt as Parmeshwar Yadav (PW-9) who was projected as an eye witness, is not the eye witness and at the most, he would be res gestae witness. He further submits that the extra judicial confession which is said to have given by the appellant to Sanjudas Mahant (PW-2), brother of the deceased, and Rakhidas Mahant (PW-3), father of the deceased, is not true and voluntarily and even otherwise extra judicial confession is a weak piece of evidence and

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CRA No. 232 of 2019

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only on the basis recovery of blood stained articles, the appellant cannot be convicted, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, Mr. Pankaj Singh, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence in question and, as such, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/14) proved by Dr. Sandeep Sahu (PW-11), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm

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CRA No. 232 of 2019

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the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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The next question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the direct evidence as well as indirect evidence. In the shape of direct evidence, the prosecution has brought the testimony of Parmeshwar Yadav (PW-9), apprentice of the deceased. On the date of offence, on instruction of Chhatbai (PW-1), wife of the deceased, he was going to purchase vegetables for the deceased and his family, meanwhile he saw the appellant assaulting the deceased by wooden stick. However, in paragraph No.3 of his statement before the Court he has stated that he did not shout for the help and in paragraph No.5 of his statement before the Court he has also stated that neither he informed about the incident to his family members nor the wife of the deceased and nor the family member of the deceased and out of fear he did not inform anyone about the incident, he remained quite. Further, his (PW-9) statement under Section 161 of the CrPC was recorded on 01.05.2018 with a delay of 17 days and when

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investigating officer Shital Sidar (PW-15) was questioned with regard to delay in recording the statement of PW-9 under Section 161 of the CrPC, she replied that the statements of other witnesses came on 29.04.2018 and after being informed that PW-9 has witnessed the incident, then statement of Parmeshwar Yadav (PW-9) was recorded on 01.05.2018 which appears to be prima facie false on the face of the record as statement under Section 161 of the CrPC of Mukesh Das Manikpuri (PW-4) was recorded on 29.04.2018 in which he has stated that PW-9 has informed him that the appellant had assaulted the deceased by wooden stick, but without giving information to anyone, he (PW-9) absconded. However, PW-9 in paragraphs No.5 & 6 of his statement before the Court has clearly stated that he neither informed the matter to the police nor the family member of the deceased and nor Chhatbai (PW-1), on whose instruction he had gone to purchase vegetables for the deceased and his family members. He (PW-9) has also categorically stated that due to fear he did not inform about the incident to anyone though he went to the house of the deceased, but he did not say that he informed the incident to Mukesh Das Manikpuri (PW-4), therefore, the explanation given by investigating officer Shital Sidar (PW-

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CRA No. 232 of 2019

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with regard to delay in recording the statement under Section 161 of the CrPC of PW-9, appears to be false on the face of the record as Parmeshwar Yadav (PW-9) in his statement before the Court has nowhere stated that he had informed about the incident to PW-4, as such, delay in recording the statement of eye witness PW-9, makes his statement, untrustworthy and unreliable and, therefore, statement of PW-9 cannot be accepted, more particularly on the ground that as per his statement on the date and time of offence he was going to purchase vegetables for the deceased and his family members, though he saw the deceased was being killed by the appellant, but he did not take any step to inform about the incident to wife of the deceased Chhatbai (PW-1) or other family members of the deceased and also to the police and chose to remain quite. As such, the conduct of Parmeshwar Yadav (PW-9) is totally unnatural and it appears that he is a planted witness as, as per the statement of Chhatbai (PW-1), deceased and the appellant, both had bad relation, therefore, we reject the testimony of Parmeshwar Yadav (PW-9) as an eye witness.

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Furthermore, the appellant is said to have given extra judicial confession to Sanjudas Mahant (PW-2), brother of

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the deceased, and Rakhidas Mahant (PW-3), father of the deceased. As per statement of PW-2 after causing assault to the deceased the appellant was standing there and on being asked he (appellant) informed him (PW-2) that he killed his brother. Instantly, two facts deserve to be noticed that extra judicial confession is not voluntarily made by the appellant as on being asked by PW-2, the appellant informed about the incident to PW-2, which is totally unnatural that the person who murdered a person keep standing on the crime scene and give extra judicial confession, therefore, extra judicial confession which is said to have been given to PW-2 is not true and voluntary. Similar statement is made by Rakhidas Mahant (PW-3) that on being asked the appellant stated him that he has killed the deceased which is not trustworthy and totally unnatural as the accused after killing the person will never present there and will abscond and, therefore, the fact of giving extra judicial confession is totally unnatural. Moreover, the conviction of the appellant is based upon the evidence that pursuant to his memorandum statement (Ex.P/9) weapon of offence i.e. wooden stick and clothes of the appellant were seized vide Exs.P/10 & P/11, respectively, and on which in the FSL report (Ex.P/24) blood was found. However, recovery of

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articles, on the basis of information of the appellant, on which blood has been found would not be sufficient unless it is proved that the weapon of offence was used in the commission of the offence and therefore, recovered articles are of no use to the prosecution. In this regard, it would be appropriate to notice the decision of the Supreme Court in the matter of Mustkeem alias Sirajudeen v State of Rajasthan1 in which their Lordships of the Supreme Court have held in para 25 as under:-

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“25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”

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In view of the aforesaid discussion, we are of the considered opinion that the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt as Parmeshwar Yadav (PW-9) is not the eye witness and as per the evidence available on record he appears to be planted witness; extra judicial confession

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1 (2011) 11 SCC 724

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CRA No. 232 of 2019

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which is said to have been given by the appellant to Sanjudas Mahant (PW-2) & Rakhidas Mahant (PW-3) appears to be unnatural and not trustworthy and further recovery of blood stained articles are of no use to the prosecution in absence of any corroborative piece of evidence connecting the weapon with the crime alleged to have been committed in light of the decision of the Supreme Court in the matter of Mustkeem alias Sirajudeen (supra). Accordingly, the trial Court has wrongly convicted the appellant in crime in question and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Consequently, the impugned judgment of conviction and order of sentence dated 16.01.2019 passed by the Sessions Judge, Janjgir-Champa, Chhattisgarh, is hereby set aside and also the conviction and sentence awarded by the trial Court to the appellant for offence under Section 302 of the IPC are hereby set aside. The appellant is acquitted of the charges for offence under Section 302 of the IPC on the basis of benefit of doubt. He is reported to be in jail since 15.04.2018, we direct that he be released from jail forthwith, if not required any other matter.

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CRA No. 232 of 2019

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This criminal appeal is allowed .

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Let a certified copy of this judgment along with the original

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record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Ram Swarup Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ram Swarup Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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