Dev Singh @ Nagara Vs State Of Chhattisgarh

¶1

-1-

¶2

(Cr. A. No. 371 of 2017)

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

CRIMINAL APPEAL NO. 371 OF 2017

¶6

{Arising out of Judgment & Order dated 25.1.2017 passed by Second Additional Sessions Judge, Sakti, District Janjgir-Champa in Sessions Case No.7/2015}

¶7

Dev Singh @ Nagara, S/o Samaru Ram Dhanuvar, aged about 30 years, R/o Village Navagaon, P.S. Sakti, District Janjgir-Champa (C.G.)

¶8

... Appellant(s)

¶9

Versus

¶10

State of Chhattisgarh, through: the Police Station Sakti, District Janjgir-Champa (C.G.)

¶11

... Respondent(s)

¶12

__________________________ For Appellant	_____ :-	______________________ Ms. Reena Singh, Advocate.
For Respondent-State	:-	Mr. Ankur Kashyap,
		Dy. Govt. Advocate.

¶13

Division Bench

¶14

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

¶15

Judgment on Board (21.02.2024)

¶16

Sanjay K. Agrawal, J.

¶17

The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, 'CrPC') has been filed by the Appellant aggrieved by the Judgment & Order dated 25.1.2017 passed by Second Additional Sessions Judge, Sakti, District

¶18

-2-

¶19

(Cr. A. No. 371 of 2017)

¶20

Janjgir-Champa in Sessions Case No.7/2015 by which he has been convicted for the offence punishable under Sections 201 & 302 of the Indian Penal Code, 1860 (in short, 'IPC') and sentenced in the following manner:-

¶21

Conviction	Sentence
1.u/S. 201 of IPC	Rigorous Imprisonment for Five years with fine of Rs.500/- and, in default of payment of fine amount, to undergo additional Two months' Simple Imprisonment.
2.u/S. 302 of IPC	Imprisonment for Life with fine of Rs.500/- and, in default of
	payment of fine amount, to undergo additional Two months' Simple Imprisonment.
The substantive se concurrently and	ntences have been directed to run default sentences consecutively.

¶22

Prosecution case, in brief:

¶23

On 21.9.2014 at about 1:00 a.m. in the night at Village Nawagaon under Police Station Sakti, the Appellant is said to have assaulted his wife, Holika Bai, with iron pipe by which she received grievous injuries and died. Further, the Appellant in order to screen himself from legal punishment, is said have burned the dead-body of Holika Bai and hid the iron pipe and other articles with an intention to conceal

¶24

-3-

¶25

(Cr. A. No. 371 of 2017)

¶26

the evidence. Subsequently, the Appellant is said to have made extra-judicial confession to his father, PW13 Samaru of committing murder of his wife Holika Bai and burning her dead-body.

¶27

Merg Intimation (Exhibit P-2) was reported at Police Station Sakti by PW-13 Samaru on the basis of which, F.I.R. (Exhibit P-1) was registered against the Appellant for the offences punishable under Sections 302 & 201 of IPC and the wheels of investigation started running. Sketch Map of the place of incident was prepared vide Exhibit P-3 and Nazri Naksha was prepared by Patwari vide Exhibit P-8. Inquest proceeding was conducted vide Exhibit P-2A and the dead-body of deceased Holika Bai was subjected to post-mortem which was conducted by Dr. Krishna Sidar (PW-21) vide Exhibit P-24 in which the cause of death of deceased Holika Bai was opined to be due to cardio-respiratory arrest, asphyxia, brain hemorrhage on account of head injury and extensive burn, which was homicidal in nature. Statements of the witnesses were recorded. Appellant was taken into custody and his Memorandum Statement was recorded vide

¶28

-4-

¶29

(Cr. A. No. 371 of 2017)

¶30

Exhibit P-4 pursuant to which, iron pipe, sickle and arrow were recovered vide Exhibit P-5. Vide Exhibits P-6 & P-7, certain other articles were also seized from the place of incident. The seized articles were sent for chemical examination and in the F.S.L. report (Exhibit P-27), blood was found on the pipe ('I'), sickle (‘J’) and arrow (‘’K’) which were seized pursuant to the memorandum statement of the Appellant and on the other articles seized from the spot, human blood was found.

¶31

After completion of the investigation, the Appellant was charge-sheeted for the offences punishable under Sections 302 & 201 of IPC before the Court of Judicial Magistrate First Class, Sakti from where, after committal, the matter was submitted for trial and its disposal in accordance with law before the Trial Court where the aforesaid charges were framed and read out to the Appellant who abjured his guilt, took a plea of false implication and entreated for trial.

¶32

During the course of trial, in order to bring home the offences, the prosecution examined as many as 21 witnesses as PW-1 to P-21 and exhibited 28

¶33

-5-

¶34

(Cr. A. No. 371 of 2017)

¶35

documents vide Exhibits P-1 to P-28. Statement of the accused Appellant was recorded under Section 313 of 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, in defence, neither any witness has been examined nor any document has been exhibited by the Appellant.

¶36

After conclusion of the trial, the Trial Court, by impugned Judgment & Order dated 25.1.2017, on appreciation of the oral and documentary evidence available on record, has convicted the Appellant for the offences punishable under Sections 302 & 201 of IPC and sentenced him in the manner as mentioned at the table shown in the opening paragraph of this Judgment, against which the present appeal has been filed by the Appellant questioning the legality, validity and correctness of the impugned Judgment & Order. : Submissions of learned Counsels for parties

¶37

Ms. Reena Singh, learned Counsel appearing for the Appellant, would submit that the incriminating circumstances culled out by the Trial Court in para-

¶38

-6-

¶39

(Cr. A. No. 371 of 2017)

¶40

19 of the impugned Judgment are not established beyond reasonable doubt and the finding recorded by the Trial Court in convicting the Appellant is perverse to the evidence available on record. As such, the Appellant is entitled to be acquitted of the said charges on the basis of benefit of doubt and the appeal deserves to be allowed.

¶41

Mr. Ankur Kashyap, learned Deputy Advocate General, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly culled out the incriminating circumstances and the finding of conviction arrived at by the Trial Court is absolutely justified. As such, the Appellant is not entitled to be acquitted of the said charges and the appeal is liable to be dismissed.

¶42

: Discussion and Analysis

¶43

We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

¶44

The first question for consideration, as to whether the death of deceased Holika Bai was homicidal in nature,

¶45

-7-

¶46

(Cr. A. No. 371 of 2017)

¶47

has been answered by the Trial Court in affirmative relying upon the statement of Dr. Krishna Sidar (PW-21) who has conducted the post-mortem of deceased Holika Bai and proved the post-mortem report (Exhibit P-24) in which the cause of death of the deceased has been opined to be due to cardiorespiratory arrest, asphyxia, brain hemorrhage on account of head injury and extensive burn and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court, holding that the death of deceased Holika Bai was homicidal in nature.

¶48

Since the case of the prosecution is not based on direct evidence but circumstantial evidence, it would be appropriate to notice the most celebrated judgement of the Supreme Court rendered in the matter of Sharad Birhichand Sarda v. State of Maharashtra1 in which the five golden principles which constitute the panchsheel of the proof of a case

¶49

1(1984) 4 SCC 116

¶50

-8-

¶51

(Cr. A. No. 371 of 2017)

¶52

based on circumstantial evidence, have been catalogued in paragraph-153 which reads as under:-

¶53

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

¶54

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, 1973 (2) SCC 793, where the following observations were made:

¶55

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

¶56

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

¶57

-9-

¶58

(Cr. A. No. 371 of 2017)

¶59

(3) the circumstances should be of a conclusive nature and tendency,

¶60

(4) they should exclude every possible hypothesis except the one to be proved, and

¶61

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ”

¶62

In order to convict the Appellant for the offence in question, the Trial Court has culled out following incriminating circumstances in paragraph-19 of the impugned Judgment, which, for ready reference, are being reproduced herein under:-

¶63

(1) efrdk gksfydkckbZ dh eR;q gR;kRed izd`fr dh FkhA

¶64

(2) ?kVuk fnukad dks vkjksih nso flag viuh iRuh e`frdk gksfydkckbZ ds lkFk vius ?kj esa vafre ckj lkFk&lkFk FkkA

¶65

(3) vkjksih nso flag }kjk viuh iRuh efrdk gksfydkckbZ dh gR;k dkfjr fd, tkus ds laca/k esa vius firk lek: ls U;kf;dsRrj laLohdfr dh xbZ FkhA

¶66

(4) vkjksih nso flag ds eseksjs.Me dFku ds vk/kkj ij mlls vijk/k esa iz;qDr gfFk;kj tIr fd;k x;k Fkk ,oa ,Q-,l-,y fjiksVZ iz-ih-&27 esa ?kVuk LFky o vkjksih ls tIr oLrqvksa esa jDr ik;k x;k gS rFkk ?kVuk ls tIr oLrqvksa esa jDr ik;k x;k gS rFkk ?kVuk LFky ls tIr ih<+k] ydM+h ds VqdM+k] ydM+h ds VqdM+k ,oa dEcy esa ekuo jDr ik;k x;k gSA

¶67

-10-

¶68

(Cr. A. No. 371 of 2017)

¶69

(5) vkjksih nso flag }kjk e`fRkdk gksfydkckbZ ds pfj= ij ‘kadk dj mlds lkFk ges’kk okn&fookn ,oa yM+kbZ&>xM+k gkrs jguk vijk/k dk gsrqd gSA

¶70

(6) ?kVuk LFky dh ifjfLFkfr;ksa ,oa ?kVuk ds laca/k esa vkjksih nso flag }kjk dksbZ Li”Vhdj.k ugha fn;k x;k gSA

¶71

Now, the question would be, as to whether the Trial Court has rightly concluded that the Appellant is guilty of offence in question on the basis of the aforesaid incriminating circumstances?

¶72

We will consider the correctness of the abovementioned incriminating circumstances one by one. :

¶73

Incriminating Circumstance No.1

¶74

Insofar as the death of deceased Holika Bai to be homicidal in nature is concerned, the same is not in dispute and, in the preceding paragraph of this Judgment, we have already affirmed the finding of the Trial Court in this regard, relying upon the statement of Dr. Krishna Sidar (PW-21) who has conducted and proved the post-mortem examination (Exhibit P-24) opining the death deceased of Holika Bai to be homicidal in nature. It is accordingly answered.

¶75

-11-

¶76

(Cr. A. No. 371 of 2017)

¶77

: Incriminating Circumstances No.2 & 6

¶78

The Trial Court has found proved the incriminating circumstance that the Appellant and the Deceased were residing together in the house at the time of incident and the Appellant has failed to explain anything about the incident. However, the Trial Court in paragraph-23 of the impugned Judgment did not record clear finding on the basis of the evidence brought on record by the prosecution that the Appellant and the Deceased were alone in the house at the time of incident, but placed the burden on the Appellant that he could not take any stand that he was not present in the house at the time of incident rather he has admitted that he was in the suit house at the time of incident. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and has to prove its case beyond reasonable doubt. Merely because the Appellant has admitted that he was in the room it cannot be held that it would absolve the prosecution of its liability to prove the facts and offence beyond reasonable doubt. There

¶79

-12-

¶80

(Cr. A. No. 371 of 2017)

¶81

is no evidence on record that the Appellant and the Deceased were there in the suit house together at the time of incident. Even if, for the sake of argument, the evidence is held to be there, it has not been put to the accused Appellant to explain under Section 313 of CrPC. As such, the finding arrived at by the Trial Court holding it to be one of the incriminating circumstances is not based on the evidence available on record.

¶82

: Incriminating Circumstance No.3

¶83

Another incriminating circumstance that the Trial Court has found proved is that the Appellant has made extra-judicial confession to his father Samaru (PW-13) stating that he has caused death of his wife Holika Bai. However, in the manner in which, the alleged extra-judicial confession is said to have been made by the Appellant to his father, we are not inclined to accept the same as true and voluntary on which conviction can be based. Even otherwise extrajudicial confession as one of the incriminating circumstances would not complete the chain of circumstances to base conviction of accused, rather,

¶84

-13-

¶85

(Cr. A. No. 371 of 2017)

¶86

extra-judicial confession is a weak piece of evidence and cannot be relied upon unless it is corroborated by material particulars.

¶87

Recently, their Lordships of the Supreme Court in the matter of Pawan Kumar Chourasia v. State of

¶88

Bihar 2 have laid down the following principles of law:-

¶89

“ EVIDENTIARY VALUE OF EXTRAJUDICIAL CONFESSION

¶90

As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ”

¶91

2 2023 LiveLaw (SC) 197

¶92

-14-

¶93

(Cr. A. No. 371 of 2017)

¶94

: Incriminating Circumstance No.4

¶95

The next incriminating circumstance is that pursuant to the memorandum statement of the Appellant, an iron pipe, sickle and arrow were recovered and in the F.S.L. report (Exhibit P-27), blood was found on the pipe ('I'), sickle (‘J’) and arrow (‘’K’). However, in absence of human blood on the said articles, in light of the decision of the Supreme Court rendered in the v. matter of Balwan Singh State of Chhattisgarh & Anr.3 , recovery of the such articles would be of no use to the prosecution. As regards the other articles on which human blood was found, since they were not seized from the possession of the Appellant but were seized from the spot, they cannot be used against the Appellant.

¶96

: Incriminating Circumstance No.5

¶97

The last incriminating circumstance which has been found proved by the Trial Court is that there used to be frequent quarrel between the Appellant and the Deceased and which is the motive of offence. The said circumstance is also not correct in view of the

¶98

3(2019) 7 SCC 781

¶99

-15-

¶100

(Cr. A. No. 371 of 2017)

¶101

evidence available on record, as PW-18 Satyanaryan, brother of deceased Holika Bai, has clearly stated in his statement that the relationship between the Appellant and the Deceased was quite cordial. Even otherwise, though motive of the offence can be one of the incriminating circumstances but it cannot be taken as a sole incriminating circumstance to convict an accused.

¶102

Conclusion:

¶103

Thus, in sum and substance, none of the incriminating circumstances that have been held by the Trial Court to be conclusive in pointing out the guilt of the appellant, are proved beyond reasonable doubt. The Trial Court is absolutely unjustified in convicting the Appellant for the offences punishable under Sections 302 & 201 of IPC. As such, we are unable to convince ourselves to affirm the impugned Judgment & Order dated 25.1.2017 which deserves to be and is hereby set-aside.

¶104

Consequently, the conviction of the Appellant for the offences punishable under Sections 302 & 201 of IPC and the sentences awarded thereunder are hereby

¶105

-16-

¶106

(Cr. A. No. 371 of 2017)

¶107

set-aside and the Appellant is acquitted of the said charges extending the benefit of doubt. He is reported to be in jail since 1.10.2014, therefore, he be set at liberty forthwith, if not required in any other offence.

¶108

In the result, this Criminal Appeal is allowed .

¶109

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, where the Appellant is suffering his imprisonment, be also supplied with a certified copy of this Judgment, for information and necessary action, if any, at the earliest.

¶110

sharad

¶111

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

Dev Singh @ Nagara v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dev Singh @ Nagara v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Soma Ram Vs State Of Chhattisgarh

Uday Kumar Vs State Of Chhattisgarh

Sahebdas Manikpuri @ Chote @ Satya @ Satan Vs State Of Chhattisgarh

Krishna Nageshiya Vs State Of Chhattisgarh

Kariman Vs State Of Chhattisgarh

Suresh Majhi Vs State Of Chhattisgarh