Allowed¶74

Kumar Singh Bhuarya v. State of Chhattisgarh

Chhattisgarh HC18 Sept 2024CRA/503/2019

Case brief

AI extract

What is this about?

Murder conviction under Section 302 IPC reversed; benefit-of-doubt acquittal; eyewitness testimony doubted owing to evening darkness (February, post-sunset incident) and defective site plans (Ex.P/3, Ex.P/11) omitting witness position and bearing missing signatures; reliance on Shingara Singh (2003) 9 SCC 45, Baldev Singh (2003) 9 SCC 452 and Criminal Trials Guidelines (2021) 10 SCC 598 on site-plan requirements; appeal under Section 374(2) Cr.P.C. allowed; Chhattisgarh High Court CRA-503-2019, decided 19.09.2024.

What did the court decide?

Conviction under Section 302 IPC and the sentence of life imprisonment with fine and default stipulation set aside; appellant acquitted of the charge on the basis of benefit of doubt; directed to be released from jail forthwith if not required in any other matter/case. ¶74

Kumar Singh Bhuarya Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the death of the deceased (Krishan Ram) was homicidal in nature. +1 more

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Court's answer

The finding of the learned trial Court that the death of the deceased was homicidal in nature is a correct finding of fact based on evidence, neither perverse nor contrary to the record, and this Court affirms it.

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Ratio / Principle

Statements of Pratap Singh (PW-02) and Vyant Kumar (PW-03) cannot be relied upon to hold the appellant guilty, since it is not established beyond reasonable doubt that they saw the incident of the appellant assaulting the deceased at the relevant time; Vyant Kumar reached the spot after the incident and Pratap Singh could not see the assault due to darkness.

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Key takeaways

The testimony of star eyewitness Jitendra Arya (PW-01) appears doubtful: despite the principles in Shingara Singh, Baldev Singh and the Criminal Trials Guidelines, neither site plan Ex.P/3 nor spot map Ex.P/11 indicates the place from which he saw the incident; the map was prepared after a delay of one day and his signatures are missing thereon; hence, absent corroboration, his testimony cannot be treated as that of an eyewitness.ratio¶71
The learned trial Court committed a grave legal error of law in accepting the testimony of Jitendra Arya (PW-01) as also that of Pratap Singh (PW-02) as eyewitnesses so as to hold the appellant guilty of the offence.ratio¶71

Detailed headnote1 paragraphs

High Court of Chhattisgarh at Bilaspur, Criminal Appeal No. 503 of 2019 (Division Bench: Sanjay K. Agrawal, J., authoring, with Amitendra Kishore Prasad, J.), decided 19.09.2024 — Appeal under Section 374(2) Cr.P.C. by Kumar Singh Bhuarya against judgment dated 30.07.2018 of the 1st Additional Sessions Judge, Balod, convicting him under Section 302 IPC for the murder of Krishan Ram (assault with wooden stick on 10.02.2017 at about 05:30 PM, Village Chilamgota) and sentencing him to life imprisonment with fine of Rs.1,000/- (default: 3 months RI). Held: (i) the finding that the death was homicidal is affirmed; (ii) the prosecution case rested wholly on Jitendra Arya (PW-01) and Pratap Singh (PW-02); the incident occurred in February darkness after sunset; Pratap Singh (PW-02) stated he had not clearly seen the assault and Vyant Kumar (PW-03) reached after the incident, so their statements cannot be relied upon; (iii) neither site plan Ex.P/3 nor spot map Ex.P/11 discloses the vantage point of Jitendra Arya (PW-01), the map was prepared a day late and his signatures are missing; relying on Shingara Singh v. State of Haryana ((2003) 9 SCC 45), Baldev Singh v. State of M.P. ((2003) 9 SCC 452) and Criminal Trials Guidelines ((2021) 10 SCC 598), his testimony was held doubtful and not that of an eyewitness, the trial court having committed grave legal error in treating these witnesses as eyewitnesses. Conviction and sentence set aside; appellant acquitted on benefit of doubt and directed to be released forthwith; appeal allowed.

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Page No.1 of 11 IN CRA-503-2019

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2024:CGHC:36592-DB

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2024.09.25 12:41:54 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 503 of 20 19

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[Arising out of judgment dated 30.07.2018, passed in Sessions Case No.59 of 2017 (State of Chhattisgarh v. Kumar Singh Bhuarya), by the 1^st Additional Sessions Judge, Balod (C.G.)]

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Kumar Singh Bhuarya, Son of Sambhuram Bhuarya, aged about 46 years, Resident of Village Chilamgota, Police Station Mangchuva, District Balod (CG)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Mangchuva, District Balod (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Keshav Dewangan, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Amitendra Kishore Prasad Judgment on Board (19.09.2024)

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Sanjay K. Agrawal, J

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(1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 30.07.2018, passed in Sessions Case No.59 of 2017

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Page No.2 of 11 IN CRA-503-2019

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(State of Chhattisgarh v. Kumar Singh Bhuarya), by the 1^st Additional Sessions Judge, Balod (C.G.), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 03 months.

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(2) The case of the prosecution, in short, is that 10.02.2017 at about 05:30 PM in the evening, at Village Chilamgota, Diprapara Road, in front of Mata Mandir, the accused-appellant with the intent to kill one Krishan Ram (hereinafter referred to as the “deceased”) assaulted him by means of wooden stick, due to which he suffered grievous injuries and died on the spot and, thereby, said to have committed the aforesaid offence.

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(3) It is further case of the prosecution that Jitendra Arya (PW-01) reported the matter to the police, merg. intimation (Ex.P/01) and FIR (Ex.P/02) were registered by the police and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/05 and inquest proceedings were conducted vide Ex.P/06. Spot map was also prepared vide Ex.P/11. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. S.L. Oika (PW-09) and, as per PM report (Ex.P/113), cause of death of the deceased is syncope resulting from hemorrhage and injury on vital organs. The appellant-accused was arrested vide Ex.P/17. From the place of

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Page No.3 of 11 IN CRA-503-2019

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incident, wooden sticks and dand alongwith on shirt of the deceased were seized vide Ex.P/08. The said seized articles were sent for chemical examination and, as per FSL report (Ex.P/23), it has been opined stains of human blood were found on the wooden stick seized from the spot as also on the shirt of the deceased. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 23 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Keshav Dewangan, learned counsel appearing for the appellant submits that the learned trial Court is absolutely

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unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the appellant has been convicted on the basis of testimonies of eye-witnesses, namely, Jitendra Arya (PW-01) and Pratap Singh (PW-02). However, Jitendra Arya (PW-01) was not present on the spot at the time of the offence and, therefore, his testimony is liable to be discarded, whereas, Pratap Singh (PW-02) has himself stated in Para-03 of his statement that he has not seen the incident. As such, the learned trial Court is absoutly unjustified in convicting the appellant for the offence under Section 302 of IPC on the basis of said so called eyewitnesses. Except this, there is no material available on record to connect the appellant herein with the aforesaid offence. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt.

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(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses, specially, Jitendra Arya (PW-01) and Pratap Singh (PW-02) coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Thus, the present appeal deserves to be dismissed.

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Page No.5 of 11 IN CRA-503-2019

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

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(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/13), which is duly proved by the statement of Dr. S.L. Oika (PW-09). Furthermore, the factum of death of the deceased to be homicidal in nature has not been seriously disputed/questioned on behalf of the appellant and, accordingly, we are of the considered opinion that the finding of the learned trial Court that the death of the deceased is homicidal in nature, is a correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(10) Now, the next question would be whether the accusedappellant herein is the author of the crime in question or not?

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(11) In the case at hand, the case of the prosecution is totally based on direct testimonies of Jitendra Arya (PW-01) and Pratap Singh (PW-02), therefore, their testimonies have to be scrutinized carefully one by one as under:

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a) Pratap Singh (PW-02): though in examination-in-chief, he has supported the case of the prosecution, but in Para-03 of his cross-

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Page No.6 of 11 IN CRA-503-2019

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examination has clearly stated that he has not seen the incident and he has seen the deceased when he was falling down from his cycle and he has not seen the appellant assaulting the deceased by wooden stick. However, later on he clarified that he has seen the appellant assaulting the deceased, but he was not sure about it. He also stated that at the time of incident there was darkness of evening. Further, he also clarify that at the time of incident, except he and Vyant Kumar (PW-03), there was nobody else on the place of incident.

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b) Jitendra Arya (PW-01): who is star eye-witness of the prosecution, has stated in his cross-examination that the incident took place on 10.02.2017 and, as it was the month of February, normally sun used to set at about 05 PM and it was darkness. He also stated that the incident occurred at about 05:30 PM whereby he has seen the appellant assaulting the deceased by means of wooden stick and, at that time, Pratap Singh (PW-02) and Vyant Kumar (PW-03) were also present on the spot. However, it is important to notice here that the learned trial Court has rejected the testimony of Vyant (PW-03) in Para-10 of the impugned judgment and held that Vyant (PW-03) reached on the spot after the incident.

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(12) As such, from the statements of aforesaid witnesses it is quite clear that the incident took place on 10.02.2017 at about 05:30 PM and there was darkness of the evening, as the sun was already

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Page No.7 of 11 IN CRA-503-2019

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down/set. According to Jitendra Arya (PW-01), who is alleged eyewitness, Pratap Singh (PW-02) and Vyant Kumar (PW-03) were also present on the spot at the time of the incident. However, Vyant Kumar (PW-03) has stated that he reached to the spot after the incident, which the learned trial Court also affirmed and Pratap Singh (PW-02) has made clear statement that due to darkness he could not seen the incident of appellant assaulting the deceased. Therefore, statements of Pratap Singh (PW-02) and Vyant Kumar (PW-03) cannot be relied upon to hold the appellant guilty of the offence in question, as it is not established beyond reasonable doubt that they have seen the incident of appellant assaulting the deceased on the date and time of the offence. We hereby hold accordingly.

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(13) So far as the testimony of Jitendra Arya (PW-01) is concerned, he has stated that he has seen the appellant assaulting the deceased by wooden stick on the date and time of the offence. But admittedly at the time of the incident, there was darkness of the evening, as it was the month of February and at that time sun used to set at about 5 PM and the incident occurred at about 05:30 PM. Now the question is as to whether Jitendra Arya (PW-01) has actually seen the incident or not. In this regard, other evidence available on record needs consideration. According to site map prepared in crime details form (Ex.P/03), which has been prepared after delay of one day i.e. on 11.02.2017, proved by Jitendra Arya

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Page No.8 of 11 IN CRA-503-2019

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(PW-01), place of incident is a public place and from where Jitendra Arya (PW-01) has witnessed the incident is not clear. Moreover, from spot map (PW-11), proved by Yudhisthir Netam (PW-08), it is also not clear from where Jitendra Arya (PW-01) has seen the incident and, further, in sport map (PW-11) the signatures of Jitendra Arya (PW-01) is also missing.

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(14) The Supreme Court in the matter of Shingara Singh Vs. State of Haryana and Another1 has held that the omission to show essential feature in the site plan is a lapse on the part of the Investigating officer and observed in para-29 as under:

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“The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined.”

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(15) Similarly in the case of Baldev Singh and Another Vs. State

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of M.P. (2003) 9 SCC 452 it has been held by the Supreme Court that site plan is not a mere formality and it is essential feature to highlight the importance of the site plan and held as under :

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of M.P. (2003) 9 SCC 452

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1 (2003) 9 SCC 45

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2 (2003) 9 SCC 45

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Page No.9 of 11 IN CRA-503-2019

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“13…..The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident.”

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(16) Further the Supreme Court in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re Vs.

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State of Andhra Pradesh and Others3 , in Para-3, has issued the following guidelines regarding site plan:

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“3. SCENE MAHAZAR/ SPOT PANCHANAMA

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i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama.

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ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose

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a. the place of occurrence,

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b. the place where the body (or bodies) was / were found,

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c. the place where material exhibits and/or weapons,

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d. blood stains and/or body fluids had fallen,

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e. the place where bullet shells, if any, were found or have caused impact,

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f. the source of light, if any and

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g. adjoining natural and man-made structures or features such as walls, pits, fences, trees/bushes,if any and h. elevation of structures and their location.

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iii. The preparation of this sketch by the Investigating Officer shall be followed by a scaled site plan prepared by police draftsman, if available, or such other authorized or nominated draftsman by the State Government, who shall prepare the scaled site plan

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3 (2021) 10 SCC 598

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Page No.10 of 11 IN CRA-503-2019

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after visiting the spot.

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iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.”

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(17) Despite the above principles of law laid down by their Lordships of the Supreme Court in the matters of Singara Singh (supra), Baldev Singh (supra) and the guidelines issued in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies (supra), in the present case, both the site plans i.e. Ex.P/3 and Ex.P/11, do not indicate the place from where Jitendra Arya (PW-01) has seen the incident of appellant assaulting the deceased. As such, in absence of proper site map, it cannot be held that in light of darkness, at the time of offence, Jitendra Arya (PW01) had the occasion to see the appellant assaulting the deceased by means of wooden stick, more particularly, when site map (Ex.P/03) has promptly been prepared after one day from the date of incident and in spot map (Ex.P/03) the signatures of the Jitendra Arya (PW-01) are missing. Consequently, the testimony of Jitendra Arya (PW-01) appears to be doubtful and, in our considered opinion, in absence of any further corroboration, his testimony cannot be treated as an eye-witness to the incident. The learned trial Court committed grave legal error of law while accepting the testimony of Jitendra Arya (PW-01) as also that of Pratap Singh (PW-02) as a eye-witnesses in order to hold the appellant guilty of the offence in question. We hereby hold accordingly.

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Page No.11 of 11 IN CRA-503-2019

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(18) In view of the foregoing analysis, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment alongwith the fine and default stipulation, as imposed upon him by the learned trial Court, is hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. He is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

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(19) Consequently, this criminal appeal is allowed .

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(20) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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

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s@if

Kumar Singh Bhuarya v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kumar Singh Bhuarya 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

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