Allowed

Shankar Lal Kanwar v. State of Chhattisgarh

Chhattisgarh HC16 Sept 2024CRA/598/2019

Case brief

AI extract

What is this about?

The Division Bench set aside the conviction and sentence of the appellant for murder under Section 302 IPC. The court held that the extra-judicial confessions relied upon were tainted by police influence and legally inadmissible, and the blood-stained articles recovered were insufficient to establish guilt without corroboration, warranting acquittal on benefits of doubt.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant acquitted and ordered for release from jail.

Shankar Lal Kanwar Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Page No.1 of 10 IN CRA-598-2019

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Digitally signed ANKIT by ANKITKUMAR SINGH KUMAR Date: 2024.09.19 SINGH 12:16:44 +0530

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2024:CGHC:36185-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 598 of 20 19

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[Arising out of judgment dated 18.09.2018, passed by 1^st Additional Sessions Judge, Rajnandgaon (C.G.) in Sessions Case No.05 of 2018 (State of Chhattisgarh v. Shankar Lal Kanwar)]

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Shankar Lal Kanwar, Son of Late Shri Jai Singh Kanwar, aged about 32 years, Resident of Village- Khursipar, Police Station Gendatola, District Rajnandgaon (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Genda Tola, District Rajnandgaon (Chhattisgarh)

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---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. Gajendra Sahu, Advocate/Panel Lawyer appointed through CG High Court Legal Service Committee For Respondent : Mr. Sharad 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

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Judgment on Board (17.09.2024)

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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

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Page No.2 of 10 IN CRA-598-2019

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sentence dated 18.09.2018, passed by 1^st Additional Sessions Judge, Rajnandgaon (C.G.) in Sessions Case No.05 of 2018 (State of Chhattisgarh v. Shankar Lal Kanwar), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months.

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(2) The case of the prosecution, in short, is that on 19.11.2017, at about 09:30 PM, the accused-appellant herein assaulted his maternal grand-mother, namely, Amrit Bai, aged about 75 years (hereinafter referred to as the “deceased”) by means of tangiya (axe), due to which, she suffered grievous injuries and died on next day i.e. on 20.11.2017 and, thereby, said to have committed offence under Section 302 of IPC.

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(3) It is further case of the prosecution that when Santuram Meshram (PW-01), the Kotwar of the village, reported the matter to the police, dehati nalsi (Ex.P/01) and FIR (Ex.P/1A) were registered against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/07 and inquest proceedings were conducted vide Ex.P/08. Spot map was prepared vide Ex.P/02. Merg intimations (Ex.P/23 & P/24) were also registered. The dead-body of deceased was sent for postmortem examination, which was conducted by Dr. SN Hussaini (PW-12) and, as per PM report (Ex.P/17A), cause of death of the

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Page No.3 of 10 IN CRA-598-2019

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deceased has been opined to be shock as a result of blunt thoracoabdominal trauma with multiple bone fractures. The appellant-accused was arrested vide Ex.P/25 and his memorandum statement was recorded vide Ex.P/05. Pursuant to the memorandum statement of the appellant, weapon of the offence i.e. axe alongwitgh his clothes (i.e. full-pant jeans, jacket & half-shirt) were seized vide Ex.P/06. Certain other articles were also seized vide Ex.P/04 & Ex.P/10. The aforesaid seized articles were sent for chemical examination and as per FSL report (Ex.P/15A) it has been opined that apart from other articles stains of blood were also found on the axe seized pursuant to the memorandum statement of the appellant and stains of human blood having “B” Group were found on the clothes of the appellant. After statements of witnesses were recorded and completion of the investigation, the police filed chargesheet 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 13 witnesses and exhibited 26 documents, whereas the appellant-accused in support of his defence, neither examined any witness nor exhibited any document.

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(5) The learned trial Court after appreciating the oral and

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Page No.4 of 10 IN CRA-598-2019

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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. Gajendra Sahu, learned counsel appearing for the appellant submits that the learned trial Court is absolutely 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 submits that there is no direct evidence available against the appellant and case of the prosecution is based on circumstantial evidence. The extra-judicial confession allegedly made by the appellant to Santuram (PW-01), Bhagwat Chandrawanshi (PW-03) and Kishun Kumar Chandrawanshi (PW04) is hit by Section 24 of the Indian Evidence Act, 1872 (for short the “IE Act”) and, therefore, the same is not reliable and trustworthy to hold the appellant guilty for the offence. Learned counsel further submits that though pursuant to the memorandum statement of the appellant axe and his clothes have been seized, in which, as per FSL report stains of blood and human blood respectively were found, but solely on that basis the appellant cannot be convicted that too for an offence under Section 302 of IPC. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on basis of benefit of doubt.

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Page No.5 of 10 IN CRA-598-2019

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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 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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(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, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/17A), wherein it has been opined that cause of death of the deceased is shock as a result of blunt thoracoabdominal trauma with multiple bone fractures and nature of death is unnatural, which is duly proved by the statement of Dr. SN Hussaini (PW-12). Accordingly, taking into consideration the postmortem report (Ex.P/17A) and the statement of Dr. SN Hussaini (PW-12), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion 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

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Page No.6 of 10 IN CRA-598-2019

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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?

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(11) In the case at hand, in order to hold the appellant guilty of the offence in question, the learned trial Court after holding the death of the deceased to be homicidal in nature relied upon the evidence in the shape of extra-judicial confession given by the appellant to Santuram (PW-01), Bhagwat Chandrawanshi (PW-03) and Kishun Kumar Chandrawanshi (PW-04).

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(12) It is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [ See : Sahadevan and another

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v. State of Tamil Nadu1 ]

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(13) In the matter of Sahadevan (supra), their Lordships of the 1 (2012) 6 SCC 403

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Page No.7 of 10 IN CRA-598-2019

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Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab 2 and pertinently laid down the

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principle in paragraphs 15.1, 15.8 and 16 as under :-

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“15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

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“10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

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15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. ( Ref. Sk. Yusuf v. State of W.B.³ and Pancho v. State of Haryana⁴ .)

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The principles

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Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused :

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(i) The extra-judicial confession is a weak evidence by

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2 1995upp (4) SCC 259

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3 (2011) 11 SCC 754

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4 (2011) 10 SCC 165

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Page No.8 of 10 IN CRA-598-2019

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itself. It has to be examined by the court with greater care and caution.

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(ii) It should be made voluntarily and should be truthful.

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(iii) It should inspire confidence.

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(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

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(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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(vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

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(14) Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court in above-stated judgments qua extra-judicial confession, it is quite vivid that firstly the appellant is said to have given extra-judicial confession to Santuram (PW-01), who has clearly stated before the Court that on being asked, the appellant informed that he has assaulted her maternal grand-mother. Santuram (PW-01) has also stated that on being enquired by the police, the appellant informed about the incident to assaulting the deceased by means of axe and, as such, the same is hit by Section 25 of the IE Act. Thereafter, the appellant is said to have given extra-judicial confession to Bhagwat Chandrawanshi (PW-03) and Kishun Kumar Chandrawanshi (PW-04). Both the said witnesses have stated before the Court on being enquired, the appellant informed that he has assaulted his maternal grandmother by means of axe, due to which she died and, as such, the

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Page No.9 of 10 IN CRA-598-2019

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same cannot be treated to be voluntary and trustworthy for the reason that the appellant himself has not made confession before the said witness. Consequently, it would be totally unsafe and risky to convict the appellant on the basis of said extra-judicial confession, more particularly, when the same has been made in presence of police. Therefore, in light of aforesaid infirmities the learned trial Court has committed grave legal error in relying upon the said extra-judicial confession in order to convict appellant. We hereby hold accordingly.

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(15) One more incriminating circumstance that has been relied upon by the learned trial Court is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/05, axe alongwith his clothes were seized vide Ex.P/06 and, as per FSL report (Ex.P/15A), stains of blood were found on the said axe, whereas stains of human blood having “B” Group were found on the clothes of the appellant. However, according to the dicta of Raja Naykar v. State of Chhattisgarh5 ), it is well settled principle of law that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances and, as such, the recovery of said article is of no help to the prosecution. We hereby hold accordingly.

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(16) In view of aforesaid discussion, the conviction and sentence of

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5 2024 SCC Online SC 67

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Page No.10 of 10 IN CRA-598-2019

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the appellant for offence punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, is liable to be and is hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is in jail, we direct that he be released from jail forthwith, if not required in any other matter/crime.

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(17) This criminal appeal is allowed .

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(18) Let a certified copy of this order alongwith the 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

Shankar Lal Kanwar v. State of Chhattisgarh

Case brief

What is this about?

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Shankar Lal Kanwar v. State of Chhattisgarh

Case brief

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