Gaurishankar Chouhan @ Bhakud Vs State Of Chhattisgarh

This criminal appeal preferred by the sole appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 13-12-2017 passed by the Sessions Judge, Korba in Sessions Trial No.27/2017, by which the appellant has been convicted and sentenced as under with a direction to run all the sentences concurrently: -

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Conviction		Sentence
Section 302 of the IPC	Imprisonment for default, additional months	life & fine of 500/-, in ₹ imprisonment for three

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Section 201 of the IPC	Rigorous imprisonment for three years &
	fine of 200/-, in default, additional ₹ imprisonment for one month
Section 177 of the IPC	Simple imprisonment for six months

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Case of the prosecution, in short, is that on 23-11-2016 at 1 p.m., at Village Katbitla, the appellant applied force on the neck of his wife Mithlesh by which she suffered injury and died, and thereafter, in order to screen himself from the offence, he poured kerosene oil on the body of Mithlesh and enlightened matchstick and thereby committed the offence. Thereafter, the appellant himself informed the matter to Police Station Urga pursuant to which morgue intimation Ex.P-17 was recorded and FIR was registered vide Ex.P-20. Inquest over the dead body of the deceased was conducted vide Ex.P-2. Spot map was prepared by the Patwari vide Ex.P-5. Dead body was sent for autopsy to Primary Health Centre, Korba vide Ex.P-11. Autopsy was conducted by Dr. Deepak Singh Raj (PW-10) vide autopsy report Ex.P-15 in which cause of death was stated to be asphyxia due to constrictive force applied around the neck, burn injuries are second degree burn with charring and destruction of full thickness of skin which are postmortem in nature, and death was homicidal in nature. Pursuant to the memorandum statement of the accused / appellant recorded vide Ex.P-13, one lungi was seized from his possession vide Ex.P-14. Seized articles were sent for chemical examination to the FSL, Raipur from where report Ex.P-27 was received according to which part of kerosene oil was found on jar, soil and sari of the deceased. Statements of witnesses were recorded under Section

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161 of the CrPC and after usual investigation, the appellant was charge-sheeted for offences under Sections 302, 201 & 177 of the IPC and the case was committed to the Court of Session, Korba for hearing and disposal in accordance with law where the trial was conducted.

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The prosecution, in order to prove the offence against the appellant, examined as many as 18 witnesses and brought on record 31 documents Exs.P-1 to P-31 apart from Articles 1 to 8. The defence has examined two witnesses namely, Radha Bai (DW-1) & Pooja (DW-2) in its defence, however, not brought on record any document.

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The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein for offences under Section 302, 201 & 177 of the IPC, against which he has preferred this appeal.

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Mr. Rishi Rahul Soni, learned counsel appearing for the appellant, would submit that Lallaram Rajwade (PW-9) has been cited as eyewitness, whereas he was not eye-witness and as per the final report, he was cited as witness of seizure and memorandum and even his statement under Section 161 of the CrPC was not recorded and therefore the trial Court is absolutely unjustified in placing reliance upon the evidence of Lallaram Rajwade (PW-9) holding him to be the eye-witness which is unsustainable and bad in law. He would further submit that Section 106 of the Evidence Act would not apply as defence witness Radha Bai (DW-1) has not clearly stated before the Court that he has seen the appellant at the place of incident before

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the incident or after the incident. Even the trial Court has failed to establish the offence against the appellant beyond reasonable doubt, therefore, Section 106 of the Evidence Act would not apply. He would also submit that motive is also not established, as the deceased was not the legally wedded wife of the appellant and dead body was found in the courtyard of the father of the appellant which is apparent from nazri naksha Ex.P-5. Therefore, conviction and sentences imposed upon the appellant herein are liable to be set aside and he is entitled for acquittal on the basis of benefit of doubt.

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Mr. Rahul Tamaskar, learned Government Advocate appearing for the State / respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the impugned judgment is well merited. Therefore, the appeal deserves to be dismissed.

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

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The first question for consideration would be, whether the death of the deceased was homicidal in nature to which the trial Court after appreciating the medical evidence on record, particularly the statement of Dr. Deepak Singh Raj (PW-10) and taking into account the postmortem report Ex.P-15 has rightly come to the conclusion that the death of the deceased was homicidal in nature which is a pure and correct finding of fact based on the evidence available on record and which is neither perverse nor contrary to the record. Even

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otherwise, it has not been seriously disputed by learned counsel for the appellant that death of deceased Mithlesh was homicidal in nature. In view of the aforesaid analysis, we hereby accept and hold that death of the deceased was homicidal in nature and we also hereby affirm the finding recorded by the trial Court that death of the deceased was homicidal in nature.

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Now, the first circumstance that has been found proved by the trial Court is Lallaram Rajwade (PW-9) has witnessed the incident by which he has seen the appellant burning the deceased and thereafter absconded, however, he has fairly stated that he did not inform the said fact to the police. The trial Court also in paragraph 36 of the judgment states that statement of Lallaram Rajwade (PW-9) under Section 161 of the CrPC has not been recorded and has also referred to the statement of investigating officer Pushpendra Naik (PW-12) that he has not recorded the statement of Lallaram Rajwade (PW-9) (wrongly spelt as Lallaram Rathore). Even investigating officer Pushpendra Naik (PW-12) has also stated before the Court that Lallaram Rajwade (PW-9) has not stated anything about burn injuries having been caused to the deceased by the appellant herein. However, the trial Court has proceeded to rely upon the statement of Lallaram Rajwade (PW-9) on the ground that even if his statement under Section 161 of the CrPC is not recorded, it would not affect the case of the prosecution.

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At this stage, the decision of the Madhya Pradesh High Court in the matter of Panna Fodaliya v. The State of Madhya Pradesh 1 deserves to be noticed in which relying upon the decision of the Allahabad High Court in the matter of Gopal Krishna v. State 2, it has been held by the M.P. High Court that it is the duty of an Investigating Officer to record the statement of eye-witnesses and of other material witnesses, and where there si a solitary eye-witness there can be no justification whatsover for not recording his statement and the conduct of the Investigating Officer in the absence of any plausible explanation must be viewed with suspicion. The M.P. High Court in Panna Fodaliya (supra) observed as under: -

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“9. Learned counsel for the appellant urged that it is very likely that although the statement of Jagdish was recorded by the Investigating Officer, it is being suppressed because it is not in favour of the prosecution. This contention cannot be said to be without force in the circumstances of this case.

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By not recording the statement of Jagdish during investigation the appellant has been denied a very valuable opportunity of testing the veracity of the witness with reference to his earliest version, and, therefore, it is difficult to attach any weight or value to the statement of Jagdish in Court.”

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Furthermore, the Supreme Court in the matter of Pratap Singh and

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another v. State of M.P. 3 has held that it is the duty of the investigating officer to produce the statements of independent witnesses with the charge-sheet but, if the same had not been done,

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1 1970 Cri L.J. 1180

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2 AIR 1964 All 481

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3 (2005) 13 SCC 624

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the benefit thereof must be given to the defence and not to the prosecution.

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Reverting to the facts of the case, it is quite vivid that Lallaram Rajwade (PW-9) was cited as witness in the final report which has been filed along with the charge-sheet and is also a part of the paperbook (page 53) wherein he was cited as seizure / memorandum witness, however, he has well improved the version and stated that he has seen the appellant burning the deceased and thereafter, the appellant absconded. Lallaram Rajwade (PW-9) has also been confronted to his statement made in the examination-in-chief by way of cross-examination in which he has stated that he has not given any statement to the police to the effect of witnessing the incident, though he has refuted that he has not given any such statement, but, however, Pushpendra Naik (PW-12), who is the investigating officer, has clearly admitted that neither such incident of causing burn injuries to the deceased by the appellant has been informed to him by Lallaram Rajwade (wrongly mentioned as Lallaram Rathore, whereas it is Lallaram Rajwade) nor the incident of witnessing the offence of committing murder of the deceased by the appellant and thereafter absconding, has been informed to him by Lallaram Rajwade. The trial Court has also discussed this fact and circumstance in paragraph 36 of the judgment, but proceeded to rely upon the statement of Pushpendra Naik (PW-12) that it would not substantially affect the prosecution case. The prosecution has cited Lallaram Rajwade (PW9) only as a witness of seizure & memorandum and the prosecution

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has not cited him as eye-witness. Lallaram Rajwade (PW-9) himself has improved his version before the Court and came as eye-witness by which the appellant has been denied a very valuable opportunity of testing the veracity of the witness, as the date of incident is 23-112016 and the statement of Lallaram Rajwade (PW-9) before the Court was recorded on 23-6-2017 at least after seven months of the incident and his conduct in not reporting the matter to the police and not giving statement though he is witness to memorandum & seizure appears to be blameworthy and it is difficult to attach any weight or value to the statement of Lallaram Rajwade (PW-9) made before the Court that he has witnessed the offence of committing murder of the deceased by the appellant and thereafter the appellant absconded which is made basis for conviction of the appellant under Section 302 of the IPC. Thus, following the decision of the M.P. High Court in Panna Fodaliya (supra), we are of the considered view that the statement of Lallaram Rajwade (PW-9), who is witness to memorandum & seizure, to the extent of witnessing the incident by him, is not worth reliable and we hold accordingly.

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Now, coming to invocation of Section 106 of the Evidence Act in the instant case, as per the prosecution case and as shown in the nazri naksha (spot map) (Ex.P-5) prepared by the Patwari available at page 65 of the paper-book, the dead body of the deceased was found in the courtyard of Narayan, S/o Balakram – father of the appellant herein, it was not found inside the house and the appellant has been charged for offence under Section 302 of the IPC along with other

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offences. It was the duty of the prosecution while invoking Section 106 of the Evidence Act to prove and establish that the appellant and the deceased were living together and dead body of the deceased was recovered from the place where they both were residing together, whereas, in the present case, the dead body was found in the courtyard of the father of the appellant namely Narayan. Furthermore, the defence has examined Radha Bai (DW-1) – grandmother of the appellant, who in paragraphs 1 & 3 has clearly admitted that at the time of incident, she was preparing some food items in her daughter's house which is adjoining to the house in question and hearing the noise, she came to the house of the appellant and saw that Mithlesh (deceased) was burning, but the appellant was not seen there. In paragraph 7, she has further stated that when she went to the house of her daughter Narayani, the appellant was not present in his house and other members had gone for harvesting the crop. As such, presence of the appellant on the spot on the date and time of offence is not established to invoke Section 106 of the Evidence Act. More particularly, dead body of the deceased was found in the courtyard of the father of the appellant. Even otherwise, in order to attract Section 106 of the Evidence Act, the prosecution has to prove the offence against the appellant beyond reasonable doubt and then only as one of the incriminating circumstances Section 106 of the Evidence Act can be relied upon. As such, Section 106 of the Evidence Act would not be applicable in the present case.

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Furthermore, though the trial Court has held the motive of the appellant to commit the offence, to be proved as the appellant wanted to take divorce from his wife deceased Mithlesh. It is the case of the prosecution that the appellant and the deceased were living together and there was no valid marriage took place between them. As such, motive of the offence cannot be said to be proved.

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In that view of the matter, the prosecution has not been able to make out a case against the appellant for commission of offences punishable under Sections 302, 201 & 177 of the IPC and the appellant is entitled for acquittal on the basis of benefit of doubt.

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In view of the aforesaid analysis, in absence of any other legal evidence, we are of the considered opinion that it would be unsafe to affirm the conviction recorded by the trial Court to the appellant herein and accordingly, we set aside the conviction and sentences imposed upon him under Sections 302, 201 & 177 of the IPC. The appellant is acquitted of the said charges. He is in jail since 17-12-2016. He be released at once if his detention is not required in any other offence.

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The appeal succeeds and it is allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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

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Soma

Gaurishankar Chouhan @ Bhakud v. State Of Chhattisgarh

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Gaurishankar Chouhan @ Bhakud v. State Of Chhattisgarh

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