Mukesh Das Manikpuri Vs State of Chhattisgarh

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2024:CGHC:31257-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 653 OF 2018

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(Arising out of judgment dated 20.03.2018 passed in Sessions Trial No.0000137/2015 by 7^th Additional Sessions Judge, Durg, CG)

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Mukesh Das Manikpuri S/o Late Milan Das Manikpuri, Aged About 22 Years, R/o Village Khamhariyabhata, Chowki Jevra Sirsa, Thana Pulgaon, District Durg Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through Thana Incharge, Police Station, Pulgaon, District Durg Chhattisgarh

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... Respondent

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For Appellant : Mr. Abhishek Banjare and Mr. Veer Verma, Advocates

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For : Mr. Ashish Shukla, Addl. Advocate General, Mr. Sharad Mishra and Mr. Respondent/State Soumya Rai, Panel Lawyer

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Digitally si gned by BHOLA NATH KHATAI Date: 2024.08.22 16:10:16 +0530

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Division Bench

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

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Judgment on Board (14.08.2024)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 20.03.2018, passed by 7^th Additional Sessions Judge, Durg, District Durg, Chhattisgarh, in Sessions Trial No.0000137/2015, whereby the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.200/- and, in default of payment of fine, to undergo additional rigorous imprisonment for 2 months.

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2 . The case of prosecution, in short, is that on 28.07.2015, at about 9 a.m., in village Khamhariya Bhata, Chowki Jevra Sirsa, Police Station Pulgaon, District Durg (CG), the appellant herein assaulted Dharmendra Hirwani/Sahu (now deceased) by knife, as a result of which, he suffered grievous injuries and died, thereby committed the offence of murder punishable under Section 302 of IPC. It is the further case of prosecution that the father of deceased Hansraj Sahu (PW-1) reported the matter to Police Chowki, Jevra Sirsa, pursuant to which, Dehati Nalishi (Ex.P-1) was lodged in which Hansraj Sahu (PW-1) informed that the appellant assaulted his son Dharmendra (deceased) by knife due to which he suffered grievous injuries and died and the incident was witnessed by his younger son Yuvraj (PW-13) and other people. Based on Dehati Nalsi (Ex.P-1), FIR (Ex.P-17) was registered. Crime Details Form (Ex.P-2) was prepared by Investigating Officer P. K. Sahu (PW-18) at the the instruction of Hansraj Sahu (PW-1) on 28.07.2015 at 3 p.m.. However, Nazari Naksha (Ex.P-3) was prepared with delay of about one month on

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22.08.2015 by Patwari Rekha Shukla (PW-6). The palm print found on the wall of the spot was taken vide Ex.P-21 & P-22 and marked as A and the palm print of appellant was taken vide Ex.P-5 and marked as S-1A. The aforesaid samples of palm/finger prints were sent for matching/examination to a Finger Print Expert at Police Head Quarter, Finger Print Branch, Raipur which was conducted by S. K. Jain (PW-14) and in his report Ex.P20 it has been opined that the finger print found on the wall (marked as A) matched with the finger print marked as S-1A which belongs to the appellant. Both the palm/finger prints i.e. A & S-1A are of the same person i.e. appellant. Inquest proceedings were conducted vide Ex.P16 and the dead body of the deceased was sent for postmortem examination which was conducted by Dr. Sanjeev Kumar Shukla (PW-8) vide Ex. P/10 in which the cause of death is opined to be shock and haemorrhage due to anti-mortem injuries to lung and the nature of death was homicidal. Memorandum statement of the appellant was recorded vide Ex.P/5, pursuant to which, knife was seized vide Ex.P/9 which was sent for chemical examination to FSL along with the clothes of appellant. As per FSL report Ex.P-31, human blood was found on the full pant of appellant and blood was found on the knife.

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3 . After completion of investigation, the appellant was charge - sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court, for trial and its disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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4 . During the course of trial, in order to bring home the

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offence, prosecution examined as many as 22 witnesses and exhibited 32 documents. The statement of the appellant / accused was recorded under Section 313 of the 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, appellant-accused in support of his defence has not examined any witness but exhibited two documents.

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

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6 . Mr. Abhishek Banjare and Mr. Veer Verma, learned counsel for the appellant would submit that the prosecution has miserably failed to bring home the offence beyond reasonable doubt against the appellant. They submit that the only eye witness named in Dehati Nalsi (Ex.P-1) and FIR (Ex.P-17) is Yuvraj (PW-13) but he has not witnessed the incident as he had seen the incident from the window and the said window has not been shown in Crime Details Form (Ex.P-2) and Nazari Naksha (Ex.P-3). They submit that it is extremely doubtful whether Yuvraj (PW-13) had seen the incident or not and therefore, his testimony is also doubtful and reliance cannot be placed on it. They further submit that the finger print evidence is a weak piece of evidence which could not be relied upon in the absence of any corroboration. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal on the principles of benefit of doubt.

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7 . Mr. Ashish Shukla, Mr. Sharad Mishra and Mr. Soumya

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Rai, learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of appellant for the offence under Section 302 of I.P.C. is well merited, as such, the 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 gone through the records with utmost circumspection.

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9 . The first & foremost question for consideration is whether the death of deceased Dharmendra Hirwani/Sahu was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex. P-10) proved by Dr. Sanjeev Kumar Shukla (PW-8), which in our considered opinion is a 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.

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10. The case of prosecution is based on direct as well as circumstantial evidence. We first deal with the direct evidence and then come to the circumstantial evidence.

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11. As a direct evidence, the prosecution has brought on record the evidence of Hansraj Sahu (PW-1) and Yuvraj Sahu (PW-13) who are the father and brother of the deceased. The father of the deceased Hansraj Sahu (PW-1) had reported the matter to the Police pursuant to which Dehati Nalsi (Ex.P-1) and FIR (Ex.P-17) were lodged in which he has named only Yuvraj Sahu (PW-13) who had witnessed the incident but other persons have not been named. However, in para-1 of his statement before the Court he has stated that he had also seen the incident along with his son Yuvraj (PW-13). As such, by his own

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conduct, it is clearly established that Hansraj Sahu (PW-1) is not the eye witness who had seen the incident where the appellant caused the death of his son Dharmendra Hirwani .

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12. The brother of the deceased Yuvraj Sahu (PW-13), aged about 14 years, has stated that at that time he was taking bath and on hearing noise, he peeped out of the window and saw the appellant assaulting his brother with a knife. His brother came out of the kitchen by staggering and fell down in the courtyard. At that time his father also came there. In para-20 of the cross-examination he has mentioned that he had witnessed the incident from the window of the kitchen. In para-23 of the cross-examination he has stated that the place where he was taking bath was an open space and there was no window. However, in para-24 he states that there is a window and a door between the place where he was taking bath and the place of incident. In this regard, it would be appropriate to look at the Crime Details Form (Ex.P-2) prepared on 28.07.2015 by I.O. P. K. Sahu (PW-18) at the instance of Hansraj Sahu (PW-1). Careful perusal of Ex.P-2 would reflect that A - Kitchen, B & C – rooms, D - Angan and E - Badi have been shown on it but the place from where Yuvraj (PW-13) had seen the incident has not been mentioned. Though it has been prepared on the date of incident at 2:40 p.m., the prosecution has committed error in preparing it at the instance of Hansraj Sahu (PW-1) whereas according to Hansraj Sahu, Yuvraj Sahu (PW-13) is the eye witness, therefore, it ought to have been prepared at the instance of the eye witness i.e. Yuvraj Sahu (PW-13) showing the place from where he had seen the incident. But the prosecution has failed to do so for the reason best known to them. Furthermore, Nazari Naksha (Ex.P-3) was prepared with a delay of about one month on 22.08.2015 by Patwari Rekha

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Shukla (PW-6) in which also only courtyard, house and kitchen have been mentioned and there is no mention of the window from where Yuvraj Sahu (PW-13) had seen the appellant assaulting his brother (deceased).

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13. In this regard, Hon’ble Supreme Court in the case 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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14. Similarly in the case of Baldev Singh and Another Vs. State of M.P.² (2003) 9 SCC 45 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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“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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15. Hon’ble Supreme Court in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In

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1 (2003) 12 SCC 758

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2 (2003) 9 SCC 45

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Re Vs. State of Andhra Pradesh and Others³ , in para-3, has issued the following guidelines regarding site plan: “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

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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 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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16. Despite the principles of law laid down by their Lordships in the case of Shingara Singh (supra), Baldev Singh (supra) and the guidelines issued in the matter of Criminal

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3 (2021) 10 SCC 598

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Trials Guidelines Regarding Inadequacies and Deficiencies , in both the site plans though the kitchen where the deceased was cooking has been shown but both the site plans do not indicate the place or the window from where Yuvraj Sahu (PW-13) had seen the appellant assaulting the deceased. In the absence of effective site plan, it cannot be held that Yuvraj Sahu (PW-13) had an occasion to see the appellant assaulting the deceased. As such, the testimony of Yuvraj Sahu (PW-13) as an eye witness to the incident is doubtful.

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17. The next piece of evidence that has been brought on record on the part of prosecution is the palm/finger print report Ex.P-20 where the finger print of the appellant (marked as S-1A) has been found matched with the finger print found on the wall of the spot (marked as A) on which heavy reliance has been placed by the prosecution .

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18. The Supreme Court in the matter of Mush Musheer Khan @ Badshah Khan and another v. State of Madhya Pradesh⁴ has held that evidence of finger print expert report is not a substantive piece of evidence and such evidence can be used to corroborate some items of substantive evidence which are otherwise on record. Similarly, in the matter of Roop Singh v. State of Punjab⁵ (Para-13) it has been held that there was no evidence led by the prosecution to show that the print in question came into existence at the time of alleged incident took place. Further, the Supreme Court in the matter of Nagaraja v. State of Karnataka⁶ clearly held that while taking finger print of an accused though permission from the Magistrate is not

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5 AIR 2009 SC (Suppl.) 444

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6 (2020) 2 SCC 257

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4 AIR 2010 SC 762

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required to be taken in law, but in order to eliminate the suspicion it ought to have been taken and held in Para-15 as under:

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“15. We may also refer to the other circumstance, namely, matching the fingerprints of the appellant with the chance fingerprints, which were found on certain utensils. PW-14, in his deposition admitted that he has not obtained permission from the Magistrate for taking the fingerprints of the accused. The Magistrate, in fact, has referred to the judgment of this Court reported in Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44. In the said case, it was held as follows inter alia:-

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“Even though the specimen finger-prints of Mohd. A man had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass, jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and

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exhibited during trial – for reasons best known to the prosecution and unknown to the Court. Thus the accused could not be convicted for murder.”

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19. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above stated judgments, it is quite vivid that the evidence of finger print expert report is not a substantive piece of evidence and such evidence can be used to corroborate some items of substantive evidence which are otherwise on record. Furthermore, though the finger print of the appellant marked as S-1A and the palm print found on the wall marked as A were found to be similar but the State counsel failed to point out that any permission was taken from the concerned Magistrate before taking the finger print of the accused. As per the FSL report Ex.P-31, though blood has been found on the knife and human blood has been found on the full pant of the appellant but in absence of any corroborative piece of evidence, it would be unsafe to convict the Appellant for the offence punishable under Section 302 of IPC.

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20. In that view of the matter, this Court does not find any evidence on record direct or circumstantial against the appellant to affirm his conviction for the offence in question and, therefore, he is entitled for acquittal on the basis of benefit of doubt.

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21. Accordingly, t he impugned judgment dated 20.03.2018 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted from the said offence. Appellant is stated to be in jail since 17.08.2015. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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22. This criminal appeal, accordingly, stands allowed.

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23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence, for information and necessary action.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)

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Judge Judge

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Khatai

Mukesh Das Manikpuri v. State of Chhattisgarh

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Mukesh Das Manikpuri v. State of Chhattisgarh

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