Premlal Sahu Vs State Of Chhattisgarh

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(Criminal Appeal No.709 of 2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 709 of 20 17

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[Arising out of judgment dated 11.07.2013, passed in Sessions Case No.06 of 2012 (State of Chhattisgarh v. Premlal Sahu), by the 1^st Addl. Sessions Judge, Balodabazar (C.G.)]

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Premlal Sahu, Son of Late Purshottam Lal Sahu, aged about 47 years, Resident of Village Pandari Pani, Police Station Bailaigarh, District Raipur now District Balodabazar-Bhatapara (Chhattisgarh)

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---- Appellant (In jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Bilaigarh, District Raipur (Chhattisgarh)

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---- Respondent

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---------------------------------------------------------------------------------------- For Appellant : Mr. Anand Kumar Gupta, Advocate For Respondent : Mr. Rahul Tamaskar, G.A.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (13.02.2024)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed under Section 374(2) of Cr.P.C., by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 11.07.2013, passed by the 1^st Additional Sessions Judge, Balodabazar in Sessions Case No.06 of 2012, 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, sentenced to undergo additional

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rigorous imprisonment for 03 months.

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(2) The case of the prosecution, in brief, is that on 19.11.2011, at about 01:00 PM in the afternoon, at Village Pandari Pani, within the ambit of Police Station Bailaigarh, the accusedappellant herein with the intent to kill Parvez Khan (hereinafter referred to as the “deceased”) assaulted him by means of sickle, due to which he suffered grievous injuries and died and, thereby, the appellant is said to have committed offence under Section 302 of IPC. The said incident has been witnessed by Kamal (PW-02), whereas Amjad Khan (PW-03), Mukesh Kumar Sahu (PW-04), Laxman (PW-05) and Aghan Bai (PW-06) are said to have witnessed the appellant absconding from the spot armed with sickle.

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(3) The further case of the prosecution is that when the matter was reported to the police by Rahim Khan (PW-01), the police registered FIR (Ex.P/04) and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/07. Nazari Naksha and Panchnama were also prepared vide Ex.P/01 & Ex.P/02 respectively. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/11), conducted by Dr. Narayan Manjhi (PW-19), it was opined that the cause of death of deceased is neurogenic shock as a result of injury on neck and nature of death is homicidal.

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Thereafter, the appellant was arrested vide Ex.P/17 and his memorandum statement was recorded vide Ex.P/13. Pursuant to the memorandum statement of the appellant, one sickle has been seized vide Ex.P/15. The aforesaid seized sickle alongwith other seized articles were sent for chemical examination vide Ex.P/21, but not FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Bailaigarh 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 22 witnesses and exhibited 22 documents, whereas the appellant in support of his defence has not examined any witness, but exhibited 02 documents.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the appellant herein 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

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questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Anand Kumar Gupta, 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 further submits that the conviction of the appellant is merely based on the testimony of eye-witness, namely, Kamal (PW-02). However, a bare perusal of his statement would show that though he has stated that on the date and time of the offence, he has seen the appellant assaulting the deceased, but during his cross-examination, he has clearly stated that prior to the incident, the appellant herein was not known to him and he has named the appellant herein without there being any Test Identification Parade (for short “TIP”) conducted by the police. As such, in light of the decision of the Supreme Court in the matter of Gireesan Nair and others v.

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State of Kerala1 , the testimony of Kamal (PW-02) is inadmissible in evidence. It is also contended by learned counsel for the appellant that though Amjad Khan (PW-03), Mukesh Kumar Sahu (PW-04), Laxman (PW-05) and Aghan Bai (PW-06) are said to have witnessed the appellant herein absconding from the spot armed with sickle, but at best they can be treated as res gestae

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1 (2023) 1 SCC 180

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witnesses and, in absence of any corroboration, their testimonies cannot be relied upon to convict the appellant therein for the offence in question. Hence, the present appellant deserves to be acquitted of the said charge on the basis of benefit of doubt and his appeal is liable to be allowed.

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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. He further submits that in view of the statements of prosecution witnesses, specially Kamal (PW-02), Amjad Khan (PW-03), Mukesh Kumar Sahu (PW04), Laxman (PW-05) and Aghan Bai (PW-06), coupled with other material available on record i.e. recovery of sickle vide Ex.P/15 pursuant to the memorandum statement of the appellant, 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

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the postmortem report (Ex.P/11), wherein it has been opined that cause of death of deceased is neurogenic shock as a result of injury on neck and nature of death is homicidal, which is duly proved by the statement of Dr. Narayan Manjhi (PW-19). Accordingly, taking into consideration the postmortem report (Ex.P/11) and the statement of Dr. Narayan Manjhi (PW-19), who has conducted 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 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 or not, which the learned trial Court has recorded in affirmative by relying upon the testimony of eye-witness, namely, Kamal (PW-02) and that of res gestae witnesses, namely, Amjad Khan (PW-03), Mukesh Kumar Sahu (PW-04), Laxman (PW-05) and Aghan Bai (PW-06).

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(11) In the instant case, the prosecution has cited Kamal (PW02) as an eye-witness to the incident. However, a bare perusal of the statement of Kamal (PW-02) would show that though he has stated that on the date and time of the offence, he has seen the appellant assaulting the deceased, but in Para-05 & 06 of his cross-examination, he has clearly stated that prior to the

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incident, the appellant herein was not known to him and police officials have not conducted any identification test/proceedings of the appellant by him and, further, when he witnessed the appellant herein assaulting the deceased, he did not make any hue and cry and also not informed the said incident to anyone. Moreover, in the present case, the FIR has been lodged by Rahim Khan (PW-01). Therefore, in view of aforesaid, the question for consideration before us is whether the learned trial Court has rightly relied upon the testimony of Kamal (PW-02).

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(12) In this regard, the decision of Gireesan Nair (supra) can be referred to herein profitably, wherein in Para-28 to 32 their Lordships of the Supreme Court held as under:

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“ 28. We may, at the outset, note that the eyewitnesses questioned by the prosecution did not give out the names or identities of the Accused participating in the riot and involved in the destruction of public property. Therefore, the IO (PW-84) had to necessarily conduct a TIP. The object of conducting a TIP is threefold. First , to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second , to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third , to test the witnesses’ memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla v. State of U.P., (2010) 3 SCC 508) .

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29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is

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required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P., (1971) 2 SCC 75; Mulla (supra) and C. Muniappan v. State of T.N., (2010) 9 SCC 567) . The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained [State of H.P. v. Lekh Raj, (2000) 1 SCC 247 ; and C. Muniappan (supra)].

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30. It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay [Mulla (supra) and Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80).

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31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not

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admissible as a valid piece of evidence [Lal Singh v. State of U.P., (2003) 12 SCC 554 and Suryamoorthi v. Govindaswamy, (1989) 3 SCC 24].

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32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless [SK. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103]. Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 [Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104].”

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(13) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid that in the instant case admittedly prior to the incident, Kamal (PW-02) did not know the appellant herein and the prosecution has failed to conduct any TIP as enumerated by their Lordships of the Supreme Court in Para-28 above judgment, indeed, only on the basis that the police personal informed the name of the appellant to Kamal (PW-02) during the course of investigation, Kamal (PW-02) alleged the name of the appellant herein to be the author of the crime in question and, therefore, he has been cited as an witness to the incident in question. Accordingly, in light of the decision of the Supreme Court rendered in the matter of Gireesan Nair (supra), the testimony of Kamal (PW-02) is inadmissible in evidence, as

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in absence of any valid test/identification proceeding of the appellant herein by him [Kamal (PW-02)], his statement that he has seen the appellant herein assaulting the deceased on the date and time of the offence, does not inspire confidence and cannot be relied upon to convict the appellant herein. Furthermore, the learned trial Court has relied upon the testimonies of Amjad Khan (PW-03), Mukesh Kumar Sahu (PW04), Laxman (PW-05) and Aghan Bai (PW-06), as they all have seen the appellant herein absconding from the spot armed with sickle. However, though the statements of aforesaid witnesses are admissible in evidence under Section 06 of the Indian Evidence Act, 1872 as res gestae witnesses, but in absence of any strong corroboration or other piece of incriminating circumstance, same cannot be relied upon to convict the appellant herein for the offence in question (See: Badruddin Rukonddim Karpude and others v. State of Maharashtra2 ).

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(14) In that view of the matter, it would be totally unsafe to convict the appellant for the offence of murder of the deceased on the basis of testimonies of aforesaid witnesses and the learned trial Court is absolutely unjustified in convicting the appellant herein for offence under Section 302 of IPC. He is entitled for acquittal on the basis of benefit of doubt and, as such, we are unable to uphold the conviction of the appellant, as

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2 AIR 1981 SC 1223

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awarded by the learned trial Court. Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment 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 since 20.11.2011, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

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(15) This criminal appeal is allowed .

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(16) 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) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Premlal Sahu v. State Of Chhattisgarh

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Premlal Sahu v. State Of Chhattisgarh

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