Rameshwar Tirkey Vs Statef of Chhattisgarh

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Digitally signed by RAGHVENDRA JAT Date: 2024.09.25 10:22:13 +0530

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2024:CGHC:36958-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 86 of 2019

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(Arising out of judgment dated 03.10.2018 passed in Sessions Trial No. 07/2018 by the Court of learned Sessions Judge, Jashpur, District-Jashpur Chhattisgarh)

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Rameshwar Tirkey Son of Sukhdev Tirkey, aged about 27 years, Caste-Uraon, R/o Hazari Toli, Police Station-Jashpurnagar, District-Jashpur (C.G.).

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---- Appellant

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Versus

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State of Chhattisgarh through the Station House Officer, Police Station-Jashpur, District-Jashpur (C.G.).

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---Respondent

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For Appellant : Mr. Sanjeev Kumar Sahu, Advocate . For Respondent : Mr. Vivek Mishra, P.L.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment On Board (20.09.2024 )

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Sanjay K. Agrawal, J.

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1 . The present criminal appeal under Section 374 (2) of Cr.P.C. has been filed by the appellant herein calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 03.10.2018, passed by the learned Sessions Judge, Jashpur, District-Jashpur Chhattisgarh, in Sessions Trial

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No. 07/2018, by which, the appellant herein has been convicted as under:-

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Conviction	Sentence
U/s 302 of Indian Penal Code	Imprisonment for life with fine of Rs. 1,000/- and, in default of payment of fine amount, additional R.I. for three months.
U/s 4 of Tonhi Pratadna Adhiniyam	Rigorous imprisonment for 1 year with fine of Rs. 500/- and, in default of payment of fine amount, additional R.I. for three months.
U/s 5 of Tonhi Pratadna Adhiniyam	Rigorous imprisonment for 3 years with fine of Rs. 1,000/- and, in default of payment of fine amount, additional R.I. for six months.

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All the sentences shall run concurrently.

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2 . Case of the prosecution, in nutshell, is that on 11.10.2017 at about 05:00 p.m. at Village-Hazari Toli under P.S.- Jashpur, the appellant assaulted Dasho Bai (now deceased) wife of Borson Ram (PW-1) by means of wooden stick and thereafter thrown stone on her head due to which she suffered grievous injuries and died, thereby, committed the aforesaid offences. Borson Ram (PW-1) reported the matter to the police, pursuant to which, merg intimation (Ex. P-01) and FIR (Ex. P-02) were registered. Inquest proceedings (Ex. P-07) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/11), proved by Dr. Anamay Bidvai (PW-

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7), cause of death of the deceased was due to premore effect on brain caused by large haematoma in side the cranium and also

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there is likely respiratory compromise secondary to multiple fractured ribs and sternum resulting in contused lungs and haemothorax, and the nature of death homicidal. Thereafter, appellant-accused was arrested (Ex.P/20) pursuant to which, soil, stone, clothes of the appellant & clothes of the deceased have been seized. The aforesaid seized articles were sent for chemical examination to FSL and, as per FSL report (Ex.P/24), human blood was found on the soil, clothes of the appellant & clothes of the deceased.

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

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4 . In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 25 documents. However, two witnesses (DW-1 & DW-2) have been examined by the appellant in his defence. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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5 . The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences 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 . Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant herein for the aforesaid offences, as the prosecution has not been able to prove the same beyond reasonable doubt. He further submits that only on the basis of testimony of the eye witness Borson Ram (PW-01), the trial Court has convicted the appellant. He further submits that the learned trial Court has failed to appreciate that Dr. Anamay Bidwai (PW-07) has stated that the seized wooden stick and stone were brought before him for examination and on examination, he did not find any blood stain over the seized wooden stick and stone. He also submits that the memorandum and seizure witnesses have not supported the case of prosecution and they have turned hostile. Therefore, considering the aforesaid infirmities, it must be held that the prosecution has utterly failed to prove its case beyond reasonable doubt. As such, learned counsel prays to allow the appeal and set aside the impugned judgment.

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7 . Mr. Vivek Mishra, 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 only on the basis of testimony of the eye witness Borson Ram (PW-01), the trial Court has correctly convicted the appellant for the offences mentioned hereinabove, 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 went through the records with utmost circumspection.

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9 . The first question for consideration is as to whether the death of deceased Dasho Bai was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/11), proved by Dr. Anamay Bidvai (PW7), in which cause of death of the deceased was stated to be due to premore effect on brain caused by large haematoma in side the cranium and also there is likely respiratory compromise secondary to multiple fractured ribs and sternum resulting in contused lungs and haemothorax, and the nature of death was stated to be homicidal, which in our considered opinion is the 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. Now the next question for consideration is whether the appellant is perpetrator of the crime in question?

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11. In the matter of Joseph v. State of Kerala , {(2003) 1 SCC 465}, their lordships of the Supreme Court have laid down the principle that where there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of evidence tendered by other witnesses or the material evidence placed on record and following was observed at para 13 :-

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“13…….Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.”

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12. In the matter of State of Haryana v. Inder Singh , {(2002) 9 SCC

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537} (SCC p.538, para 5), it was held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole

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witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court.

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13. In the case of Ramnaresh v. State of Chhattisgarh , {(2012) 4 SCC 257} their lordships after referring the judgments in the matters of Joseph (supra) and Inder Singh (supra) finally held as under

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“ 27 . The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eyewitness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.”

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14. In the case of Amar Singh v. State (NCT of Delhi) ,

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{(2020) 19 SCC 165} the following was observed at para-16:

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“ 16. Thus, the finding of guilt of the two appellantaccused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of

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Delhi) [ Sunil Kumar v. State (NCT of Delhi) , (2003) 11 SCC 367 : 2004 SCC (Cri) 1055] ].”

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15. Taking into consideration the aforesaid guiding principles laid

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down by the Supreme Court, it is established law that the Court can and may act on the testimony of single eyewitness provided he is wholly reliable. In the present case, Borson Ram (PW-1) husband of the deceased, who is aged about 70 years, has stated that on the date of incident he along with his wife Daso Bai and son, who is deaf by birth, were coming after grazing the cattle from their field and when they reached near the house, all of sudden, the appellant came there and, firstly assaulted his wife Daso Bai by wooden stick, due to which, she fell down and, thereafter, he caused injury to her by stone weighing 10-15 kg. He has further stated that thereafter Seva Ram (PW-02) reached to the spot, seeing whom, the appellant absconded from the spot. Though Borson Ram (PW-01) has been subjected to some length of cross-examination, but nothing could be extracted from him to hold that he has not seen the incident or telling lie before the Court in order to falsely implicate the appellant herein. As such, his testimony inspires confidence and can be relied upon. Seva Ram (PW-02) in his cross-examination in para 6 has clearly stated that he reached the spot after the incident and could not see the incident. Seva Ram (PW-02) has further stated in his evidence that the family of the appellant used to call Daso Bai a

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witch and Tonhhi. He has also stated that due to the above reason, they used to have fights. The testimony of Borson Ram (PW-01) is also corroborated by the medical evidence of Dr. Anamay Bidvai (PW-7), who has conducted postmortem and stated that deceased’s right side of skull fractured, head was also fractured, sternum bone was also fractured and most of the ribs were also fractured. The opinion of Dr. Anamay Bidvai (PW-07) is that the death of the deceased is due to the pressure of blood clot on the brain and internal injury in the brain and due to inability to breathe due to fracture of sternum bone and ribs, which is homicidal in nature. Further, the prosecution has also made query from Dr. Anamay Bidvai (PW-07) about the stone, which was seized from the spot and as per Query Report (Ex.P12), injury sustained by the deceased can be caused by the said stone. Though, other articles i.e. clothes of the appellant and that of the deceased were not seized pursuant to the memorandum of the appellant, but as per the FSL report (Ex.P/24) stains of human blood were found on the said articles. As such, on the basis of aforesaid evidence available on record, it is quite clear that it is the appellant herein who assaulted the deceased, due to which, she suffered grievous injuries and died. Thus, the trial Court, in our considered opinion, has rightly recorded the finding that it is the appellant who on the date and time of the offence has assaulted the deceased, due to which,

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she suffered grievous injuries and died. We hereby affirm the said finding.

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16. Accordingly, the conviction and sentences of the appellant for the offences punishable under Section 302 of Indian Penal Code, U/s 4 & 5 of the Tonhi Pratadna Adhiniyam are hereby affirmed being well merited. We do not find any illegality or perversity in the findings recorded by the learned trial Court which warrant interference of this Court.

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17. Resultantly, this Criminal Appeal is dismissed .

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

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Raghu Jat

Rameshwar Tirkey v. Statef of Chhattisgarh

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Rameshwar Tirkey v. Statef of Chhattisgarh

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