Allowed

Masaram Korsa v. State Of Chhattisgarh

Chhattisgarh HC8 Feb 2024CRA/946/2017

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court of Chhattisgarh acquitted the appellant of murder conviction. The bench held that the chain of circumstantial evidence was incomplete, no weapon bore human blood as required, and Section 106 of the Evidence Act was not attracted due to other family members present. The appeal was allowed.

What did the court decide?

Impugned judgment of conviction and sentence set aside; Appellant acquitted of offence under Section 302 IPC and released from jail forthwith.

Masaram Korsa Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

Page 1 of 10

NAFR

(CRA-946-2017)

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

Criminal Appeal No. 946 of 201 7

¶6

(Arising out of judgment dated 13.01.2017 passed in Sessions Trial No. 181/2014 by the Sessions Judge, South Bastar, Dantewada)

¶7

Masaram Korsa S/o Hungaram, aged about 48 years, R/o Village – Pedkodepal, Permapara, Police Station-Beejapur, District – Beejapur, Chhattisgarh.

¶8

---- Appellant (In Jail)

¶9

Versus

¶10

State of Chhattisgarh, Through: Station House Officer, Police Station- Beejapur, District – Beejapur, Chhattisgarh.

¶11

---- Respondent

¶12

--------------------------------- For Appellant :	------------------------------------------------------ Mr. Jaydeep Singh Yadav
	Advocate/Panel Lawyer appointed by
	Chhattisgarh High Court Legal
	Services Committee
For Respondent-State : ---------------------------------	Mr. Rahul Tamaskar, Govt. Advocate. --------------------------------------------------------

¶13

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (09.02.2024)

¶14

Sanjay Kumar Jaiswal, J.

¶15

(1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 13.01.2017, passed by learned Sessions Judge, South Bastar, Dantewada (C.G.) in Sessions Trial No. 181/2014, whereby the appellant

¶16

Page 2 of 10

¶17

(CRA-946-2017)

¶18

has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.100/- and, in default of payment of fine, to undergo additional imprisonment for one year.

¶19

(2) It is an undisputed fact that the appellant has two sons from his first wife Mangli Bai, who had died namely Pande (PW-5) who resided with his wife and another son Chaitanu who resided in another village. The second wife of the appellant was Borri Korsa (now deceased), who also has a son Mohan (PW-1) and a daughter.

¶20

(3) Case of the prosecution, in brief, is that on the date of the incident i.e. 07.08.2014, the appellant along with his wife Borri Korsa (now deceased) was at his house and his son Mohan (PW1) went to the forest to graze the cows. The appellant's second son Pande (PW-5) along with his wife Sunita went to the field to uproot grass. The children were at the house. Everyone's food was cooked together but, to sleep, son Pande etc. used to go to another house about 30-40 meters away from the house where the incident occurred. On the date of the incident, when Mohan (PW-1) returned home after grazing the cow, he found his mother Borri Korsa lying dead near the door. At that time, the appellant was not at the house. After that, he informed his brother, sister-in-law and the villagers about the incident. The

¶21

Page 3 of 10

¶22

(CRA-946-2017)

¶23

matter was report to the police station-Bijapur. Merg intimation was registered vide Ex.P/07 and FIR was lodged vide Ex.P/01. Inquest proceeding was conducted vide Ex.P/08. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/12), Dr. B.L. Sharma (PW-09) opined that the cause of death is asphyxia due to hemorrhage and nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/10 and his memorandum statement was recorded (Ex.P/04) pursuant to which, seizure of a half-burnt blood stained wooden stick and knife were seized from the spot vide Exs.P/05 and P/06 and sent for chemical examination, but FSL report has not been exhibited for the reasons best known to the prosecution. In FSL report human blood was found on the wooden stick but human blood was not found on the knife seized at the instance of the appellant.

¶24

(4) After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

¶25

(5) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 09 witnesses

¶26

Page 4 of 10

¶27

(CRA-946-2017)

¶28

and exhibited 12 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 neither examined any witness nor exhibited any document.

¶29

(6) By impugned judgment, the learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant herein for offence punishable under Sections 302 of IPC and sentenced him as mentioned in the opening para of this judgment against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (7) Learned counsel for the appellant submits that there is no direct evidence in the case. The conviction of the accused was based on circumstantial evidence. The chain of circumstances has not been completed and human blood was not found on the knife seized at the instance of the appellant, hence it is of no use to the prosecution. The appellant has been convicted on the basis of the theory of last seen together and no explanation is given by the appellant regarding the death due to injuries to the deceased (wife), whereas apart from the appellant and the deceased, there were many other people resided in that house

¶30

Page 5 of 10

¶31

(CRA-946-2017)

¶32

including the appellant himself and the son and daughter-in-

¶33

law of the deceased. In such a situation, the provisions of Section 106 of the Indian Evidence Act are not applicable. Thus, the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the appeal deserves to be allowed and the appellant is entitled to be acquitted on the basis of benefit of doubt. In support of his contention, learned counsel for appellant relied upon the judgment of the Hon’ble Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another , reported in (2019) 7 SCC 781 .

¶34

(8) Per-contra , learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court is absolutely justified in convicting the appellant for the said offence and therefore the appellant is not entitled to be acquitted on the basis of benefit of doubt and appeal deserves to be dismissed.

¶35

(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

¶36

(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has answered in affirmative taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.P/12) which is duly

¶37

Page 6 of 10

¶38

(CRA-946-2017)

¶39

proved by the evidence of Dr. B.L. Sharma (PW-09). Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statement of Dr. B.L. Sharma (PW-09), we are of the considered opinion that the learned trial Court is absolutely justified in holding 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. Accordingly, we hereby affirmed the said finding.

¶40

(11) Now, the question is as to whether the appellant is the author of the crime?

¶41

(12) It is clear from the entire evidence available on record that there is no direct evidence of the said incident. The appellant has been convicted on the basis of circumstantial evidence. The appellant's son Mohan (PW-1) has stated that when he returned home after grazing the cow, his mother was lying dead and the appellant was at home, but, there is no mention in the Ex. P/1 lodged by him that he had seen his father/appellant in the house at that time. Apart from that, there are no facts in the statement of Pande (PW-5) and Sadhu Korsa (PW-8) that the appellant was last seen in the house with the dead body of his wife, Borri Korsa.

¶42

(13) At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:-

¶43

Page 7 of 10

¶44

(CRA-946-2017)

¶45

“ 106. Burden of proving fact especially within

¶46

knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

¶47

(14) The said provision states that when any fact I specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts as fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

¶48

(15) In the matter of Nagendra Sah v. State of Bihar , reported in (2021) 10 SCC 725 , it has been held as under:-

¶49

“19 . In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not

¶50

Page 8 of 10

¶51

(CRA-946-2017)

¶52

rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.

¶53

¶54

22 . Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.”

¶55

(16) From the perusal of spot map Ex.P/2 and the statements

¶56

of the prosecution witnesses, it becomes clear that in the house where the dead body of the deceased was found, other people apart from the appellant not only lived but their food was also cooked and only a few distance, there is a house of the appellant's son Pande (PW-5) where he went for sleep with his wife. The incident has been said to have taken place during the daytime and there is no evidence of the nature that the appellant was last seen together with the deceased. There is no clear evidence regarding Pande (PW-5) visited to the house of the appellant on the date of offence. In the statement under Section 313 of the Code of Criminal Procedure, no clarification has been taken from the appellant by asking clear questions in this regard. In such a situation, the provisions of Section 106 of the Indian Evidence Act are not attracted and the above circumstances are not made out against the appellant.

¶57

(17) The Supreme Court in the matter of Balwan Singh V.

¶58

Page 9 of 10

¶59

(CRA-946-2017)

¶60

State of Chhattisgarh and another , reported in (2019) 7 SCC

¶61

781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in para

¶62

24 as under:-

¶63

“24 . In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution. ”

¶64

(18) Reverting to the facts of the present case, in the light of the aforesaid discussion, it is quite vivid that the human blood was not found on the knife which was reported to have been seized vide Ex.P/5, based on the memorandum statement of the appellant (Ex.P/4). In such a situation, the said recovery is of no use to the prosecution. Therefore, in light of the decision rendered by the Supreme Court in the matters of Nagendra Sah (supra) and Balwan Singh (supra), the provision contained in Section 106 of the Evidence Act would not apply since the prosecution has not been able to discharge its primary burden

¶65

Page 10 of 10

¶66

(CRA-946-2017)

¶67

of proving its case beyond reasonable doubt. Even otherwise, no specific question has been asked to the appellant in his examination under Section 313 of CrPC to explain as to how and under what circumstances his wife died in his house. In that view of the matter the appellant is entitled to be acquittal from the offence punishable under Section 302 of IPC on the basis of benefit of doubt.

¶68

(19) Accordingly, the impugned judgment dated 13.01.2017 passed by the Sessions Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of benefit of doubt. Appellant is stated to be in jail since 09.08.2014. He be released from jail forthwith, if his detention is not required in connection with any other offence. (20) This criminal appeal, accordingly, stands allowed .

¶69

(21) Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any at the earliest.

¶70

Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

¶71

H.L. Sahu

Masaram Korsa v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Masaram Korsa v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Harbhajan Singh Vs State Of Chhattisgarh

Dinesh Joshi @ Nanka Vs State Of Chhattisgarh

Sukhlal Gond Vs State Of Chhattisgarh

Maheshwar Sinha @ Monu Vs State Of Chhattisgarh

Ipra Venkat Vs State of Chhattisgarh

Chaitram Agariya Vs State Of Chhattisgarh