Allowed

Akhil Jhariya & Ors. v. State of Chhattisgarh

Chhattisgarh HC19 Aug 2024CRA/999/2018

Case brief

AI extract

What is this about?

The High Court acquitted three appellants convicted of murder, theft, and other offences. The Court held that the eyewitness testimony was insufficient to establish the appellants' roles in the murder as it only showed them fleeing. Additionally, the seizure of ornaments was flawed, and forensic evidence alone was inadequate for conviction without corroborative evidence, warranting acquittal.

What did the court decide?

Impugned judgment and order set aside; appellants Akhil Jhariya and Shahbaz Khan acquitted of all charges and set at liberty; appellant Narayan Yadav acquitted of Section 201 IPC charges.

Akhil Jhariya & Ors. Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 999 of 2018

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ANKIT KUMAR SINGH

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Digitally signed by ANKIT KUMAR SINGH Date: 2024.08.28 10:48:29 +0530

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2024:CGHC:31375-DB NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 999 of 2018

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(Arising out of judgment dated 20.03.2018 passed in Sessions Trial No.20/2013 by the Additional Sessions Judge, Khairagarh, District Rajnandgaon, C.G.)

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Akhil Jhariya S/o Ramdulare Jhariya, aged about 27 years, R/o Kopebhata, Ward No. 7 Thana Gandai District Rajnandgaon Chhattisgarh.

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Shahbaz Khan S/o Shakil Khan Musalman, aged about 28 years, R/o Masjid Para, Ward No. 10 Thana Gandai District Rajnandgaon, Chhattisgarh.

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Narayan Yadav S/o Santu Yadav, aged about 27 years, R/o Pandariya, Ward No. 2, Thana Gandai District Rajnandgaon, Chhattisgarh.

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---- Appellants

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versus

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State of Chhattisgarh, through Station House Officer, Police Station Gandai District Rajnandgaon Chhattisgarh.

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---- Respondent

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For Appellants :- Mr. N.K. Malviya, Advocate / Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee. For Respondent :- Mr. Soumya Rai, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board

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CRA No. 999 of 2018

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(20.08.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellants herein namely Akhil Jhariya (A-1), Shahbaz Khan (A-2) and Narayan Yadav (A-3) calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 20.03.2018 passed by the Additional Sessions Judge, Khairagarh, District, Rajnandgaon, Chhattisgarh in Sessions Trial No. 20/2013 whereby the appellants (A-1, A- 2 & A-3) have been convicted and sentenced as under:-

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Akhil Jhariya (A-1)

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	Conviction	Sentence
Under IPC	Section 450 of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.
Under with S IPC	Section 395 read ection 397 of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.
Under the IPC	Section 302/34 of	Imprisonment for life and to pay fine of 1000/-; in default of ₹ payment of fine amount appellant has to undergo imprisonment for 6 months.
Under IPC	Section 120B of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.

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CRA No. 999 of 2018

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Under Section 201 of the Rigorous imprisonment for 7 years IPC and to pay fine of ₹ 300/-; in default of payment of fine amount appellant has to undergo imprisonment for 2 months.

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All the sentences are directed to run concurrently.

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Shahbaz Khan

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	Conviction	Sentence
Under IPC	Section 450 of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.
Under with S IPC	Section 395 read ection 397 of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.
Under the IPC	Section 302/34 of	Imprisonment for life and to pay fine of 1000/-; in default of ₹ payment of fine amount appellant has to undergo imprisonment for 6 months.
Under IPC	Section 120B of the	Rigorous imprisonment for 10 years and to pay fine of 500/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 3 months.
Under IPC	Section 201 of the	Rigorous imprisonment for 7 years and to pay fine of 300/-; in ₹ default of payment of fine amount appellant has to undergo imprisonment for 2 months.

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All the sentences are directed to run concurrently.

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Narayan Yadav

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	Conviction	Sentence
Under	Section 201 of	the Rigorous imprisonment	for 7
IPC		years and to pay fine of in default of payment amount appellant has to imprisonment for 2 mont	300/-; ₹ of fine undergo hs.

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The case of the prosecution, in a nutshell, is that on

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10.07.2013 at about 4:00 pm at village Kopebhata, thana

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CRA No. 999 of 2018

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Gandai District Rajnandgaon Chhattisgarh, the appellants (A-1 & A-2), in furtherance of their common intention, committed house trespass and entered into the house of the complainant Umesh Kumar Janghel (PW-2) and Shakun Bai Janghel (now deceased), thereafter committed theft of the ornaments and money of the complainant (PW2) and Shakul Bai Janghel (now deceased), and strangulated Shakul Bai Janghel (deceased) by neck towel and also assaulted her by their legs on her head by which she suffered grievous injuries, however, she was escorted to the hospital, but she died and thereby committed the aforesaid offence.

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It is further case of the prosecution that on 10.07.2013 at about 4:00 pm Shakun Bai, was her at house and her husband Umesh Kumar Janghel (PW-2) was in the shop and when he came back to the house he saw the door was closed and he knocked the door, but it was not opened, then he saw inside the room through the whole of the door and saw Shahbaz (A-2) and Akhil (A-1), thereafter, he opened the door by using his legs and entered into the room and saw his wife injured in the pool of blood and also was the appellants (A-1 & A-2) running from the back door of the house. He (PW-2) took his wife (deceased) to the hospital, but she died. Thereafter, Atma Ram (PW-1)

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CRA No. 999 of 2018

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reported the matter to the police pursuant to which unnumbered dehati merg intimation was registered vide Ex.P/1 and numbered merg intimation was registered vide Ex.P/25. On the report of Umesh Janghel (PW-2), FIR was registered vide Ex.P/4-A. Spot map was prepared vide Ex.P/8. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/27) proved by Dr. Seema Thakur (PW-19) cause of death was brain haemorrhage due to injury in brain and nature of death was homicidal. Pursuant to memorandum statement of A-1 (Ex.P/12) gold & silver ornaments and clothes were seized vide Exs.P/15, P/24 & P/31; pursuant to memorandum statement of A-2 (Ex.P/4) gold ornaments and clothes were seized vide Exs.P/21 and P/23 and pursuant to memorandum statement of A-3 (Ex.P/6) gold and silver ornaments were seized vide Exs.P/14 & P/19. Other articles were also seized. Seized ornaments were identified by Umesh Kumar Janghel (PW-2) vide Exs.P/7 & P/7-A. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/33) on the clothes of the deceased human blood was found and on the clothes of A-1 & A-2, only blood was found.

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CRA No. 999 of 2018

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After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 21 witnesses and exhibited 33 documents, whereas, the appellants in defence have not examined any witness, but exhibited 3 documents. S tatement of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Mr. N.K. Malviya, learned counsel for the appellants, submits that the trial Court is absolutely unjustified in

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CRA No. 999 of 2018

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convicting the appellants for the offence in question. He also submits that Umesh Kumar Janghel (PW-2) is not the eye witness as he did not see the appellants herein while committing the offence, therefore, the conviction of the appellants herein could not be based on the testimony of PW-2. He further submits that there is no direct evidence against the appellants herein and the the case of the prosecution is based on the surmises and conjectures. He further submits that identification of the ornaments has not been done in accordance with law and, therefore, conviction of the Narayan Yadav (A-3) is also not in accordance with law, as such, the prosecution has failed to prove its case beyond reasonable doubt and the appellants are entitled for acquittal on the basis of principles of benefit of doubt.

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On the other hand, Mr. Soumya Rai, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt. He also submits that Umesh Kumar Janghel (PW-2), has clearly supported the case of the prosecution and also Sanjay Yadav (PW-5), who chased and caught the appellants (A-1 & A-2) along with PW-2, supported the testimony of the Umesh Kumar Janghel (PW-2) and pursuant to memorandum statement of

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CRA No. 999 of 2018

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Narayan Yadav (A-3) ornaments were seized, therefore, the trial Court has rightly convicted the appellants in crime in question and the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report (Ex.P/27) proved by Dr. Seema Thakur (PW-19), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the appellants (A-1 & A-2) have assaulted the deceased?

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The case of the prosecution is based on the direct and circumstantial evidence as the appellants have been convicted for offence in question on the basis of testimony of Umesh Kumar Janghel (PW-2), husband of the deceased; & pursuant to memorandum statements of the appellants

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CRA No. 999 of 2018

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(A-1, A-2 & A-3) ornaments were seized and the same was identified by Umesh Kumar Janghel (PW-2) and also pursuant to memorandum statements of the appellants (A1 & A-2) their clothes were seized and sent for chemical analysis and on which as per FSL report (Ex.P/33) blood was found.

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Now, we will consider the direct and circumstantial evidence one by one.

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Testimony of eye witness Umesh Kumar Janghel (PW-

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2), husband of the deceased :- Umesh Kumar Janghel (PW-2) in his statement before the Court has stated that on the date of offence he came to his house and parked his vehicle and knocked the door and after 10-15 minutes when his wife did not open the door, he suspected foul play in his house, and peeped from the whole of the door and he saw that two appellants (A-1 & A-2) in the room. Thereafter, he forcefully opened the door by using his legs and saw his wife (deceased) lying in the pool of blood and he also noticed the injuries over the body of the deceased and immediately, after that he saw A-1 & A-2 running towards the hospital by using the stairs of his house and he chased the appellants (A-1 & A-2) and scuffle took place between A-1 and Umesh (PW-2) due to which A-1 fell down

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CRA No. 999 of 2018

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and, thereafter he along with Sanjay Yadav (PW-5) chased A-2 and also called Pramod (not examined) to catch A-2. Umesh Kumar Janghel (PW-2) caught hold of A-2 and called the police and also from the possession of A-2, recovered 21,600/-, a pair of ear rings (₹ टॉ�प्स), 2 latkan on 10.07.2013. He (PW-2) further stated that the ear rings which was recovered from the possession of A-2 was belonged to the deceased. However, the fact that he (PW-2) had seen the two appellants (A-1 & A-2) in the room when he saw in the room from the whole of the door is missing in his statement recorded under Section 161 of the CrPC (Ex.D/1) and in the FIR (Ex.P/4) and also in paragraph No.19 of his cross-examination he did not explain as to why the said fact was missing in his statement (Ex.D/1) as well as in FIR (Ex.P/4). Further, map in the crim details form (Ex.P/5) and the spot map (Ex.P/8) both are different as in the spot map godown is mentioned and in the crime details form godown is missing and also as per the statement of Umesh Kumar Janghel (PW-2) he was at the gate from where he saw the two appellants (A-1 & A-2) and as per crime detail form (Ex.P/5) gate was marked as ‘A’ from where he cannot see the place of incident which was admitted by PW-2 in paragraph No.22 of his statement before the Court as he has stated that from the gallery

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CRA No. 999 of 2018

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nothing could be seen in the room, but after going 4 to 5 steps then it would be possible to see in the room, while in paragraph No.2 of his statement he has stated that he had seen the inside the room from outside because the door was closed. Therefore, this facts also creates doubt in holding Umesh (PW-2) as eye witness. In that view of the matter, at the best he can be res gestae witness as he had seen the appellants (A-1 & A-2) absconding from the stairs of his house towards the hospital and his statement, at best, is admissible under Section 6 of the Indian Evidence Act, 1872 (for short, 'IEA') and is relevant fact, but in view of the decision of the Supreme Court in the matters of

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Badruddin Rukonddim Karpude v. State of 1 Maharashtra and Sukhar v . State of UP 2 , at the most, being an admissible evidence and relevant fact under Section 6 of the Evidence Act, no conviction can be recorded on that basis unless it is corroborated by direct or circumstantial evidence and more particularly the trial Court has wrongly held that Umesh Kumar Janghel (PW-2) is the eye witness to base the conviction of the appellant.

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Next evidence is pursuant to memorandum statement of the appellants ornaments were seized . However, it

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would be appropriate to mention here that so far as the A-2 1 AIR 1981 SC 1223

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2 (1999) 9 SCC 507

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CRA No. 999 of 2018

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is concerned Umesh Kumar Janghel (PW-2) has clearly stated in his statement before the Court that when he and Pramod (not examined) caught hold of A-2 and Police officers were also came there and at that time from the possession of A-2 ₹ 21600/-; two latkan, one pair of ear rings were seized which were identified by him (PW-2) that the ornaments belongs to his wife (deceased). Similarly, Sanjay Yadav (PW-5), employee of the bank, in his statement before the Court, has stated that from the possession of A-2 cash and gold ornaments were recovered and at that time police personnel were also present. He (PW-5) has also stated that all the articles were in possession of A-2, therefore, they did not catch hold of A-1. However, it is the case of prosecution that pursuant to memorandum statement of A-1 (Ex.P/12) ornaments were seized, though A-1 was caught on 10.07.2013 and his memorandum statement was recorded on 18.07.2013 and seizure was conducted on 18.07.2013. In view of the above contradictions in facts, it would be inappropriate and unsafe to base the conviction of the appellants namely Akhil Jahariya (A-1) & Shahbaz Khan (A-2) on their memorandum statement and pursuant to that seizure, that too for offence under Section 302 of the IPC.

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CRA No. 999 of 2018

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16. Next evidence on which the conviction of the

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appellants is based is test identification of ornaments

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(Exs.P/7 & P/7-A) . Test identification of the articles seized was conducted on 06.10.2013 vide Exs.P/7 & P/7-A whereas, seizure of ornaments have been allegedly made on 10.07.2013, 17.07.2013 and 18.07.2013 and for delay in conducting test identification of ornaments, no explanation has been given by the investigating officer. The said articles were identified by Umesh Kumar Janghel (PW2), however, in his Court’s statement in para 27 he has stated that police personnel have shown the articles which has to be identified before conducting test identification of articles and also some more articles have been mixed along with the seized articles. Further, Tehsildar Sukalram Dhruw (PW-20), who conducted the test identification of articles, in his statement before the Court, has stated that police persons came with the seized articles and the person who had to identify the articles together, and he (PW-20) had not issued any notice for identification of the seized articles to Umesh Kumar Janghel (PW-2). Thus, seizure of the articles from the accused persons were not properly identified by Umesh Kumar Janghel (PW-2), in form of the identification of the articles and the entire seizure proceedings and investigation become doubtful and there

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CRA No. 999 of 2018

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is no clinching evidence to connect the appellants (A-1 & A-2) with murder so could except the seizure of articles, although recovery of property and the circumstances may indicate that the theft and assault might have committed at the same time, it cannot be inferred that person in possession of articles has committed assault, which was later converted to death. [See:- Tulesh Kumar Sahu v.

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State of Chhattisgarh3 ]. Further, in the FSL report (Ex.P/33) on the clothes of A-1 & A-2, which were seized pursuant to their memorandum statement, blood was found. However, in view of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh4 appellant cannot be convicted only on the basis of forensic evidence in absence of other connecting evidence and in the instant case the prosecution failed to produce connecting evidence to base the conviction of the appellants. As such, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and the appellants are entitled for acquittal on the basis of benefit of doubt.

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Concludingly, the appellants could not be convicted on the basis of statement of Umesh Kumar Janghel (PW-2) in light of the decision of the Supreme Court in the matters of

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3 2022 LiveLaw (SC) 228

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4 2024 SCC Online SC 67

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CRA No. 999 of 2018

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Badruddin (supra) and Sukhar (supra) in absence of other corroborative piece of evidence and in light of the decision of the Supreme Court in the matter of Tulesh Kumar Sahu (supra) though the circumstances may indicate that the theft and assault might have committed at the same time, but it cannot be inferred that person in possession of articles has committed assault and further on the basis of seizure of articles which is doubtful as the identification parade was not done in accordance with law, the appellants (A-1, A-2 & A-3) could not be convicted and the appellant (A-1 & A-2) that too for offence under Section 302 of the IPC and also in light of the decision of the Supreme Court in the matter of Raja Naykar (supra) only on the basis of forensic evidence appellants could not be convicted in absence of other connecting evidence. Accordingly, the impugned judgment and order dated 20.03.2018 is set aside/quashed. The appellants namely Akhil Jhariya (A-1) and Shahbaz Khan (A-2) are acquitted of the charges under Sections 450, 395/397, 302/34, 120B and 201 of the IPC and the appellant Narayan Yadav (A-3) is acquitted of the charges under Section 201 of the IPC giving them benefit of doubt. Akhil Jhariya (A-1) is stated to be in jail from 12.07.2013 to 07.10.2017 & since 20.03.2018 and Shahbaz Khan (A-2) is stated to be in jail

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CRA No. 999 of 2018

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since 11.07.2013. They (A-1 & A-2) be set at liberty forthwith, if not required in any other offence.

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As a consequence, this criminal appeal 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 and the copy of this judgment be supplied to the concerned Superintendent of Jail where the appellants are lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Akhil Jhariya & Ors. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Akhil Jhariya & Ors. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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