Dev @ Bholu Sonwani Vs State of Chhattisgarh

Gopi S/o Lakhan Diwankar, aged about 25 years; All are R/o – Pandit Deendayal Upadhayay, Ward Bhatapara, District Balodabazar – Bhatapara, Chhattisgarh.

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... Appellants

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versus

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State of Chhattisgarh through S.H.O., Police Station Bhatapara (City), District Balodabazar – Bhatapara, Chhattisgarh.

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... Respondent

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For Appellants :- Ms. Indira Tripathi, Advocate. For State-Respondent :- Mr. Amit Buxy, 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

(07.03.2025)

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Sanjay K. Agrawal, J

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 Dev @ Bholu Sonwani (A-1); Mahesh @ Chichhi @ Chhotu (A-2) & Gopi (A-3) calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 23.08.2019 passed by the Additional Sessions Judge, Bhatapara, District Balodabazar-Bhatapara, Chhattisgarh in Sessions Trial No.H-09/2018 whereby the appellants have been convicted for offence punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and pay fine of 500/- each; in default₹ of payment of fine, they have to undergo additional imprisonment for 3 months.

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The case of the prosecution as unfolded during the trial is that on 28.01.2018 at about 11:00 pm, near Hanuman temple, Station ward, Police Station Bhatapara, District Balodabazar – Bhatapara, Chhattisgarh, the appellants (A-1, A-2 & A-3) in furtherance of their common intention, poured the inflammable substance over the body of Ravi Nishad and set

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him ablaze by which he suffered 35%-40% burn injuries. He was escorted to the District Hospital, Bhatapara, from where he referred to CIMS Hospital, Bilaspur where during treatment he died on 02.02.2018 at about 3:00 am after 5 days. The said incident was reported by the deceased himself pursuant to which unnumbered dehati nalsi was registered vide Ex.P/22 and FIR was also registered vide Exs.P/23 & P/24. On the information of the CIMS hosptial, Bilaspur, merg intimation was registered vide Ex.P/19. During treatment dying declaration of the deceased was recorded by Executive Magistrate Devsingh Uikey (PW-15) vide Ex.P/3 after getting certificate that he (deceased) is able to give his statement. Crime details form and spot map were prepared vide Exs.P/4 & P/6, respectively. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16) proved by Dr. S. N. Gole (PW-14), cause of death was cardio-respiratory arrest due to burn injury and its complication with evidence of assault injuries. Viscera of the deceased was sent for chemical analysis to FSL. As per FSL report (Ex.P/37) no poison was found in the viscera of the deceased.

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After due investigation, appellants were charge-sheeted for the aforesaid offence 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 37 documents whereas, the appellants in defence have not examined any witness, but exhibited 3 documents. Statement 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 offence 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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Ms. Indiara Tripathi, learned counsel for the appellants, submits that the trial Court is absolutely unjustified in convicting the appellants for aforesaid offence as the prosecution has failed to prove the offence against the appellants beyond reasonable doubt and they have falsely been implicated in crime in question. She also submits that dehati nalsi (Ex.P/22) lodged by the deceased himself in which he has stated that A-1 Dev @ Bholu Sonwani & A-3 Gopi has came from his back and poured the inflammable substance on his body and set him ablaze. However, in the dying declaration (Ex.P/3) recorded by the Executive Magistrate Devsingh Uikey (PW-15), he did not name anyone of the appellants herein, he clearly stated that he could not see who poured the inflammable substance over his body and set him ablaze. As such, in view of the above discrepancies, the appellants are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, Mr. Amit Buxy, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the

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appellants for the aforesaid offence. Thus, 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/16) proved by Dr. S.N. Gole (PW-14), 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 appellant is the author of the crime?

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The trial Court has relied upon the statements of Sandhya (PW-6), mother of the deceased, Suman Dhruv (PW-1) & Savitri Yadav (PW-3), to whom prosecution has projected as

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eye witnesses, and also relied upon the dying declaration (Ex.P/3) recorded by Executive Magistrate Devsingh Uikey (PW-15) after getting certificate that the deceaed is able to give his statement and also relied upon dehati nalsi (Ex.P/2) lodged by the deceased himself, pursuant to which FIR (Exs.P/23 & P/24) was lodged to base the conviction of the appellants for offence under Section 302 read with Section 34 of the IPC.

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It is true that dehati nalsi (Ex.P/22) lodged by the deceased himself in which he has stated that on account of rash driving of motorcycle, the two appellants herein A-1 & A-3 and one Pramod Satnami (not examined), quarelled with him and thereafter, he had gone to the house of A-1 & A-3 and made complaint with regard to the said quarrel made by the appellants. On the account of the said complaint made by the deceased, the appellants (A-1 & A-3), threatened him and poured inflammable substance over his body and set him ablaze by which he suffered grievous burn injuries and deceased has also informed her mother (PW-6) that the three appellants (A-1, A-2 & A-3) herein have poured the inflammable substance over his body and set him ablaze.

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However, in the dying declaration (Ex.P/3) recorded by Executive Magistrate Devsingh Uikey (PW-15) after getting certificate from the doctor vide Ex.P/21 that he (deceased) is able to give his statement, he (deceased) has stated that the two appellants A-1 Dev @ Bholu Sonwani and A-3 Gopi, have raised dispute with him and also assaulted him by hand and fist and did not name A-2 Mahesh @ Chichhi @ Chhotu. Further, he has clearly stated that he does not know who poured inflammable substance over his body and set him ablaze as he could not see the person who committed the said criminal act. As such, there is no evidence on record either in the dehati nalsi (Ex.P/22) or in the dying declaration (Ex.P/3) recorded by Executive Magistrate Devsingh Uikey (PW-15) that all the three appellants herein namely A-1 Dev @ Bholu Sonwani, A-2 Mahesh @ Chichhi @ Chhotu and A-3 Gopi, have poured the inflammable substance over the body of the deceased and set him ablaze. In the dehati nalsi (Ex.P/22) the deceased has taken the name of two appellants only i.e. A-1 Dev @ Bholu Sonwani and A-3 Gopi and in the dying declaration (Ex.P/3) recorded by Executive Magistrate PW-15, on being asked by Executive Magistrate Devsingh Uikey (PW15) to the deceased that who has caused the burn injuries to

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him (deceased), the deceased did not name any person including that of the accused/appellants herein, he has only stated that he could not see the persons who poured the inflammable substance over his body and set him ablaze.

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Sandhya (PW-6), mother of the deceased, in her statement before the Court has stated the on the date of offence, all the three appellants herein came to her house and abused his son and on being understanding to them, they went back. Thereafter, her son (deceased) went to the shop of Ganeshu (not examined), where all the three appellants (A-1, A-2 & A- 3) again started quarrelling with her son and poured inflammable substance over his body and set him ablaze and when his son was running in burn condition near the Hanuman temple, all the three appellants herein were chasing her son and her son was shouting bachao bachao.. thereafter her son fell down near the house of Ganpat (not examined) and the fire extinguished by her, however, the trial Court has not considered Sandhya (PW-6) as an eye witness. Similiarly, Suman Dhruv (PW-1) and Savitri Yadav (PW-3), in their statements before the Court have stated that they have seen

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the appellants while chasing the deceased in burning condition.

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Considering the statement of Sandhya (PW-6), Suman Dhruv (PW-1) and Savitri Yadav (PW-3), at the most, they can be held as res gestae witness and her statement would be admissible as relevant fact under Section 6 of the Indian Evidence Act, 1872.

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At this stage, it would be appropriate to notice the decisions of

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the Supreme Court with regard to res gestae witness.

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In the matter of Badruddin Rukonddim Karpude and others v.

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State of Maharashtra1 , it is held by the Supreme Court that where in a prosecution for murder apart from the witnesses whose testimony could not be relied on there was evidence of other witnesses also, supported by the testimony of a wholly independent witness, that the names of the accused were mentioned to him as the assailants of the deceased while beating of the deceased was in progress the information conveyed to such witness being part of the res gestae was admissible and the accused in question could be convicted on

1 AIR 1981 SC 1223

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the basis of corroboration furnished by the evidence of such

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witness.

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17. In the matter of Javed Alam v. State of Chhattisgarh and

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Another2 , the Supreme Court dealt with the principle to hold thus in paragraph-19:-

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“ 19. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentela Vijayavardhan Rao Vs. State of A.P. [(1996) 6 SCC 241] it was held in para 15 as follows: (SCC pp.246-47)

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Section 6 of the Evidence Act and some of the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to “hearsay” rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.”

(Emphasis supplied)

2 (2009) 6 SCC 450

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Yet again in the matter of Krishan Kumar Malik v. State of

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Haryana3 the same principle has been reiterated. Similarly, their Lordships of the Supreme Court in the matter of Sukhar v. State of UP4 have held that while considering Section 6 of the Evidence Act qua the conviction of an accused on the basis of admissible evidence under Section 06 of the Evidence Act, it must be corroborated either by oral evidence or from any other circumstances and observed in Para-10 & 11 as under:-

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“ 10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant.

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The next question that arises for consideration is whether even if the statement becomes admissible, can the statement be held to be so reliable that a conviction under Section 307 can be based thereupon. PW 2 in the cross-examination candidly admitted that Sukhar, the present appellant and he are inimical to each other since long before. It was also elicited in the crossexamination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet none of them has been examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. The witness also stated in the cross-examination that Nakkal was naming the accused as his assailant in front of all those people who had gathered but it is not understood as to

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3 (2011) 7 SCC 130

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4 (1999) 9 SCC 507

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why the prosecution has chosen not to examine any one of them but to examine only PW 2 who was admittedly inimically disposed towards the accused/appellant. In this view of the matter, the evidence of PW 2 cannot be held to be of such an unimpeachable character on whose testimony alone the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on account of what has been elicited in his cross-examination, his evidence requires corroboration before being accepted. Admittedly there is not an iota of corroboration either from any oral evidence or from any other circumstances. In this view of the matter, we have no hesitation to come to the conclusion that the conviction of the appellant on the unreliable and shaky evidence of PW 2 without any corroboration, cannot be sustained. We accordingly set aside the conviction and sentence of appellant and acquit him of the charges levelled against him. The accused who is in jail should be released forthwith. The appeal is allowed accordingly.”

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The principle of res gestae is thus well settled that a hearsay evidence, which is otherwise inadmissible, becomes admissible when the facts are informed to the witness during the course of the incident or immediately thereafter so that not much time is left in the interregnum to fabricate the evidence. The evidence in the nature of res gestae can also be used as corroboration to the statements of any other evidence whether circumstantial or direct. As such it is quite evident that the evidence in the nature of res gestae can also be used as

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corroboration to the statements of any other evidence whether circumstantial or direct.

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Returning to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated decisions, it is quite vivid that though in dehati nalsi (Ex.P/22) reported by the deceased himself on 29.01.2018 at about 12:05 am, the deceased only named two appellants A-1 Dev @ Bholu Sonwani and A-3 Gopi, but in the dying declaration (Ex.P/3) recorded by Devsingh Uikey (PW-15) after getting certificate from the doctor vide Ex.P/21, that he (deceased) is able to give his statement, the deceased did not name the appellants to be the author of crime in question as he has not stated in his dying declaration that all the three appellants herein poured inflammable substance and set him ablaze by which he suffered burn injuries. As such, in view of the above discrepancies, it would be unsafe the maintain the conviction of the appellant that too for offence under Section 302 of the IPC. However, in light of the principle of law laid down by their Lordships of the Supreme Court in the matter of Badruddin Rukonddim Karpude (supra) and Sukhar (supra)

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Sandhya (PW-6), mother of the deceased, Suman Dhruv (PW1) and Savitri Yadav (PW-3), at the most, are the res gestae as they had only seen the appellants while chasing her son (deceased) in burning condition and only on the basis of their testimony, it would be inappropriate to convict the appellants that too for offence under Section 302 of the IPC in absence of other corroborative piece of evidence and even otherwise, it is trite law that on the basis of testimony of res gestae witness the accused in question could only be convicted on the basis of corroboration furnished by evidence of such witness. A s such, the appellants are entitled for acquittal on the basis of principles of benefit of doubt.

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Concludingl y, the impugned judgment of conviction and order of sentence dated 23.08.2019 passed by the trial Court convicting and sentencing the appellants for the offence under Section 302 read with Section 34 of the IPC, is hereby set aside and the appellants are entitled for acquittal on the basis of principle of benefit of doubt. Appellants are stated to be in jail since 30.01.2018, we direct that they be released from jail forthwith, if not required any other matter.

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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

Dev @ Bholu Sonwani v. State of Chhattisgarh

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Dev @ Bholu Sonwani v. State of Chhattisgarh

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