Vijay Kumar Netam Vs State of Chhattisgarh

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Digitally A signed by ANNAJEE A RAO ANNAJEE RAO

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2025:CGHC:1151-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1596 of 2019

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1 - Vijay Kumar Netam S/o Pyare Lal Aged About 30 Years R/o Village Goyendri Police Patharia District Mungeli Chhattisgarh At Present Residing at Village Lofandi Police Station Koni District Bilaspur Chhattisgarh (In Jail). ... Appellant

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versus

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1 - State of Chhattisgarh through Police Station Koni District Bilaspur Chhattisgarh.... ... Respondent

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For the appellant : Mr. Ashok Kumar Swarnkar, Advocate For the State : Mr. Sharad Mishra, Panel Lawyer.

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Division Bench

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Hon’ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (08.01.2025)

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Sanjay Kumar Jaiswal, J,

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1. This appeal under section 374(2) of CrPC is directed against the judgment dated 03^rd October 2019 passed by the learned V Additional Sessions Judge, Bilaspur in Sessions Trial No. 28 of 2019 whereby the appellant has been convicted under sections 302 and 201 IPC and sentenced as under:

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U/s 302 IPC	: Imprisonment for life and fine of Rs.500/- and in default of payment of fine, additional imprisonment for 1 month S.I.
U/s 201	: Imprisonment for 5 years R.I., and fine of Rs.300/-, in default of payment of fine, additional Imprisonment for 1 month SI

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2. Prosecution case, in brief, is that on 05.09.2018, upon receiving information about the body of a girl Ravina lying in bushes in village Lofandi, the In-Charge of Police Station Koni, Kishanlal Navrang along with his staff reached the spot in village and verified the information. Complainant Navratan Vishwakarma father of deceased told that he had gone to work in a brick kiln with his wife Uma Bai Vishwakarma on 05.09.2018. After having lunch, he again went to work. His two daughters, Ragini and Ravina were playing at home. When his wife returned home from work, she sent both the daughters to accused Vijay Kumar to get the mobile, who instead of giving the mobile, took the two daughters to a grocery shop of one Gaffar. As the shop was closed, the accused took her towards the incident spot which is 500 meters away from the house of the deceased. When the girls repeatedly asked for the mobile phone , he started gagging them. The elder girl Ragini freed herself and ran away. He killed the younger girl Ravina by gagging her, whose eye-witness is Ku. Ragini. At the same time, Dev Kumar Yadav of village, while taking the goats to home after grazing saw accused Vijay Kumar Netam hiding the body of the deceased in the bushes. As the parents of the deceased and other villagers came to know about the incident, they rushed to the spot and saw the accused sitting near the deceased. On the report of complainant Navratan Vishwakarma, unnumbered FIR for the offence u/s 302 IPC as also crime no.0/2018 was registered and the investigation was taken up. During investigation, Panchnama of the body was prepared and the dead body of the deceased was sent to CIMS Hospital Bilaspur for postmortem and map of the place of incident was prepared. Statements of parents of deceased was recorded and thereafter crime was registered. The postmortem report reveals that the death was due to

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asphyxia, as a result of smothering. The site plan was prepared by the Patwari. The clothes worn by the victim girl at the time of incident, vaginal slide, blood-soaked cotton and plain cotton were seized and sent to the FSL Bilaspur. After completing the investigation, the charge sheet was filed.

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3. The accused pleaded innocence and claimed to be tried. The prosecution in order to prove its case has examined as many as 21 witnesses and exhibited 27 documents. After examination of the prosecution witnesses, the statement of appellant was recorded u/s 313 of CrPC in which the appellant denied the charges and pleaded innocence and false implication in the crime. The learned Additional Sessions Judge after evaluating the evidence convicted and sentenced him as mentioned in the opening paragraph. Hence, this appeal.

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4. Learned counsel for the appellant submits that child witness, Ragini aged about 5 years (P.W.18) is said to be an eye witness to the incident and if her evidence is scrutinized, the possibility of her having not seen the incident and her version being tutored cannot be ruled out. He submits that though she has stated to have seen the accused pressing the mouth of her sister, but in cross examination she has stated that she came to know about the incident from her mother (P.W.17) that her sister was killed by the appellant. Therefore the evidence of child witness suffers from serious contradiction and infirmity. He further submits that another eye witness Dev Kumar (P.W.4) has not supported the prosecution case and he has denied to have seen the accused killing the child by suffocating her and hiding her body in the bushes and this witness became hostile to the prosecution case. So far as the evidence of mother Uma Bai (P.W7) and father Navratan (P.W.5) is concerned, they have exaggerated the facts in their statements, as such, their evidence cannot be given credence to base conviction. Learned counsel submits that the trial court was not justified in convicting the appellant on inconsistent statements of witnesses and the the impugned judgment warrants interference of this Court and prays that the appellant be acquitted of the charges punishable u/s 302 & 201 IPC.

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5. Per contra, learned State Counsel contends that impugned judgment of conviction and order of sentence is well merited which needs no interference and having regard to the circumstances appearing against the appellant, the learned trial Court has rightly convicted and sentenced him, which cannot be said to be unjustified or unsustainable.

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6. We have heard learned counsel for the parties and considered the rival submissions and have also perused the records.

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7. The conviction of the appellant is primarily based on direct evidence of main witnesses namely Ku. Ragini (P.W.18) aged about 5 years who was elder sister of the deceased; neighbor Dev Kumar Yadav (P.W.8), mother Uma Bai (P.W.17) and father Navratan (P.W.5).

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8. Father Navratan (P.W.5) has stated in his court evidence that when he went to the bush on the call of his daughter Ragini (P.W.18), he saw that the appellant was sitting with his younger daughter Ku.Ravina pressing her mouth. Then he picked up Ravina and brought her home and by that time she died. But it is noteworthy that the father Navratan (P.W.5) has exaggerated this statement. In the unnumbered complaint (Ex.P-6) written by him on the same day, it is not mentioned that he himself saw the appellant sitting in the bush with Ravina pressing her mouth. Therefore, his statement is not found to be reliable and acceptable.

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9. In the unnumbered complaint Ex.P-6 lodged by father Navratan (P.W.5), it is also mentioned that Devkumar Yadav (P.W.5) who was returning after grazing goats, found concealing the body of Ravina by the appellant. In this regard, if we consider the evidence of Dev Kumar Yadav (P.W.4) it appears that he becomes hostile. Devkumar has only stated that he was bringing back the cow and goat when he met the appellant and they had exchanged their salutation by saying “Jai Ram” and then both of them went to their homes. Later, it was found out that the appellant had killed the girl. Thus, Dev Kumar Yadav has not corroborated the prosecution case that he saw the appellant killing Ravina by suffocating her and hiding her body in the bushes. As far as the statement of Dev Kumar (P.W.4)

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recorded u/s 164 of the Code of Criminal Procedure is concerned, it is not a substantial piece of evidence in itself but it can be used only for omission and contradiction under Section 145 and 157 of the Indian Evidence Act. In such a situation, when Devkumar Yadav (P.W.4) who is said to be an eye-witness of the incident in his court evidence has not supported the prosecution case that he saw the appellant hitting Ravina or pressing her mouth and hiding her body. Therefore, the statement of Devkumar Yadav does not support the prosecution. 10. The third important witness is the deceased’s mother Uma Bai (P.W.17) and another most important eyewitness of the incident is the deceased’s 5 year old elder sister Ku. Ragini (P.W.18). Mother Uma Bai (P.W.17) has stated in her court evidence that her 5-year old daughter Ragini came and told her that the appellant had pressed Ravina’s mouth and buried her near the bushes, then she went to the spot with her husband Navratan (P.W.5) and saw that Ravina was lying dead and the appellant Vijay Netam was sitting nearby. Thus, according to mother Uma Bai, she came to know about the incident from her 5 year old daughter Ku. Ragini (P.W.18) and then she went to the spot. But, if we look at the evidence of 5 year old Ku. Ragini (P.W.18), it appears that she became hostile. She did not give any statement against the appellant in the main examination regarding the incident and also denied the statement that she and her sister had gone to the appellant to ask for a mobile. When she was asked leading questions with the Court’s permission she confirmed the prosecution case and said that the appellant had looted her mobile and did not give it back on demand and she and her sister Ravina were taken to a shop where he did not take any candy and took her towards bushes and started pressing her mouth. When the cow-herder came , she saw him, freed herself and ran away and disclosed the incident to her mother Uma Bai (P.W.17) that the appellant had killed the sister Ravina by pressing her mouth. 11. It is noteworthy that the age of the deceased’s elder sister Ku. Ragini (P.W.18) is stated to be only 05 years. Children of young age can be taught and convinced easily. P.W.18 Ku. Ragini has not given any information about the

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incident in the examination-in-chief, but her affirmation of prosecution case on the leading questions cannot be considered reliable beyond doubt. It is also important to note that mother Uma Bai (P.W.17) has stated that Ku. Ragini (P.W.18) came and informed her about the incident then she had gone to the spot with her husband Navratan (P.W.5). Whereas on the contrary, Ku. Ragini (P.W.18) has said in her cross examination that her mother Uma Bai (P.W.17) had told her that her sister had been killed by the appellant by suffocating her and then she came to know about the appellant killing her sister only after her mother told her. Before this, she had no knowledge of this matter. Thus, Ku. Ragini, who is a 5 year old girl and who is said to be an important eye-witness, has stated that she did not know anything about the incident until her mother Uma Bai informed about the incident. Whereas mother Uma Bai has stated that she came to know about it only after Ku. Ragini (PW 18) informed her and then she went to the spot. In view of the above contradictions in the court statement of the witnesses PW.17 and P.W.18, the entire case of the prosecution against the appellant becomes doubtful.

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12. The 5 year old Ku. Ragini (P.,W.18) has also admitted in her cross examination that 1-2 days before the incident her grand father Fagu Ram, who used to consume alcohol, had come to her house. He was drunk on the day of incident also and the mobile phone mentioned in the incident belonged to her grandfather Fagu Ram. He was at her house on the day of the incident also, along with whom she was also at home. He had kept his mobile phone with himself. She has also stated that on the day of incident her grand father Fagu Ram along with appellant Vijay had consumed liquor. The argument of the appellant side is that grandfather Fagu Ram had beaten Ravina over a dispute regarding mobile, but to save father Fagu Ram, Navratan (P.W.5) got a false report written against the appellant. Fagu Ram has not been examined in the case. 13. In our considered opinion, the evidence of the child witness (P.W.18) suffers from serious infirmity and we cannot expect much consistency in the deposition of this witness who was only a 5 years old girl at the time of incident. But from the

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tenor of her deposition, it appears that she has been tutored by someone or the other. Thus having regard to facts and circumstances, the possibility of child witness having not seen the incident and her version being tutored cannot be ruled out. Hence, her testimony is not reliable.

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14. In Bhagwan Singh and others v. State of M.P, reported in (2003) 3 SCC 21 the Supreme Court held that from a child of 6 years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his/her being tutored, the court should be careful in relying on its evidence. In the said case, at para 19, the Supreme Court relying on its earlier decision reported in (1998) 7 SCC 177 (Panchhi v. State of U.P) observed thus :

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“19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring.”

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15. Navratan (P.W.5) father of deceased has admitted in para 11 of his cross examination that before he went to work, his father Fagu Ram and appellant Vijay had consumed alcohol and after drinking alcohol, his father Fagu Ram came home and appellant Vijay went to work. He had left his daughters with his father Fagu Ram.

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16. Thus keeping in view all the above facts and circumstances, it is quite apparent that the father Navratan (P.W.5) had left his daughters with his father Fagu Ram and Fagu Ram has not been examined. In this matter, the independent witness Devkumar Yadav (P.W.4) has not supported the prosecution case that he saw the appellant strangling Ravina and hiding her body. There is a serious contradiction in the report filed by Navratan himself and his court statement that he himself saw the appellant sitting in the bush strangling his daughter Ravina. In this situation, the said family witness is not found credible beyond doubt. In view of

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serious contradictions in his court evidence and the police statement recorded u/s 161 of the Code of Criminal Procedure, he is not credible witness beyond doubt. There is also a serious contradiction in the statement of eyewitness Ku. Ragini (P.W.18) and mother Uma Bai (P.W.17) as to whether the information of the incident was given by daughter Ku. Ragini to mother Uma Bai or mother Uma Bai gave this information to daughter Ku. Ragini.

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17. In view of the foregoing discussion, we are of the considered view that the conviction of the appellant is not based on clear, sufficient and cogent evidence, rather the evidence adduced is doubtful and the appellant is entitled to get the benefit of doubt. Consequently, the impugned judgment cannot be allowed to sustain and is hereby set aside. The appellant is acquitted of the aforesaid charges. 18. Appellant is stated to be in jail. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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19. In the result, the appeal is allowed .

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20. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence be also supplied with a copy of this judgment, for information and necessary action.

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

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Rao

Vijay Kumar Netam v. State of Chhattisgarh

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Vijay Kumar Netam v. State of Chhattisgarh

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