Pawan Kumar Vs State of Chhattisgarh

Judgment assailed in this appeal is dated 15.04.2019 rendered in ST No. 46/2018 by 3^rd Additional Sessions Judge, Surajpur (CG) by which the accused/appellant has been convicted under Sections 302 & 201 IPC and sentenced to undergo life Imprisonment with fine of Rs.2000/- under Section 302 and RI for 7 years with fine of Rs.2000/- under Section under Section 201 IPC, plus default stipulations.

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Facts in short: On 26.01.2018 at about 2.00 pm deceased Dabal Sai is said to have gone to his field for grazing his buffalo but did not get back home in the whole night. A search was made by his brother Somar Sai (PW-1) but his whereabouts remained unknown. Eventually on 27.01.2018 during search operation, his dead body was found lying in his own field with an injury on his neck caused by a sharp edged weapon. On the information provided by PW-1, merg (Ex.P-1) was registered and during merg inquiry accused/appellant was taken into custody and his memorandum was recorded in which he is alleged to have stated that as on account of the sorcery practised on his father by the deceased he met an

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untimely death and being agitated for that, he went to the field where the deceased was working by using a crowbar, and dealt a blow with the axe lying on the bund, on his neck which ultimately resulted in his death. After leaving the dead body there itself, the accused/appellant returned with the blood stained axe and hid the same near a tree. He then was arrested, dead body was subjected to postmortem examination, spot map was prepared and the offence by way of FIR (Ex.P-2) under Sections 302 & 201 IPC was registered against him. After investigation charge-sheet for the same offences was filed followed by framing of charge accordingly. The accused/appellant however denied the same and claimed trial.

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18 witnesses in all were examined by the prosecution followed by recording of statement of the accused/appellant under Section 313 CrPC where as usual he pleaded his innocence and false implication in the case.

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Learned trial Court on the basis of material available before it convicted and sentenced the accused/appellant as described above. Hence this appeal.

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Learned counsel for the appellant submits that the conviction slapped on the accused/ appellant is based on the circumstantial evidence as a whole but not even a single circumstance is there on the basis of which an irresistible conclusion as to the guilt of the accused/appellant can be drawn. He submits that the seizure of axe was made after about three months and that too from an open place and therefore it becomes doubtful. He submits that in the evidence of the prosecution witnesses it has come that on account of old dispute relating to sorcery practised by the deceased on the father of the accused who subsequently died after sustaining injury due to fall from the motorcycle, his name has been taken to be the culprit in this case otherwise there was no suspicion against anyone at the time of lodging of report. He further submits that as the prosecution has utterly failed in establishing its case beyond all reasonable doubts, the judgment impugned needs quashment by allowing the appeal. He further submits that the recovery of axe was made with a considerable delay and that too from an open place and therefore it has no value in the eye of law. In support of his submissions, reliance is placed on the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh reported in (2024) 3 SCC 481, in the matter of

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Balwan Singh Vs. State of Chhattisgarh and another reported in (2019) 7 SCC 781, in the matter of Kalinga @ Kushal Vs. State of Karnataka By Police Inspector Hubli , 2024 INSC 124 , in the matter of Shatrughan Vs. State of Chhattisgarh reported in 2023 SCC OnLine SC 858 , in the matter of Harbeer Singh Vs. Sheeshpal and others reported in (2016) 16 SCC 418 , in the matter of Ashish Gupta Vs. State of Chhattisgarh reported in

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2024 SCC OnLine Chh 4083.

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State counsel on the other hand, lends full support to the judgment impugned and submits that in view of the pin-pointed evidence available on record the trial Court has been fully justified in convicting and sentencing the accused/appellant as mentioned above, and no interference is required with the well founded finding.

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Heard counsel for the parties and perused the material on record including the judgment impugned.

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Somar Sai (PW-1) - the brother of the deceased has stated that on the date of incident his brother (deceased) had gone towards the field to graze buffalo and when he did not return, in the evening search operation was launched but in vain. On the next morning, the search was again started along with four other persons and when they reached near Chingi Nala, body of the deceased was found lying there. Half portion of the neck was cut and the said injury was bleeding with blood spilled nearby. According to him, the injury on the deceased appeared to have been caused with a weapon but he could not come to know as to who had killed him. He then has stated that some unknown person has killed the deceased by opening an assault on his neck with a sharp edged weapon. At his instance, merg (Ex.P-1) was registered followed by FIR (Ex.P-2). Inquest was conducted under Ex.P-4 after giving notice thereof Ex. P-3 which was thumb marked by him. He has stated that blood stained soil and plain soil was seized in his presence under Ex. P-5 and the other things seized if any was not within his knowledge. Later on, this witness has admitted about the seizure of an iron made crowbar stained with blood and a pair of blood stained slippers being made in his presence and the seizure memo was thumb marked by him. This witness in the cross examination has admitted that whenever one goes to the forest for grazing cattle, stick or axe is normally carried by him as the wild animals are likely to be confronted there. He has

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stated that he did not see the deceased setting out of the house. Resiling from his earlier version, he has stated that no search was made by him in the evening and after he woke up in the morning and came to know about the deceased not having turned up, he along with others started a search and at about 8.00 am the body of the deceased was found lying in the field. He has then stated to be unaware of the things seized by the Police. Lastly he has stated that he was told about the seizure of blood stained and plain soil only, and not of anything else.

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Sankumari (PW-2) - the wife of the deceased has also made almost similar statement like that of PW-1. According to her, the deceased had gone towards forest for grazing buffalo but he did not return home though the buffalo did return. On this, she informed the factum of her husband being not back, to her son who along with others thereafter went in his search but in the evening he could not be traced. However, in the next morning when the search again started, his dead body was found near Chingi Nala. She was informed by them accordingly. She however has admitted that 6 months prior to the date of incident the accused/appellant had come to her house and slapped the deceased saying that on account of the exorcism practised by him leading to the death of his father. Magadkumar (PW-3), Ramlakhan (PW-4), Lalsai (PW-5), Dharamsai (PW-6) & Ramsakhan (PW-8) - all relatives of the deceased have also made the statement in the identical line. The gist of their testimony is that during search the dead body was found near Chingi Nala on 27.01.2018 with a cut on his neck. They are also the witnesses who have stated about some old dispute between the deceased and the accused over the alleged exorcism practised by the deceased on the father of the accused/appellant who unfortunately died after some days on account of the injuries suffered by him due to fall from the motorcycle. Accused/appellant however attributed the death of his father to the so called act of sorcery at the hands of the deceased. PW-1 and PW-3 are also the witnesses to seizure of an iron made crowbar having blood like stains, a pair of slippers, blood stained and plain soil made under Ex. P-5. Further on the memorandum of the accused/appellant (Ex. P-7) an axe with wooden handle was seized under Ex.P-8 containing the blood like stains, which has been supported by Lalsai (PW-5) and Ramdhan (PW-10). These two witnesses have also stated about the death of father of the

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accused on account of so called sorcery practised by the deceased on him, and have expressed their opinion that this might be the motive behind the killing of the deceased by him. Deepan (PW-7) claims to know the accused/appellant and in the previous evening he had stayed in his house. On the next day i.e. 26.01.2018 at about 11 AM they parted their ways and reached their respective houses. He has stated that after a while he went towards Panchayat Building where again the accused/appellant came and asked him to accompany him to Puranpara. Doing accordingly, he accompanied the accused/appellant but on the way near Devhara Parhi the accused asked him to get down as he was going to Chingi Nala for eliminating his (this witness's) maternal grandfather (Nana). On hearing this, he returned home. He has then stated that on the same day in the evening when he was getting fresh in a Tube well, the accused/appellant came to him and told to have finished his maternal grand father (Nana). He also told this witness not to disclose the incident to anyone or else he would do away with him too, and therefore, he did not inform anyone about this. In cross examination, he however has stated that no such threat was given by the accused. This witness made the same disclosure in his statement recorded under Section 164 CrPC as well. He however has fairly stated that the incident was not seen by him. Rest portion of the cross-examination is in the line of one in the examination-in-chief and nothing new has been brought forth.

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Dr. Pramod Rathore (PW-11) is the witness who conducted postmortem examination on the body of the deceased and gave his report Ex. P-11 stating that he noticed a cut wound on the neck in the size of 10x7x10 cm, and except this no other injury was noticed by him. Cervical vertebrae was fractured and spinal cord, trachea etc. were cut. Cause of death according to this witness, was hemorrhage and asphyxia due to complex transition of oesophagus and major blood vessels of neck. Mode of death was opined to be cardio pulmonary arrest, and its nature was homicidal. By way of query report Ex. P-12 he has clarified that the injury present on the neck of the deceased could be caused by the axe presented before him for examination. Another query report is Ex. P-13 which carries the opinion of the doctor that the injury present on the neck of the deceased could not be caused with the crowbar produced before him for examination. Rakesh Painkra (PW-12),

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Ajharuddin (PW-15), Chandrakhesh Singh (PW-16) and Santosh Kanwar (PW-18) are the witnesses who carried forward the investigation have supported the case of the prosecution. Ramsai (PW-13) and Rooplal (PW-17) are the hearsay witnesses who have stated that they came to know about the incident after it had taken place, and have not stated anything specific. FSL report (Ex.P-23) confirms “O” group human blood on the axe so seized.

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There is no eye-witness to the incident and the entire case of the prosecution is based on the circumstantial evidence. One of the circumstances relied upon by the prosecution in support of its case is the motive on the part of the accused/appellant prompting him to commit murder of the deceased. The said motive as has been tried to be established is the death of the father of the accused/appellant on account of the witch craft played by the deceased on him, and being enraged by the death of his father the accused/appellant as a retaliatory adventure finished the deceased by causing an injury on his neck with the axe.

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As regards motive, the Supreme Court in number of cases has held that the motive may not be an essential requirement to hold the guilt of the accused/appellant when there is direct evidence in the matter, but it becomes a crucial factor in the cases entirely based on the circumstantial evidence. In the matter of Tarseem Kumar vs Delhi Administration reported in AIR 1994 SC 2585, which has subsequently been relied upon in numerous other cases, it has been held as under:-

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“Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance…”

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In the case in hand also there happens to be a strong motive for the accused to commit the crime in question because there is ample evidence to show that at one point of time the deceased is said to have practised sorcery on the father of the accused/appellant who subsequently died on account of injuries suffered as a result of fall from the motorcycle. It has also come in the evidence that during his lifetime the

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fathter of the accused/appellant had gone to the house of the deceased and had manhandled with him, in the wake of which the deceased had lodged a report against him. In these circumstances, the motive which has surfaced from the evidence on record, cannot be set at naught.

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The other circumstance which stands against the accused/appellant in the matter is the extrajudicial confession made by the accused/appellant to Dipan (PW-7). This witness has categorically stated that he knew the accused/appellant and in the previous evening he had stayed in his house and that on the next day i.e. 26.01.2018 at about 11 AM they parted their ways and reached their respective houses. He has stated that after a while he went towards Panchayat Building where again the accused/appellant came and asked him to accompany him to Puranpara. Doing accordingly, he accompanied the accused/appellant but on the way near Devhara Parhi the accused asked him to get down as he was going to Chingi Nala for eliminating his (this witness's) maternal grand father (Nana). On hearing this, he returned home. He has then stated that on the same day in the evening when he was getting fresh in a Tube well, the accused/appellant came to him and told to have finished his maternal grand father (Nana) and also asked him not to disclose the incident to anyone or else he would do away with him too. This witness has made this disclosure at the time of recording of his 164 CrPC statement as also during the course of trial, and therefore, there appears to be no reason for this Court to discredit his testimony particularly when this extrajudicial confession by the accused to this witness was absolutely voluntary, truthful and free of any inducement. 15. Now the medical evidence needs to be adverted to. Doctor (PW-11) has stated that he noticed a cut wound on the neck in the size of 10x7x10 cm, and except this no other injury was noticed by him. He has further stated that cervical vertebrae was fractured and spinal cord, trachea etc. were cut. According to him, cause of death was hemorrhage and asphyxia due to complex transition of oesophagus and major blood vessels of neck and the mode was cardio pulmonary arrest. Nature of death as opined was homicidal. In the query report Ex. P-12 the doctor has clarified that the injury present on the neck of the deceased could be caused with the axe presented before him

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for examination. In the other query report the injury present on the neck of the deceased has been opined being not caused with the crowbar produced before him for examination. Thus according to this witness, the death being homicidal stands duly established. It is also established that the injury was caused with the axe seized by the prosecution and presented before the doctor for examination. In the midst of this evidence, mere delay in recovery of the axe by the prosecution on the memorandum of the accused/appellant as has been stated by the investigating officer, cannot be treated to be fatal to the case of the prosecution particularly looking to the FSL report Ex. P-23 which mentions the presence of human blood of group “O” being present on the said weapon. The human blood of the same group was found on the T-shirts of the deceased marked as article E-2 and E-3. It can thus safely be inferred that the blood found on the axe was of none else but of the deceased alone. What is more important in this case is that the recovery of the axe was made from a tree on the memorandum of the accused/appellant which according to the counsel for the appellant was from the open place. This Court is not in agreement with this submission because the axe hidden under the bark of the tree was within the special knowledge of the accused/appellant and none else, and since it is he who took the police thereto, it cannot be said to be made from an open place having been put by someone else.

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Having thus seen the facts portrayed by the prosecution in the light of the evidence available on record and keeping in mind the legal position as regards the cases based on circumstantial evidence, this Court is of the considered opinion that the prosecution has succeeded in establishing its case beyond reasonable doubt and the inculpatory facts appear to be incompatible with the innocence of the accused and incapable of point at any other reasonable hypothesis than his complicity in the crime in question. Of course, minor contradictions omissions are there in the testimony of the witnesses examined by the prosecution if compared to the statements made before the police, but looking to the considerable time having rolled by in between two points of time, such contradictions and omissions are bound to be there. However, as they do not relate to any material particular having capability of changing the outcome of the case,

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they have to be ignored. As regards the argument of the counsel for the appellant in relation to seizure of axe from an open place and therefore having no value in the eye of law, this Court does not find any substance in the said argument because the same has been made from the bark of a tree on the disclosure statement of the appellant himself which was within his special knowledge only. Since the axe was kept under the bark, it cannot be said to be accessible to one and all, and being so this submission of counsel for the appellant is rejected. Likewise, the delay in such recovery can also not be said to be fatal to the case of the prosecution because it occurred as the accused/appellant was arrested on 8.3.2018 and the seizure came to be made on that very day. The seizure witnesses PW-5 and PW-10 have duly supported the seizure of axe stating that it was made from the bark of the tree at the instance of the accused/appellant. This Court carefully perused the decisions cited by the counsel for the appellant but as they are not on the same set of facts as in the present one, are of no help to the appellant in the light of glaring evidence against him. In the present case chain of circumstance is complete as the prosecution has been able to prove the motive, recovery of weapon, extrajudicial confession, human blood of ‘O’ group on the weapon and the cloths of the deceased, beyond reasonable doubt.

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Learned trial Court does not appear to have misdirected itself while arriving at the conclusion of guilt of the accused and slapping the sentence as mentioned above making this Court take a view other than the one taken by it. Judgment under assail in this appeal is thus maintained and the dismissal of the appeal follows. The appellant appears to be in jail already, and therefore no order to send him to custody is needed.

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