Vikas Nishad Vs State of Chhattisgarh

(Cause-title taken from Case Information System)
For Appellant (In CRA No.82/2022) : Mr. Dharmesh Shrivastava, Advocate
For Appellants (In CRA No.1158/2021) : Mr. Saurabh Dangi, Advocate
For State/Respondent : Mr. Sakib Ahmed, Panel Lawyer.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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21.03.2025

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1. Heard Mr. Dharmesh Kumar Shrivastava, learned counsel for the appellant in CRA No.82/2022 and Mr. Saurabh Dangi, learned counsel for the appellants in CRA No.1158/2021. Also heard Mr. Sakib Ahmed, learned Panel Lawyer, appearing for the State/respondent.

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2. Regard being had to the similitude of the questions of facts and law involved being arising out of a common crime vide impugned judgment dated 27.09.2021 passed by the First Additional Sessions Judge, Raipur, District Raipur, Chhattisgarh in Sessions Trial No.112/2020, these appeals have been clubbed together, heard together and are being decided by this common judgment.

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3. Appellant-Vikas Nishad (A-3) has preferred CRA No.82/2022 and Appellants-Devendra Sahu @ David (A-1) and Purendra Sahu @ Pappu (A-2) have preferred CRA No.1158/2021 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) questioning the impugned judgment dated 27.09.2021 passed by the First Additional Sessions Judge Raipur, District Raipur, Chhattisgarh in Sessions Trial No.112/2020, by which they have been convicted and sentenced as under :-

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For appellant- Vikas Nishad : under Sections 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/-

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and, in default of fine, additional rigorous imprisonment of 03 months; under Section 323 r/w 34 of IPC (for causing injury to injured- Manoj Dhiwar) and sentenced to undergo 06 months’ rigorous imprisonment with fine of Rs.500/-, and in default of fine, additional rigorous imprisonment of 01 month and under Section 323 r/w 34 of IPC (for causing injury to injured- Shanti Bai) and sentenced to undergo 06 months’ rigorous imprisonment with fine of Rs.500/-, and in default of fine, additional rigorous imprisonment of 01 month.

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For appellants- Devendra Sahu @ David and Purnendra Sahu @ Pappu : under Sections 302 r/w Section 34 of IPC and sentenced to undergo life imprisonment each with fine of Rs.1,000/- each and, in default of fine, additional rigorous imprisonment of 03 months each, under Section 323 r/w 34 of IPC (for causing injury to injured- Manoj Dhiwar) and sentenced to undergo 06 months’ rigorous imprisonment each with fine of Rs.500/- each, and in default of fine, additional rigorous imprisonment of 01 month each and under Section 323 r/w 34 of IPC (for causing injury to injured- Shanti Bai) and sentenced to undergo 06 months’ rigorous imprisonment each with fine of Rs.500/- each, and in default of fine, additional rigorous imprisonment of 01 month each.

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4. The brief description of the prosecution story is as follows : The complainant Manoj Dhiwar (PW-1) was a resident of village

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Chandkhuri, on 10.03.2020 at about 5.30 PM, he was near the house of Ravi Sahu (PW-4), at that relevant time, Devendra Sahu @ David (A-1) was abusing Ravi Sahu, seeing which, David left the place and the complainant was objected, after some time, Devendra Sahu @ David (A-1) came with Purendra Sahu @ Pappu (A-2) of Charoda, at that time, the complainant was sitting on the stairs with his mother Smt. Shanti Bai (PW-3), Purendra Sahu @ Pappu (A-2) and Devendra Sahu @ David (A-1) forcibly assaulted him stating that he has been abusing him and left, due to which he and his mother got injured, after that, at about 6.00 PM, Devendra Sahu @ David (A-1), Purendra Sahu @ Pappu (A-2) and Vikas Nishad (A-3) all three came, at that time, complainant Manoj Dhiwar (WA-1) was sitting with his brother Pratap Dhiwar (deceased). All the three accused stopped under the roof of Ravi Sahu's house and Vikas called his brother Pratap Dhiwar. Then, Pratap Dhiwar went to Vikas and after a while, he heard Pratap was shouting, upon hearing his voice, he went there and saw that Vikas had attacked his brother Pratap Dhiwar with a knife in the stomach and blood was oozing from his stomach. Thereafter, he caught hold of Vikas, who freed him and ran away. There were wound marks at two or three places on the stomach of Pratap Dhiwar. After the attack, all the three accused Devendra Sahu @ David (A-1), Purendra Sahu @ Pappu (A-2) and Vikas Nishad (A-3) ran away from the spot. The injured Pratap Dhiwar was immediately taken to Primary Health Centre, Mandir Hasaud for treatment but due to the bleeding caused by the injury, he was referred to Mekahara Raipur by ambulance. On the

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report of complainant Manoj Dhiwar, First Information Report (Ex.P/1) for the offence punishable under Sections 307, 34 of the Indian Penal Code, 1860 (for short, “IPC”) was registered at Police Station Mandir Hasaud and wheels of the investigation was started.

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5. During the investigation, on 11.03.2020, Sub-Inspector Keshav Ram Sahu (PW-14) visited the spot of the incident and prepared a spot map vide Ex.P/2 in front of the witnesses and collected blood-stained pieces of cement concrete and plain pieces from the incident spot in front of witnesses, kept them in separate packets, sealed and seized them and prepared seizure memo vide Ex.P/9. He recorded the statements of witnesses Manoj Dhiwar (PW-1) and Ghanshyam Sahu (PW-2) and arrested the accused Devendra Sahu @ David (A-1) and Purnendra Sahu @ Pappu (A-2) vide arrest memo Ex.P/20 and Ex.P/21. On 12.03.2020, the injured Pratap Dhiwar died while undergoing treatment at Mekahara Hospital, Raipur. The complainant Manoj Dhiwar (PW-1) reported the death of the deceased Pratap Dhiwar to Police Station Mandir Hasaud. On the basis of which, SubInspector Keshav Ram Sahu (PW-14) registered dehati merg intimation vide Ex.P/3 on zero in the hospital itself and after completion of the Panchnama proceedings and postmortem proceedings of the dead body of the deceased Pratap Dhiwar as also on the basis of the case registered on zero, registered a permanent case bearing Crime No.25/2020 at Police Station Mandir Hasaud. In the course of investigation, the blood-stained clothes worn by the deceased at the time of the incident were seized in front of witnesses vide seizure

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memo Ex.P/5. On 14.03.2020, the accused Vikas Nishad was taken into custody vide arrest memo vide Ex.P/22 and after interrogating him in front of witnesses, his memorandum statement (Ex.P/10) was recorded and on the basis of facts disclosed by the accused in the memorandum statement, on the identification of accused Vikas Nishad, the knife used in the crime was seized vide seizure memo Ex.P/11. The knife seized from accused Vikas Nishad was sent to its chemical examination vide Ex.P/39A and the query report was obtained vide Ex.P/38. Statement of witnesses Shanti Bai and Mohan Barchia was recorded as per their statements, spot map was prepared by Patwari vide Ex.P/6. Inspector Sonal Gwal (PW-17) sent the seized property along with the draft of the office of Superintendent of Police to the State Forensic Science Laboratory vide Ex.P/40 and FSL report was obtained vide Ex.P/43.

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6. During the investigation, notice under Section 160 of Cr.P.C. was given vide Ex.P/13 and summons under Section 175 of Cr.P.C. was given vide Ex.P/16. Notice under Section 91 of Cr.P.C. was sent to the witnesses vide Ex.P/30. The dead body of deceased Pratap Dhiwar was sent for postmortem examination, which was conducted by Dr. M. Nirala (PW-13), who opined in the postmortem report (Ex.P/9) that the cause of death seems to be cardio-respiratory failure as a result of chest and abdominal injuries and the death was homicidal in nature.

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7. Thereafter, statements of witnesses were recorded under Section 161 of Cr.P.C. and, after due investigation, the police filed charge-sheet

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in the concerned jurisdictional Court and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, from where the learned First Additional Sessions Judge, Raipur, District Raipur (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. The trial Court has framed charges against the appellants for the offence punishable under Sections 302/34 and 323/34 (two counts) of the IPC and proceeded on trial. The appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated in the crime in question.

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8. The prosecution in order to prove its case examined as many as 17 witnesses as PW-1 to PW-17 and exhibited 43 documents vide Ex.P/1 to Ex.P/43, whereas the appellants-accused in support of their defence have neither examined any witness nor exhibited any document.

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9. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 27.09.2021 convicted and sentenced the appellants in the manner mentioned in the second paragraph of this judgment, against which these appeals under Section 374(2) of the Cr.P.C. have been preferred by them calling in question the impugned judgment.

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10. Mr. Dharmesh Shrivastava, learned counsel for the appellant in CRA No.82/2022 submits that the learned trial Court is absolutely unjustified in convicting the appellant-Vikas Nishad for offence under

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Sections 302/34 and 323/34 (two counts) of IPC, as the learned trial Court has not proved the offence beyond reasonable doubt. He further submits that though pursuant to memorandum statement of appellantVikas Nishad, a blood stained knife has been recovered, which was used in the crime in question, but Smt. Shanti Bai (PW-03) has stated that she handed over the knife to the police from the place of incident, therefore, memorandum statement of appellant and recovery of knife becomes shaky piece of evidence and cannot be relied upon and except this there is no other evidence available against the appellantVikas Nishad. Thus, the conviction of the appellant is unsustainable, inadmissible and bad in law. It has been contended that even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-II of the IPC. It has been further contended that the evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, as such, the impugned judgment of conviction is liable to be set aside and appellantVikas Nishad be acquitted/discharged from the said offence.

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11. Mr. Saurabh Dangi, learned counsel for the appellants in CRA No.1158/2021 submits that the appellants have good prima facie case and they hope to succeed in their appeal. They have not committed any offence and they have been falsely implicated. He submits that the conviction of the appellants is premised/based on the statements of so called eye-witnesses, namely, (i) Manoj Dhiwar (PW-1), who is brother of deceased- Pratap Dhiwar and (ii) Shanti Bai (PW-3), who is mother

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of the deceased and memorandum statement of co-accused- Vikas Nishad (appellant in CRA No.82/2022) (Ex.P/10), pursuant to which seizure of a blood stained knife has been affected vide Ex.P/11. It is further submitted that Manoj Dhiwar, who is the brother of the deceased and has been cited as Prosecution Witness No.1, in Para-14 of his cross-examination has categorically denied his presence at the place of incident. Similarly, Smt. Shanti Bai, who is mother of the deceased and has been cited as Prosecution Witness No.3, in Para-4 of her crossexamination has categorically denied her presence at the place of incident, thus, the two eye-witnesses (i.e. PW-1 & PW-3) have not supported the case of the prosecution. Further, Ghanshyam Sahu, who is independent witness in the case and has been cited as Prosecution Witness No.2, in Para-9 of his cross-examination has categorically denied the presence of appellants- Devendra Sahu @ David and Purnendra Sahu @ Pappu and that of Manoj Dhiwar (PW-1) and Smt. Shanti Bai (PW-3) at the place of incident, therefore, his statement is not reliable. Furthermore, Shanti Bai (PW-3) in Para-8 of her crossexamination has stated that she picked up the knife from the place of incident and handed over to the police and further in Para-12 of her cross-examination she has clearly stated that the persons who were holding the hands and mouth of the her son- Pratap Dhiwar (deceased) had already ran away from the spot and she could not see them, hence, the credibility of her testimony cannot be relied upon. There are major contradiction and omissions in the statements of prosecution witnesses. He further submits that there is no evidence available on

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record against the appellants- Devendra Sahu @ David and Purnendra Sahu @ Pappu to show that they have assaulted the deceased, due to which he suffered injuries and died. The learned trial Court without appreciating the oral and documentary evidence available on record convicted the appellants for the aforementioned offence by recording perverse findings, which is contrary to record, thus, the impugned judgment of conviction is liable to be set aside and appellants be acquitted/discharged from the said offence.

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12. Per-contra , Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that there is ample evidence on record to connect the appellants with the offence in question. It has been contended that Manoj Dhiwar (PW-1) and Smt. Shanti Bai (PW-3) have seen the incident. On the date of incident, just before the murder of deceasedPratap, accused- Devendra @ David and Purnendra @ Pappu have assaulted Manoj Dhiwar (PW-1) and Smt. Shanti Bai (PW-3), due to which they sustained injuries. It has been further contended that accused- Devendra Sahu @ David and Punendra Sahu @ Pappu caught hold of deceased from back and accused- Vikas Nishad gave multiple knife injuries on the vital parts of the body of the deceased, which is duly proved by the postmortem report (Ex.P/19) conducted by Dr. M. Nirala (PW-13). Further, pursuant to memorandum statement of accused-appellant- Vikas Nishad, a blood stained knife has been

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recovered, which was used in the crime in question. The said knife was further subjected to FSL examination and in the FSL report (Ex.P/43), it has been stated that blood has been found on the said knife. The FSL report (Ex.P/43) further states that blood stains have also been found on the Shirt of the accused-Vikas Nishad. The investigating officer has also clarified that the said knife was recovered from accused- Vikas Nishad vide Ex.P/11, which is duly proved by Sukhchain Das (PW-5). Hence, he submits that there is sufficient material available on record to connect the appellants with the offence and the learned trial Court has rightly convicted them for the offence aforementioned crime and thus, the present appeals deserve to be dismissed.

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13. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection.

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14. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution.

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15. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased- Pratap Dhiwar was homicidal in nature ?

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16. The learned trial Court, relying upon the statement of Dr. M. Nirala (PW-13), who has conducted postmortem on the body of deceased vide Ex.P/19, has clearly come to the conclusion that the cause of death of the deceased was cardio-respiratory failure as a result of chest

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and abdominal injuries and the death of the deceased was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding.

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17. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime.

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18. In the present case, homicidal death due to cardio-respiratory failure as a result of chest and abdominal injuries and the nature of death is homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of injured eyewitnesses Manoj Dhiwar (PW-1), Smt. Shanti Bai (PW-3) and further the evidence of Ghanshyam Sahu (PW-3) and Ravi Sahu (PW-4) and the postmortem report (Ex.P/19) that the death of deceased was homicidal in nature.

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19. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. M. Nirala (PW-13) as well as the evidence of injured eyewitnesses Manoj Dhiwar (PW-1), Smt. Shanti Bai (PW-3) and further the evidence of Ghanshyam Sahu (PW-3) and Ravi Sahu (PW-4).

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20. Ghanshyam Sahu (PW-2) has deposed in his evidence that on the last year of holi in the evening time, he and Mohan were sitting near Ravi Mill. Pratap's mother shouted that he has stabbed her, upon this,

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they went to the place from where Pratap's mother was shouting and saw that Pratap's body was bleeding. Five boys had come there but they did not see who they were. When this witness was declared hostile by the prosecution and asked suggestive questions, the witness denied seeing the incident of stabbing the deceased Pratap and David Punendra, Vikas came in front of the Halar Mill and called Pratap. When he came, he said that he was acting like a boss and David and Pappu hold his hand and Vikas Nishad stabbed Pratap several times in the stomach and thigh. Of course, this witness denied seeing the incident of assault himself, but the statement of this witness provides evidence that the incident of stabbing Pratap Dhiwar had taken place at the relevant time and on hearing the screams of Pratap Dhiwar's mother, they went to the spot and saw that Pratap had been injured in the stomach and was bleeding.

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21. Likewise, Mohan Barchhiya (PW-5) in his statement has stated that during the last Holi festival, he was going from Panchayat Bhawan to his house at about 7.00 PM, when he heard the voice of deceased Pratap Sahu shouting his mother near Ravi Hall Mill, he also went to the spot and saw that Pratap Dhiwar was standing in front of Ravi Hall Mill and a knife was lying there. At that relevant time, 8-10 people from the locality had reached there and later, he came to know that Pratap Dhiwar had died. On being declared hostile by the prosecution and being asked suggestive questions, the witness denied being sitting with Ravi Halar Mill with Ghanshyam Sahu at the time of the incident and Manoj Dhiwar and Pratap Dhiwar being sitting at Ramne Chaura of

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Dani Ram Sahu's house at that time. He also denied seeing David Punendra and Vikas coming in front of Halar Mill and calling out to Pratap and him acting like a boss when he came, David and Pappu holding his hand and Vikas Nishad stabbing Pratap in the stomach and thigh with a knife several times, but from the statement of this witness, evidence of hearing the voice of the deceased shouting his mother at the relevant time of the incident is obtained.

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22. Ravi Sahu (PW-4) has stated in his evidence that he lived in village Chandrakhuri, there is a Chaura (square) in front of his house and next to his house is the house of deceased Pratap. It was last year during Holi festival that his leg was plastered. In the evening at about 6.00-6.30 PM, his family members took him out of the house holding a chair and made him sit. It was dusk at that time and the lights were not on. At that time, 5 people came on foot and due to darkness, he was able to see what dispute took place with whom. This witness was also declared hostile by the prosecution and was made aware of his police statement. When indicative questions were asked to him, this witness, denying his police statement, denied having seen the accused inflicting injury on Pratap Dhiwar by stabbing him with a knife.

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23. Manoj Dhiwar (PW-1) has stated in his statement that his and Ravi Sahu's house are connected at village Chandrakhuri. At about 3.00-3.30 PM, David Sahu was abusing Ravi near Halar Mill. When he stopped David from abusing, David Sahu started arguing with him. David Sahu's friend caught hold of him and took him to his house. After

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that, at about 5.00-5.30 PM, David Sahu and his aunt's son Purendra Sahu @ Pappu came in front of his house on a bike. At that time, he and his brother Pratap and two-three other boys were sitting in the courtyard of Dani Sahu. David parked his bike there and Purnend Sahu pulled his leg and dragged him down the stairs, due to which he got injured in the elbow of his hand. When his mother Smt. Shanti Bai (PW3) came to intervene, David and Purnend assaulted his mother with kicks and punches. Meanwhile, his elder brother Santosh Dhiwar came there. Seeing him, accused David and Purnend ran away from there. Went. Further this witness has told that again in the evening at about 6.00-6.30 PM, Devendra Sahu @ David, Purnendra Sahu @ Pappu and Vikas Nishad came near his house and sat near Ravi Sahu's Haller Mill where there was no light and it was dark. At that time, he and his brother Pratap were sitting in the courtyard of Dani Sahu's house when someone from David's people called out to his brother Pratap and his brother went to them, the accused abused him and stabbed his brother Pratap with a knife, then his brother shouted, then he and his mother ran to Pratap Dhiwar, who caught Vikas who pushed him and ran away, Pratap was bleeding, he took Pratap near his house and immediately called 112 for Ambulance, but the Ambulance was late in arriving, they took him to Mandir Hasaud in a four-wheeler from where his brother was referred to Mekahara hospital. Then his brother Pratap was admitted to Mekahara, where his brother died two days later. This witness further stated that on the day of the incident itself, he had gone to Mandir Hasaud police station and lodged a report (Ex.P/1) against

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the accused for stabbing his brother Pratap Dhiwar with a knife and also caused injuries to him, and when the police came for investigation, he showed the police the place of incident of which the police had prepared a spot map (Ex.P/2).

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24. Mother of the deceased, Smt. Shanti Bai (PW-3) has stated in her statement that the incident occurred on the day of Holi festival. She stated that at about 5.00-5.30 PM, in the square near her house, the accused Devendra Sahu @ David, Purnendra Sahu @ Pappu and Vikas Nishad were fighting with each other. At that time, she was inside her house. On hearing the noise of the fight, she came out of the house and asked the accused why they were fighting. Then two of those boys, who are known as Pappu, slapped and kicked her, due to which her nose got injured and swelled up and she got an injury on her back. At that time, those boys saw her elder son Santosh coming and ran away from there. A little later, in the night of the aforesaid fight, the accused came to Chandni Chowk near the house and stabbed her son Pratap with a knife. Her son Pratap shouted calling out her and his brother and hearing his voice, she ran from inside the house to the place from where the sound was coming and saw that the same 3 boys who had beaten her, were stabbing her son Pratap. When she asked why are you stabbing them, the knife fell from their hands. She further stated that upon hearing the voice, his son Manoj also came there, they picked up Pratap and brought him to the courtyard of the house. His son had a wound in his stomach and was bleeding. His son Pratap was admitted to Mekahara hospital for two days, after which he died.

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25. From the statements of independent eyewitnesses Ghanshyam Sahu (PW-2), Mohan Barchhiya (PW-5) and Ravi Sahu (PW-4), there is evidence of their presence near the place of incident on the date and time of incident and that at the relevant time of incident, Pratap Dhiwar was assaulted with a stick and on hearing the screams of the deceased, his mother and brother came to the place. These witnesses denied the accused's doing the incident with Pratap Dhiwar and did not support their police statement. Contrary to their police statement, they have revealed the situation of five people coming to the place and the people coming could not see who committed the incident due to darkness at the place.

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26. The main defence of the accused persons is that prosecution witness Manoj Dhiwar (PW-1) is the brother of deceased Pratap Dhiwar and Smt. Shanti Bai (PW-3) is the mother of the deceased. Both these witnesses are close relatives of the deceased and are interested witnesses, therefore their evidence cannot be believed. Here it is accepted that Manoj Dhiwar (PW-1) and Smt. Shanti Bai (PW-3) are close relatives being the brother and mother of the deceased, but it is an established law that the evidence of close relatives cannot be disbelieved merely on the ground that the witness is a close relative because Manoj Dhiwar (PW-1) has deposed that he is said to be sitting in the courtyard of Dani Ram Sahu's house. The said place was only about 50 feet away from the place of incident and iwass near the place of incident. Therefore, it is normal for the deceased to hear the screams from the place where he was sitting. Similarly, the house of the

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deceased is adjacent to Ravi Sahu's house and the place of incident is near Ravi Sahu's Halar Mill. Therefore, this situation cannot be ruled out that on hearing the call from the place of incident, the mother of the deceased, who was in her house at the time of the incident, came to the spot after hearing the voice. Manoj Dhiwar and Shanti Bai came to the spot after hearing the voice of the deceased, the said situation is confirmed by the statement of witness Ghanshyam Sahu (PW-2). In cross-examination, Manoj Dhiwar (PW-1) has stated on the suggestion given on behalf of the accused that the distance of the place of incident of stabbing Pratap from Ravi Sahu's Halar Mill is about 50-60 feet. He had gone to the scene of incident on being called by his brother; the situation at the scene of incident and its surroundings, which has not been denied by the accused, makes their presence at the scene of incident natural as brother Manoj Dhiwar, sitting in front of Dani Ram Sahu's house, and Shanti Bai's immediate arrival at the scene after hearing his voice from inside the house.

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27. In the examination-in-chief of Manoj Dhiwar (PW-1), the evidence given regarding the accused Devendra Sahu @David, Purnendra Sahu @ Pappu and Vikas Nishad coming to the scene of incident at the relevant time of the incident and calling out to Pratap Dhiwar who was sitting with him at Dani Sahu's Chauraha and thereafter hearing Pratap Dhiwar's shouts, going to the spot and catching Vikas Nishad, he pushed him and ran away and the condition of blood oozing from the stomach and thigh of his brother Pratap Dhiwar, remained unrebutted in the cross-examination.

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28. Smt. Shanti Bai (PW-3) in paragraph-3 of her examination-in-chief has stated that the three boys had assaulted her son Pratap were the same boys who had assaulted her and her son. In paragraph-2 of the examination-in-chief, she has stated that she and Manoj were beaten up by Devendra Sahu @ David, Purnendra Sahu @ Pappu and Vikas Nishad. In cross-examination, she has accepted the suggestion given by the accused that she does not know the names of the three accused. She knew only one boy by the name i.e. Pappu and out of the three fighting boys, the one whom she is referring to as Pappu is a boy from the village and hence, she knew him. She does not know the other two boys. Further, in response to the suggestion given by the accused, she stated that when she reached to the spot, the boys who had stabbed, and she could not see them, had fled from there, has stated that when she reached the spot, she could not see the boys who had held the hands and mouth of her son Pratap and had fled from there, but she had seen the boy who was holding the knife in his hand and from whose hand the knife had fallen, she is a boy from another village and she does not know his name. Further, she has admitted that there was darkness at the place where she is narrating the incident of stabbing her son Pratap. She has voluntarily stated that it was light when he was assaulted. Thus, Smt. Shanti Bai has denied knowing the names of the accused in her cross-examination, but her evidence regarding having seen the boy who stabbed him has remained unrebutted in the examination-in-chief. No doubt, Smt. Shanti Bai has denied identifying the three boys who stabbed her son by name, but in

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the examination-in-chief, she has identified the persons who stabbed her son, deceased Pratap Dhiwar, on the basis that they were the same boys who had assaulted her and Manoj in the evening, which has remained unrebutted in the cross-examination.

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29. Investigating Officer, Sub-Inspector Keshav Ram Sahu (PW-14) has stated that during the investigation, he went to the spot on 11.03.2020 and seized the pieces of blood-stained cement concrete and pieces of plain cement concrete fallen in front of Pratap Dhiwar's house as per seizure memo Ex.P/9 in front of witnesses and on 14.03.2020, taking accused Vikas Nishad in custody and interrogating him in front of witnesses Sukhnandan Manikpuri and Mohan Barchhiya, recorded his memorandum statement Ex.P/10, in which accused Vikas Nishad has stated that he had hidden the knife used in committing the crime and his blood-stained shirt in the house and recovered by going there, on the basis of which, he recovered an iron knife, one side of which was sharp, pointed and buttoned, with a fish-shaped blade, from his house at Chandrakhuri in front of witnesses. The length of the knife is 4 inches, length of the blade is 4 inches, length of the handle is 4 inches and a black colour T-shirt which had blood stains at various places was seized as per seizure memo Ex.P/11.

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30. Dr. M. Nirala (PW-13) has conducted the postmortem of the dead body of deceased Pratap Dhiwar on 13.03.2020 and given the postmortem report (Ex.P/19) and found following injuries :-

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“On external examination of the body, it was

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found that the body was of a normal height male, who was wrapped in grey, pink, blue, white, black coloured bed-sheet and was wearing a diaper, the body was cold, there was stiffness in the body after death, both eyes and mouth were closed, tongue was inside the mouth. There were the following external injuries on his body -

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1- There was a line like scar measuring 2.5 x

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0.2 cm on the left side of the forehead of the deceased.

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2- A contused abrasion measuring 1 x 0.3 cm was present on the left cheek of the deceased.

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3- A contusion measuring 1.5 x 0.5 cm was present in the middle portion of the lower lip of the deceased.

¶98

4- Drainage wound measuring 1.5 x 1 cm was present on the outside of middle quadrant of abdomen on both sides.

¶99

5- Drainage wound measuring 1.5 x 1 cm was present on the outside of middle quadrant of abdomen on both the sides.

¶100

22

¶101

6- There was a 1 cm long stitched wound in the middle portion of the left chest and 4 cm long in the middle portion of the upper abdomen.

¶102

7- There was a 5 cm long stitched wound present in the right chest.

¶103

8- There was a stitched wound of 20 cm length vertically in the middle part of the abdomen, 4 cm length in the lower part of the left chest and 2 cm length from the middle part of the left thigh to the lower part outwards.

¶104

9- Ecchymosis and hematoma were present in the under circus area of the chest on the right side.

¶105

The doctor further stated that on internal examination of the dead body, he found that the deceased's skull and membranes were intact, the brain and spinal cord were intact, the brain was free of blood, the membranes and all the ribs were intact, there were two piercing wounds in the third intercostal region on the right side of the deceased, measuring (1) 3 x 1.5 cm and (2) 2 x 1 cm. There was a piercing wound measuring 1.5 x 1 x 1 cm in middle lobe of right lung and 2 x 1.5 x 2 cm in lower lobe of left lung. Pericardium, heart and large vessels were intact, right ventricle was filled with blood, diaphragm, intestinal

¶106

23

¶107

membrane, mouth and pharynx were intact and bloodless, chest and abdominal cavity were filled with blood and blood clots, stomach contained 100 ml of brown coloured semi-digested liquid, small intestine contained digested food, large intestine was filled with gas and faecal matter, right lobe of liver had a 6 cm long stitched wound, spleen and both kidneys were intact and bloodless, urinary bladder was intact and empty, internal and external genitals were intact and healthy. In cross-examination this witness has admitted that injuries No. 4 and 5 found on the body of the deceased were made during the operation by Denez Wood for treatment and to drain out blood and dirty discharge.

¶108

The doctor has given his opinion that the cause of death of the deceased was cardiac arrest and respiratory failure due to injuries on the chest and abdomen and the period of death was within 24 hours of the postmortem examination. Thus, the doctor's statement and the postmortem report provide evidence that the cause of death was chest injury and abdomen injury.

¶109

31. Injured/deceased Pratap Dhiwar's body had pre-death injuries, which was was confirmed by the statement of Dr. Sunny Pasrija (PW12). He has admitted that he was treated the injured/deceased at Mekahara hospital, Raipur as per Ex.P/18. On 10.03.2020, when the injured Pratap Dhiwar, son of Kheelsingh Dhiwar, aged about 19 years, resident of Chandrakhuri, was brought to the hospital, he examined him. At that time, the condition of the injured was not normal. On examining the injured, he found the following injuries on his body:-

¶110

24

¶111

“1- The injured person had a cut wound on his right side chest measuring 7 x 3 x 2 cm.

¶112

2- There was a cut wound on left side of chest measuring 1 cm.

¶113

3- There was a severed wound under the left side of the chest measuring 6 x 2 x 3 cm.

¶114

4- The injured person had a cut wound in his abdomen, above the navel and 7 cm below the GP, measuring 5 x 2 cm.

¶115

5- There was an injury on the abdomen of the injured person 10 cm above the navel, the size of which was 1 X 1 cm.

¶116

6- A lacerated wound measuring 7 x 2 cm in left thigh, 20 cm below the anterior superior iliac spine and a 3 cm wound on the same side.

¶117

Thus, from the statement of Dr. Sunny Pasrija (PW-12) and the documents related to the treatment of the deceased, evidence is obtained of the presence of three wounds on the right and left side of the chest, two wounds on the stomach just above the navel and one cut wound on the left thigh before death.

¶118

32. Further, from the disclosure/memorandum statement of the appellant- Vikas Nishad (Ex.P/10), pursuant to which blood stained

¶119

25

¶120

knife has been recovered vide Ex.P/11, which was further sent for FSL examination and in the FSL report (Ex.P/43) it has been opined that blood has been found on the said knife as also on the Shirt of accusedappellant- Vikas Nishad and the postmortem report (Ex.P/19) duly proved by Dr. M. Nirala (PW-13) and other evidence available on record .

¶121

33. Considering the evidences of the aforesaid witnesses as well as from the circumstantial evidence, it is evident that the accused persons have quarreled with the mother of deceased in the morning of the date of incident and later, in the evening, they came again to the house of complainant and assaulted the deceased Pratap Dhiwar on his stomach by stabbing the knife as well as further considering the fact that upon memorandum statement of the appellant-Vikas Nishad, a blood stained knife was seized and according to the FSL report (Ex.P/43), a blood was found on the seized knife as well as on the clothes of the accused as well as further considering the fact that the deceased died due to cardio-respiratory failure as a result of chest and abdominal injuries.

¶122

34. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that :-

¶123

“death of deceased Pratap Dhiwar was

¶124

homicidal in nature;

¶125

it is the appellants who have murdered the deceased by caught holding of his hands and

¶126

26

¶127

stabbing into his stomach with the help of knife.”

¶128

35. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, it is reflected that the appellants have not offered any explanation under Section 313 of the Cr.P.C. and considering the statements of Manoj Dhiwar (PW-1) and Smt. Shanti Bai (PW-3), whose statement too has no reason to be disbelieved and there is also no reason for them to lie as they are main and injured witnesses to the incident disclosing the fact that the accused/appellants had caught hold of Pratap Dhiwar and stabbing into her stomach with the help of knife, due to which, Pratap Dhiwar died, therefore, the act of the accused/appellants by stabbing the deceased clearly shows the intention of the accused/appellants to kill the deceased and further, all the accused caused injuries to the mother and brother of the deceased on the date of incident in the morning. For this reason, it is clearly and reliably established that it was the accused/appellants, who caused the death of the deceased and in this regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C., and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellants for the offence punishable under Sections 302/34 and 323/34 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court.

¶129

27

¶130

36. For the foregoing reasons, these criminal appeals (CRA No.82/2022 and CRA No.1158/2021) being devoid of merit and are liable to be and are hereby dismissed .

¶131

37. It is stated at the Bar that the appellant-Vikas Nishad is in jail, he shall serve out the sentence as ordered by the learned trial Court. It is further stated that the appellants-Devendra Sahu @ David and Purnendra Sahu @ Pappu are on bail. Their bail bonds are cancelled and sureties discharged. They shall surrender forthwith before the concerned trial Court for serving remaining sentence as awarded by the trial Court, failing which they shall be taken into custody by the trial Court.

¶132

38. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant-Vikas Nishad is undergoing his jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶133

39. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

¶134

Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶135

Anu

Vikas Nishad v. State of Chhattisgarh

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Vikas Nishad v. State of Chhattisgarh

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