Vishal Shende Vs State of Chhattisgarh

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Digitally 2025:CGHC:589-DB A signed by ANNAJEE A RAO ANNAJEE RAO

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 979 of 2019

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1 - Vishal Shende S/o Rameshwar Shande Aged About 27 Years R/o Mahadev Nagar Chowki Chikhali, Police Station Kotwali, District Rajnandgaon Chhattisgarh.,

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... Appellant

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versus

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1 - State of Chhattisgarh through Station House Officer, Police Station Kotwali, District Rajnandgaon Chhattisgarh. ... Respondent

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For the appellant : Mr. Rajesh Jain, 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

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(06.01.2025)

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Sanjay Kumar Jaiswal, J

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1. This criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 03.05.2019 passed by the Sessions Judge, Rajnandgaon (Chhattisgarh) in Sessions Case No. 9 of 2017

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whereby the appellant has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment.

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2.1 The case of the prosecution, in short, is that on 18.12.2016 the complainant Lata Chaure (P.W.7) made a report in P.S. Kotwali regarding the murder of her husband Santosh Chaure near Railway Pillar 895/13 wherein it was stated that her husband Santosh Chaure after having breakfast, had gone along with his son Prahlad Chaure (P.W. 10) on foot to drive auto rickshaw. After 15 minutes, her son Prahlad Chaure returned home and told her that one Vishal Shende resident of Mahadev Nagar, was assaulting his father on head with stone. When she rushed to the spot, the accused fled from the spot where her husband Santosh Chaure was lying dead on the ground with head injury. She had further stated in the report that the accused killed her husband by scissors and stone, which was witnessed by her son Prahlad.

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2.2 On the report of complainant Lata Chaure (P.W.7), merg was registered by Ex.P-8, on the basis of which FIR was registered u/s 302 IPC against the accused. During investigation, the Panchnama of dead body (Ex.P-15) was prepared by the I.O. (P.W.14) by visiting the spot. Thereafter, the the postmortem of body of the deceased was conducted. The memorandum statement of accused was recorded which further led to seizure of material/articles used in the offence. A sketch of the scene of incident as also the site plan (spot map) was prepared. The seized materials were sent to FSL Raipur for chemical examination. After completion of investigation, the charge sheet was filed.

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3. During the course of trial, in order to bring home the guilt of accused, the prosecution on its behalf has examined as many as 15 witnesses and exhibited 30 documents. The statement of the appellant/accused was recorded u/s 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by prosecution, pleaded innocence and false implication. The appellant in support of his defence has examined 1 witness and exhibited some documents.

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4. The learned trial Court after evaluating the evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant challenging the impugned judgment of conviction and order of sentence.

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5. Learned counsel for the appellant submits that despite other independent witness was available, the prosecution had chosen to examine Prahlad Chaure (P.W.10) who is son of the deceased and he was tutored by the Police, therefore, the testimony of such interested witness deserves to be discarded. He further submits that the memorandum statement of appellant and the subsequent seizure from him are not supported by the independent witnesses Rajkumar Bansod (P.W.12) and Yograj Bagade (P.W.15), therefore, the seizure of material from the appellant creates a serious doubt. He further contends that the human blood found on glove and full-shirt is not established to be the same blood group of deceased. It is also contended that as per the FSL report itself, no blood was found on the scissors used in the offence, therefore, the conviction of the appellant is not based on credible evidence and the impugned judgment warrants interference of this Court.

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6. Per contra, learned State Counsel opposes the arguments of appellant and submits that the Judgment of conviction and order of sentence is well merited which do not call for any interference of this Court.

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7. We have heard learned counsel for the parties and have gone through the records of the trial Court with utmost circumspection.

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8. Dr. Datta Sorte (P.W.8) on 18.12.2016 examined the body of the deceased Santosh Chaure and proved the P.M.Report Ex.P-4/A stating that there were 22 injuries on the body of deceased and that there was a fracture in the temporal bone. Left and right paralytic bone was also fractured. A piece of the skull was protruding out and many of injuries on the body were found in the form of cut injuries. According to him, cause of death was head injury (crush of head) with multiple injuries. On the basis of the said report, the trial Court has considered the death of

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deceased Santosh Chaure as homicidal in nature. His evidence stood firm by the evidence of deceased‘s son Prahlad Chaure (P.W.10), wife of Late Chaure (P.W.7) and other witnesses and the above conclusion is not contrary to the evidence available on record. Thus, it has been proved that the death of Santosh Chaure was homicidal.

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9. In this case, the question that arises for consideration is whether the death of Santosh Chourey was caused by the appellant ?

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10. The trial Court has convicted the appellant on two main grounds. The first is that the incident was witnessed by his son Prahlad Chaure (P.W.10) himself while the appellant was assaulting his father Santosh Chaure with scissors and stone and causing his death. He went back and informed his mother Lata Chaure (P.W.7), who then informed the police. On which, Merg Information (Ex.P-8) and First Information Report Ex.P-9 were registered against the appellant. The second ground is that the Investigating Officer C.P. Tiwari, ASI (P.W.14) on the basis of memorandum statement (Ex.P-18) of appellant/accused and further on being pointed out by him, had seized scissors and gloves by Ex.P-19 and full-shirt Ex.P20. As per the laboratory test report Ex.P-30, no blood was found on scissors but human blood was found on gloves and full shirt said to be seized from the appellant.

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11. The eye-witness Prahlad Chaure (P.W.10) who is the son of deceased and is an interested witness has deposed in his court evidence that on the date of the incident, as usual, at 8.00 – 8.30 a.m., he was going to pull the rope to start the auto and at that time, his friend Rahul Devangan (not examined) was also with him and Rahul Dewangan was walking at a distance of about 15 feet from his father. When his father got down from the footpath near the railway pillar, his neighbor , appellant Vishal Shende, started hitting his father with scissors due to which his father sustained injuries on his hand and neck. Thereafter, he pelted a stone on his father’s head . When he himself shouted, the appellant threatened to beat him also. Then, out of fear, he came with his friend Rahul Devangan and told

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the incident to mother Lata Chaure (P.W.7) and brought her to the scene of the incident . By then, the father Santosh Chaure had died.

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12. It is pertinent to note in the matter that the statement of son Prahlad Chaure (P.W.10) has been corroborated by his mother Lata Chaure (P.W.7) and she has also stated that after reaching the spot, she went to the police station and got the merg intimation recorded (Ex.P-8) on the basis of which FIR (Ex.P-9) was registered. However, mother Lata Chaure (P.W.7) has admitted in para 12 of her cross examination that by the time, she reached the spot, the police had already arrived there and the Police had brought the appellant Vishal Shende with them.

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13. In this situation, the question arises whether the police reached the spot on the information given by Lata Chaure (P.W.7) or the Police had already received the information. The way Lata Chaure has admitted in cross examination , it appears that the police reached the spot with the appellant only after Lata Chaure (P.W.7) herself had gone to the spot and therefore it appears that the police had received the information from some other source and they (police) did not come to the spot on the information given by Lata Chaure (P.W.7).

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14. Another significant fact in this case is that the deceased’s son Prahlad Chaure (P.W.10) has been said to be an eye-witness of the incident. But the site plan of the incident which the Asst. Sub-Inspector C.P. Tiwari (P.W.14) is said to have prepared as Ex.P-10 is not based on the identification made by the eyewitness Prahlad Chaure but on the identification by mother Lata Chaure. It is also important to note that in the spot-map Ex.P-10, it is not mentioned that at which place the eyewitness Prahlad Chaure was present whether at the incident spot or around it and from which place he saw the incident taking place. Therefore, the presence of Prahlad Chaure at the spot is found to be doubtful.

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15. In this regard, Hon’ble Supreme Court in the case of Shingara Singh Vs. State of Haryana and Another (2003) 12 SCC 758 has held that the omission to show essential feature in the site plan is a lapse on the part of the Investigating officer and observed in para-29 as under:

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“The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined. ”

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16. Similarly in the case of Baldev Singh and Another Vs. State of M.P. (2003) 9 SCC 45 it has been held by the Supreme Court that site plan is not a mere formality and it is essential feature to highlight the importance of the site plan and held as under :

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“13…..The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident.”

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17. Hon’ble Supreme Court in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re Vs. State of Andhra Pradesh and Others (2021) 10 SCC 598 , in para-3, has issued the following guidelines regarding site plan:

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“3. SCENE MAHAZAR/ SPOT PANCHANAMA

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i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama. ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose

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a. the place of occurrence,

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b. the place where the body (or bodies) was / were found,

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c. the place where material exhibits and/or weapons,

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d. blood stains and/or body fluids had fallen,

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e. the place where bullet shells, if any, were found or have caused impact,

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f. the source of light, if any and

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g. adjoining natural and man-made structures or features such as

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walls, pits, fences, trees/bushes, if any and

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h . elevation of structures and their location.

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iii. The preparation of this sketch by the Investigating Officer shall be followed by a scaled site plan prepared by police draftsman, if available, or such other authorized or nominated draftsman by the State Government, who shall prepare the scaled site plan after visiting the spot. iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.”

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18. In the instant case, the site plan prepared by the Investigating Officer (Ex.P-10) does not show the presence of eyewitness Prahlad Chaure (P.W.10) and the place from where Prahlad Chaure said he saw the incident. Besides, the said map has not been prepared on the basis of Prahlad Chaure’s identification, therefore, the presence of Prahlad Chaure on the spot is doubtful.

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19. It is also a significant fact in this case that according to the evidence of P.W. 10 Prahlad Chaure himself, Rahul Devangan has been mentioned as second eyewitness of the incident, who is also included in the prosecution’s witness list, but Rahul Devangan has not been examined before the Court on behalf of the prosecution. The prosecution itself would know the reason for not getting the examination done. Since Prahlad Chaure was the son of the deceased, he was not only an interested witness but his presence at the spot was also found to be suspicious. In such a situation, it was necessary for the prosecution to get the examination of another independent witness Rahul Devangan done, which has not been done.

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20. In Manikandan v. State by the Inspector of Police, 2024 SCC OnLine SC

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500 Hon’ble the Supreme Court held that despite independent witnesses were available, the prosecution had chosen to examine only the witnesses closely related to the deceased who were interested witnesses and tutored by Police, therefore, their testimony deserves to be discarded. In paras 8 & 9, the Court observed as under :

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“8. Thus, the scenario which emerges is that precisely a day before the evidence of P.W.-1 to P.W.-5 was recorded before the Trial Court, they were called to the Police Station and were taught to depose in a particular manner. One can reasonably imagine the effect of “teaching” the

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witnesses inside a Police Station. This is a blatant act by the police to tutor the material prosecution witnesses. All of them were interested witnesses. Their evidence will have to be discarded as there is a distinct possibility that the said witnesses were tutored by the police on the earlier day. This kind of interference by the Police with the judicial process, to say the least, is shocking. This amounts to gross misuse of power by the Police machinery. The police cannot be allowed to tutor the prosecution witness. The conduct becomes more serious as other eyewitnesses, though available, were withheld. We are surprised that both the Courts overlooked this critical aspect. It is pertinent to note that the defence of the accused, as can be seen from the line of cross examination, was that they were not present at the place of the incident at the time of incident. P.W.2 admitted that accused no.1 was working in another village called Tirrupur. Although available, independent witnesses were not examined by the prosecution. Therefore, adverse inference must be drawn against the prosecution. Hence, there is a serious doubt created about the genuineness of the prosecution case. The benefit of this substantial doubt must be given to the appellants. Before the appellants were enlarged on bail by this Court, they had undergone incarceration for more than 10 years.

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9. Therefore, in our considered view, both the Sessions Court and the High Court have committed an error in convicting the appellants. Hence, the appeals are allowed. The impugned judgments and orders are set aside, and the appellants are acquitted of the offences alleged against them. Their bail bonds stand cancelled.”

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21. In the light of the above decisions of the Supreme Court, it is clear that nonexamination of independent witness Rahul Devangan is fatal to the prosecution case. The presence of Prahlad Chaure, the son of deceased, who is an interested witness , at the scene creates a serious doubt. In such situation, conviction based on his statement is not appropriate.

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22. As far as the materials seized on the basis of memorandum of statement of the appellant are concerned, it is noteworthy that the memorandum and seizure proceedings have been stated to have been carried out by Assistant Sub-Inspector C.P. Tiwari (P.W.14) as per Ex.P-18, P-19 & P-20. As per the laboratory test report Ex.P-30, it has not been proved that the human blood found in the glove and full shirt is of the same blood group of the deceased. No blood has also been found on

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the alleged scissors. Rajkumar Bansod (P.W.12) and Yograj Badge (P.,W.15) who are the independent witnesses of memorandum and seizure of materials from the appellant have turned hostile and have not supported the memorandum and seizure proceedings. In such a situation, neither the seizure from the appellant is proved nor the seizure of those material establishes the involvement of the appellant in the incident.

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23. Thus on the basis of the above evidence, we find that the prosecution has failed to prove beyond doubt the two main grounds on which the appellant has been convicted. Therefore, the conviction and sentence of the appellant are not found to be upheld.

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24. Accordingly, the impugned judgment dated 03.05.2019 passed by the trial Court convicting and sentencing the appellant for the offence u/s 302 of IPC, is hereby set aside on the basis of benefit of doubt and the appellant is acquitted of the said charge.

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25. 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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26. In the result, the appeal is allowed .

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27. 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, for information and necessary action.

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

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Rao

Vishal Shende v. State of Chhattisgarh

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Vishal Shende v. State of Chhattisgarh

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