Narbada Prasad Vs State of Chhattisgarh

Present is a criminal appeal under Section 374(2) of the Code of Criminal Procedure filed by the appellant against the impugned judgment of conviction and order of sentence dated 24.11.2022 passed by the learned Second Additional Sessions Judge, Manendragarh, District Koriya (C.G.) in Sessions Case No. 36/2019, whereby the learned trial Court has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him in the following manner:-

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Conviction	Sentence
U/s 302 of Indian	Penal Life Imprisonment and fine amount
Code.	of Rs. 1000/-, in default of payment
	of fine further RI for 15 days.

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The brief facts of the case are that on 07.03.2019 the complainant Son Sai lodged Dehati Nalishi Ex.P/1, to the Police Assistance Centre, Nagpur, Police Station Podi, District Koriya, informing that UpSarpanch Heeradas Vaishnav informed him that at Mauharipara pit, a person in an injured condition is lying. When he went on the spot, the injured disclosed his name, Lala alias Suleshwar, a resident of village Dugla and informed that they came there on a picnic, and four persons had assaulted him, but he could not disclose the names of the persons who assaulted him. The Police went there on the spot and then sent him to the Community Health Centre, Manendragarh. He was medically examined by Dr. Rakesh Soni PW-28, who gave him his report, Ex.P/41. He advised an X-ray of the skull and CT-Scan of the head. After his primary treatment, he was referred to District Hospital Baikunthpur, where he died on 07.03.2019 during treatment. The death intimation Ex.P/21 was sent by the doctor to Police Station City Kotwali Baikunthpur, where unnumbered merg intimation Ex.P/22 was recorded. Inquest Ex.P/11-A of the dead body of the deceased was prepared in the presence of the witnesses, and the dead body was sent for its post-mortem to District Hospital Baikunthpur. Dr. Surendra Painkra PW-17, conducted the post-mortem of the dead body of the deceased and gave his report, Ex.P/23. While conducting the postmortem, the doctor found the following injuries on the body:

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Injury:- Stitched wound over vertex of head 5 stitches, 3" in size, stitch wound over (L) distal end of leg 1½", 3 stitch, anterior bleeding, abrasion over Rt forearm 4½ × 1 cm, Rt lat malleolus 2 × 2 cm, (L) forearm 3" linear, multiple abrasion over (R) elbow region, 2 × 2, 1 × 1 cm., contusion over lateral (Rt) buttock 6" × 4" bluish, stab wound over mid back of hip region 1 × 1 cm.

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The doctor has opined that the injuries are ante-mortem, caused by a hard, blunt and pointed object, and head injury is sufficient to cause death and has also opined that the mode of death is coma due to head injury, which is homicidal in nature. The merg intimation was transferred to the jurisdictional police of Police Station Podi, District Koriya, where numbered merg-intimation Ex.P/27 was recorded. The FIR Ex.P/40 was registered against an unknown person for the offence under Section 307 of IPC based on Dehati Nalishi Ex.P/1, lodged by complainant Son Sai PW-1. Spot Map Ex.P/2 was prepared by the Police and Ex.P/39 was prepared by the Patwari. The blood stained and plain soil was seized from the spot vide seizure memo Ex.P/3. One broken mobile phone and the keys of the motorcycle have also been seized from the spot vide seizure memo Ex.P/4. During the investigation, it was disclosed that one Krishna Bai was injured in the incident, and then she too was sent for her medical examination to Community Health Centre, Manendragah, where she was being medically examined by Dr Kiran Kishore PW-19, who gave the MLC report Ex.P/26 and found a bruise on the right tempro-partial-occipital area of scalp and another bruise on back of the right knee. The injuries were simple in nature, caused by a hard and blunt object. From the statement recorded under section 161 Cr.P.C. of Krishna Bai it also

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disclosed that the appellant committed marpeet with her and the deceased Lala and then the appellant was taken into custody on 10.03.2019, and his memorandum statement Ex.P/15 was recorded. Based on his memorandum statement, one leg of the cot and one bamboo club having iron nail were seized vide seizure memo Ex.P/16, one mobile phone and a blood-stained gamcha were seized from the appellant vide seizure memo Ex.P/18. The leg of the cot was sent for its query report to the doctor, who gave his query report Ex.P/42, in which he answered that the injuries found on the body of the deceased could have been caused by the said leg of the cot and for confirmation of blood, he referred it for its chemical examination. The bamboo club was also sent for its query report to the doctor, and as per the opinion of the doctor Ex.P/25, the injury may be caused by the said club and for confirmation of blood, it was also referred for its chemical examination. The blood-stained and plain soil, gamcha, leg of the cot and bamboo club seized from the appellant, full shirt, t-shirt, pant, and underwear of the deceased were sent for their chemical examination to Regional FSL Ambikapur, District Surguja, from where report Ex.P/37 was received, and human blood was found on all the sent articles except the plain soil. ‘O’ group of human blood was found on the bloodstained soil. Statement of the witnesses under Section 161 of Cr.P.C. has been recorded, and after completion of the usual investigation charge-sheet was filed against the appellant before the learned Judicial Magistrate First Class, Manendragarh, for the offence under Section 307, 302 of IPC.

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The case was committed to the Court of Learned Sessions Judge, Koriya, from where it has been transferred to the learned trial Court for its trial. The learned trial Court has framed charge against the appellant for the offence under Section 307, 302 of IPC. The appellant denied the charge and claimed trial.

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In order to prove the charge against the appellant, the prosecution has examined as many as 28 witnesses. Statement of the appellant under Section 313 of the Code of Criminal Procedure has also been recorded, wherein he denied all the incriminating circumstances appearing against him, pleaded innocence and stated that he has been falsely implicated in the present case. The appellant did not examine any defence witness in support of his case.

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After appreciation of the oral and documentary evidence adduced by the parties, the learned trial Court convicted and sentenced the appellant as mentioned herein above, which has been assailed by way of the present appeal

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Learned counsel for the appellant would submit that the prosecution has failed to establish its case beyond a reasonable doubt and that there are material omissions and contradictions in the statements of the prosecution witnesses, rendering their evidence unreliable. It is further contended that the case rests primarily on the testimony of the injured eye-witness, PW-3 Krishna Bai, who was allegedly injured by the assault made by the appellant, but she turned hostile and has not supported the prosecution’s case. The dead body of the deceased was found in a pit far away from the house of the appellant, and from the

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evidence of the witnesses, it clearly reveals that he was not being assaulted by the appellant but assaulted by some other person who came there to enjoy a picnic. The only piece of evidence against the appellant is the human blood found on the gamcha, the leg of the cot and the bamboo club allegedly seized from him. In the absence of any corroborative evidence, the FSL report and the presence of blood are not sufficient to hold the appellant guilty, particularly when the prosecution could not establish the blood group of the deceased, as well as the blood group of the blood found on the clothes seized from the appellant. There is no evidence on record that the appellant was last seen with the deceased or that he was having any animosity or motive to assault him when the injured witness, PW-3 Krishna Bai, herself is not support the prosecution’s case, the deceased himself disclosed that he was being assaulted the persons who came in the picnic the appellant cannot be convicted, therefore, the appeal may be allowed and the appellant may be acquitted.

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Per contra, learned counsel appearing for the State has opposed the submissions made on behalf of the appellant and submitted that the prosecution has proved its case beyond a reasonable doubt. It is contended that the case is based on the testimony of injured eyewitness PW-3, though she turned hostile, but she, being the wife of the appellant, has not supported the prosecution’s case. From the evidence of other witnesses and also from the FSL report. The involvement of the appellant in the offence in question has been established, and the learned trial Court has rightly convicted him for the

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alleged offence. The appeal filed by the appellant has no merit, and the same is liable to be dismissed.

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We have heard learned counsel for the parties, considered the rival submissions advanced, and perused the record of the trial Court with due circumspection.

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The homicidal death of the deceased Lala alias Suleshwar has been duly proved by the prosecution on the basis of the medical evidence of PW-28/Dr. Rakesh Soni, who medically examined the deceased at CHC, Manendragarh, found a lacerated wound on the left posterior parietal region of the head, a lacerated wound on the left leg and a contusion on the left frontal region of the head and referred for his X- ray of the skull and CT scan of the head. The homicidal death of the deceased is also proved by the evidence of PW-17 Dr. Surendra Painkra, who conducted the post-mortem of the dead body of the deceased and found injuries on the dead body and opined that the injuries found on the body of the deceased are ante-mortem, caused by hard, blunt and pointed object. Head injury is sufficient to cause death, and opined that the mode of death is coma due to head injury, and the nature of death is homicidal. In the cross-examination of witnesses, nothing has been asked by the defence to discredit his evidence on the nature and mode of death of the deceased. The evidence of these medical doctors has been supported by the evidence of PW-8 Feku Ram, who is the witness to the inquest Ex.P/11-A and also the evidence of PW-16, R. R. Bhagat, who received the death information of the deceased from the hospital. Nothing on record to discredit these evidences that the death of the deceased is homicidal

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in nature and thus we found that the consideration of the learned trial Court regarding nature and mode of death of the deceased his death was homicidal in nature is supported by proper appreciation of evidence.

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So far as the involvement of the appellant in the offence question is concerned, the prosecution has mainly relied upon the evidence of Krishna Bai PW-3, who was the injured witness, but she turned hostile and has not supported the prosecution’s case. She is the wife of the appellant and denied about any incident. She also denied by giving her 161 Cr.P.C. statement to the Police.

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PW-1, Sonsai, was the Sarpanch of Village Lai. He was being informed by Bindeshwar Prasad that a person was lying in the pit at Mauharipara, when he went there, the injured informed him that he, along with his four friends, came there to enjoy a picnic and they threw him in the pit and went away. He informed the police through mobile phone, and on his report, Dehati Nalishi Ex.P/1, was recorded. The witness has also been declared hostile and does not support the prosecution’s case. In cross-examination, he admitted that the place of the incident is a picnic spot and the number of persons who used to visit there. He also admitted that the visitors used to drink liquor there, and the quarrel between them after consuming liquor usually occurred there. In his evidence, it has not been established that the appellant is connected with the offence in any manner.

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PW-2, Amar Sai, is the father of the appellant. He is completely hostile and does not support the prosecution’s case. He also denied his police statement, Ex.P/6.

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PW-4, Ram Sai, is the son of the appellant and also did not support the prosecution’s case, and completely turned hostile.

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PW-5 Urmila, is the second wife of the appellant. She also has not supported the prosecution, and nothing has been stated against the appellant.

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PW-6, Rajesh Kumar, is the cousin brother of the deceased Lala alias Sureshwar. He stated in his evidence that when he was on duty at CHC, Mandragarh. He saw his brother, who was being taken to the hospital in an injured condition. When he asked about the incident from him, he did not disclose anything about the assault. He was shifted to Baikunthpur hospital, where he died. He too has not stated anything about the appellant or the assailant who caused injuries to the deceased.

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PW-7, Shyam Singh alias Daroga, is the person who went on the spot when they received information about the incident. He too, has turned hostile and supported the prosecution’s case.

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PW-8, Fekuram, is the father of the deceased Lala alias Suleshwar. He stated in his evidence that when he received information about the injuries of his son, he also went to Baikunthpur hospital, where he saw his dead body. On 10.03.2019, the police called him to the place where his son was found in an injured condition. Where the appellant

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disclosed that he assaulted the deceased Lala alias Suleshwar inside his house, and thereafter he ran away from there. He also disclosed that he saw the deceased Lala chatting with his wife, and for that reason, he assaulted him. In his cross-examination, he admitted that he had gone to village Lai after 3 - 4 days of the incident. He subsequently came to know that his son had gone along with his two friends. He voluntarily stated that he had gone alone. From the evidence of this witness, except for the fact that at the place of the incident, in the presence of the police, the appellant informed that he assaulted the deceased, nothing has been disclosed by him that implicates the appellant in the offence in question. He was neither an eyewitness to the incident nor the witness about living the house by his son.

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PW-9, Ranu Sonwani, is the sister of the deceased. She too has stated that after 3 days, when Nagpur Police called them, they had gone to the house of the appellant along with the police persons, where the appellant disclosed that he assaulted the deceased Lala alias Suleshwar. He also disclosed the reason that the deceased entered his house; therefore, he assaulted him. His father has suspected that the injury caused by the rod appeared on the body of the deceased, and the deceased could not have died from the assault made by the leg of the cot. In cross-examination, she stated that his brother left the house at 02:00 pm alone and subsequently, she came to know that two persons of his own community accompanied him from Biharpur to Kathautiya. The police have not recorded her statement.

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PW-10, Smt. Ram Bai is the mother of the deceased. She stated in her evidence that after 3 days of the incident, her husband informed her that the appellant had admitted before the Police that he had assaulted her son. In cross-examination, she admitted that on the day when the deceased left the house, she was not there. She also admitted that subsequently she came to know that two persons of her own community accompanied her son, from Biharpur to Kathautiya.

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PW-11 Heera Das Vaishnav and PW-12 Shri Ram are the villagers of village Lai. He also saw the injured in a pit and took him out of there. He also turned hostile and did not support the prosecution’s case.

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PW-13, Samaru Kurre, and PW-14, Sheshnarayan, are the witnesses to the memorandum Ex.P/15 and seizure memo Ex.P/16 and Ex.P/18. Though initially they did not support the seizure of the weapon of offence, but after declaring them hostile, they supported the seizure. In cross-examination, he admitted that the deceased Suleshwar alias Lala was his nephew. On the date when the post-mortem of the deceased was conducted, the police had taken his signature over various documents, and thereafter, he never visited the police station. At the time he signed the documents, the appellant Narbada was not present there.

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PW-15 Gender Tirkey, PW-16 R. R. Bhagat, PW-18 Dilip Singh, PW-20 Sanjay Bhagat, PW-21 Ramnayan Gupta, PW-22 Arvind Kol, PW-24 Kumar Sai Thakur, PW-26 Samrit Maravi are the police personnel who conducted part of the investigation and procedural witnesses.

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PW-19, Dr. Kiran Kishor, was medically examined the injured Smt. Krishna, when she was taken to CHC, Manendragarh. He found certain injuries on his body and gave his report, Ex.P/26. Since Smt. Krishna PW-3 have not supported the prosecution’s case; the evidence of this witness has no significance even if he found certain injuries on the body of Smt. Krishna Bai PW-3. PW-23, Shivlal, is the witness to the inquest Ex.P-11-A.

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PW-25 Sandeep Singh is the Patwari who prepared the spot map Ex.P/39 and Panchnama Ex.P/8.

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PW-27, Mahesh Kumar Dubey, is the ward boy who had taken the hospital memo Ex.P/21 to the Police Station, City Kotwali Baikunthpur.

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From all this evidence, the prosecution could not establish the involvement of the appellant in the offence in question. Except for the record of the memorandum statement in the presence of the police persons, there is no evidence against the appellant which implicate him in the alleged offence. The seizure of weapons or clothes is also in doubt, as the witnesses have signed the document at the police station on the date when the post-mortem of the body was conducted. Even otherwise, the memorandum statement is inadmissible in evidence, and the involvement of the appellant in the offence cannot be held on the basis of the memorandum statement. The only piece of evidence is the FSL report in which human blood was found on the gamcha, leg of the cot and bamboo club allegedly seized from the appellant. When the seizure of these articles from the appellant itself is suspicious, the involvement of the appellant by relying on this evidence could not be

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proper. When the deceased was found in a pit, he was in a position to talk and disclosed his name, he may have disclosed the name of the assailants also because it is alleged that the deceased had gone to the house of the appellant and when he was chatting with the wife of the appellant the appellant assaulted him and in such position it cannot be presumed that he could not know the name of the person of whose wife he was chatting. Non-disclosure of the name of the appellant by the deceased itself creates a doubt about the prosecution’s case.

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In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430 , the Hon’ble supreme Court has held in 11 and 12 as under:-

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“11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:-

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“10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………”

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The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4

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SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:-

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“17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.”

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In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725

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in paragraphs 17 and 18 replying upon the golden principles enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court has held as under:

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“17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

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19…..Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

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(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (emphasis added).

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Paragraphs 158 to 160 of the said decision are also relevant which read thus :

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“158. It may be necessary here to notice a very forceful argument submitted by the Additional SolicitorGeneral relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:

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9…….But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain."

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It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :

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(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

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(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

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(3) the circumstance is in proximity to the time and situation.

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If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus:

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30……..Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)”

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It is settled principles of law that prosecution has Burden to prove its case beyond reasonable doubt and where two views are possible, arising based on the same evidence, the view which is favoruable to the accused should be taken into consideration and the accused should be given benefit of doubt. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522, it has been held as under :

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“19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].

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Considering the entire facts and evidence available on record and also the aforesaid law laid down by the Hon’ble Supreme Court, the evidence available on record is not sufficient and does not clinch towards involvement of the appellant in the offence in question. The injured eye-witness, P.W. 3 Smt. Krishna Bai, who was the star witness of the prosecution, completely turned hostile. The dead body of the deceased was found in an open place, far away from the house of the appellant, and there is no evidence of the last time they were seen together. Except for the FSL report, there is no other incriminating evidence against the appellant, which makes him liable for the commission of the offence; therefore, we are of the considered opinion that the appellant is entitled to the benefit of doubt.

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Accordingly, by giving him the benefit of the doubt, the appeal filed by the appellant is allowed . The judgment of conviction and sentence is hereby set aside , and the appellant is acquitted of all the charged offences.

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The appellant is reported to have been in jail since 10.03.2019, he shall be released forthwith, if not required in any other case.

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Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Narbada Prasad is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Alok

Narbada Prasad v. State of Chhattisgarh

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Narbada Prasad v. State of Chhattisgarh

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