Chattisgarh High Court
Charaku @ Nandprasad Cherawa vs State Of Chhattisgarh on 16 August, 2022
Cr.A.Nos.203/2012 & 894/2011
Page 1 of 13
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.203 of 2012
{Arising out of judgment dated 9-11-2011 in Sessions Trial No.518/2009
of the 1st Additional Sessions Judge, Ambikapur}
Charaku @ Nandprasad Cherawa, S/o Shri Nansai, aged about 38 years,
R/o Balsedi Masadepara, Police Station Gandhinagar, Distt. Sarguja
(C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through Police Station Gandhinagar, Distt. Sarguja
(C.G.)
---- Respondent
AND
Criminal Appeal No.894 of 2011
Ignasius Kerketta, S/o Shri Amrus Kerketta, aged about 48 years, R/o
Parpatiya, Police Station Gandhinagar, Distt. Sarguja (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through Police Station Gandhinagar, Distt. Sarguja
(C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellants: Mr. Rishi Rahul Soni, Advocate.
For State / Respondent: -
Mr. Anmol Sharma, Panel Lawyer.
--------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ.
Judgment On Board
(16/08/2022)
Sanjay K. Agrawal, J.
1. Since both the above criminal appeals have arisen out of one and
same judgment dated 9-11-2011 passed by the 1st Additional
Cr.A.Nos.203/2012 & 894/2011
Sessions Judge, Ambikapur in Sessions Trial No.518/2009 and
since common question of fact and law is involved in both the
appeals, they have been clubbed together, heard together and are
being disposed of by this common judgment.
2. These two criminal appeals have been preferred by the accused /
appellants under Section 374(2) of the CrPC against the impugned
judgment convicting them for the offence punishable under Section
302 read with Section 34 of the IPC and sentencing them to
undergo imprisonment for life with fine of ₹ 1,000/- each, in default,
to further undergo rigorous imprisonment for two months.
3. Appellant in Cr.A.No.203/2012 namely, Charaku @ Nandprasad
Cherawa (A-1) and appellant in Cr.A.No.894/2011 namely, Ignasius
Kerketta (A-3) have assailed their conviction for offence under
Section 302 read with Section 34 of the IPC.
4. Case of the prosecution, in brief, is that in the intervening night of
16th & 17th October, 2009, in furtherance of common intention, the
two appellants herein along with seven other accused persons, who
were acquitted by the trial Court by its impugned judgment, caused
the death of Tius Yadav @ Deviprasad and thereby committed the
offence punishable under Section 302 read with Section 34 of the
IPC. Further case of the prosecution, in brief, is that on 13-10-
2009, the deceased (Tius Yadav) had committed sexual intercourse
with the daughter of Charku @ Nandprasad Cherva (A-1), aged
about 16 years, and thereafter, absconded and in protest thereof
and to take revenge of that reason, on 14-10-2009, the two
appellants herein along with the acquitted accused, reached to the
Cr.A.Nos.203/2012 & 894/2011
house of deceased Tius Yadav @ Deviprasad and enquired about
deceased Tius Yadav @ Deviprasad from his wife Somari Bai (PW-
8), his daughter-in-law Smt. Pushpavati (PW-3) & his son
Premsagar (PW-4) and thereafter, they caught hold of Premsagar
(PW-4) and on protest being made by Somari Bai (PW-8) & Smt.
Pushpavati (PW-3), they did not take Premsagar (PW-4) along with
them, but went away from the spot after threatening that they will
come tomorrow and if the deceased is not traced out and informed
to them, they have to suffer consequences. This matter was
reported on 16-10-2009 by Premsagar (PW-4) along with his wife
Smt. Pushpavati (PW-3) pursuant to which rojnamcha sanha Ex.P-
35C was registered. Thereafter, it is the case of the prosecution
that in the intervening night of 16 th & 17th October, 2009, Tius Yadav
@ Deviprasad was staying with his co-brother Haricharan (PW-6) in
his house at Village Songara and in that intervening night, at 11.30
p.m., the two appellants herein along with other acquitted accused,
reached to the house of Haricharan (PW-6) and knocked the door
and when the door was opened by Haricharan, they informed that
Tius Yadav @ Deviprasad has committed sexual intercourse with
A-1's daughter and caught hold of Tius Yadav @ Deviprasad and
took him along with them. On the next day, Haricharan (PW-6)
informed the incident to Kedar Yadav (PW-1), Premsagar (PW-4),
Smt. Pushpavati (PW-3), Somari Bai (PW-8) & neighbour Daya
Prasad @ Girwar Prasad Yadav (PW-2) and thereafter, one of the
accused Ignasius Kerketta (A-3) informed Girwar @ Gayaprasad
(PW-2) over phone that the dead body of the deceased is lying near
Cr.A.Nos.203/2012 & 894/2011
the nursery of Phoolwar Road, then Kedar Yadav (PW-1), Daya
Prasad @ Girwar Prasad Yadav (PW-2), Premsagar (PW-4), Dilip
Yadav (PW-5), Haricharan (PW-6) & Dhaneshwar Yadav (PW-7)
went to the spot and noticed the deceased lying dead having
suffered grievous injuries and at that time, accused Charku @
Nandprasad (A-1), Karmu Cherva (A-2) & Forest Guard Ignasius
Kerketta (A-3) were present. The matter was informed to Inspector
J.S. Saggu (PW-12) over phone who reached on the spot and on
the report of Kedar Yadav (PW-1), dehati morgue intimation Ex.P-1
and dehati nalsi Ex.P-2 were registered and spot map was
prepared vide Ex.P-5. Inquest was conducted vide Ex.P-4 and
after returning to the police station, morgue Ex.P-18 and first
information report (FIR) Ex.P-7 were registered. Statements of the
witnesses were recorded and on 19-10-2009, memorandum
statement of acquitted accused Karmu (A-2) was taken vide Ex.P-8
and similarly, memorandum statement of accused Charku @
Nandprasad (A-1) - the present appellant, was taken vide Ex.P-10
pursuant to which wooden stick and Hero Honda Majestic vehicle
were seized vide Ex.P-11 from the possession of Charku @
Nandprasad (A-1), but nothing was recovered from the possession
of appellant Ignasius Kerketta (A-3). Thereafter, after usual
investigation, the present two appellants and seven other accused
persons were charge-sheeted for the aforesaid offence.
5. In order to bring home the offence, the prosecution has examined
as many as 14 witnesses and exhibited 35 documents Exs.P-1 to
P-35. The defence has examined none, but exhibited three
Cr.A.Nos.203/2012 & 894/2011
documents Exs.D-1 to D-3 i.e. statements of Smt. Somari Bai,
Santoshi Bai and Kedar Yadav.
6. The trial Court after appreciating oral and documentary evidence on
record, convicted and sentenced the appellants herein under
Section 302 read with Section 34 of the IPC in the manner
mentioned in the opening paragraph of this judgment against which
these appeals have been preferred and rest of the accused persons
were acquitted finding no evidence.
7. Mr. Rishi Rahul Soni, learned counsel appearing for the appellants,
would submit as under: -
1. Motive as alleged by the prosecution that deceased Tius
Yadav @ Deviprasad had committed rape with the daughter
of Charku @ Nandprasad Cherva (A-1) and therefore he has
murdered Tius Yadav @ Deviprasad is not established, as
such, motive of the offence is not established.
2. The trial Court has even recorded a finding in paragraph 23
that though pursuant to the memorandum, wooden stick has
been recovered, but no blood has been found on the wooden
stick and only on the basis of recovery of wooden stick from
house which is a common article usually kept in villages by
most of the villagers and the possession of which is not
uncommon, the trial Court has declined to record conviction.
3. Merely on the basis that on 13-10-2009, the appellants had
allegedly approached the house of the deceased, which is
established by Pushpa (PW-3) - daughter-in-law of the
Cr.A.Nos.203/2012 & 894/2011
deceased, even though it is held to be proved, the appellants
cannot be convicted for offence under Section 302 of the IPC
unless incriminating circumstances are proved beyond
reasonable doubt.
4. The prosecution has failed to establish that the present
appellants are the person who have forcefully taken /
kidnapped the deceased and thereafter murdered him and
therefore the appellants cannot be convicted for offence
under Section 302 of the IPC, though death of deceased Tius
Yadav @ Deviprasad was homicidal in nature.
8. Mr. Anmol Sharma, learned Panel Lawyer appearing for the State /
respondent, would submit that the trial Court is absolutely justified
in convicting the present two appellants for the offence in question,
as they had taken the deceased along with them in the intervening
night of 16th & 17th October, 2009 and thereafter, murdered him, as
such, the theory of last seen is established and motive is also
established, as the deceased had committed sexual intercourse
with the daughter of Charku @ Nandprasad Cherva (A-1) and that
is the reason for offence, as such, the appeals deserve to be
dismissed.
9. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
10. The first question is, whether the death of the deceased was
homicidal in nature?
Cr.A.Nos.203/2012 & 894/2011
11. The trial Court relying upon postmortem report Ex.P-15 in which
mode of death is said to be coma due to head injury and nature of
death to be homicidal and also taking into consideration the
statement of Dr. Anupam Minj (PW-11) who conducted postmortem
on the dead body of the deceased, came to the conclusion that
death of the deceased was homicidal in nature which has even not
been seriously controverted by learned counsel for the appellants,
as such, we are of the opinion that the trial Court is absolutely
justified in holding that nature of death was homicidal. The said
finding is a finding of fact which is neither perverse nor contrary to
the record and we hereby affirm the said finding.
12. Now, the question is, whether the appellants are authors of the
crime in question as held by the trial Court?
13. The trial Court has relied upon four incriminating circumstances to
hold the appellants guilty which we will deal with one by one.
Motive of the offence: -
14. The trial Court has recorded in paragraph 2 of its judgment that
deceased Tius Yadav @ Deviprasad has committed rape with the
daughter of Charku @ Nandprasad Cherva (A-1) on 13-10-2009
which is admitted fact and that is the motive for commission of
offence by appellant Charku @ Nandprasad Cherva (A-1) which
has seriously been disputed by learned counsel appearing for the
appellants stating that there is no iota of evidence to prove the fact
that the deceased had committed sexual intercourse with the
daughter of Charku @ Nandprasad Cherva (A-1) on 13-10-2009, as
there is no copy of FIR produced and marked as exhibit by the
Cr.A.Nos.203/2012 & 894/2011
prosecution, otherwise, it could have easily been produced by the
prosecution to establish such fact. However, it is pertinent to note
that while replying to question No.10 put to appellant Charku @
Nandprasad Cherva (A-1) in his statement recorded under Section
313 of the CrPC, he has stated that it is correct that Tius Yadav has
committed sexual intercourse with his daughter and thereafter, in
reply to question No.141, he has clearly stated that he made report
to the police station that Tius Yadav has committed sexual
intercourse with his daughter, therefore, he has been falsely
implicated. As such, in view of the explanation of appellant Charku
@ Nandprasad Cherva (A-1), it is established by the prosecution
that A-1 (Charku) has made report against Tius Yadav @
Deviprasad that Tius Yadav has committed sexual intercourse with
his daughter. Thus, the prosecution has established the motive for
commission of offence by appellant Charku @ Nandprasad Cherva
(A-1) to commit the murder of Tius Yadav @ Deviprasad. It is well
settled law that motive is a weak piece of evidence and it is one of
the incriminating circumstances, but conviction cannot rest solely
on the basis of proof of motive by the prosecution.
15. The trial Court has recorded finding that the offence of rape was
committed by Tius Yadav @ Deviprasad upon the daughter of
Charku @ Nandprasad Cherva (A-1) on 13-10-2009 and thereafter,
on 14-10-2009, the present two appellants and other accused
persons reached to the house of Tius Yadav and asked his
whereabouts from his wife Somari Bai (PW-8), his daughter-in-law
Smt. Pushpavati (PW-3) & his son Premsagar (PW-4) and wanted
Cr.A.Nos.203/2012 & 894/2011
to forcefully take away his son Premsagar (PW-4), but somehow,
on protest by all the three, they did not take Premsagar (PW-4)
along with them, but threatened them with consequences if the
whereabouts of Tius Yadav are not known to them and report to
this effect was lodged on 16-10-2009 vide Ex.P-35C by Premsagar
(PW-4) and Pushpa Yadav (PW-3). The said fact is proved, but the
trial Court has rightly held the said established fact as one of the
incriminating circumstances, however, its effect on the appellants'
conviction will be discussed in the later paragraphs.
Last seen theory: -
16. It is the case of the prosecution that in the intervening night of 16 th &
17th October, 2009, the present two appellants along with the
acquitted accused persons came to the house of Haricharan (PW-
6) - co-brother of the deceased with whom the deceased was
staying at Village Songara and they knocked the door and asked
Haricharan (PW-6) to open the door and when Haricharan opened
the door, they said that Tius Yadav has committed sexual
intercourse with the daughter of Charku @ Nandprasad Cherva (A-
1) and they have come from police station and they took Tius
Yadav along with them. On the next day morning, Haricharan (PW-
6) informed Kedar Yadav (PW-1), Premsagar (PW-4), Smt.
Pushpavati (PW-3), Somari Bai (PW-8) & Daya Prasad @ Girwar
Prasad Yadav (PW-2) that on the previous night the accused
persons have taken Tius Yadav from his house forcibly.
Meanwhile, Ignasius Kerketta (A-3) informed Girwar @ Gayaprasad
(PW-2) over phone that the dead body of Tius Yadav was lying
Cr.A.Nos.203/2012 & 894/2011
near nursery of Phoolwar Road and they all went together on the
spot and saw the dead body of the deceased where accused
Charku @ Nandprasad (A-1), Karmu Cherva (A-2) & Ignasius
Kerketta (A-3) were present. Kedar Yadav (PW-1) informed about
the incident to Inspector J.S. Saggu (PW-12) over phone who
reached to the spot and the wheels of investigation started running.
So the entire prosecution case rests on the testimony of Haricharan
(PW-6) - co-brother of the deceased with whom the deceased was
staying on the relevant night.
17. It is pertinent to mention that Haricharan (PW-6) in his statement
before the Court has admitted that earlier, on 27-10-2010, when he
was coming to the court for recording his evidence, he was
kidnapped by some unknown persons in Maruti car, therefore, he
could not reach to the court and it was reported by his son
Kanhaiyalal vide Article 'A' and thereafter, he was escorted to the
court by police constable and his statement was recorded on 29-3-
2011, but on that day (29-3-2011), he has turned hostile and has
not supported the case of the prosecution, though he has thrown
some light with regard to motive of the offence qua rape by the
deceased with the daughter of Charku @ Nandprasad Cherva (A-
1), but he has not at all supported the case of the prosecution. As
per the case of the prosecution, he has seen the deceased being
taken by the accused persons and informed the incident to Kedar
Yadav (PW-1), Premsagar (PW-4), Smt. Pushpavati (PW-3),
Somari Bai (PW-8) & Daya Prasad @ Girwar Prasad Yadav (PW-
2). In that view of the matter, the evidence of other witnesses to
Cr.A.Nos.203/2012 & 894/2011
whom Haricharan (PW-6) has informed becomes hearsay
evidence, as Haricharan (PW-6) has turned hostile and has not
supported the case of the prosecution, and would not have much
relevance so far as the question of taking away the deceased
forcefully by the present two appellants and other accused persons
are concerned. Though the fact remains that some persons took
away the deceased forcefully from the house of Haricharan (PW-6),
where the deceased was staying, on the intervening night of 16th &
17th October, 2009, but no test identification proceeding was
conducted to identify that it is the appellants who have taken away
the deceased from the house of Haricharan (PW-6). As such, the
case of the prosecution as found proved by the trial Court that the
two present appellants have taken the deceased forcefully from the
house of Haricharan (PW-6) in the intervening night of 16 th & 17th
October, 2009 and thereafter, the dead body of the deceased was
found, is not established beyond reasonable doubt in absence of
any oral and documentary evidence, as Haricharan (PW-6), who is
star witness of the prosecution and on whom the prosecution case
rests, has turned hostile and has not supported the case of the
prosecution at all and his evidence is of no use.
18. The next circumstance that has been found proved by the trial
Court is that pursuant to the memorandum statement Ex.P-10,
wooden stick was recovered vide Ex.P-11, but neither it was sent to
forensic examination nor blood was found on it. The trial Court has
also recorded finding that in villages, it is not uncommon to have
wooden stick in houses and conviction cannot be based upon it
Cr.A.Nos.203/2012 & 894/2011
when it was neither stained with blood nor sent for forensic
examination. In our considered opinion, merely because wooden
stick has been recovered from the possession of Charku @
Nandprasad Cherva (A-1), it cannot be held that it is appellant
Charku (A-1) who has committed the murder of Tius Yadav.
19. Concludingly, it is held that though the prosecution has been able to
prove that there was strong motive on the part of Charku @
Nandprasad Cherva (A-1) to commit the murder of the deceased,
as the deceased had committed sexual intercourse with his
daughter, but only on the basis of motive, howsoever strong it may
be, the appellant - Charku cannot be convicted and secondly,
merely because the present two appellants have also approached
the house of the deceased on 14-10-2009 and enquired about the
whereabouts of the deceased and also threatened the family
members of the deceased of consequences if the whereabouts of
the deceased are not known to them, no conviction can be
recorded against them and at the most, the State could have
proceeded against them for threatening and abusing, which the
State has not proceeded. Furthermore, the fact of the appellants
having taken away the deceased forcefully from the house of
Haricharan (PW-6) in the intervening night of 16th & 17th October,
2009 is also not established by any circumstantial evidence.
Finally, mere recovery of wooden stick pursuant to the
memorandum statement of the accused on which blood stains were
not found, would not complete the chain of circumstances to hold
that it is only and only the appellants who have committed the
Cr.A.Nos.203/2012 & 894/2011
murder of the deceased and they are perpetrators of the offence in
question. Consequently, we hold that the prosecution has failed to
bring home the offence beyond reasonable doubt and the trial
Court is absolutely unjustified in convicting and sentencing the
appellants under Section 302 read with Section 34 of the IPC.
20. Resultantly, the impugned judgment dated 9-11-2011 passed by
the 1st Additional Sessions Judge, Ambikapur in S.T.No.518/2009
is hereby set aside. The appellants are acquitted of the charge
alleged against them. They are on bail. They need not
surrender. However, their bail bonds shall remain in force for a
period of six months in view of the provision contained in Section
437A of the CrPC.
21. The criminal appeals are allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Soma
