Jagsai Kanwar vs State Of Chhattisgarh
2022 Latest Caselaw 7353 Chatt

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                                                             NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 147 of 2013

    Jagsai Kanwar, S/o Khowal Sai, Aged About 25 Years, R/o
     Village - Dudrukona, PS Jashpur, District- Jashpur,
     Chhattisgarh.                            ---- Appellant

                            Versus

    State of Chhattisgarh, Through- PS Jashpur, District-
     Jashpur, Chhattisgarh.              ---- Respondent


     For Appellant           : Shri A. N. Pandey, Advocate

     For Respondent/State : Shri Afroj Khan, Panel Lawyer


                Hon'ble Shri Justice Sanjay K. Agrawal
              Hon'ble Shri Justice Rakesh Mohan Pandey
                          Judgment on Board
                               07/12/2022

Sanjay K. Agrawal, J.

1) This Criminal Appeal preferred under Section 374 (2) CrPC

is directed against the impugned judgment of conviction and

order of sentence dated 23.01.2013 passed by the Sessions

Judge, Jashpur in Sessions Trial No.15/2012, whereby the

appellant herein has been convicted for the offence

punishable under Section 302 IPC and sentenced to

undergo imprisonment for life and pay fine of Rs. 1,000/-, in

default of payment of fine, to further undergo additional

Rigorous Imprisonment for one month.

2) Case of the prosecution, in brief, is that the appellant herein

assaulted his wife by wooden stick, by which she suffered Page 2

grievous injuries and died. Further case of the prosecution is

that on 11.10.2011, in the night, at 8 p.m. the appellant

herein assaulted his wife on the pretext that she did not

serve food to him by which she suffered injuries and died,

pursuant to which, matter was informed by Suman Tirkey

(PW/8) in Police Station - Manora and FIR was registered

vide Ex.P/4. Thereafter, spot map was prepared vide

Ex.P/10 and inquest was conducted over dead body of the

deceased vide Ex.P/11. On recommendation of the

punchas, the dead body was sent for postmortem to

Community Health Center, Manora, where postmortem was

conducted by Dr. Purushottam Singh (PW/7) vide Ex.P/8

and opined that cause of death of the deceased was due to

cardiac arrest. Simple soil, blood stained soil and broken

wooden stick of sal wood were seized from the spot, in the

presence of witnesses vide Ex.P/12. Pursuant to the

memorandum statement of the appellant vide Ex.P/13,

blood stained wooden stick along with clothes of the

appellant were seized vide Ex.P/14. The wooden stick so

seized was sent for query and as per the query report (Ex.P/

9), the injuries suffered by the deceased could have been

caused by the said wooden stick. All the seized articles

were sent for FSL and as per FSL report (Ex.P/17),

presence of blood was found on Articles A, B, C, D, E1, E2,

F and G.

3) After due investigation, the appellant was charge -sheeted Page 3

for offence punishable under Section 302 IPC and charge-

sheet was filed before the jurisdictional criminal court and the

case was committed to the Court of Sessions for trial in

accordance with law. In order to bring home the offence, the

prosecution examined as many as 14 witnesses and brought

on record 20 documents. The statement of appellant/accused

was recorded wherein he denied guilt and examined none in

his defence.

4) The trial Court after appreciating oral and documentary

evidence available on record, convicted and sentenced the

appellant under Section 302 IPC in the manner mentioned

in the opening paragraph of this judgment against which the

instant appeal under Section 374(2) CrPC has been

preferred.

5) Mr. A. N. Pandey, learned counsel appearing for the

appellant, would submit that there is no legal evidence

against the appellant except memorandum statement of the

appellant pursuant to which, one wooden stick has been

seized in which blood has been found in FSL report (Ex.P/

17), which is very weak piece of evidence. Therefore, the

appeal be allowed and the appellant be acquitted.

6) Mr. Afroj Khan, learned State counsel appearing for the

State / respondent, would support the impugned judgment

and would submit that the prosecution has been able to

bring home the offence, as such, the instant appeal

deserves to be dismissed.

Page 4

7) 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.

8) The first question for consideration would be, whether death

of the deceased was homicidal in nature, which has been

answered by the learned trial Court in affirmative, relying

upon the postmortem report (Ex.P/8) which is duly proved

by Dr. Purushottam Singh (PW/7) who opined that cause of

death is on account of cardiac arrest due to hemorrhagic

shock which is homicidal in nature. The finding recorded by

the trial Court that death of the deceased was homicidal in

nature, is a finding of fact based on the evidence available

on record, it is neither perverse nor contrary to the record

and we hereby affirm the said finding.

9) Now, the question would be, whether the appellant is the

perpetrator of the offence?

10) The trial Court in paragraph - 20 has clearly recorded a

finding that Sobhati Bai (PW/2), wife of appellant's younger

brother, Narhari (PW/9) and Ledwa Ram (PW/10) - brothers

of the appellant herein, have turned hostile and they have

not at all supported the case of the prosecution. Khwal Say

(PW/3), father of the appellant/accused has also been

declared hostile. Thereafter, stating the conduct of the

appellant, the trial Court has further recorded finding that

after commission of offence, he absconded from the spot and

then he was caught and handed over to the police. The trial Page 5

Court also held that the appellant/accused has not explained

his conduct that after the incident why he absconded from the

spot and further held that on the body of the deceased,

several injuries were noticed by Dr. Purushottam (PW/7).

One wooden stick has been seized from the possession of

the appellant pursuant to his memorandum statement in

which blood has been found. Thereafter, the trial Court has

convicted the appellant for the aforesaid offence. As such,

there is no direct evidence available on the record against the

appellant and the case is based on circumstantial evidence.

11) In the case of State of Himachal Pradesh v. Raj Kumar1

the Supreme Court has reiterated the law laid down in case

of Sharad Birdhichand Sarda v. State of Maharashtra 2

wherein five principles as regards the proof of a case based

on circumstantial evidence was reiterated which are as

under:-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis exept the one to be proved, and (5) there must be a chain of evidence so completes as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that 1 2014 14 SCC 39 2 1984 4 SCC 116 Page 6

in all human probability the act must have been done by the accused."

12) As has been held in the case of Mani v. State of

Tamilnadu3 which has been reiterated in case of Sangili

alias Sanganathan v. State of Tamil Nadu represented by

Inspector of Police4 the discovery is a weak kind of

evidence and cannot be wholly relied upon and conviction in

such a serious matter cannot be based upon the discovery.

Once the discovery fails, there would be literally nothing

which would support the prosecution case.

13) Reverting to the facts of the present case in the light of

aforesaid principle of law laid down by their Lordships of the

Supreme Court in aforesaid judgments and the evidence

available on record, it would appear that a weak piece of

evidence is available on record as pursuant to the

memorandum statement of the appellant, wooden stick has

been seized from his possession and his shirt-pant were also

seized. Blood stained and simple soil along with broken

wooden stick have been seized from the spot and petticoat

and blouse of the deceased were also seized in which blood

has been found.

14) The Supreme Court in the matter of Balwan Singh v. State

of Chhattisgarh & another5 has clearly held that recovery of

bloodstained articles is proved beyond reasonable doubt by

the prosecution, and if the investigation was not found to be 3 (2009) 17 SCC 273 4 (2014) 10 SCC 264 5 (2019) 7 SCC 781 Page 7

tainted, then it may be sufficient if the prosecution shows that

the blood found on the articles is of human origin though,

even though the blood group is not proved because of

disintegration of blood and further held as under :-

"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

15) Since blood has been found on the seized article particularly

wooden stick, but it is not human blood , it would be difficult

for the Court to rely upon the aspect of discovery of wooden

stick and such a recovery is of no help to the appellant and

since there is no other piece of evidence available on record,

the chain of circumstances as pointed out by their Lordships

of the Supreme Court in the case of Sharad Birdichand

Sarda (supra) is not complete and thus, we are unable to

sustain the conviction of the appellant for offence under

Section 302 of the IPC.

16) Accordingly, the conviction and sentence imposed upon the

appellant under Section 302 IPC is hereby set aside and he

is acquitted of the said charge. He is on bail. He need not

surrender. However, his bail bond shall remain in force for a Page 8

period of six months in view of the provision contained in

Section 437-A of the Cr.P.C.

17) The appeal is allowed to the extent indicated herein-above.

                    Sd/-                       Sd/-
              (Sanjay K. Agrawal)      (Rakesh Mohan Pandey)
                  Judge                        Judge




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