Veermanyu Negi vs State Of Chhattisgarh
2022 Latest Caselaw 7393 Chatt

                                                                              CRA-879-2013
                                        Page 1 of 12


                                                                                       NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No. 879 of 2013
Veermanyu Negi, Son of Dayaluram Gond, aged about 28 years,
Resident of Village Lilejhar, Police Station Charama, Civil and Revenue
District Kanker (Chhattisgarh)
                                                                            ---- Appellant
                                                                                   (In Jail)
                                          Versus
State of Chhattisgarh, through: The Police Station Charama, Civil and
Revenue District Kanker, (Chhattisgarh)
                                                                         ---- Respondent
-----------------------------------------------------------------------------------------------

For Appellant                          :      Mr. R.K. Pali, Advocate
For Respondent-State                   :      Mr. Sudeep Verma, Dy. G.A.

-----------------------------------------------------------------------------------------------

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ

Judgment on Board (08/12/2022)

Sanjay K. Agrawal, J

(1) This criminal appeal preferred by the appellant under Section

374(2) of Cr.P.C. calling in question the legality, validity and correctness

of the impugned judgment of conviction and order of sentence dated

13.08.2013, passed by the Court of Sessions Judge, North Bastar,

Kanker, (C.G.) in S.T. No.96/2011 (State of CG vs. Veermanyu Negi),

whereby he has been convicted for offence under Section 302 of IPC CRA-879-2013

and sentenced to undergo life imprisonment with fine of Rs.1,000/- and,

in default of payment of fine, additional simple imprisonment for 03

months.

(2) The case of the prosecution, in brief, is that: on 27.05.2011, at

about 08:00 AM in the morning, at Village Lilejhar, Police Station

Charama, accused-appellant herein assaulted his wife, namely, Smt.

Rajbai by means of an axe, due to which she suffered grievous injury

and died instantly and, thereby, committed an offence under Section

302 of IPC.

(3) The undisputed facts in the instant case are that: marriage of

deceased- Smt. Rajbai alongwith accused-appellant was solemnized

on 28.04.2010 and out of said wedlock they had a daughter of three

months; both deceased- Smt. Rajbai and accused-appellant used to

work as Shikshakarmi and, at the relevant point of time, on 01.05.2011,

on account of their summer holidays, they have visited the house of

Dayaluram (PW-09), who is father of accused-appellant, at Village

Lilejhar; Peeluram (PW-02) is uncle (Chacha) of deceased- Rajbai.

(4) The case of the prosecution, in nutshell, is that on 27.05.2011,

Dayaluram Gond (PW-09) lodged report at Police Station Charama

stating that: at about 08:00 AM in the morning while he was playing with

his grand-daughter, he heard some noise from kitchen and immediately

when he reached to the kitchen he saw her daughter-in-law (deceased)

was lying on the floor and his son (accused-appellant) was standing CRA-879-2013

armed with axe and, upon seeing him, accused-appellant threw the

axe; his daughter-in-law had sustained injury over her neck by means

of axe and blood was flowing; thereafter, Dayaluram Gond (PW-09)

shifted the dead-body of deceased from the door and scolded his son

(accused-appellant) that he has gone mad and, thereafter, he called his

wife and informed her about the said incident, who, in turn, gave water

to deceased; thereafter, they further informed the incident to

Shivprasad Kange and Kalyansingh (villagers) that their son (accused-

appellant) had assaulted their daughter-in-law (deceased) by means of

axe, due to which she suffered inury and lying on the floor in dizzy/faint

condition; thereafter, Shivprasad and Kalyansingh were trying for

vehicle to escort the deceased to nearby hospital, but when they

returned alongwith other villagers they saw deceased had already died.

On the information so lodged by Dayaluram Gond (PW-09), marg.

intimation (P/10) and FIR (EX.P/11) were registered by the police.

Thereafter, inquest proceedings were conducted vide Ex.P/05 and

Nazari Naksha was prepared vide Ex.P/06. Summons under Section

175 of CrPC were issued vide Ex.P/12. Thereafter, the dead-body of

deceased was sent for postmortem examination and in the postmortem

examination report (Ex.P/07), conducted by Dr. Arvind Korram (PW-08)

it was opined that the cause of death of deceased is hemorrhage and

neurogenic shock and nature of death is homicidal in nature. The

appellant-accused was arrested vide Ex.P/18 and his memorandum CRA-879-2013

statement was recorded vide Ex.P/01, pursuant to which an axe (tangi),

used by him in the crime in question was seized vide Ex.P/02. The

aforesaid seized axe was sent to FSL examination alongwith other

seized articles and in the FSL report (Ex.P/09) blood has been found on

the said axe. Thereafter, statement of witnesses were recorded under

Section 161 of CrPC and, after due investigation, the police filed

charge-sheet in the Court of Chief Judicial Magistrate Kanker

(Chhattisgarh) and, thereafter, the case was committed to the Court of

Sessions for trial in accordance with law. The appellant/accused

abjured his guilt and entered into defence by stating that he is innocent

and has been falsely implicated.

(5) The prosecution in order to prove its case examined as many as

12 witnesses and exhibited 19 documents, whereas the appellant-

accused in support of his defence has examined 01 witness, namely,

Girdhari Ram (DW-01) and exhibited 01 document i.e. statement of

Kumari Bindeshwari Sori (Ex.D/01).

(6) The learned trial Court after appreciating the oral and

documentary evidence available on record proceeded to convicted the

appellant for offence under Section 302 of IPC and sentenced him as

mentioned herein-above, against which this appeal has been preferred

by the appellant-accused questioning the impugned judgment of

conviction and order of sentence.

(7) Mr. R.K. Pali, learned counsel appearing for the appellant submits CRA-879-2013

that the learned trial Court is absolutely unjustified in convicting the

appellant for offence under Section 302 of IPC, as the learned trial

Court has recorded findings which are perverse to the record and the

incriminating circumstances which have been found proved by the

learned trial Court in Para-24 of the impugned judgment are not

established and, as such, the present appeal deserves to be allowed.

Thus, the impugned judgment of conviction is liable to be set aside and

appellant be acquitted/discharged from the said offence.

(8) Per-contra, Mr. Sudeep Verma, learned State counsel supported

the impugned judgment of conviction and order of sentence and

submits that the prosecution has proved the offence beyond reasonable

doubt by leading evidence of clinching nature. The learned trial Court

has rightly convicted the appellant for offence under Sections 302 of

IPC, as the accused-appellant has caused murder of his wife

(deceased). He further submits that the prosecution has clearly proved

all the circumstances which are mentioned by the learned trial Court in

Para-24 of the impugned judgment. Thus, the present appeal deserves

to be dismissed.

(9) We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the original

records with utmost circumspection.

(10) The first and foremost question is as to whether the death of the

deceased- Rajbai was homicidal in nature, which the learned trial Court CRA-879-2013

has recorded in affirmative by taking into consideration the oral and

documentary evidence available on record and particularly considering

the postmortem report (Ex.P/07) conducted by Dr. Arvind Korram (PW-

08), wherein it has been opined that the cause of death of deceased-

Rajbai is hemorrhage and neurogenic shock and nature of death is

homicidal in nature. Accordingly, taking into consideration the

postmortem reports (Ex.P/07) and the statement of Dr. Arvind Korram

(PW-08), we are of the considered opinion that the learned trial Court is

absolutely justified in holding that the death of deceased- Rajbai is

homicidal in nature, as the same is correct finding of fact based on

evidence and same is neither perverse nor contrary to the record.

Accordingly, we hereby affirm the said finding.

(11) Now the next question would be whether the accused-appellant

herein is the author/perpetrator of the crime in question, which the

learned trial Court has recorded in affirmative by relying upon following

six circumstances, which are found proved by the learned trial Court

and cataloged in Para-24 of the impugned judgment as under:

"24. vfHkys[k ij vfHk;kstu }kjk lk{; vf/kfu;e dh /kkjk 3 ds vuqlkj tks ifjfLFkfrtU; lk{; is'k dh xbZ] vc ;gkW mlh ij fopkj fd;k tk jgk gS & izFke ifjfLFkfr & ?kVuk ds rqjUr mijkUr p{kqn'khZ lk{kh v0lk0 9 vfHk;ksxh n;kywjke }kjk vfHk;qDr ohjeU;q }kjk mldh cgq jktckbZ dks Vafx;k ekjdj gR;k fd;s tkus dh ?kVuk dh lwpuk xzkeh.kksa rFkk e`frdk ds ekbZds ds ifjtuksa dks nsuk

f)rh; ifjfLFkfr & ?kVuk ds rqjUr mijkUr ntZ djkbZ xbZ izFke lwpuk es avfHk;qDr ohjeU;q usxh ds uke mYys[k gksuk & CRA-879-2013

r`rh; ifjfLFkfr & ?kVuk fnukad dks gh vfHk;qDr ds eseksjaMe ij gR;k esa iz;qDr Vafx;k dh tIrh & prqFkZ ifjfLFkfr & gR;k esa iz;qDr Vafx;k dk ijh{k.k djus okys MkWDVj rFkk fo0fo0iz0'kkyk ds izfrosnu es Vafx;k ¼dqYgkM+h½ ij e`frdk dk jDr vkSj cky ik;k tkuk & iape ifjfLFkfr &vfHk;qDr dk ?kVuk ds iwoZ Hkh e`frdk ds lkFk ekjihV fd;k tkuk & "k"Ve ifjfLFkfr & gR;k dk gsrqd (Motive)"

(12) It has been vehemently argued on behalf of the appellant that

none of the abovementioned six circumstances have been proved by

the prosecution beyond reasonable doubt and findings recorded therein

are perverse and liable to be set aside. In order to answer this question,

it would be appropriate to deal with all these six incriminating

circumstances found proved by the learned trial Court.

(13) With regard to circumstances No.01 & 02:

The learned trial Court while recording a finding with regard to

first and second incriminating circumstances have found proved that

immediately after the incident, Dayaluram Gond (PW-09), who was the

eye-witness, has informed about the fact that the appellant has

assaulted his wife- Rajbai by axe and caused her death to the villagers

including Shivprasad Kange (PW-10) and relatives of the deceased and

FIR was also lodged by Dayaluram Gond (PW-09), who is father of the

appellant, in which appellant has been named. True it is that Dayaluram

Gond (PW-09) had informed the said fact of assault being made by the

appellant to the deceased by means of axe to the villagers and other CRA-879-2013

relatives of the deceased and has further reported the matter to the

police, on the basis of which, FIR was registered, but thereafter when

he was examined before the Court as Prosecution Witness No.09, he

has not at all supported the case of the prosecution and has declared

hostile. He has only supported the case of the prosecution to the extent

that when he heard some noise from the kitchen of the house, he

reached to the kitchen and saw that her daughter-in-law had suffered

some injury on the neck and she was lying and blood was oozing from

her body, upon which, he called his wife, who administered water to the

deceased. But, thereafter, he has not supported the case of the

prosecution, though he has supported the fact of lodging marg

intimation (Ex.P/10) and FIR (Ex.P/11), but the other fact of assault

being made by the appellant to his wife (deceased) by means of axe

has not been supported by him at all. As such, since Dayaluram Gond

(PW-09) has declared hostile and even thereafter also he has not

supported the case of the prosecution at all. He is said to have

informed about the incident to Shivprasad Kange (PW-10), who has

also accompanied him to the police station, but since Dayaluram Gond

(PW-09) who has informed the incident to Shivprasad Kange (PW-10),

who himself has turned hostile and has not supported the case of the

prosecution, therefore, the testimony of Shivprasad Kange (PW-10) is

of no help to the prosecution, as his statement would of a hearsay

witness and, therefore, the first and second circumstances found CRA-879-2013

proved by the learned trial Court would of no help to the prosecution, as

Dayaluram Gond (PW-09) who is cited as a eye-witness has turned

hostile and has not supported the case of the prosecution.

(14) As regards Circumstances No.03 & 04:

True it is that pursuant to the memorandum statement of

accused-appellant recorded vide Ex.P/01, a tangi (axe) has been

seized vide seizure memo (Ex.P/02) from the possession of appellant

herein, which is duly proved by Hemraj Kange (PW-04) and blood

stained axe was sent for FSL examination, but in the FSL report

(Ex.P/09) only blood has been found on the said axe and it could not be

ascertained whether the said blood is of human origin or otherwise.

(15) The Supreme Court in the matter of Balwan Singh vs. State of

Chhattisgarh and another1 their Lordships held that if the recovery of

bloodstained articles is proved beyond reasonable doubt by the

prosecution, and if the investigation was not found to be 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 held in Para-24 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

1 (2019) 7 SCC 781 CRA-879-2013

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."

(16) Reverting to the facts of the present case in light of principle of

law laid down by their Lordships of Supreme Court in the matter of

Balwan Singh (supra) it is quite vivid that pursuant to memorandum

statement of accused-appellant, axe has been seized, in which only

blood has been found in the FSL report and no human blood was found

in said case, as such, such a recovery would not help the prosecution

at all.

(17) As regards Circumstances No.05 & 06:

The learned trial Court has found proved the motive stating that

appellant used to commit 'marpeet' with deceased of demanding dowry

and deceased was suffering from sickling, thus, attributed motive on the

appellant for causing death of his wife (deceased).

(18) It is well settled law that motive may be an important

circumstance in a case based on circumstantial evidence, but it cannot

take place of conclusive proof. (See: Sampath Kumar vs. Inspector of

Police, Krishnagiri2). In a recent decision rendered in the matter of

Mahendra Singh vs. State of M.P. 3 their Lordships of Supreme Court

reiterated the law on the point stating that merely because motive is

established, solely on that basis accused cannot be convicted under

2 (2012) 4 SCC 124 3 (2022) 7 SCC 157 CRA-879-2013

Section 302 of IPC.

(19) Thus, we are of the opinion that the prosecution has failed to

prove the commission of offence under Section 302 of IPC beyond

reasonable doubt against the appellant, as Dayaluram (PW-09) who is

eye-witness to the incident has turned hostile and has not supported

the case of the prosecution and consequently the information given by

Dayaluram (PW-09) that appellant has caused death of deceased by

axe is of no relevance. Further, pursuant to memorandum statement of

accused-appellant though blood stained axe has been found, and as

per FSL report only blood has been found on said axe and no human

blood was found on it, thus, in light of decision of Supreme Court in

Balwan Singh (supra) recovery of axe is of no help to the prosecution

and merely on the basis of motive conviction of the appellant cannot be

recorded as held by the Supreme Court in Sampath Kumar (supra)

and appellant is entitled to benefit of doubt.

(20) In that view of the matter, we are unable to hold that the

prosecution has been able to prove the five golden principles to

constitute the 'panchsheel' of proof of a case based on circumstantial

evidence, as laid by their Lordships of Supreme Court in the matter of

Sharad Birdhichand Sarda vs. State of Maharashtra 4 and, in

absence of which the appellant is entitled to benefit of doubt.

Consequently, the impugned judgment of conviction and order of

4 (1984) 4 SCC 116 CRA-879-2013

sentence passed by the learned trial Court in convicting the appellant

for offence under Section 302 of IPC is not sustainable.

(21) Accordingly, the conviction of the appellant for offence punishable

under Section 302 of IPC as well as the sentence imposed upon him by

the learned trial Court is hereby set aside. He is acquitted from the

charges under Section 302 of IPC and he be released from jail

forthwith, if not required in any other matter/case.

(22) This criminal appeal is allowed.

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