Ramesh Kumar Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 7545 Chatt

                                      1


                                                                    NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 236 of 2013


          Ramesh Kumar Sahu S/o Dhaniram Sahu, Aged about 35
          years, R/o Pithampur, P.S. Janjgir, District Janjgir-
          Champa, Chhattisgarh.

                                                            ---Appellant

                                  Versus

          State of Chhattisgarh through P.S. Janjgir, District
          Janjgir-Champa, Chhattisgarh.

                                                        ---Respondent




          For Appellant          :-       Mr. Arvind Dubey, Advocate
          For State              :-       Mr. Anmol Sharma, P.L.




               Hon'ble Shri Justice Sanjay K. Agrawal
             Hon'ble Shri Justice Rakesh Mohan Pandey
                        Judgment on Board
                            14/12/2022


Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC has

been preferred by the appellant against the impugned

judgment dated 11/02/2013 passed by learned Session

Judge, Janjgir-Champa in Sessions Trial No. 119/2012

whereby he has been convicted for offence punishable

under Section 302 of IPC and sentenced to undergo life

imprisonment with fine of Rs. 5000/- in default of

payment of fine, further R.I. for three months.

2. Case of the prosecution, in brief, is that the appellant

along with four other accused persons (now acquitted),

after hatching the conspiracy of causing the death of

Santoshibai Sahu, wife of Ramprasad Sahu (P.W.-2), in

furtherance of their common intention, assaulted her with

tangi and murdered her on the pretext that she was

involved in the act of witchcraft and, thereby, committed

the aforesaid offence.

3. Further case of the prosecution is that deceased

Santoshibai Sahu, aged about 30 years, resided with her

husband Ramprasad Sahu (P.W.-2) at Village Peethampur.

On 24/03/2012 at about 6 AM, she went to answer

nature's call and did not return. Thereafter, one Hulas

Ram Sahu informed Ramprasad Sahu (P.W.-2) that dead

body of Santoshibai Sahu was lying in the field of Putru

Kewat. When Ramprasad Sahu (P.W.-2) went to the spot,

he found the dead body of her wife lying therein. He

reported the incident at Police Station Janjgir whereupon

merg intimation was registered vide Ex. P/2 and first

information report was lodged at Police Station Janjgir

vide Ex. P/3. After summoning the witnesses under

Section 175 of CrPC vide Ex. P/7, inquest was conducted

vide Ex. P/8 and thereafter, dead body was subjected to

postmortem, which was conducted by Dr. N.K. Dhruve

(P.W.-9) and as per postmortem report (Ex. P/15), cause of

death is excessive bleeding and shock as a result of neck

injury (amputation of head) and nature of death is

homicidal. Thereafter, the appellant and four other

accused persons were taken into custody and

memorandum statement of the appellant herein was

recorded vide Ex. P/22 on the basis of which, recovery of

tangi was made from inside the pond at the instance of the

appellant vide Ex. P/23 as well as recovery of clothes worn

by the appellant at the time of the incident, stained with

blood, was made vide Ex. P/24. The said articles were sent

to Dr. N.K. Dhruve (P.W.-8) for query and as per his query

report (Ex. P/19), the Doctor has opined that the said

tangi could have been used to cause the injuries suffered

by the deceased, however, so far as the examination of

clothes and other seized articles is concerned, the Doctor

adviced to send them for FSL and though these articles

were sent for FSL but no FSL report has been brought on

record. After due investigation, the appellant and four

accused persons were charge-sheeted for offence

punishable under Sections 4 and 5 of Chhattisgarh Tonhi

Pratadna Nivaran Act, 2005 and Section 302, 120B/34 of

IPC which was committed to the Court of Sessions for trial

in accordance with law. The accused persons abjured their

guilt and entered into defence.

4. In order to bring home the offence, prosecution examined

as many as 13 witnesses exhibited 33 documents.

Statements of the witnesses were recorded under Section

313 of CrPC wherein they denied guilt, however, they

examined none in their defence.

5. Learned trial Court, after appreciating the oral and

documentary evidence on record, though acquitted the

four accused persons but convicted the appellant herein

for offence punishable under Section 302 IPC simpliciter

and sentenced him as aforesaid.

6. Mr. Arvind Dubey, learned counsel for the appellant,

would make the following submissions :-

(I) statement of Tilmati Kanwar (P.W.-5) has been projected

and relied upon by the trial Court to hold that she is an

eye-witness to the incident which is unsustainable and

bad in law as she is said to have witnessed the incident

from a distance of 150-200 ft. and she has only stated in

her statement that she knew all the five accused persons

as they were residents of the same village, however, she is

aged about 25 years and came to reside in the village only

after getting married and some of the accused persons are

aged about 64-66 years, as such, she is not well-known to

the accused persons and her chances of identifying them

from a distance of 150-200 ft. are practicably low in light

of the decision rendered by the Supreme Court in the

matter of Rangnath Sharma v. Satendra Sharma and

others1.

(ii) though the incident occurred on 24/03/2012, but the

statement of Tilmati Kanwar (P.W.-5) under Section 161 of

CrPC was taken on 25/03/2012 and there is no

reasonable explanation on the part of the Investigating

1 2008 AIR SCW 5914

Officer Shyam Sunder Sharma (P.W.-13) for not examining

her on the same day. Furthermore, Tilmati Kanwar (P.W.-

5) is said to have reported the incident to the Village

Kotwarin and she was also present at the Village during

investigation which is apparent from inquest report (Ex.

P/8), but she has not been examined and there is no

reasonable explanation for not examining her in

corroboration of statement of Tilmati Kanwar (P.W.-5).

(iii) pursuant to the memorandum statement of the

appellant vide Ex. P/22, recovery of tangi has been made

vide Ex. P/23 from inside the pond, however, no FSL

report has been brought on record by the prosecution to

prove that it was stained with blood, much less human

blood which could connect the appellant with the crime in

question and in absence of FSL report, recovery is a weak

piece of evidence. As such, the trial Court has erred in

convicting the appellant herein for the aforesaid offence.

7. Per contra, Mr. Anmol Sharma, learned State counsel,

would submit that Tilmati Kanwar (P.W.-5) has rightly

been cited as eye-witness and the trial Court has rightly

held her to be an eye-witness and relied upon her

statement to convict the appellant. Moreover, pursuant to

the disclosure statement of appellant, blood stained tangi

has been recovered at the instance of the appellant from

inside the pond which has also been rightly relied upon by

the trial Court to convict the appellant for offence

punishable under Section 302 of IPC. Accordingly, the

instant appeal is liable to be dismissed.

8. We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went

through the records with utmost circumspection.

9. The first question for consideration is whether the death of

deceased Santoshibai Sahu was homicidal in nature ?

10. Learned trial Court has recorded an affirmative finding in

this regard and held the death of deceased to be homicidal

in nature relying upon the postmortem report (Ex. P/15)

which has been proved by Dr. N.K. Dhruve (P.W.-8) who

has clearly stated that cause of death is excessive bleeding

and shock as a result of neck injury (amputation of head)

and nature of death is homicidal. After considering the

postmortem report (Ex. P/15) as well as the statement of

Dr. N.K. Dhruve (P.W.-8) and after looking to the grievous

injuries suffered by the deceased on the vital parts of her

body, we are of the considered opinion that the trial Court

has rightly held the death of deceased Santoshibai Sahu

to be homicidal in nature. More so, when it has not even

been seriously questioned by learned counsel for the

appellant. We hereby affirm the said finding recorded by

the trial Court.

11. The next question for consideration is whether the

appellant is the author of the crime in question ?

12. The trial Court has also recorded an affirmative finding in

this regard relying upon the direct evidence available in

the form of statement of eye-witness Tilmati Kanwar (P.W.-

5) as well as the circumstantial evidence memorandum

and seizure of tangi which has also been corroborated by

the query report (Ex. P/17 ) of Dr. N.K. Dhruve (P.W.-8)

and recovery of appellant's shawl vide Ex. P/4. In order to

examine the submissions advanced on behalf of the

appellant, we shall consider each of the evidence one-by-

one.

Direct evidence :-

13. The only direct evidence available on record is the

testimony of Tilmati Kanwar (P.W.-5), who has been cited

and held by the trial Court as eye-witness. In her

statement before the Court, she has stated that she

identifies all the five accused persons as all of them are

residents of the same village. It is pertinent to mention

here that the age of Tilmati Kanwar (P.W.-5) on the date of

her evidence was 25 years and she came to stay in the

village after her marriage with Banshilal Kanwar. She has

further stated that she has seen the appellant assaulting

the deceased with tangi and after assault, the appellant

ran towards the pond. However, she has also stated that

she has seen said assault being made from a distance of

near about 150-200 ft.

14. It is well -settled law as held by the Supreme Court in the

matter of Rangnath Sharma (supra) that if a person is

well known to other, then probability of identification of

said person even from a far away place is much higher.

15. In the instant case, though Tilmati Kanwar (P.W.-5) has

stated on oath that she identifies the appellant and four

other accused persons, however, looking to the fact that

she is only aged about 25 years and she came to stay in

the village after her marriage and the age of some of the

accused persons is 60-64 years and the appellant is aged

about 35 years, We have our own doubt and reservation

that the appellant and four accused persons would have

been well-known by her particularly, in view of her

statement in paragraph 3 wherein she has refused to

recognize the name of one other woman who was there

along with her when she witnessed the incident. Further

considering that she claims to have seen the incident from

a distance of 150-200 ft., which in our considered opinion,

is a fairly long distance, it would be practicably

unacceptable to hold that she was well-known to the

appellant. It is also pertinent to consider here that in

paragraph 5 of her statement, she has stated that she

informed about the incident to the village Kotwarin on the

same date and in view of the inquest report (Ex. P/8), she

was present therein, however, for the reasons best known

to the prosecution, the village Kotwarin has not been

examined so as to corroborate the statement of Tilmati

Kanwar (P.W.-5), who had been cited as eye-witness.

Moreover, the incident occurred on 24/03/2012 whereas

the Statement of Tilmati Kanwar (P.W.-5) was recorded

under Section 161 of CrPC on 25/03/2012 and no

reasonable explanation has been offered by the

Investigating Officer Shyam Sundar Sharma (P.W.-13) for

the delay of 24 hours in recording her statement. As such,

after considering the entire evidence on record, we are

unable to hold that Tilmati Kanwar (P.W.-5) is an eye-

witness who has seen the appellant assaulting the

deceased and causing her death.

Circumstantial evidence :-

16. The circumstantial evidences which have been adduced

by the prosecution and have been found proved by the

trial Court are stated below, which will be considered by

us one-by-one :-

I) memorandum and seizure of blood-stained tangi vide

Exs. P/22 and P/23;

II) query report of Dr. N.K. Dhruve vide Ex. P/17;

III) recovery of appellant's shawl from the spot vide Ex.

P/12.

I) and II) Memorandum and Seizure of blood-stained

tangi as well as Query report of Dr. N.K. Dhruve

17. For the sake of convenience, both of these circumstantial

evidences, which are inter-related to each other, are

considered together. Pursuant to the memorandum

statement of the appellant recorded vide Ex. P/22,

recovery of blood-stained tangi is said to have been made

at his instance from inside the pond vide Ex. P/23, which

has been relied upon by the trial Court further considering

the query report of Dr. N.K. Dhruve (P.W.-19).

18. Though recovery of blood-stained tangi was made from

inside the pond at the instance of the appellant vide Ex.

P/23 pursuant to her memorandum statement Ex. P/22,

but in order to prove the blood found on the said tangi

was human blood or not, much less the blood of the

deceased, prosecution was required to bring on record the

FSL report. Although the said tangi was sent for FSL, but

the reasons best known to the prosecution, no FSL report

has been brought on record.

19. The Supreme Court in the matter of Balwan Singh (supra)

has held that if the recovery of bloodstained articles is

proved beyond reasonable doubt by the prosecution, and

if the investigation is 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 observed in paragraph 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 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."

20. In the instant case, though the blood stained tangi was

sent to Dr. N.K. Dhruve (P.W.-8) for query, who in his

query report (Ex. P/17) stated that the injuries suffered by

the deceased could have been caused by the said tangi,

however, for the examination of blood like stains he

advised to send it for FSL. As such, we are of the

considered opinion that in absence of FSL report,

recovery, which in itself is a weak kind of evidence as held

by the Supreme Court in the matter of Mani v. State of

Tamil Nadu2, as well as the query report could not have

been made the basis for conviction of the appellant by the

trial Court.

III) Recovery of appellant's shawl from the spot

21. The last circumstance which has been pointed out by the

prosecution and has been found proved by the trial Court

is recovery of appellant's shawl from the spot vide Ex.

P/12 and which has been identified by Ramprasad Sahu

(P.W.-2), husband of the deceased, vide Ex. P/4.

22. Though the said shawl has been identified by Ramprasad

Sahu (P.W.-2) to be of the appellant's but it has not been

demonstrated by the prosecution that the shawl recovered

vide Ex. P/12 and identified vide Ex. P/4 had any peculiar

2 (2009) 17 SCC 273

design or it had unique workmanship which is not

available in the market and was exclusively held by the

appellant. In that view of the matter, finding of the trial

Court that recovery of the said shawl from the sport

identified by Ramprasad Sahu (P.W.-2) to be that of the

appellant's connects him with the crime in question is

absolutely perverse and bad in law.

23. In sum and substance, after considering the entire

evidence available on record, both in the form of direct

evidence as well as circumstantial evidence, we are unable

to hold that appellant is guilty of the crime in question.

Accordingly, the impugned judgment of conviction and

sentence recorded by the trial Court convicting the

appellant for offence punishable under Section 302 of IPC

and awarding the sentence as aforesaid is hereby set aside

and the appellant is acquitted of the charge levelled

against him. Since the appellant is in jail, he be released

forthwith, if his detention is not required in any other

case.

24. Accordingly, this criminal appeal stands allowed.

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




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