Chattisgarh High Court
Shankar Kumar vs State Of Chhattisgarh on 12 January, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.103 of 2011
Shankar Kumar, son of Baldev Sao, aged 18 years, resident of Camp-I, Baba
Ambedkar Nagar, Police Station Chhawni, District Durg, Chhattisgarh
---- Appellant
versus
State of Chhattisgarh through Station House Officer, Police Station Chhawni,
District Durg, Chhattisgarh
--- Respondent
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For Appellant : Smt. Savita Tiwari, Advocate
For Respondent : Shri Sudeep Kumar Verma, Dy. Govt. Advocate
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Hon'ble Shri Justice Rajendra Chandra Singh Samant
Hon'ble Shri Justice Arvind Singh Chandel
Judgment on Board
Per Arvind Singh Chandel, J.
12.1.2022
1. This appeal is directed against the judgment dated 20.1.2011
passed by the 9th Additional Sessions Judge (FTC), Durg in
Sessions Trial No.147 of 2010, whereby the Appellant has been
convicted and sentenced as under:
Conviction Sentence
Under Section 302 of the Imprisonment for life and fine of
Indian Penal Code Rs.3,000, in default of payment
thereof, additional rigorous
imprisonment for 6 months
2. Name of the deceased is Deoraj Sahu. On 20.6.2010 at about 5:30
A.M., Balvindar Singh (PW4) was going for morning walk. At that
time, near G.E. Road divider, he saw a dead body, which was later
on identified as Deoraj Sahu by his sister Ratna. Morgue intimation
(Ex.P13) regarding the dead body was lodged by Balvindar Singh
(PW4). Inquest proceedings (Ex.P11) was conducted. Post
mortem examination over the dead body was conducted by Dr.
Arvind Kumar Mishra (PW7). His report is Ex.P31. During the
course of investigation, statements of the Appellant as well as other
co-accused persons, namely, Naushad and Sonu alias Ram
Kumar, both juvenile, were recorded under Section 27 of the
Evidence Act. It is the further case of the prosecution that on the
date of incident at about 2:30 midnight, the Appellant and the co-
accused persons were going to their houses. On the way, the
deceased met with them. Co-accused Sonu asked for a cigarette
from the deceased. The deceased did not give him cigarette on
which a dispute took place. Thereafter, first, Sonu assaulted the
deceased with a knife. At that time, Naushad had caught the
deceased. Thereafter, the Appellant took the knife from Sonu and
assaulted the deceased with that knife 2-4 times. According to the
further case of the prosecution, Hemant Kumar (PW9) witnessed
the incident. On the basis of statements recorded under Section 27
of the Evidence Act, blood stained full pant and full shirt were
seized from the Appellant vide seizure memo Ex.P5, blood stained
iron knife, jeans pant and T-shirt were seized from co-accused
Sonu vide seizure memo Ex.P8 and blood stained full shirt was
seized from co-accused Naushad vide seizure memo Ex.P9. All
the seized articles were sent to the Forensic Science Laboratory
(FSL) for chemical examination. FSL Report is Ex.P28 in which
blood stains were found on all the aforesaid articles sent for
examination. Those articles were further sent for serological test
vide Ex.P30. However, no serological test report has been
produced before the Trial Court. Statements of witnesses were
also recorded under Section 161 of the Code of Criminal
Procedure. On completion of the investigation, a charge-sheet was
filed. The Trial Court framed charges.
3. To bring home the offence, the prosecution examined as many as 9
witnesses. In examination under Section 313 of the Code of
Criminal Procedure, the Appellant denied the guilt and pleaded
innocence. No witness was examined in his defence.
4. On completion of the trial, vide the impugned judgment, the Trial
Court convicted and sentenced the Appellant as mentioned in first
paragraph of this judgment. Hence, this appeal.
5. Learned Counsel appearing for the Appellant submits that the Trial
Court has convicted the Appellant without being any legal evidence
available on record. Hemant Kumar (PW9), the sole eyewitness of
the incident has not supported the case and turned hostile. The
Trial Court has convicted the Appellant only on the basis of
recovery of blood stained pant and shirt from the Appellant and
blood stained knife from co-accused Sonu. But, no serological test
report is available on record to show that the blood stains found on
those articles were of human being though the articles were sent
for serological examination. Hence, the conviction of the Appellant
is not sustainable.
6. Learned Counsel appearing for the State opposes the submission
made by Learned Counsel for the Appellant and supports the
impugned judgment. He submits that there is sufficient evidence
on record on the basis of which the alleged offence is proved
beyond reasonable doubt.
7. We have heard Learned Counsel appearing for the parties and
perused the material available on record of the Trial Court with due
care.
8. It is not in dispute that the death of Deoraj Sahu was homicidal in
nature. Case of the prosecution is based upon the testimony of
sole eyewitness Hemant Kumar (PW9) and other circumstantial
evidence. Sole eyewitness Hemant Kumar (PW9) has not
supported the case of the prosecution in any manner. He has been
declared hostile.
9. The circumstances upon which the prosecution has based its case
are seizures of blood stained pant and shirt from the Appellant and
that of blood stained knife and other clothes from the two co-
accused persons. Mohan Dalai (PW2) and Lalit Mohan Singh
(PW5), who are witnesses of the said seizures and before whom
the statements of the accused persons were recorded under
Section 27 of the Evidence Act, have not supported the case of the
prosecution and they have also turned hostile.
10. Town Inspector Vibhu Deep Nand (PW6), who investigated the
offence in question, deposed that on the basis of the disclosure
statements of the Appellant and other co-accused persons
recorded under Section 27 of the Evidence Act, he seized one full
shirt and one full pant, both stained with blood, from the Appellant
vide seizure memo Ex.P5, one iron knife, one T-shirt and one jeans
pant, all stained with blood, from co-accused Sonu alias Ram
Kumar vide seizure memo Ex.P8 and one full shirt, stained with
blood, from co-accused Naushad vide seizure memo Ex.P9. All
these seized articles were sent to the Forensic Science Laboratory
for chemical examination. As per the FSL Report (Ex.P28), blood
stains were found on the pant and shirt seized from the Appellant
as well as on the knife seized from co-accused Sonu. Only on this
ground, the Trial Court has convicted the Appellant. All the seized
articles were sent for serological test vide Ex.P30. However, no
serological test report has been produced before the Trial Court for
the reasons best known to the prosecution. In absence of a
serological test report, it is not established in any manner that the
blood stains found on the seized articles were of a human being.
Therefore, in our considered opinion, the prosecution does not get
any help from these seizures and thus only on the basis of these
seizures, conviction of the Appellant cannot be sustained. The
prosecution has failed to prove its case.
11. Resultantly, the appeal is allowed. The judgment under challenge
is set aside. The Appellant is acquitted of the charge framed
against him. He is reported to be on bail. His bail bonds shall
continue for a further period of 6 months under Section 437A of the
Code of Criminal Procedure.
Sd/- Sd/-
(Rajendra Chandra Singh Samant) (Arvind Singh Chandel)
Judge Judge
Gopal
