Chattisgarh High Court
Mahesh Kumar Nuruti vs State Of Chhattisgarh on 26 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.829 of 2014
Mahesh Kumar Nuruti son of Shabhu Ram, aged about 25
yers, Caste Gond, R/o. Botechang, P.S. Durgukondal,
Civil and Revenue District Uttar Bastar Kanker (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through P.S. Durgukondal, Civil
and Revenue District Uttar Bastar Kanker (CG)
Respondent
For Appellant: Mr.Suresh Tandan, Advocate
For Respondent/State: Mr.Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(26.7.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein
under Section 374(2) of the CrPC is directed against
the judgment dated 5.6.2014 passed by the Sessions
Judge, North Bastar, Kanker in Sessions Trial
No.44/2013, whereby the learned Sessions Judge has
convicted the appellant for offence under Section 302
of the IPC and sentenced him to undergo imprisonment
for life and fine of Rs.3000/, in default of payment
of fine to further undergo rigorous imprisonment for
one year.
2. Case of the prosecution, in brief, is that on 24.6.2012
at village Botechang, the appellant caused fatal blow
to his grandmother Smt.Mehtarin Bai by which she
suffered grievous injuries and died and thereby
committed the offence under Section 302 of the IPC. It
is further case of the prosecution that deceased
Mehtarin Bai was staying with his son Shambhuram Nuruti
(PW2) and the accused / appellant (son of Shambhuram
Nuruti) was staying separately at village Farasgaon and
on 22.6.2012 he came to village Botechang for
agricultural work. On 23.6.2012, Shambhuram Nuruti
(PW2) with whom the deceased was staying had gone to
village Pakhanjur for bringing his daughter Reshma
(PW4) back to village Botechang and stayed therein in
the night of 23.6.2012 and the appellant had gone to
Bhanupratappur. When Shambhuram Nuruti (PW2) came in
the morning of 24.6.2012 along with his daughter Reshma
(PW4) at 11 a.m. at Botechang, he found his house
bolted from inside, which he unbolted the door after
entering from back side of the house, where he & Reshma
(PW4) found dead body of Mehtarin Bai with blood near
kitchen. He was informed by Sukhram Nuruti (PW5) that
Mahesh Nuruti (appellant herein) had come to village in
the morning on 23.6.2012, then Shabhuram Nuruti (PW2)
intimated the police who registered Merg on 25.6.2012
vide Ex.P4 and on the basis of merg, FIR was
registered vide Ex.P6. Inquest was conducted over the
body of deceased Mehtarin Bai vide Ex.P7. Spot map was
prepared by patari vide Ex.P1. Dead body of deceased
Mehtarin Bai was sent for postmortem to Community
Health Center, Bhanupratappur, where Dr.Smt.Preeti
Singh (PW3) conducted postmortem vide Ex.P11 and
opined that death of the deceased was due to head
injury & fracture and death was homicidal in nature.
Crowbar was recovered from the possession of Shambhuram
Nuruti (PW2) vide Ex.P10. Statements of the witnesses
were recorded under Section 161 of the CrPC. After
completion of investigation, chargesheet was filed
against the appellant / accused before the Judicial
Magistrate First Class, Bhanupratappur, who in turn,
committed the case to the Court of Session, North
Bastar Kanker for trial in accordance with law. The
appellant herein abjured the guilt and entered into
defence.
3. In order to bring home the abovestated offence, the
prosecution examined as many as 8 witnesses and
exhibited 21 documents Exs.P1 to P21, whereas the
accused / appellant has examined none in his defence.
However, the defence has exhibited the document Ex.D1.
4. The trial Court after appreciating oral and documentary
evidence available on record, by its judgment dated
5.6.2014, convicted the appellant for offence
punishable under Section 302 of the IPC holding that on
the fateful day the appellant and the deceased both
were present in the house & she was murdered, the
appellant was having knowledge about cash kept by his
father Shambhuram Nuruti (PW2), household articles
were found scattered and the appellant was absconding
and he has not explained anything as it is house murder
and he was present in the house and sentenced him as
aforementioned, against which, this criminal appeal has
been preferred by the appellant / accused.
5. Mr.Suresh Tandon, learned counsel appearing for the
appellant, would submit that there is no
circumstantial or oral evidence against the appellant
to connect him in offence in question and only on the
basis of statements of Sukhram Nuruti (PW5) Chintaram
(PW8), who have seen the appellant in the village, it
cannot be inferred that the appellant was author of
crime particularly when no seizure of crowbar has been
made and merely on the basis that the appellant was
seen in the village and he was absconding thereafter,
he cannot be convicted by the trial Court, as such,
conviction and sentence deserve to be set aside. He
would further submit that Section 106 of the Evidence
Act would apply in case where the prosecution has able
to prove the offence beyond reasonable doubt. In this
case, the prosecution has failed to prove the offence
beyond reasonable doubt, therefore, Section 106 of the
Evidence Act would not apply and therefore, conviction
is liable to be set aside.
6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer
for the respondent/State, would submit that Sukhram
(PW5) and Chintaram (PW8) have clearly established
that the appellant herein was present with his
grandmother Mehtarin Bai on the date of occurrence and
he is the only person who is author of the crime and as
such, theory of last seen together has been established
and the appeal deserves to be dismissed.
7. We have heard learned counsel appearing for the
parties, considered their rival submissions made
hereinabove and also went through the records with
utmost circumspection.
8. The trial Court after appreciating oral and documentary
evidence available on record and taking into
consideration the statement of Dr.Smt.Preeti Singh
(PW3) and postmortem report (Ex.P11) came to the
conclusion that death of the deceased was due to head
injury & fracture and death was homicidal in nature. As
such, the finding recorded by the trial Court that the
death of the deceased to be homicidal in nature is the
finding of fact based on evidence available on record.
It is neither perverse nor contrary to record. We
hereby affirm that finding.
9. Now the question for consideration would be, whether
the trial Court has rightly convicted the appellant for
offence under Section 302 of the IPC by recording the
finding in para14 that firstly, it is housemurder and
the appellant and the deceased both were staying
together on the date of incident i.e. in the night of
23.6.2012 and secondly, immediately thereafter the the
accused / appellant remained absconded and he had
knowledge about the cash kept by his father Sambhuram
Nuruti (PW2) and household articles were found
scattered and the appellant has not explained in what
circumstances his grandmother Mehtarin Bai died.
10. It is the case of the prosecution that the appellant
was staying separately at village Farasgaon from his
father since one year from the date of incident,
whereas Sambhuram Nuruti (PW2) and his mother Mehtarin
Bai were staying at village Botechang. The appellant
came to village Botechang on 22.6.2012, but he has left
that village on 23.6.2012 and went to Bhanupratappur
for collecting paddy seeds and Shambhuram Nuruti
(PW2), son of deceased Mehtarin Bai, had gone to
village Pakhanjur for brining his daughter Reshma
(PW4) back to his house. It is the case of the
prosecution that the appellant had come to village
Botechang in the morning of 23.6.2012 as stated by
Sukhram Nuruti (PW5) to Sambhuram Nuruti (PW2) that
his son (appellant herein) has come at morning in his
field and took some liquor. Similarly, Chintaram (PW
8) has also stated that one day prior to the date of
incident, the appellant had come to his house and
knocked his door, but he did not open the door and
identified his voice as he was intoxicated condition,
but the fact remains that Sukhram Nuruti (PW5) was
informed to Shambhuram Nuruti (PW2) (son of the
deceased) which he has stated in para2 of his
statement, but nobody has seen or made the statement
that the appellant and the deceased both have seen
together in the night of 23.6.2012 when the incident
took place. The prosecution was required to establish
that the appellant and the deceased had seen living
together on the fateful day, but except the statement
of Sukhram Nuruti (PW5) that he has seen the appellant
in the morning, but he has not stated that he has seen
the appellant and the deceased living together.
Statement of Shambhuram Nuruti (PW2) is based upon the
statement of Sukhram Nuruti (PW5). Except the
statements of Sukhram Nuruti (PW5) and Chintaram (PW
8), there is no evidence on record to hold that the
appellant and the deceased both have seen together on
the fateful night and it is the appellant who has
caused murder of deceased Mehtarin Bai. As such, the
finding recorded by the trial Court in this regard is
not based on evidence available on record and
consequently, the appellant was not required to explain
by virtue of Section 106 of the Evidence Act. If the
prosecution establishes the offence beyond reasonable
doubt, then only the accused is required to explain by
virtue of Section 106 of the Evidence Act. As such,
theory of last seen together putforth by the
prosecution and accepted by the trial Court to hold the
appellant guilty is perverse finding and this piece of
evidence is liable to be rejected.
11. The trial Court has found proved that immediately after
the incident the appellant went missing from the
village / from his father's/grandfather's house and
that is additional circumstance available against him.
12. The Supreme Court in the matter of Durga Burman Roy v.
State of Sikkim1 has held that absconding by itself does
not prove the guilt of a person. A person may run away
due to fear of false implication or arrest. It has been
observed as under:
"13. "To abscond" means, go away secretly or
illegally and hurriedly to escape from custody
or avoid arrest. It has come in evidence that
the accused had told others that they were
going from their place of work at Gangtok to
their home at New Jalpaiguri. They were
admittedly taken into custody from their
respective houses only, at New Jalpaiguri on
the third day of the incident. Therefore, it is
difficult to hold that the accused had been
absconding. Even assuming for argument's sake
that they were not seen at their work place
after the alleged incident, it cannot be held
that by itself an adverse inference is to be
drawn against them....."
13. In the matter of Sunil Clifford Daniel v. State of
Punjab2 the Supreme Court has held that the mere act of
absconding, on the part of the accused, alone does not
necessarily lead to a final conclusion regarding the
guilt of the accused, as even an innocent person may
become panicstricken and try to evade arrest, when
suspected wrongly of committing a grave crime; such is
in the instinct of selfpreservation.
14. As such, merely on the basis that the appellant has
absconded from the village / place of occurrence is not
1 (2014) 13 SCC 35
2 (2012) 11 SCC 205
an incriminating circumstance to convict him for
offence under Section 302 of the IPC. Further two
circumstances that the appellant had knowledge about
the cash kept by his father Shabhuram Nuruti (PW2) and
amount was found missing and household articles have
also found scattered, in our considered opinion, such a
weak circumstances that could not make basis for
conviction of the appellant under Section 302 of the
IPC, as such, we are unable to uphold the conviction
and sentence recorded by the trial Court convicting the
appellant for offence under Section 302 of the IPC.
15. Consequently, the criminal appeal is allowed. Impugned
judgment dated 5.6.2014 passed by the Sessions Judge,
North Bastar, Kanker in Sessions Trial No.44/2013
convicting and sentencing the appellant for the offence
under Section 302 of the IPC are hereby set aside. The
accused / appellant is acquitted of the charge under
Section 302 of the IPC. He is in jail, he be released
forthwith, if not required in any other case.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/
