Mahadav Alias Nanhe vs State Of Chhattisgarh
2022 Latest Caselaw 3781 Chatt

                                              1

                                                                                     NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                    Criminal Appeal No.1746 of 2017

     Mahadev alias Nanhe S/o Sukhal Gond, Aged 22 years, R/o
     Village ­ Kedarpur, P.S.­Prem Nagar, Dist. Soorajpur
     (CG)

                                                                     ­­­­ Appellant
                                                                         (In Jail)
                                         Versus

     State     of    Chhattisgarh             Through      Police      Station       Prem
     Nagar, Dist.­Sooorajpur (CG)
                                                                     ­­­­ Respondent

For Appellant:        Mr.Viprasen Agrawal, Advocate
For Respondent/State: Mr.Sudeep Verma, Dy.G.A.


            Hon'ble Shri Justice Sanjay K. Agrawal and
             Hon'ble Shri Justice Sachin Singh Rajput

                                Judgment on Board
                                   (15.6.2022)

Sanjay K. Agrawal, J.

1. This criminal appeal is directed against the judgment

dated 22.6.2017 passed by the Third Additional Sessions

Judge, Surajpur, in CNR No.­CGSJ010000752012, by which

the appellant has been convicted for offence under

Section 302 of the IPC and sentenced to undergo

imprisonment for life and fine of Rs.1000/­, in default

of payment of fine to further undergo rigorous

imprisonment for 90 days.

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

21.10.2011 at Atem river, village Kedarpur, Police

Station Premnagar, the appellant caused death of

Krishna Singh, aged about 4 years. Further case of the

prosecution is that on 24.10.2011 (Ex.P­1) merg

intimation was lodged by Sidhe Singh (PW­1) that on

21.10.2011 he had come to the police station for

lodging some report against Sukhdev along with his wife

and his son Krishna Singh, aged about 4 years was in

his house along with one Nanhu and thereafter his son

Krishna had gone to Atem river along with other two

brothers Sunil (PW­2) and Anil (PW­3), but thereafter

his son Krishna Singh did not came back, which he

searched 2nd and 3rd day, but Krishna Singh could not be

searched out. Ultimately, he went Atem river where he

found his son dead. On the basis of merg intimation,

the matter was taken into investigation. Inquest was

conducted vide Ex.P­4 in which cause of death was shown

that deceased Krishna fell down in the water and

consequently, he died. FIR was registered vide Ex.P­11

on 20.11.2011 on the basis of merg, dead body of

deceased Krishna Singh was sent for postmortem, which

was conducted by Dr.Deep Kumar (PW­12) and postmortem

report is Ex.P­12 in which cause of death was shown to

be asphyxia and even diatom test was advised. In diatom

test (Ex.P­14), it was found to be positive. The

appellant was charge­sheeted before the Additional

Chief Judicial Magistrate, Surajpur, who was committed

the case to the Court of Session, Surguja (Ambikapur),

from where the Third Additional Sessions Judge,

Surajpur received the case on transfer for trial. The

accused/appellant abjured the guilt and entered into

defence.

3. In order to bring home the offence, the prosecution

examined as many as 12 witnesses and exhibited 14

documents Exs.P­1 to P­14. Statement of the

accused/appellant was recorded under Section 313 of the

CrPC in which he denied guilt. The accused examined

none in his defence. However, he exhibited the

documents Exs.D­1 and D­2 in his defence.

4. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment dated 22.6.2017, convicted the appellant for

offence under Section 302 of the IPC and sentenced him

as aforementioned, against which, this criminal appeal

has been preferred.

5. Mr.Viprasen Agrawal, learned counsel for the appellant,

would submit that the prosecution has failed to prove

the offence beyond reasonable doubt as death is

established to be drowning, but it has not been

established that death was homicidal in nature or it is

the appellant who pushed the deceased into water by

which he drowned & died and the prosecution story is

based on improbable and contradictory statement of

eyewitnesses Sunil (PW­2) and Anil (PW­3) who have

given contradictory statements with regard to the

manner in which the appellant murdered their brother

Krisha Singh. He would further submit that on material

aspect, their Court's statements suffers from material

omission and their case diary statement. Therefore, the

appellant ought to have given benefit of doubt. He

would also submit that evidence has come that 15 years

before, Krishna's grandmother had jumped into the well

to save life of uncle of the accused and both of them

died because of which there was long standing enmity

between two families and that is why the appellant has

been falsely implicated and as such, the impugned

judgment of conviction and sentence deserves to be set­

aside.

6. On the other hand, Mr.Sudeep Verma, learned Deputy

Government Advocate for the respondent/State, would

oppose the submissions made by learned counsel for the

appellant and submit that medical evidence proves that

Krishna died of asphyxia and Sunil (PW­2) and Anil

(PW­3) are eyewitnesses to the incident though there

are some minor contractions, but the trial Court has

rightly placed reliance upon statements of them and as

such, conviction is well merited and the appeal

deserves to be dismissed.

7. We have heard learned appearing for the parties,

considered their rival submissions made herein­above

and also went through the records with utmost

circumspection.

8. It is apparent from evidence brought on record that

three brothers namely Sunil (PW­2), Anil (PW­3) and

deceased Krishna Singh went to Atem river on 21.10.2011

at 5 p.m. and thereafter Sunil (PW­2) and Anil (PW­3)

came back to their house in that evening, but Krishna

Singh did not come back to his house and on account of

which, his father Sidhe Singh (PW­1) started searching

Krishna Singh 2nd and 3rd day, but he could not be

searched out and ultimately, on 24.10.2011, dead body

was noticed by Sidhe Singh in Atem river and pursuant

to which, intimation was given by Sidhe Singh (PW­1) to

Police Station Premnagar by which merg intimation was

registered and wheels of investigation started running.

In the inquest (Ex.P­4), cause of death was shown that

Krishna Singh fell down accidentally in water and died

by drowning and he was suggested to have postmortem. In

postmortem report (Ex.P­12), no external injury was

found over the body of the deceased and mode of death

was shown to be asphyxia and for cause of death, diatom

test was advised. In diatom test, it has been found to

be positive vide Ex.P­14. Thus, it is established that

mode of death was asphyxia and according to statement

of Dr.Deep Kumar (PW­12), asphyxia can also be on

account of drowning.

9. The Orissa High Court in the matter of Adi Bhumiani v.

State1 relying upon Modi's Medical Jurisprudence and

Toxicology has held that in the case of death by

drowning, asphyxia is a common cause in the majority of

cases, as water getting into the lungs gets churned up

with air and mucus, and produces a fine froth which

1 AIR 1957 ORISSA 216

blocks the air vesicles.

10. As per postmortem report (Ex.P­12), lungs of the

deceased were found congested. Therefore, it is duly

established that it was death of drowning.

11. It has been attempted by the prosecution to establish

that it is the appellant who pushed deceased Krishna

Singh into water, therefore, he is author of the crime

in question.

12. In order to prove the said fact, two alleged

eyewitnesses Sunil (PW­2) and Anil (PW­3) (brothers of

the deceased) have been examined. We will take their

statements one by one. Sunil has been examined before

the Court as PW­2. He has stated that before the Court

that on the date of incident he along with Anil (PW­3)

and deceased Krisha Singh had gone into Atem river for

fishing, at that time, the accused has taken his

brother Krishna Singh along with him and when he did

not search out and they found that the appellant was

strangulating his brother and thereafter the appellant

had thrown his brother Krishna Singh into river and

also placed stone over his body and thereafter he and

his brother Anil returned to their house and reported

the matter to their father Sidhe Singh, though this

witness has stated that the appellant was strangulating

his brother, but there is no external injury over the

body of the deceased particularly on neck and the

alleged stone which is said to have placed over the

body of the deceased has also not been seized by the

police. This witness is said to have reported the

incident to his father Sidhe Singh (PW­1) on the same

day, but his father did not lodge any report to the

police station on 21.10.2011 or next day or day after

next and only it was reported on 24.10.2011. There is

no explanation for delay of 3 days in lodging the FIR

by Sidhe Singh (PW­1). As such, this witness cannot be

said to be reliable witness particularly in absence of

external injury over the body of the deceased, cause of

death to be drowning and delay in lodging the FIR by

his father Sidhe Singh (PW­1).

13. Next witness Anil (PW­3) was also present on the spot

on the date of incident. He has only stated that on the

date of incident, all three were fishing and the

appellant had taken his brother Krishna Singh inside

the water. He has stated new version that the appellant

had set over stomach of deceased Krishna Singh, which

he reported to his father. Statement of this witness is

fully contradictory to the statement of Sunil (PW­2)

and further stated that the appellant has covered his

mouth by scarf, but no scarf has been seized from the

accused by the police during the course of

investigation and that part is omitted in his statement

Ex.D­2. As such, we are of the considered opinion that

this witness Anil (PW­3) is also not reliable in

absence of recovery of scarf.

14. Sidhe Singh (PW­1) (father of the deceased) was

examined as PW­1. Admittedly, on 21.10.2011 Sunil

(PW­2) and Anil (PW­3) both have reported the matter to

his father Sidhe Singh (PW­1) though his son Krishna

Singh aged about 4 years did not came back to his house

right in time along with his two sons namely Sunil

(PW­2) and Anil (PW­3), but he did not report the

matter immediately to the police, he started searching

of his own on 22.10.2011 and 23.10.2011 and even on

24.10.2011 till he noticed the dead body of Krishna

Singh on the bank of Atem river, then only he lodged

merg intimation vide Ex.P­4 to the police and delay in

lodging the FIR has not been explained by Sidhe Singh

(PW­4) though long standing enmity between the

appellant and the deceased family has been pleaded and

plea of false implication has been taken, but no

sufficient evidence has been brought on record.

15. It is pertinent to mention here that incident took

place on 20.10.2011 and merg intimation was made on

24.10.2011 vide Ex.P­4, but statement of Anil (PW­3)

one of the alleged eyewitness was recorded on

26.11.2011. There is delay of about one month in

recording the statement of alleged eyewitness. As such,

possibility of falsely implicating the appellant cannot

be ruled out. Similarly, investigating officer

C.Kerketta (PW­11) has been explained in para­11 before

the Court that since Sidhe Singh (PW­1) who has lodged

the report did not suspect any person in death of his

son Krishna Singh, therefore, statements of the

witnesses were not recorded, which creates doubt in the

mind of the Court particularly merg intimation was

registered on 24.10.2011.

16. At this stage, learned Deputy Government Advocate for

the respondent/State, would submit that diatom test has

been found positive and therefore, it is clearly

established that cause of death is of drowning.

17. In Modi's Medical Jurisprudence and Toxicology, 24 th

Edition 2011, diatom test has been defined as under:­

"(f) Diatom Test: Finding of diatoms by microscopic examination of tissues like brain, liver or bone marrow from the femur or humerus, after acid digestion is also helpful in confirming death from drowning. Diatoms are a class of tiny unicellular algae of different shapes found in fresh or seawater. There are about 15,000 types of diatoms of which half are found in fresh water and the rest in seawater. They may be fan shaped (stellate), ribbon like and seen singly or in groups. They vary in size from 2m­1.0 millimeter, the usual size being 10.80m. They have hard siliceous, almost indestructible outer covering (frustule) and can pass through the alveolar valls of the lungs of a living person to the brain, liver and bone marrow. The diatom flora of the samples of water from the site of immersion must be carefully collected with special technique and compared with those found from the body to get a reliable report.

Learned author has further stated that diatom test

has certain limitations like diatoms could have been

inhaled or ingested with material containing diatoms

before death or aspirated water containing diatoms

or contamination of the glassware and reagents that

are used to detect diatoms. Limitation of diatom

test has been stated as under:­

• Diatoms can also be inhaled • Ingestion of material containing diatoms • Aspiration of water containing diatoms • Contamination of the glassware and reagents that are used to detect diatoms.

18. This Court in the matter of Pawan Kumar Pandey v. State

of C.G.2 has held qua diatom test as under:­

"25. When a body is recovered from water, there is usually a suspicion whether it was a case of ante­mortem or post­mortem drowning i.e. whether the body was drowned before or after death. To diagnose the cause of death in such cases, the diatom test is conducted. However, the diatom test is not confirmatory because diatom could be detected in the post­mortem drowning, if the same water in which the body was found was drunk by the deceased before the death. As per Modi's Medical Jurisprudence and Toxicology, 23rd Edition, water may not be present in the stomach, if the person died from sudden cardiac arrest or became unconscious immediately after falling into water, so that he could not struggle and swallow water in the act of drowning. It further says that the typical signs of drowning are seen only in the body of drowned person when it is removed from water within a few hours after death and examined immediately."

19. Reverting to the facts of the present case in light of

aforesaid legal proposition, it is quite established

that deceased Krishna Singh died by drowning. As per

medical report and postmortem report coupled with

statement of Dr.Deep Kumar (PW­12) and further as per

diatom test, it is death by drowning, but it has not

been established that it is only and only the appellant

who is author of the crime and who pushed the deceased

into water by which he drowned & died as statements of

2 2018(2) C.G.L.J. 99 (DB)

Sunil (PW­2) and Anil (PW­3) are contradictory to each

other with regard to the manner in which the appellant

is said to have murdered their brother Krishna Singh

and it also suffers from material omissions and their

case diary statement and there is delay of 3 days in

lodging the FIR and further delay of more than one

month in recording the statement of eyewitness Anil

(PW­3), which is fatal to the prosecution and which was

unsuccessfully explained by investigating officer C.

Kerketta (PW­11). (please see Harbeer Singh v.

Sheeshpal and others3).

20. In that view of the matter, we are of the considered

opinion that the learned trial Court is absolutely

unjustified in convicting and sentencing the appellant

for offence under Section 302 of the IPC. Accordingly,

the criminal appeal is allowed and conviction &

sentence of the appellant under Section 302 of the IPC

are hereby set aside, he 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.

21. Appeal has been filed by the appellant through High

Court Legal Aid Committee. In that view of the matter,

a copy of this judgment be sent to the appellant as

well as to the Superintendent of Jail wherein the

appellant is languishing and also sent to the

Secretary, High Court Legal Aid Committee and the

District Judge / Third Additional Sessions Judge,

3 (2016) 16 SCC 418

Surajpur for further needful action. It be also sent by

E­mail/fax.

           Sd/­                               Sd/­

      (Sanjay K. Agrawal)              (Sachin Singh Rajput)
            Judge                              Judge
B/­