Chattisgarh High Court
Chandan @ Chandramani vs State Of Chhattisgarh on 4 March, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 947 of 2015
Judgment Reserved on 10.02.2022
Judgment Delivered on 04.03.2022
Baldev @ Balbhadra S/o Gokul Harpal Aged About 26 Years R/o Krishna
Nagar, Kota, Police Station - Saraswati Nagar, Raipur, Civil And Revenue
District - Raipur Chhattisgarh.
---- Appellant (in jail)
Versus
State Of Chhattisgarh Through Station House Officer, Police Station
Amanaka, Raipur District - Raipur Chhattisgarh., Chhattisgarh.
--- Respondent
AND
Criminal Appeal No. 971 of 2015
Chandan @ Chandramani S/o Guddu Nayak Aged About 23 Years R/o
Krishna Nagar, Kota, Police Station Saraswati Nagar, Civil And Rev. Distt.
Raipur Chhattisgarh.
---- Appellant (in jail)
Versus
State Of Chhattisgarh Through Police Station Aamanaka, Raipur, Civil And
Rev. District Raipur Chhattisgarh.
--- Respondent
AND
Criminal Appeal No. 1008 of 2015
1. Chatur Dhruv S/o Radhe Shayam Dhruv @ Radhe Aged About 24 Years R/o
Rajiv Nagar, Mahoba Bazar, Police Station - Aamanaka, District - Raipur
Chhattisgarh.
2. Sanjay Dhruv S/o Santosh Dhruv Aged About 24 Years R/o Rajiv Nagar,
Mahoba Bazar, Police Station - Aamanaka, District - Raipur Chhattisgarh.
3. Ravi Netam @ Kanne S/o Raghu Lal Netam Aged About 24 Years R/o Rajiv
Nagar, Mahoba Bazar, Police Station - Aamanaka, District - Raipur
Chhattisgarh.
---- Appellants (in jail)
Versus
State Of Chhattisgarh Through Police Station Aamanaka, Raipur, District
Raipur Chhattisgarh.
--- Respondent
2
AND
Criminal Appeal No. 1095 of 2015
Abhinandan Mishra S/o Rajendra Mishra, Aged About 20 Years R/o Rajeev
Nagar Mahoba Bazar, Police Station Aamanaka, Civil And Revenue District
Raipur, Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh Through Police Station Aamanaka, Raipur, District
Raipur, Chhattisgarh.
--- Respondent
For the Appellants in
Cr.A. No.947 of 2015 &
Cr.A. No.1008 of 2015 : Shri Sachin Nidhi, Advocate.
For the Appellant in
Cr.A. No.971 of 2015 : Shri Amit Kumar Sahu, Advocate.
For the Appellant in
Cr.A. No.1095 of 2015 : Shri Rajnish Singh Baghel,
Advocate.
For the Respondent/ State : Shri Sudeep Kumar Verma,
Deputy Government Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Hon'ble Shri Justice Arvind Singh Chandel
CAV Judgment
Per R.C.S. Samant, J.
1. All these criminal appeals have been preferred against the impugned
judgment of conviction and order of sentence dated 22.7.2015 passed by the
Court of First Additional Sessions Judge, Raipur, District Raipur,
Chhattisgarh in Sessions Trial No. 228 of 2014, in which appellant - Chatur
Dhruv (Criminal Appeal No. 1008 of 2015) was convicted for the offence
under Section 302 of the Indian Penal Code (for short 'the IPC') and rest of
the appellants in all the appeals were convicted under Section 302 read with
Section 34 of the IPC and all of them were sentenced with life imprisonment
and to pay fine of Rs.25,000/- each and in default of payment of fine, to
further undergo additional RI for two years.
2. The prosecution case, in brief, is that on 10.8.2014 at about 3:00 pm,
Ashuram Dhruv (deceased) alongwith Vikas Sahu (PW-2) and Bhupendra
Dhruv (PW-1) were on their way to home. They found the appellants
drinking and eating on the middle of the road and they had parked their
motorcycle nearby obstructing the road. The deceased and his associates
asked the appellants to give them way, on which, appellant - Chatur Dhruv
brandished a knife and threatened to kill them. The deceased and his
associates came back to his house. Ashuram Dhruv (deceased) was
enraged because of the conduct of appellant - Chatur Dhruv. He then armed
himself with a rod and went to the spot where the appellants were eating and
drinking. Seeing Ashuram Dhruv and his associates, the appellants abused
them, thrashed them and in between when this was going on, appellant -
Chatur Dhruv took out his knife and stabbed Ashuram Dhruv on his chest,
who fell down bleeding.
3. Vikas Sahu (PW-2) and Ashwani Dhruv came to rescue Ashuram
Dhruv (deceased), who was immediately taken to Medical College Hospital,
Raipur, in an ambulance where he was declared dead. Bhupendra Dhruv
(PW-1) lodged the morgue Intimation vide Ex. P/1 in police station Amanaka,
Raipur and on his information, the First Information Report (Ex.P/2) was also
lodged against appellants - Chatur Dhruv, Sanjay Dhruv and others. The
police conducted the inquest procedure in which crime details form vide
Ex.P/3 was prepared. Blood-stained soil and plain soil were seized from the
spot of the incident vide Ex.P/4. The dead-body of the deceased was
subjected to postmortem examination vide Ex.P/6. Dr. S.K. Bagh (PW-4)
has opined that the cause of death was shock due to haemorrhage caused
by the stab wound found on the chest of the deceased. Viscera of the
deceased was preserved which was seized vide Ex.P/8. Appellant - Chatur
Dhruv was apprehended and interrogated by the police and his
memorandum statement Ex.P/10 was recorded, in which he made a
statement for discovery of the knife. At the instance of appellant - Chatur
Dhruv, one knife was seized vide Ex.P/11. The blood-stained clothes of
appellant - Baldev @ Balbhadra were also seized. The appellants were
formally arrested. Statements of the witnesses were recorded under Section
161 of the Cr.P.C. and on completion of the investigation, the charge-sheet
was filed before the concerned Court.
4. The trial Court framed charge against appellant - Chatur Dhruv under
Section 302 of the IPC and the charges were framed against rest of the
appellants under Section 302 read with Section 34 of the IPC. All the
appellants denied the charges framed against them. The appellants pleaded
innocence. The prosecution has examined as many as 10 witnesses. On
completion of prosecution evidence, the appellants were examined under
Section 313 of the Cr.P.C., in which the appellants denied all the
incriminating evidence against them and further, they made a statement of
innocence and false implication. No witness was examined in the defence.
After giving an opportunity of hearing to the prosecution and defence, the
learned trial Court delivered the impugned judgment by convicting and
sentencing the appellants in the manner mentioned herein-above.
5. It is submitted by counsel for the appellants in CRA No.947/2015,
1008/2015 and 1095/2015 that the conviction against the appellants is
baseless and without any evidence of the prosecution beyond reasonable
doubt. Bhupendra Dhruv (PW-1), who is an eyewitness, was declared
hostile by the prosecution, therefore, he was not a reliable witness. Similarly,
other witness - Sunil Sahni (PW-3) has also not supported the prosecution
case. Further, according to the statement given by Vikas Sahu (PW-2) in his
cross-examination, it was the deceased who had attacked appellant -
Chatur Dhruv, who has then reacted, therefore, the case against appellant -
Chatur Dhruv does not fall under Section 302 of the IPC, but it is a case of
exception. Hence, his conviction may be possible either under Section 304
part I of the IPC or under Section 304 part II of the IPC, as there is evidence
present that appellant - Chatur Dhruv was assaulted first by the deceased.
Reliance has been placed on the judgment of Madras High Court in
the case of Muthu vs. State of Tamil Nadu, reported in (2007) ILLJ 9 MAD.
Reliance has also been placed on the judgment of Supreme Court in the
case of K. Ravi Kumar vs. State of Karnataka, reported in (2015) 2 SCC
638 and the judgment of this Court in the case of Smt. Usha Bai and Ors.
vs. State of Chhattisgarh, reported in 2019 (3) CGLJ 132.
It is further submitted that appellant - Chatur Dhruv had no intention to
cause death of the deceased and according to the circumstances, it became
inevitable for him to defend himself in which, he inflicted the knife injuries to
the deceased, which turned out to be fatal. Hence, prayer has been made
that the appeal be allowed and the conviction and sentence against
appellant - Chatur Dhruv be reduced. There is no evidence of any overt-act
regarding the other appellants, hence, they are entitled to be acquitted.
6. It is submitted by counsel for the appellant on behalf of appellant -
Chandan @ Chandramani in Cr.A. No. 971 of 2015 that this appellant has
been arrayed as an accused on the basis of the memorandum statement
given by the co-accused persons. No Test Identification Parade was held to
identify this appellant and further, the evidence itself does not mention about
any overt-act of this appellant. It is prayed that this appellant may be
acquitted of the charge.
7. Learned State counsel opposes the submissions and submits that the
prosecution has proved its case beyond reasonable doubt. Bhupendra
Dhruv (PW-1) has partially supported the prosecution case and further, the
evidence of Vikas Sahu (PW-2) is clear and categorical. Although, there is
no test identification parade conducted in the investigation, but the dock
identification of the appellants by Vikas Sahu (PW-2) has not been
specifically challenged by the defence in cross-examination. Similarly, dock
identification has also been made by Bhupendra Dhruv (PW-1) and non-
conducting of Test Identification Parade is not fatal, if the other evidence in
this regard is convincing and it inspires confidence. Further, the witnesses
of search and seizure have turned hostile, but the memorandum and seizure
from appellant - Chatur Dhruv has been proved by Inspector -
Smt. Vaijayantimala Tigga (PW-10), who is a reliable witness. It is further
submitted that the stab injury inflicted upon the deceased has proved fatal
which shows that there was an intention for causing death of the deceased.
Appellant - Chatur Dhruv was armed with the knife and it was in the
knowledge of the other appellants. None of them made any attempt to stop
appellant - Chatur Dhruv and continued to be his associates until the injury
was inflicted to the deceased, therefore, it is a clear case of murder with
common intention. Learned trial Court has not committed any error in
convicting and sentencing the appellants. Hence, the appeals be dismissed.
8. Heard counsel for both the parties and perused the documents
present on record.
9. Death of deceased - Ashuram Dhruv due to stab injury is not
disputed. Further, it is also not disputed that it was appellant - Chatur Dhruv
who had inflicted the stab injury on the person of the deceased which has
resulted in his death. The question raised regarding the identification of all
the appellants is dealt with first. Bhupendra Dhruv (PW-1) has deposed
before the Court that he knows appellant - Chatur Dhruv by name and he
had seen the other appellants at the time of incident. He is the person who
had lodged the morgue intimation Ex. P/1 and FIR Ex. P/2. In the FIR
Ex.P/2 there is mention of only two names, namely, Chatur Dhruv and
Sanjay Dhruv and their associates who are unnamed. The prosecution has
declared this witness hostile on some aspects and the prosecutor has put
leading questions in which, he has admitted that appellant - Chatur Dhruv,
Sanjay Dhruv, a one-eyed boy and three others were present on the spot
eating and drinking. He has also admitted other suggestions given. In
cross-examination, no question has been put to him on the point of
identification of the appellants/ accused persons in the dock. On one
suggestion of the defence counsel, he has admitted that no identification of
the appellants was conducted in the police station, but not a single
suggestion has been given regarding incorrect identification of the appellants
in the dock or that any of the appellant was not present on the spot and had
not participated in the incident, therefore, his statement regarding
identification of all the appellants is intact and unrebutted.
10. Vikas Sahu (PW-2) does not know any of the appellants by name.
Further, he has stated that he knows the appellant who had inflicted knife
injury by face and similarly, he knows the other appellants by face only. In
cross-examination, question has been put regarding the identification of the
appellants made by the witness in this Court. Some discrepancies had been
pointed out in his Court statement compared to his previous statement
Ex.D/1 which are not material. Hence, the dock identification made by this
witness is totally unrebutted and unchallenged and there is no reason to
disbelieve the same. The other witness of the spot Sunil Sahni (PW-3) has
stated that it were the appellants who were having some arguments with the
deceased and one of the appellants had brandished the knife. He has not
given any further statement because of which, he has been declared hostile,
however, he has partially supported the prosecution case. In the cross-
examination of this witness, there is also no suggestion given or no question
put on the basis of which, his statement regarding presence of all the
appellants on the spot where they were arguing with the deceased appears
to be unchallenged statement.
11. In the case of Ravi Kapur vs. State of Rajasthan, reported in (2012)
9 SCC 84, it was held by the Supreme Court that the Code of Criminal
Procedure does not oblige the investigating agency to necessarily hold the
test identification parade without exception. It was further held that the
Identification Parade is a tool of investigation and is used primarily to
strengthen the case of the prosecution on the one hand and to make doubly
sure that persons named accused in the case are actually the culprits. The
Identification Parade primarily belongs to the stage of investigation by the
police. In the case of Suraj Pal vs. State of Haryana, reported in 1995
SCC (2) 64, it has been held that the dock identification is acceptable, if it is
otherwise found to be reliable and it has been similarly held in the case of
Manju vs. State of NCT of Delhi, reported in 2010 (6) SCC 1, in which, it
was held by the Supreme Court that the identification of the accused in the
dock for the first time would be permissible subject to confirmation by other
corroborative evidence.
12. The evidence in this case has to be examined in the light of this
direction. The incident in this case has occurred on 10.8.2014. Witnesses -
Bhupendra Dhruv (PW-1) and Vikas Sahu (PW-2) were examined on
2.2.2015 i.e. just after an interval of about 4 months. Another witness Sunil
Sahni (PW-3) was examined on 3.2.2015, therefore, there was no inordinate
delay between the date of incident and the examination of the witnesses
before the Court. Further, the unchallenged statements of PW-1, 2 & 3 on
the point of dock identification of the appellants is also a reason which needs
to be considered. On this basis, it is held that the evidence of dock
identification of all the appellants in the Court inspires confidence and there
is no reason to hold otherwise.
13. The other submission regarding the offence committed not being
covered under the definitions of murder is taken into consideration.
Bhupendra Dhruv (PW-1) has stated in his examination-in-chief that after the
first incident when appellant - Chatur Dhruv brandished a knife to the
deceased, deceased - Ashuram Dhruv came to his house got himself armed
with some wire/rod like object and the witness also armed himself with a club
and they rushed to the spot where the appellants were drinking and eating.
It was after that the deceased was stabbed with knife by appellant - Chatur
Dhruv. He has stated that Ashu Dhruv(deceased) was very much enraged
and expressed his intention to go back and thrash the appellants. When the
witness showed his disagreement, the deceased said that he will go alone,
then the witness accompanied to the spot. In cross-examination, he has
admitted that deceased - Ashuram Dhruv had hit with the rod on the back of
appellant - Chatur Dhruv. Later on, he had changed his statement that he
did not saw deceased - Ashuram Dhruv hitting the appellant - Chatur Dhruv.
Sunil Sahni (PW-3) has not made any statement in this respect and there is
no other witness to explain this circumstance. On appreciating this evidence
of the circumstance which is showing that deceased - Ashuram Dhruv got
enraged and was out of control who armed himself with something and
rushed to the spot who was followed by Bhupendra Dhruv (PW-1) and Vikas
Sahu (PW-2) and then the incident occurred. This fact that the deceased
himself was armed with something because of which, appellant - Chatur
Dhruv and others may have had an apprehension. Hence, it can be
regarded as an act of sudden provocation. As there is no evidence to
suggest that any fight had taken place between the appellants and the
deceased and his associates, the only case present is that the appellants
got provocated because of the act of the deceased himself who came
rushing armed with a rod like substance and the apprehension of being
attacked itself was a provocation enough to act in the manner in which
appellant - Chatur Dhruv has acted. Hence, it is a case under exception 1
of Section 300 of IPC and therefore, the act of appellant - Chatur Dhruv
appears to be covered under Section 304 part I of the IPC.
14. It has been argued by the counsel for appellants that the appellants/accused
persons apart from Chatur Dhruv had not participated in the commission of offence
and there is no evidence of any overt act present against them. Bhupendra Dhruv
PW-1 has stated that he was acquainted only with appellant Chatur Dhruv. He has
denied knowledge about as to who had inflicted life injury on the deceased. This
witness was declared hostile by the prosecution and leading questions were put to
him, but he has not made any allegation accepting that appellant Sanjay took him
to the side and there is no explanation as to why he was taken to the side. Vikas
Sahu is an eyewitness of incident, who has stated that he followed deceased Ashu
to the spot and saw that appellant Sanjay took Bhupendra to side. Another
appellant Ravi Netam and appellant Chatur Dhruv both took Aashu with them.
Then he saw that appellant Ravi caught hold of Aashu and appellant Chatur Dhruv
stabbed him on his chest twice. Ravi Netam also caught hold of Sonu, brother of
deceased Aashu, who was also stabbed with knife by appellant Chatur Dhruv.
During this incident, remaining appellants namely-Baldev @ Balbhadra, Chandan
@ Chandramani, Sanjay Dhruv fled from the spot on their motorcycle leaving
behind appellant-Chatur Dhruv and Ravi Netam. In cross-examination, he has
denied all adverse suggestions. He was confronted with his previous statement
Ex.D-1, according to which, his statement before the Court regarding active
participation of appellant Ravi Netam in catching hold of the deceased first and
then catching hold of Sonu appears to be an improved statement, therefore, this
statement cannot be held believable and acceptable. Sunil Sahni PW-3 has not
stated anything specifically regarding participation of other appellants excepting
the appellant Chatur Dhruv. The prosecutor had put specific asked leading
question to him, that he saw Chatur Dhruv and others who had inflicted knife injury
on Aashu Dhruv, deceased, on which the witness has replied that Chatur Dhruv
had inflicted knife injury on the deceased.
15. Presence of all appellants on spot is proved. Bhupendra Dhruv PW-1, Vikas
Sahu PW-2 and Sunil Sahni PW-3 are the only witnesses who have seen the
incident. Bhupendra Dhruv PW-1 has not made any specific statement regarding
participation of appellants except appellant Chatur Dhruv. PW-2 Vikas Sahu made
an improved statement in the Court stating about active participation of Ravi
Netam, which cannot be taken into consideration. He has made other statement in
his examination-in-chief, that during continuation of the incident, remaining
appellants other than Chatur Dhruv and Ravi Netam had fled from the spot. The
question is whether presence of all appellants other than Chatur Dhruv can be
regarded as such that they are also responsible for the offence committed or not?
16. Section 34 of IPC is reproduced as follows:-
"[34.Acts done by several persons in furtherance of common
intention. --When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were
done by him alone.]".
17. Section 34 of IPC explains how a person shall be regarded to have furthered
the common intention. This provision clearly speaks that acts have to be done by
several persons in furtherance of common intention. After scrutiny of the evidence
of eyewitnesses, we are of the view that the appellants other than Chatur Dhruv,
had not acted in any manner at the time of incident either by encouraging
appellant Chatur Dhruv or uttering any words or acting in any manner on the basis
of which it can be held that they have acted in furtherance of common intention. In
the case of Shankarlal Kachrabhai and Others vs State Of Gujarat, reported in AIR
1965 SC 1260. The three judge Bench held in paragraph No.5 as follows:-
"To appreciate the argument of the learned counsel it would
be convenient at this stage to note exactly the finding given
by the High Court. The High Court found that the common
intention of the accused was to kill Madha, that accused 1 to
4 shot at Rama mistaking him for Madha, as Rama had
dressed himself in the habiliments similar to those in which
Madha used to dress himself and, therefore, the accused
shot at Rama under the mistaken belief that be was Madha.
Section 34 of the Indian Penal Code reads "When a criminal
act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone."
"To invoke the aid of s. 34 successfully, it must be shown that
the criminal act complained against was done by one of the
accused persons in the furtherance of the common intention
of all; if this is shown, then liability for the crime may be
imposed on any one of the persons in the same manner as if
the act were done by him alone. This being the principle, it is
clear to their Lordships that common intention within the
meaning of the section implies a pre-arranged plan, and to
convict the accused of an offence applying the section it
should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan. As has been often
observed, it is difficult, if not impossible, to procure direct
evidence to prove the intention of an individual; in most
cases it has to be inferred from his act or conduct or other
relevant circumstances of the case."
Present is a similar case. There is no evidence of overt act regarding
participation of appellants other than Chatur Dhruv. There is also no
evidence regarding conduct of appellants other than Chatur Dhruv in the
commission of offence that has been committed. Therefore, the prosecution
has failed to prove the case against appellant Baldev @ Balbhadra,
Chandan @ Chandramani, Sanjay Dhruv, Ravi Netam and Abhinandan
Mishra. Hence, these appellants are entitled for acquittal.
18. After considering the submissions, facts and circumstances and the
evidence present in the case, we are of the considered view that the
conviction against the appellant Chatur Dhruv is required to be modified.
Hence, the appeal of Chatur Dhruv is allowed in part. The conviction and
sentence against the appellant Chatur Dhruv under Section 302 of the IPC is
set aside and instead he is convicted under Section 304 part I of the IPC.
Appellant - Chatur Dhruv in Cr.A. No.1008 of 2015 is ordered to be
sentenced with rigorous imprisonment of 10 years for the offence under
Section 304 part I of the IPC alongwith fine of Rs.5000/-. The appellant
Chatur Dhruv shall be required to undergo further, detention of 1 year of RI
in case the fine amount is not paid by him.
19. CRA No.947/2015 by appellant Baldev @ Balbhadra, CRA
No.971/2015 by appellant Chandan @ Chandramani, CRA No.1008/2015 by
appellant Sanjay Dhruv and Ravi Netam and CRA No.1095/2015 by
appellant Abhinandan Mishra are allowed. These appellants are acquitted of
all the charges levelled against them. The fine amount, if any, paid by them
shall be refunded to them. These appellants are on bail. The bail bonds
furnished by them shall remain in force for a further period of 6 months.
20. Accordingly, these appeals stands disposed of.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
/
Nimmi Nisha
