Chattisgarh High Court
Amit Singh vs State Of Chhattisgarh on 9 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 52 of 2013
Judgment Reserved On : 31/10/2022
Judgment Delivered On : 09/11/2022
• Amit Singh S/o Ramsnehi Singh Aged About 19 Years R/o Hardware
Line, Supela Bhilai, Ps Supela, Distt Durg, Cg
---- Appellant
Versus
• State Of Chhattisgarh Through PS Supela, Distt Durg, Cg,
---- Respondent
CRA No. 3 of 2014
• Murli S/o Deodas Bharti Aged About 20 Years R/o Shastri Nagar,
Camp-1, Bhilai, Ps Supela, Distt. Civil And Rev. Distt. Durg C.G.
---- Appellant
Versus
• State Of Chhattisgarh Through Ps Supela, Distt. Civil And Rev. Durg
C.G.
---- Respondent
For Appellants : Shri Rajesh Jain and Smt. Kiran Jain, Advocates.
For Respondent : Shri Arjit Tiwari, Panel Lawyer.
Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Shri Deepak Kumar Tiwari, JJ
CAV JUDGMENT
Deepak Kumar Tiwari, J
1. By these Appeals under Section 374 (2) of the CrPC, the appellants
herein would call in question the legality, validity and correctness of the
impugned judgment dated 20.12.2012 passed by the 3rd ASJ, Durg in
ST No.197/2011 whereby the appellants have been convicted and
sentenced as under:-
Conviction Sentence
Section 147 of the IPC RI for 6 months
Section 148 of the IPC RI for 6 months
For accused Amit Singh RI for 1 year
Section 324/149 of the IPC
For accused Murli Section 324
of the IPC RI for 1 year
Section 302/149 of the RI for life & fine of
IPC Rs.1,000/-, in default, RI
for 6 months
2. Case of the prosecution, in brief, is that injured Jaiyo Sona (PW-2)
lodged an FIR on 9.6.2011 at 8.15 pm at Police Station Supela, District
Durg, vide Ex.-P/2 stating that 3 days prior to the date of incident, a
quarrel took place between the deceased Gopi and co-accused Pintu, a
juvenile in conflict with law and on the date of incident i.e. 9.6.2011 at
7.45 pm when he and deceased Gopi, after finishing the work of glass
house, were returning to their home, near Supela house, Nehru Bhawan
Road, Pintu and 2 other friends, whose names he was not aware,
stopped them on the way and started quarrelling by abusing in filthy
language in the name of mother and sister and also threatened them to
kill. When deceased Gopi objected for the same, Pintu, who was hiding
a knife in his waist, took out the same and started assaulting Gopi in his
back for 5-6 times. When he tried to save him, Pintu also assaulted in
his back 3-4 times. Friend of Pintu caught hands of deceased Gopi.
Deceased Gopi immediately fell down and blood started oozing out
from his back. When he shouted, the accused persons ran away.
Deceased Gopi became unconscious and nearby people took him to the
District Hospital, Durg. The deceased was primarily examined by Dr.
Smt. B.N. Wahne (PW-5) at Government Hospital, Supela vide
Ex.-P/19, from where he was referred to Sector-9 Hospital, Bhilai. The
deceased died during treatment on 9.6.2011 at 10.30 hours. Merg
intimation (Ex.-P/33) was given by K.K. Dixit (PW-16). Injured Jaiyo
Sona (PW-2) was also medically examined vide Ex.-P/26 by Dr. B.P.
Tiwari (PW-9). The postmortem was conducted on the dead body of
the deceased vide Ex.-P/38 by Dr. A.K. Mishra (PW-17), who opined
that the cause of death is due to shock and haemorrhage as a result of
ante-mortem stab injury. In the FSL report (Ex.-P-/31), knife seized
from appellant Amit Singh and Juvenile Shambhu contained blood
stains.
3. During investigation, statements of witnesses were recorded. Clothes of
the deceased and the injured were seized which contained blood stains.
Identification proceeding of the accused persons was conducted vide
Ex.-P/23 wherein the injured identified the accused persons and at his
instance, the accused persons and 5 juveniles in conflict with law
namely, Pintu, Navin Agrawal, Shambhu Prasad, Rahul Gautam and
Vikky @ Saurabh Das were arrested. On the basis of memorandum
statements (Ex.-P/5 to Ex.-P/9), blood stained two knives were
recovered from appellant Amit Singh and Shambhu Prasad (juvenile)
and the wearing apparels of the accused persons containing blood stains
were seized. Blood stained soil and plain soil were seized from the
place of occurrence in presence of witnesses. The weapon of offence
i.e. knife was sent for examination to ascertain whether death and
injuries could be caused by the said weapon. Spot map was prepared.
Clothes of the accused persons, deceased and the injured, as also the
weapon of offence i.e. knife were sent for chemical examination to the
FSL, Raipur.
4. After completing investigation, charge sheet was filed and the case was
committed to the Sessions Court for trial in respect of the present
appellants. However, trial in respect of accused persons namely, Pintu,
Navin Agrawal, Shambhu Prasad, Rahul Gautam and Vikky @ Saurabh
Das was conducted separately before the Juvenile Justice Board since
they were juveniles on the date of the incident. The appellants abjured
their guilt. In their statements recorded under Section 313 of the CrPC,
the appellants pleaded innocence and false implication.
5. In order to prove its case, the prosecution has examined as many as 17
witnesses and exhibited 38 documents. The appellants have not
adduced any evidence and exhibited 3 documents.
6. After completion of trial and after appreciating the oral and
documentary evidence on record, the appellants were convicted and
sentenced as mentioned above, against which these Appeals have been
preferred by them.
7. Shri Rajesh Jain, learned counsel for the appellants would submit that
the trial Court has not appreciated the evidence in proper perspective.
There are various contradictions and omissions in the evidence of star
witness namely, Jaiyo Sona (PW-2). Except Jaiyo Sona (PW-2), no
independent witness has supported the case of the prosecution. Even
the memorandum and seizure witnesses have turned hostile and not
supported the case of the prosecution. There is no recovery from
appellant Murli and knife was recovered from accused Amit Singh
which contained blood stains, however, the prosecution has failed to
produce serologist report to establish that the blood found on the knife
is human blood and also not determined the origin of the blood. He
would further submit that according to the case of the prosecution,
accused Pintu (juvenile) assaulted the deceased and accused Murli
assaulted Jaiyo Sona (PW-2). It is not the case of the prosecution that
appellant Amit Singh assaulted the deceased or injured witness Jaiyo
Sona (PW-2). Therefore, considering the aforesaid infirmities, it may
be held that the prosecution has entirely failed to prove its case beyond
reasonable doubt. So, learned counsel prays to allow the Appeals and
set aside the impugned judgment.
8. Per contra, learned State Counsel supported the impugned judgment on
submission that the prosecution has been able to prove its case beyond
all reasonable doubt by leading clinching evidence and the trial Court
has correctly convicted the accused/appellants for the offences
mentioned hereinabove. Thus, the present Appeals deserve to be
dismissed.
9. We have heard learned counsel for the parties, considered their rival
submissions and have gone through the records with utmost
circumspection.
10. The first and foremost question for consideration is as to whether the
death of deceased Gopi was homicidal in nature and Jaiyo Sona (PW-2)
was caused injury by the sharp edged knife? The trial Court has
recorded an affirmative finding with respect to this question on the basis
of postmortem report (Ex.-P/38) of the deceased wherein Dr. A.K.
Mishra (PW-17), who has conducted the postmortem, has opined that
the cause of death is shock and haemorrhage as a result of ante-mortem
stab injury on the right side of abdomen. K.K. Dixit (PW-16) has given
medico legal information on 10.6.2011 at 10.30 am stating that the
deceased died on account of stab injury on 9.6.2011 at 10.30 hours.
Upon such information, merg intimation (Ex.-P/37) was recorded at
Police Station Bhilai Nagar by (PW-13) Ishwar Lal Yadav, ASI. Dr.
Smt. B.N. Vahne (PW-5) had initially examined the deceased on the
date of the incident i.e. 9.6.2011 at 8.20 pm at Government Hospital,
Supela. Due to critical condition, the deceased was referred to higher
centre and the deceased died on the same day at 10.30 pm at Sector-9
Hospital, Bhilai. (PW-5) Dr. Smt. Vahne had also examined the knife
and opined that the death may be caused by the said weapon vide Ex.-P/
19. (PW-9) Dr. B.P. Tiwari has examined injured Jaiyo Sona (PW-2)
vide Ex.-P/26 and found 3 incised injuries caused by the hard and sharp
object. He has also examined the knife seized and answered the query
report (Ex.-P/27) that the injury suffered by deceased Gopi and injured
Jaiyo Sona (PW-2) may be caused by the knife seized from Pintu
(juvenile) and accused Murli.
11. Having considered the aforesaid medical evidence and the fact that the
defence has not seriously challenged the said finding, we are of the
considered opinion that the learned trial Court is justified in holding that
the death of the deceased is homicidal in nature and Jaiyo Sona (PW-2)
was caused injury by the sharp edged knife and the same is correct
finding of fact based on evidence and the same is neither perverse nor
contrary to the record. We accordingly affirm the said finding.
12. Now the next question for consideration is whether the appellants are
perpetrator of the crime in question?
13. In the matter of Harbeer Singh v. Sheeshpal, {(2016) 16 SCC 418}, the
Hon'ble Supreme Court has reiterated the well settled principles that
burden of proving its case beyond all reasonable doubt lies on the
prosecution and it never shifts, and observed in para-11 as under:-
"11. It is a cardinal principle of criminal jurisprudence
that the guilt of the accused must be proved beyond all
reasonable doubt. The burden of proving its case
beyond all reasonable doubt lies on the prosecution and
it never shifts. Another golden thread which runs
through the web of the administration of justice in
criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted.
(Vide Kali Ram v. State of H.P. [Kali Ram v. State of
H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ; State
of Rajasthan v. Raja Ram [State of Rajasthan v. Raja
Ram, (2003) 8 SCC 180 : 2003 SCC (Cri)
1965] ; Chandrappa v. State of
Karnataka [Chandrappa v. State of Karnataka, (2007)
4 SCC 415 : (2007) 2 SCC (Cri) 325] ; Upendra
Pradhan v. State of Orissa [Upendra Pradhan v. State
of Orissa, (2015) 11 SCC 124 : (2015) 4 SCC (Cri)
309] and Golbar Hussain v. State of Assam [Golbar
Hussain v. State of Assam, (2015) 11 SCC 242 : (2015)
4 SCC (Cri) 384] .)"
14. Taking into consideration the aforesaid principle, we shall now examine
the evidence led by the prosecution. Jaiyo Sona (PW-2), who has also
received injuries in the said incident, is the only eyewitness in the case
and he has lodged the FIR (Ex.-P/2) on the date of incident itself i.e.
9.6.2011 at 8.15 pm at Police Station Supela. (PW-7) JN Pandey, ASI,
who has recorded the said FIR, has categorically stated that the said
witness has named only Pintu and 2 others, who have caused injury to
the deceased and Jaiyo Sona (PW-2). Jaiyo Sona (PW-2) in his cross-
examination has stated that he has neither read the contents of the FIR
(Ex.-P/2) nor was he explained the contents of the FIR. He further
denies that at the time of lodging the report (Ex.-P/2), he has named
only 3 persons i.e. Pintu and his 2 friends and has stated that he has
named Pintu and his 5-6 friends. Later on, he corrected his version in
para-11 and stated that while lodging the report, he has named only
Pintu and no other person was named by him. He has further corrected
his version in para-14 and has stated that at the time of recording the
report (Ex.-P/2), he has given information to the Police Station that
Pintu and his 6 other friends stopped them on the way, however, if the
said fact was not recorded in the report (Ex.-P/2), he does not know the
reason.
15. Jaiyo Sona (PW-2) has not named appellant Murli in the FIR (Ex.-P/2)
and he specifically asserted that Pintu has caused the injury to deceased
Gopi and when he tried to save him, he was also assaulted by Pintu and
his friends. In the FIR (Ex.-P/2), Jaiyo Sona (PW-2) has specifically
stated that Pintu has caused stab injury to deceased Gopi and to him in
his back. During his deposition, he has changed the story and stated
that Pintu has caused stab injury to deceased Gopi and appellant Murli
has assaulted him by means of knife on his left waist and back of right
shoulder. He has named Murli for the first time while recording his
statement under Section 161 CrPC. In his cross-examination, he has
failed to explain as to who has named the appellant Murli and stated
that at the time of hospitalization after the incident, he heard the name
of appellant Murli, so he disclosed his name at the time of recording of
his statement. (PW-8) Shivanand Tiwari, Sub Inspector, has
categorically admitted the fact that he has recorded the statement of
injured Jaiyo Sona (PW-2) prior to the Test Identification Parade (Ex.-P/
23).
16. During test identification parade (Ex.-P/23), Jaiyo Sona (PW-2) has
identified the appellant Amit Singh and Murli with 4 others juveniles.
The TIP was conducted by the Executive Magistrate namely, Shrikant
Verma (PW-10) on 10.6.2011 during 11.45 to 12.15 hours at District
Hospital, Durg. Jaiyo Sona (PW-2) in his Court statement again
changed his version to save the appellant Amit Singh and categorically
stated that except Amit, other accused persons started beating them. He
further deposed to such an extent that appellant Amit came for their
rescue. He has further resiled from his earlier police statement
(Ex.-D/1) and stated that he has not named the appellant Amit. This
witness has not been declared hostile by the prosecution on this point.
Therefore, the evidence given by the star witness i.e. Jaiyo Sona (PW-2)
demolishes the case of the prosecution that appellant Amit is also one of
the assailants.
17. (PW-12) Smt. Reeta Naik, who is the sister-in-law (Bhabhi) of the
deceased Gopi, has stated that on 9.6.2011, i.e. the date of the incident,
she was at her home and deceased Gopi came alone in an injured
condition. At that time, he has disclosed the name of Pintu and Rahul,
who have caused injury to him and also stated that after recovery, he
would tell the names of others. This witness was also not declared
hostile by the prosecution. In her statement, only two persons i.e. Pintu
and Rahul (Juveniles) were named by the deceased after the occurrence.
18. The prosecution has not examined any other witness except injured
Jaiyo Sona (PW-2) and (PW-12) Smt. Reeta Naik. Jaiyo Sona (PW-2)
has stated in his evidence that near the place of incident various shops
are situated and at late night i.e. at 11 pm normally public are present on
such spot. Memorandum and seizure witness namely Khirashendu
Sona (PW-3) and Gokul (PW-4) have turned hostile and not supported
the case of the prosecution about the memorandums (Ex.-P/5 to P/9)
and seizure of articles vide Ex.-P/10 to P/14. Though in the FSL report
(Ex.-P/31) blood stain was found on the knives seized from the
appellant Amit and juvenile Shambhu, but no serologist report has been
produced by the prosecution to show that the blood found on the knives
was human blood. So, the prosecution fails to prove that the knife
seized from appellant Amit was actually used in commission of crime.
19. In the matter of Joseph v. State of Kerala, {(2003) 1 SCC 465}, their
lordships of the Supreme Court has laid down the principle that where
there is a sole witness to the incident, his evidence has to be accepted
with an amount of caution and after testing it on the touchstone of
evidence tendered by other witnesses or the material evidence placed on
record and following was observed at para 13 :-
"13...................Section 134 of the Indian Evidence Act
provides that no particular number of witnesses shall
in any case be required for the proof of any fact and,
therefore, it is permissible for a court to record and
sustain a conviction on the evidence of a solitary
eyewitness. But, at the same time, such a course can
be adopted only if the evidence tendered by such
witness is cogent, reliable and in tune with
probabilities and inspires implicit confidence. By this
standard, when the prosecution case rests mainly on
the sole testimony of an eyewitness, it should be
wholly reliable. Even though such witness is an
injured witness and his presence may not be seriously
doubted, when his evidence is in conflict with other
evidence, the view taken by the trial court that it
would be unsafe to convict the accused on his sole
testimony cannot be stated to be unreasonable."
20. In the matter of State of Haryana v. Inder Singh, {(2002) 9 SCC 537}
(SCC p.538, para 5), it was held that it is not the quantity but the quality
of the witnesses which matters for determining the guilt or innocence of
the accused. The testimony of a sole witness must be confidence-
inspiring and beyond suspicion, thus, leaving no doubt in the mind of
the Court.
21. In the case of Ramnaresh v. State of Chhattisgarh, {(2012) 4 SCC
257} their lordships after referring the judgments in the matters of
Joseph (supra) and Inder Singh (supra) finally held as under :
"27. The principles stated in these judgments are
indisputable. None of these judgments say that the
testimony of the sole eyewitness cannot be relied upon
or conviction of an accused cannot be based upon the
statement of the sole eyewitness to the crime. All that is
needed is that the statement of the sole eyewitness
should be reliable, should not leave any doubt in the
mind of the court and has to be corroborated by other
evidence produced by the prosecution in relation to
commission of the crime and involvement of the
accused in committing such a crime."
22. In the case of Amar Singh v. State (NCT of Delhi), {(2020) 19 SCC
165} the following was observed at para-16:
"16. Thus, the finding of guilt of the two appellant-
accused recorded by the two courts below is based on
sole testimony of eyewitness PW 1. As a general rule
the court can and may act on the testimony of single
eyewitness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of
Section 134 of the Evidence Act, 1872. But if there are
doubts about the testimony, the courts will insist on
corroboration. It is not the number, the quantity but
quality that is material. The time-honoured principle is
that evidence has to be weighed and not counted. On
this principle stands the edifice of Section 134 of the
Evidence Act. The test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy or
otherwise [see Sunil Kumar v. State (NCT of
Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11
SCC 367 : 2004 SCC (Cri) 1055] ]."
23. Taking into consideration the aforesaid guiding principles laid down by
the Hon'ble Supreme Court, it is established law that the Court can and
may act on the testimony of single eyewitness provided he is wholly
reliable. In the present case, Jaiyo Sona (PW-2), injured eyewitness,
has not named the appellants in the FIR and on the later part of his
deposition improvised his version and also increased the number of
assailants. He also changed the story and mentioned the name of Murli
as an assailant. Though the prosecution has conducted the test
identification parade vide Ex.-P/23 to ascertain the real assailants, as
Jaiyo Sona (PW-2) has not named the other accused persons in the FIR
except the name of Pintu, but prior to test identification parade, in the
police statement, he has named appellant Murli, but failed to
satisfactorily explained as to from which source he has come to know
the name of appellant Murli, though in the report (Ex.-P/2), he has
categorically stated that Pintu has assaulted him and deceased Gopi. He
has further materially changed the story of the prosecution and stated
that appellant Amit has not participated in any manner as assailant.
Considering the aforesaid infirmities, contradictions and omissions,
which are material in character, his evidence is not cogent, credible and
trustworthy to inspire confidence of the Court. He is not wholly reliable
witness.
24. The test identification parade is only a supporting evidence and not
substantive piece of evidence. The aforesaid principle has been held in
the matter of Sampat Tatyada Shinde v. State of Maharashtra, {(1974)
4 SCC 213} and the following was held at para-16 :
"16. The evidence of test identification is admissible
under Section 9 of the Evidence Act; it is, at best,
supporting evidence. It can be used only to corroborate
the substantive evidence given by the witnesses in
Court regarding identification of the accused as the
doer of the criminal act. The earlier identification made
by the witnesses at the test identification parade, by
itself, has no independent value. Nor is test
identification the only type of evidence that can be
tendered to confirm the evidence of a witness
regarding identification of the accused, in Court, as the
perpetrator of the crime. The identity of the culprit can
be fixed by circumstantial evidence also."
25. It is also well settled that the FIR is neither an encyclopedia nor
substantive evidence and can, strictly speaking, be only used as a
previous statement for the purpose of either corroborating or
contradicting its maker in judging the veracity of prosecution case. The
aforesaid principle has been reiterated in the matter of State of
Maharashtra v. Ahmed Shaikh Babajan, {(2009) 14 SCC 267} and
the following was observed at para-26:-
"26. Apart from the fact that lodging of information
under Section 154 CrPC keeps the District Magistrate
and the Superintendent of Police informed of the
occurrence and when recorded, is the basis of the case
set up by the informant and provides material to the
police to commence investigation, its fundamental
object is that it acts as a safeguard against
embellishment, exaggeration and forgetfulness. True,
that it is not the requirement of law that every minute
detail of the occurrence needs to be recorded in the first
information report and as observed by this Court
in State of A.P. v. Golconda Linga Swamy [(2004) 6
SCC 522 : 2004 SCC (Cri) 1805] that the FIR is not
intended to be an encyclopædia of the background
scenario. Nevertheless, having regard to the fact that it
is one of the modes by which a person aggrieved sets
the criminal law in motion, it must disclose the
commission of an offence. Though it is trite that the
first information report does not constitute substantive
evidence and can, strictly speaking, be only used as a
previous statement for the purpose of either
corroborating or contradicting its maker, yet omission
of material facts pertaining to the crime is undoubtedly
relevant in judging the veracity of prosecution case."
26. In view of the aforesaid discussion, we are of the view that the trial
Court has wrongly relied on the evidence of Jaiyo Sona (PW-2) and
other evidence, which is not sufficient to establish the prosecution case
beyond reasonable doubt that the appellants are perpetrator of the crime
in question.
27. For the aforementioned reasons, the Appeals succeed and the same are
allowed. Conviction and sentence imposed on the appellants under
Sections 147, 148, 324/149 for accused Amit Singh & 324 for accused
Murli and 302/149 of the IPC are set aside and they are acquitted of the
said charges. The appellants are on bail. Their bail bonds shall remain
in operation for a period of 6 months from today in view of the
provisions contained under Section 437-A of the CrPC.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Barve
