Padeshvar vs State Of Chhattisgarh
2022 Latest Caselaw 6824 Chatt

                                                                           Cr.A.No.1104/2014

                                         Page 1 of 11

                                                                                            AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.1104 of 2014

{Arising out of judgment dated 27-9-2014 in Sessions Trial No.50/2014 of
                  the Sessions Judge, Bastar at Jagdalpur}

Padeshvar, S/o Tangaru, Aged about 35 years, R/o Bagbahar Para,
Bastar, P.S. Bastar, District Bastar (C.G.)
                                                          (In Jail)
                                                    ---- Appellant

                                            Versus

State of Chhattisgarh, Through P.S. Chowky Bastar, District Bastar (C.G.)
                                                         ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant:                  Mr. Praveen Das, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
--------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                      Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (16/11/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the impugned judgment of conviction recorded and

sentence awarded by the learned Sessions Judge by which the

appellant has been convicted for offence under Section 302 of the

IPC and sentenced to undergo imprisonment for life and further

sentenced to pay a fine of ₹ 1,000/-, in default, to further undergo

additional rigorous imprisonment for three months.

2. Case of the prosecution, in brief, is that on 9-2-2014 at 11.00 p.m.

in Village Bagbahar Para, Bastar, Police Chowki Bastar, District

Bastar, the appellant poured kerosene oil on his mother Hirai Bai Cr.A.No.1104/2014

and set her on fire by which she suffered burn injury and died.

Further case of the prosecution is that the appellant, his mother

Hirai Bai and his brother Phoolchand (PW-4) were residing

separately in three parts of one ancestral house and earning their

livelihood independently. Deceased Hirai Bai was widow being wife

of Tangru. She used to prepare food herself and on the date of

incident, Phoolchand (PW-4) being truck driver has gone to

Jagdalpur and the appellant was in inebriated condition in the

house and on 9-2-2014 in the evening, deceased Hirai Bai was also

under the influence of liquor and in the night she prepared her food

and ate the food, and the electricity (light) being unavailable, she

was sleeping after closing the door. At about 11.00 p.m. in the late

night, smell of some burn came from the room of deceased Hirai

Bai, then Smt. Lachhmani (PW-3) - wife of Phoolchand (PW-4) and

daughter-in-law of deceased Hirai Bai, went inside the room and

noticed that her mother-in-law has completely burnt and she has

died and the appellant herein was present there and pouring water

on the body of the deceased and was trying to extinguish the fire.

Since her mother-in-law has burnt completely, Smt. Lachhmani

(PW-3) firstly lodged report to Police Chowki Bastar on 10-2-2014

pursuant to which morgue intimation was registered vide Ex.P-3

and thereafter, panchnama was prepared vide Ex.P-10 and spot

map was prepared vide Ex.P-8. Muffler, burnt sari, blanket ( kathri)

and coconut oil container were seized from the dead body of the

deceased vide Ex.P-7. Dead body of the deceased was sent for

postmortem which was conducted by Dr. Kamal Singh Sete (PW-9) Cr.A.No.1104/2014

vide Ex.P-12 in which cause of death was stated to be due to

asphyxia caused by burn leading to cardio-respiratory failure.

Thereafter, on the disclosure statement of the appellant vide Ex.P-

5, burnt white towel was seized vide Ex.P-6. Seized articles were

sent for forensic examination vide Ex.P-18 to the Forensic Science

Laboratory, Jagdalpur and acknowledgment receipt was also

received from FSL, Raipur vide Ex.P-19, but the FSL report is un-

exhibited, however, the same is available on record.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC. After usual investigation, the accused / appellant was

charge-sheeted for offence under Section 302 of the IPC and

charge-sheet was filed before the jurisdictional criminal court and

the case was committed to the Court of Sessions, Bastar at

Jagdalpur, for trial in accordance with law.

4. The accused / appellant abjured the guilt stating that he has not

committed the offence and entered into witness. In order to bring

home the offence, the prosecution examined as many as ten

witnesses and exhibited 19 documents. The defence has not

examined any witness and exhibited no document.

5. The trial Court upon appreciation of oral and documentary evidence

available on record, convicted and sentenced the appellant under

Section 302 of the IPC in the manner mentioned in the opening

paragraph of this judgment against which the instant appeal under

Section 374(2) of the CrPC has been preferred.

6. Mr. Praveen Das, learned counsel appearing for the appellant,

would submit that the extra judicial confession allegedly made by Cr.A.No.1104/2014

the appellant before Smt. Lachhmani (PW-3), Visuram Baghel (PW-

5) & Jamnath (PW-7) has not been proved in accordance with law,

even otherwise, extra judicial confession is a weak piece of

evidence and in conspiracy with predetermined mind implicated the

appellant on account of previous property dispute. Furthermore,

the FSL report dated 30-5-2014 (page 72 of the paper book) though

has been brought on record, but it has neither been tendered into

evidence nor put to the appellant herein in his examination under

Section 313 of the CrPC, therefore, it cannot be relied upon. Even

though seized articles muffler and towel have been seized from the

place of incident, but the same have not been recovered

subsequently at the instance of the appellant. The appellant was

the only person present in the house along with his mother,

therefore, it is a case of house murder and the appellant was

required to explain his conduct by virtue of Section 106 of the

Evidence Act and as such, conviction & sentences imposed upon

him are liable to be set aside.

7. Mr. Sudeep Verma, learned Deputy Govt. Advocate appearing for

the State / respondent, would support the impugned judgment and

would submit that the prosecution has been able to bring home the

offence against the appellant and the appellant has rightly been

convicted under Section 302 of the IPC, as such, the appeal

deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

original records of the trial Court with utmost circumspection and Cr.A.No.1104/2014

carefully as well.

9. The trial Court in paragraph 24 of the judgment found following

incriminating circumstances proved against the appellant to hold

him guilty: -

1. The appellant and his mother (deceased) both were alone in

the house when the incident took place and the appellant was

required to explain as to how his mother died.

2. The appellant has made extra judicial confession before Smt.

Lachhmani (PW-3), Visuram Baghel (PW-5) & Jamnath (PW-

7).

3. Pursuant to the memorandum statement of the appellant,

brunt towel and other clothes were seized which has been

proved and the appellant was required to explain as to how

the deceased died.

4. In the FSL report, smell of kerosene oil has been found on

the articles muffler and half burnt towel on the basis of which

the appellant has been convicted.

10. The first incriminating circumstance that has been found proved

against the appellant by the trial Court is that the appellant and the

deceased mother both were alone in the house and therefore the

appellant was required to explain as to how she died, by virtue of

Section 106 of the Evidence Act.

11. Smt. Lachhmani (PW-3) being sister-in-law of the appellant and

daughter-in-law of the deceased, has been examined before the

trial Court and she has clearly stated that the appellant herein and Cr.A.No.1104/2014

her husband Phoolchand (PW-4) both are brothers, the appellant's

family and her husband's family both used to reside in one house in

separate rooms as partition had already taken place and they are

cultivating separately and her mother-in-law (deceased) was also

residing in the same house on the date of incident and she was

also under the influence of liquor. In that view of the matter, finding

of the trial Court that on the date of offence only the appellant and

the deceased were residing in the house is an incorrect finding of

fact not based on the evidence available on record and it is

perverse finding.

12. The next circumstance that has been relied upon by the trial Court

is that the appellant has made extra judicial confession before Smt.

Lachhmani (PW-3), Visuram Baghel (PW-5) & Jamnath (PW-7).

Jamnath (PW-7) is brother of the husband of the deceased. In his

cross-examination, he has clearly stated that he himself, Smt.

Lachhmani (PW-3) & Sukhram (PW-6) have discussed the issue

and they have agreed that they will implicate the appellant herein.

Even otherwise, extra judicial confession is a weak piece of

evidence and considering the statement of Jamnath (PW-7), it

would be unsafe to convict the appellant on the basis of extra

judicial confession, particularly in view of the statement of Jamnath

(PW-7) and more particularly the statement of Smt. Lachhmani

(PW-3) who is sister-in-law of the appellant, as admittedly, there

was property dispute between the appellant and Phoolchand (PW-

5) - husband of Smt. Lachhmani (PW-3). Therefore, this piece of

evidence also cannot be used to convict the appellant herein under Cr.A.No.1104/2014

Section 302 of the IPC.

13. The next circumstance that has been relied upon by the trial Court

is that as per the FSL report dated 30-5-2014, smell of kerosene oil

was emanating from half burnt muffler and towel. Admittedly, the

FSL report has not been tendered into evidence as it has not been

exhibited though it has been brought on record according to which

smell of kerosene oil was emanating from seized articles - burnt

towel and burnt muffler. Only in the examination of the accused /

appellant under Section 313 of the CrPC, in question No.49, it has

been put to the accused that the seized articles have been sent to

the FSL, Jagdalpur vide Ex.P-18 and no question has been put to

him qua the FSL report dated 30-5-2014, which was absolutely

necessary.

14. It is correct to say that though the FSL report has been brought on

record, but it has not been exhibited as a document on behalf of the

prosecution. The FSL report dated 30-5-2014, which is a duly

signed report by a scientific expert from the State Forensic Science

Laboratory, is an evidence within the meaning of Section 293(1) of

the CrPC and it may be used as an evidence in trial by virtue of

Section 293(1) of the CrPC, unless the said scientific expert is

required to be examined by virtue of Section 293(2) of the CrPC,

but the fact remains that the copy of the said report has to be

supplied to the accused and it has to be put to the accused under

Section 313 of the CrPC, which has not been done in the present

case.

Cr.A.No.1104/2014

15. It is well-settled law that any incriminating circumstance against the

accused has to be put to the accused in his statement under

Section 313 of the CrPC, otherwise, that piece of evidence has to

be excluded from consideration because the accused did not have

any chance to explain it. This principle of law has been constantly

held by the Supreme Court in a catena of judgments including way

back in the year 1953 in the matter of Hate Singh Bhagat Singh v.

State of Madhya Pradesh1 wherein their Lordships of the Supreme

Court have held that any circumstance in respect of which the

accused was not examined under Section 342 of the old CrPC,

cannot be used against him.

16. In the matter of Harijan Megha Jesha v. State of Gujarat2, the

Supreme Court has held that the report of Serologist cannot be

used against the accused if it has not been put to the accused in

his statement under Section 342 of the old CrPC, which states as

under:-

"3. ... In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on his statement in order to convict the appellant particularly after he had been acquitted by the Trial Court."

17. The aforesaid principle of law laid down in Harijan Megha Jesha

(supra) has been followed by the Supreme Court with approval in

the matter of Sharad Birdhichand Sarda v. State of Maharashtra3. 1 AIR 1953 SC 468 2 AIR 1979 SC 1566 3 AIR 1984 SC 1622 Cr.A.No.1104/2014

18. Very recently, the Supreme Court in the matter of Jai Prakash

Tiwari v. State of Madhya Pradesh4 has clearly held that Section

313 of the CrPC confers a valuable right upon an accused to

establish his innocence and can well be considered beyond a

statutory right, as a constitutional right to a fair trial under Article 21

of the Constitution of India relying upon the decision of the

Supreme Court in the matter of Reena Hazarika v. State of Assam5

and emphasized the need for putting incriminating circumstances

before the accused and to seek his response. It has been held in

paragraph 20 of the report as under:-

"20. This Court in the case of Satbir Singh v. State of Haryana, (2021) 6 SCC 1, while emphasising upon the significance of Section 313 CrPC, has delineated the duty of the trial Court and held thus:

"22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice -- "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution...""

(emphasis supplied)

4 2022 SCC OnLine SC 966 5 (2019) 13 SCC 289 Cr.A.No.1104/2014

19. In the instant case, admittedly, though the FSL report has been

brought on record, but it has not been tendered into evidence and

no response has been sought from the appellant herein, as such,

the incriminating circumstance i.e. the FSL report cannot be read

into evidence as no opportunity has been afforded to the appellant

to explain the incriminating piece of evidence in shape of FSL

report dated 30-5-2014. Therefore, reliance placed by the trial

Court upon the FSL report implicating the accused is clearly

exceptionable and it is liable to be set aside.

20. Lastly, the trial Court has relied upon the evidence of Smt.

Lachhmani (PW-3) who has seen the accused pouring water on the

body of the deceased and thereafter, absconding from the spot,

whereas in the cross-examination, however, she has clearly stated

that date of incident being dark night, she could not notice the

person who absconded from the room of the deceased. As such,

the prosecution has miserably failed to bring home the offence

against the appellant. Moreover, in paragraph 12, Smt. Lachhmani

(PW-3) has clearly stated that the accused was not present in the

house on the date of offence which has also been stated by

Phoolchand (PW-4) - brother of the appellant, in his statement

before the Court.

21. In that view of the matter, the prosecution has failed to bring home

the offence against the appellant beyond reasonable doubt and the

trial Court has committed legal error in convicting and sentencing

the appellant under Section 302 of the IPC. We are unable to

sustain conviction and sentences imposed upon the appellant Cr.A.No.1104/2014

under Section 302 of the IPC.

22. Accordingly, the impugned judgment dated 27-9-2014 passed in

Sessions Trial No.50/2014 by the Sessions Judge, Bastar at

Jagdalpur, is hereby set aside. The appellant stands acquitted of

the charge under Section 302 of the IPC and he shall be forthwith

set at liberty, unless he is required in connection with any other

case.

23. The appeal is allowed.

                 Sd/-                                         Sd/-
          (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
                Judge                                        Judge

Soma