Chattisgarh High Court
Bharat Ram Rajwar vs State Of Chhattisgarh on 21 November, 2022
CRA-1109-2012
Page 1 of 7
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1109 of 2012
Bharat Ram Rajwar, Son of Jatru Ram, aged about 19 years, Occupation-
Agriculture, Resident of Village Kurrwa, Thana Sanna, District Jashpur
(Chhattisgarh)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, through Police Station Sanna, District Jashpur
(Chhattisgarh)
---- Respondent
------------------------------------------------------------------------------------------------------
For Appellant : Mr. Sanjay Agrawal, Advocate
For Respondent-State : Mr. Sudeep Verma, Deputy G.A.
--------------------------------------------------------------------------------------------------------
DB: Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(21.11.2022)
Sanjay K. Agrawal, J
This criminal appeal filed by the appellant-accused under Section
374(2) of Cr.P.C. is directed against the impugned judgment of conviction
and order of sentence dated 02.11.2012, passed by the Court of learned
Sessions Judge, Jashpur, District Jashpur (C.G.) in S.T. No.31/2012 (State of
CG vs. Bharat Ram Rajwar), whereby the appellant-accused has been
convicted for offence under Section 302 of IPC and sentenced to undergo
rigorous life imprisonment with fine of Rs.1,000/- and, in default of fine,
additional rigorous imprisonment for 01 month.
(2) The case of the prosecution, in brief, is that on 30.10.2011, at about
09:00 PM in the night, at Village Kuruwa, the appellant assaulted his brother,
namely, Jagdev Ram by means of danda (wooden stick), due to which he
suffered injury and died and, thereby, committed the offence under Section
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302 of IPC.
(3) The further case of the prosecution, in nutshell, is that: Jagdev Ram @
Bambed (deceased) alongwith his mother- Chaiti Bai (PW-02) and younger
brother- Bharat Ram (accused-appellant) used to reside at Village Kuruwa;
on the fateful day i.e. on 30.10.2011, a dispute ensued between the two
brothers regards selling of fields (land), in which accused-appellant assaulted
his brother, namely, Jagdev Ram (deceased) by means of 'danda' (wooden
stick), due to which he suffered injury and died; the said incident has been
witnessed by Smt. Chaiti Bai (PW-02), who informed the same to his
neighbour, namely, Ramjan (PW-05), who, in turn, informed the aforesaid fact
to Bhageshwar (PW-03), Birjhu Ram (PW-01) and Baran Ram (PW-04) and
they all reached to the spot and saw the dead-body of the deceased;
thereafter, on the next day, in the morning, they all went to lodge report.
Thereafter, on the report so lodged by them, the police of Police Station
Sanna registered FIR (Ex.P/01) and marg intimation (Ex.P/02), pursuant to
which, panchnama of spot map and spot map were prepared vide Ex.P/13 &
P/14 respectively. The dead-body of deceased- Jagdev Ram was sent for
postmortem examination and in the postmortem examination report
(Ex.P/08), conducted by Dr. Sukhram Xalxo (PW-06), it was opined that the
cause of death of deceased- Jagdev Ram is excessive hemorrhage by nasal
cavity and shock and nature of death is homicidal in nature. Thereafter,
appellant-accused was arrested vide Ex.P/05. Thereafter, from the place of
occurrence/spot, two samples of soil and danda (wooden stick) were seized
vide seizure memos (Ex.P/06 & 07). Additionally, t-shirt, pant and underwear
of the deceased- Jagdev Ram were also seized from his dead-body by the
police vide Ex.P/15. Further, the aforesaid seized articles were subjected to
FSL examination, whereby vide FSL report (Ex.P/19), it has been opined that
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blood has been found on the danda (wooden stick) and in one sample of soil
which were seized from the spot vide Ex.P/06 & 07 and on the t-shirt, pant
and underwear of the deceased- Jagdev Ram seized vide Ex.P/15.
Thereafter, statement of witnesses were recorded and, after due
investigation, the police filed charge-sheet in the Court of Judicial Magistrate
First Class and, thereafter, the case was committed to the Court of Sessions.
The appellant/accused abjured his guilt and entered into defence.
(4) The prosecution in order to prove its case examined as many as 12
witnesses and exhibited 19 documents, whereas the appellant-accused in
support of his defence has neither examined any witness nor exhibited any
documents.
(5) The learned trial Court after appreciating the oral and documentary
evidence available on record proceeded to convict the appellant for offence
under Section 302 of IPC and sentenced him as mentioned herein-above,
against which this appeal has been preferred by the appellant-accused
questioning the impugned judgment of conviction and order of sentence.
(6) Mr. Sanjay Agrawal, learned counsel appearing for the appellant
submits that the learned trial Court is absolutely unjustified in convicting the
appellant for offence under Section 302 IPC, as the prosecution has failed to
prove the offence beyond reasonable doubt. He further submits that the eye-
witness to the incident, namely, Smt. Chaiti Bai (PW-02), mother of the
deceased and the appellant has turned hostile and no recovery of any
incriminating article has been made from the possession of the appellant. He
submits that though blood has been found on the wooden stick (danda),
which was seized from the spot and allegedly used by the appellant in the
crime in question, but it is not clear whether the said blood is of human origin
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or precisely that of deceased- Jagdev Ram and, to that effect, the
prosecution has not brought any supporting medical evidence on record, as
such, the conviction of the appellant for offence under Section 302 of IPC is
liable to be set aside. Hence, the present appeal deserves to be allowed and
appellant be discharge from the said offence.
(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the
impugned judgment of conviction and order of sentence and submits that the
prosecution has proved the offence beyond reasonable doubt by leading
evidence of clinching nature. The learned trial Court has rightly convicted the
appellant for offence under Section 302 of IPC. Thus, the present appeal
deserves to be dismissed.
(8) We have heard learned counsel for the parties, considered their rival
submissions made herein-above and went through the records with utmost
circumspection.
(9) The first and foremost question is as to whether the death of the
deceased was homicidal in nature, which the learned trial Court has recorded
in affirmative by taking into consideration the oral and documentary evidence
available on record and particularly considering the postmortem report (Ex.P/
08), wherein it has been opined that the cause of death of deceased- Jagdev
Ram is excessive hemorrhage by nasal cavity and shock and nature of death
is homicidal in nature and the statement of Dr. Sukhram Xalxo (PW-06), who
has conducted the postmortem of the dead-body of the deceased.
Accordingly, taking into consideration the postmortem report (Ex.P/08) and
the statement of Dr. Sukhram Xalxo (PW-06), we are of the considered
opinion that the learned trial Court is absolutely justified in holding that the
death of deceased- Jagdev Ram is homicidal in nature, as the same is
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correct finding of fact based on evidence and same is neither perverse nor
contrary to the record. Accordingly, we hereby affirmed the said finding.
(10) Now the next question would be whether the learned trial Court is
justified in holding that the accused-appellant herein is the perpetrator of the
crime in question ?
(11) In the instant case, the prosecution has cited mother of the appellant
and the deceased, namely, Smt. Chaiti Bai (PW-02) as eye-witness to the
incident, who informed the incident to Ramjan (PW-05) and Bhageshwar
(PW-03), but has completely turned hostile and has not supported the case
of the prosecution though after permitted by the Court to ask question.
However, Ramjan (PW-05) has stated before the Court that: on the fateful
day, i.e. on 30.10.2011, at 12:00 PM in the night, mother of the appellant and
the deceased, namely, Smt. Chaiti Bai (PW-02) came to his house and asked
him to come/visit her house and see that appellant and deceased are
quarreling with each other and, thereafter, Ramjan (PW-05) went to inform
the aforesaid fact to Bhageshwar (PW-03), Birjhu Ram (PW-01) and Baran
Ram (PW-04); thereafter, when they all visited the house of Smt. Chaiti Bai
(PW-02) they saw dead-body of the deceased- Jagdev Ram lying on the floor
and, thereafter, they all went went to police station and lodged report. As
such, from the statements of Ramjan (PW-05), Bhageshwar (PW-03), Birjhu
Ram (PW-01) and Baran Ram (PW-04) it is quite apparent that they have not
seen the incident and Smt. Chaiti Bai (PW-02) has only informed them about
the fact of quarrel between the accused-appellant and the deceased- Jagdev
Ram. Further, Smt. Chaiti Bai (PW-02) has not supported the case of the
prosecution and has turned hostile. Therefore, the prosecution failed to
prove by way of direct evidence that it is the appellant herein who assaulted
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the deceased- Jagdev Ram and caused his murder being the perpetrator of
the crime.
(12) Further, in the instant case from the place of occurrence/spot, danda
(wooden stick), which is alleged to have been used by the appellant to
assaulted deceased alongwith two samples of soil were seized vide seizure
memos (Ex.P/06 & 07), which were subjected to FSL examination and vide
FSL report (Ex.P/19) it has been opined that blood has been found on the
danda (wooden stick) and in one sample of soil which were seized from the
spot vide Ex.P/06 & 07. But, no recovery of any incriminating article has been
made from the possession of the appellant nor his memorandum statement
has been brought on record by the prosecution. Further, though blood has
been found on the wooden stick (danda), which was seized from the spot
and allegedly used by the appellant in the crime in question, but it is not clear
whether the said blood is of human blood or precisely that of deceased-
Jagdev Ram.
(13) The Supreme Court in the matter of Balwan Singh vs. State of
Chhattisgarh and another1 their Lordships held that if the recovery of
bloodstained articles is proved beyond reasonable doubt by the prosecution,
and if the investigation was not found to be tainted, then it may be sufficient if
the proseuction shows that the blood found on the articles is of human origin
though, even though the blood group is not proved because of disintegration
of blood and held in Para-24 as under:
"24. In the instant case, then, we could have placed some reliance on
the recovery, had the prosecution at least proved that the blood was of
human origin. As observed supra, while discussing the evidence of PWs
9 and 16, the prosecution has tried to concoct the case from stage to
stage. Hence, in the absence of positive material indicating that the
stained blood was of human origin and of the same blood group as that
1 (2019) 7 SCC 781
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of the accused, it would be difficult for the Court to rely upon the aspect
of recovery of the weapons and tabbal, and such recovery does not help
the case of the prosecution."
(14) Reverting to the facts of the present case in light of principle of law laid
down by their Lordships of Supreme Court in the matter of Balwan Singh
(supra) it is quite vivid that only wooden stick (danda) is seized from the spot/
place of incident, in which blood has been found and it is not clear whether
the said blood is of human origin or it is of same blood group to that of
deceased- Jagdev Ram, as such, such a recovery would not help the
prosecution. Except this there is no other incriminating evidence available on
record to connect the accused-appellant with the offence in question. In that
view of the matter we are unable to uphold the impugned judgment of
conviction and order of sentence passed by the learned trial Court in
convincing the appellant for offence under Section 302 of IPC.
(15) Accordingly, the conviction of the appellant for offence punishable
under Section 302 of IPC as well as the sentence of life imprisonment
awarded to him by the learned trial Court is hereby set aside. He is acquitted
from the charges under Section 302 of IPC. Since, appellant is on bail, he
need not surrender before the trial Court. However, his bail bond shall remain
in force for a period of six months in view of provision contained in Section
437-A of CrPC.
(16) This criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
[email protected]
