Ku. Saraswati Yadu vs State Of Chhattisgarh
2022 Latest Caselaw 7065 Chatt

                                                                Cr.A.Nos.706/2018 & 752/2018

                                          Page 1 of 13

                                                                                            AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.706 of 2018

{Arising out of judgment dated 28-4-2018 in Sessions Trial No.H-21/2016
               of the Additional Sessions Judge, Bhatapara}

                         Judgment reserved on: 17-11-2022

                         Judgment delivered on: 24-11-2022

Ku. Saraswati Yadu, Aged about 20 years, D/o Ghanaram @ Julwa Yadu,
R/o Village Duldula, P.S. Simga, District Balodabazar-Bhatapara (C.G.)
                                                                  (In Jail)
                                                            ---- Appellant

                                                Versus

State of Chhattisgarh, Through Station House Officer, P.S. Simga, District
Balodabazar-Bhatapara (C.G.)
                                                         ---- Respondent

                                              AND

                           Criminal Appeal No.752 of 2018

Ghanaram @ Julwa Yadu, S/o Late Manaram Yadu, Aged about 63
years, R/o Village Duldula, P.S. Simga, District Balodabazar-Bhatapara
(C.G.)
                                                                (In Jail)
                                                          ---- Appellant

                                                Versus

State of Chhattisgarh, through P.S. Simga, District Balodabazar-
Bhatapara (C.G.)
                                                  ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant in Cr.A.No.706/2018: Mrs. Indira Tripathi, Advocate.
For Appellant in Cr.A.No.752/2018: Mr. Pragalbha Sharma, Advocate.
For Respondent / State:                        Mr. Anmol Sharma, Panel Lawyer.
--------------------------------------------------------------------------------------------------

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

C.A.V. Judgment Cr.A.Nos.706/2018 & 752/2018

Sanjay K. Agrawal, J.

1. Since both the above criminal appeals have arisen out of one and

same judgment dated 28-4-2018 passed by the learned Additional

Sessions Judge, Bhatapara in Sessions Trial No.H-21/2016 and

since common question of fact and law is involved in both the

appeals, they have been clubbed together, heard together and are

being disposed of by this common judgment.

2. These two criminal appeals have been preferred by the accused /

appellants under Section 374(2) of the CrPC against the impugned

judgment convicting and sentencing them as under: -

     Saraswati (A-1)

             Conviction                       Sentence

Section 302 read with Imprisonment for life and fine of ₹ Section 34 of the IPC 1,000/-, in default additional rigorous imprisonment for six months

Ghanaram @ Julwa (A-2)

Conviction Sentence Section 302 of the IPC Imprisonment for life and fine of ₹ 1,000/-, in default additional rigorous imprisonment for six months

3. Appellant in Cr.A.No.706/2018 namely, Ku. Saraswati Yadu (A-1)

and appellant in Cr.A.No.752/2018 namely, Ghanaram @ Julwa

Yadu (A-2) have assailed their conviction for offence under Section

302/302 read with Section 34 of the IPC by way of these appeals.

4. Case of the prosecution, in brief, is that appellant Ku. Saraswati

Yadu (A-1) is the daughter of appellant Ghanaram @ Julwa Yadu

(A-2) from his first wife namely Vimla Bai. Further case of the Cr.A.Nos.706/2018 & 752/2018

prosecution is that on 18-2-2016 at 3.00 p.m. under Police Station

Simga at Village Duldula, in furtherance of their common intention,

the two appellants herein assaulted Rajaram Yadu by farsa and

lathi by which he suffered grievous injuries and died on the spot

which is said to have been witnessed by Om Prakash Yadu (PW-1)

& Kanhaiya Yadav (PW-2). It is also the case of the prosecution

that thereafter, Om Prakash Yadu (PW-1) informed to Police

Station Bhatapara (Gramin) that on 18-2-2016 at 11.00 a.m., he

had gone for grazing cattle and while grazing cattle at Duldula Khar

near factory, Rajaram (deceased), who belongs to his village, was

also grazing cattle near the field of Shriram Sahu, then at about

3.00 p.m., accused / appellant Ghanaram @ Julwa Yadu (A-2)

armed with farsa and accused / appellant Saraswati (A-1) armed

with lathi came on the spot on the motorcycle and abused and

assaulted deceased Rajaram Yadu. Om Prakash Yadu (PW-1)

informed to Kanhaiya Yadav (PW-2) who also came and both have

seen the incident. Thereafter, Ghanaram (A-2) fled away from the

spot in the motorcycle driven by Saraswati (A-1) and Om Prakash

Yadu (PW-1) went to his Village Duldula and informed to Liluram

Yadu (PW-3) & Ramesh Yadu (PW-4) - sons of deceased Rajaram.

5. Morgue was registered vide Ex.P-1 and FIR was registered vide

Ex.P-2. Thereafter, panchnama was conducted vide Ex.P-6. Dead

body of the deceased was sent for postmortem which was

conducted by Dr. Aditya Verma (PW-14) vide Ex.P-16 and cause of

death was reported to be brain damage and blood loss and death

was homicidal in nature. Spot maps were prepared vide Exs.P-3 & Cr.A.Nos.706/2018 & 752/2018

P-5 and memorandum statement of Ghanaram (A-2) was recorded

on 22-7-2016 vide Ex.P-9 pursuant to which iron farsa without

handle on which blood-like stains were present, one bloodstained

vest and one old blanket were seized vide Ex.P-10. One

motorcycle was seized from accused Saraswati (A-1) vide Ex.P-11.

Seized articles were sent for forensic examination to the FSL,

Raipur from where reports Exs.P-24 & P-29 were received.

According to the FSL report Ex.P-29, no blood was found on the

articles seized from accused Ghanaram (A-2) i.e. farsa and other

articles, however, according to the FSL report Ex.P-24, blood was

found on the articles (A1, A2, A3, A4 & A5) seized from the body of

the deceased.

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

the CrPC. Thereafter, after usual investigation, the appellants were

charge-sheeted before the jurisdictional criminal court for offence

under Section 302 read with Section 34 of the IPC and the case

was committed to the Court of Sessions from where the Additional

Sessions Judge received the case on transfer for hearing and

disposal in accordance with law.

7. In order to bring home the offence, the prosecution has examined

as many as 17 witnesses and brought on record 31 documents

Exs.P-1 to P-31. The accused / appellants abjured the guilt and

entered into defence by stating that they have not committed the

offence and they have been falsely implicated. They have

examined two witnesses Nandlal Yadav (DW-1) & Balil Kujur (DW-

2) in support of their defence and also exhibited five documents Cr.A.Nos.706/2018 & 752/2018

Exs.D-1 to D-5C.

8. The trial Court after appreciating oral and documentary evidence,

convicted and sentenced the appellants under Section 302/302

read with Section 34 of the IPC in the manner mentioned in the

opening paragraph of this judgment against which these appeals

have been preferred.

9. Mrs. Indira Tripathi, learned counsel appearing for appellant Ku.

Saraswati Yadu (A-1) in Cr.A.No.706/2018, would submit as under:

1. Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2) are not

natural eye-witnesses, therefore, their testimonies have to be

discarded.

2. Seizure of motorcycle is insignificant as nothing incriminating

has been found in the seizure of motorcycle as it belongs to

accused Saraswati (A-1) herself who used to do her own

business as milk-vendor.

3. Dr. Aditya Verma (PW-14) has clearly stated that the lathi

allegedly used by accused Saraswati (A-1) was never

produced before him for query report and no injury was found

over the body of the deceased caused by lathi, whereas the

prosecution was obliged to place the lathi before the medical

witness and invite his opinion in view of the decisions of the

Supreme Court in the matters of Kartarey and others v. The

State of U.P.1 and Ishwar Singh v. State of U.P.2.

Furthermore, there is no incriminating evidence against the

1 (1976) 1 SCC 172 2 (1976) 4 SCC 355 Cr.A.Nos.706/2018 & 752/2018

present appellant, therefore, her conviction is liable to be set

aside.

10. Mr. Pragalbha Sharma, learned counsel appearing for appellant

Ghanaram @ Julwa Yadu (A-2) in Cr.A.No.752/2018, would submit

that Kanhaiya Yadav (PW-2) is not the eye-witness as he came to

the spot after the alleged incident as it appears from the statement

of Om Prakash Yadu (PW-1) and the testimony of Om Prakash

Yadu (PW-1) is so shaky and improper that without further

corroboration it would be unsafe to convict the appellant for offence

under Section 302 of the IPC, particularly when in the alleged FSL

report, no blood much less human blood has been found on the

articles seized from the possession or at the instance of the present

appellant and therefore recovery of alleged articles is of no use in

view of the decisions of the Supreme Court in the matters of

Balwan Singh v. State of Chhattisgarh and another3 and Amar

Singh and others v. The State (NCT of Delhi) 4. Therefore, the

appeal deserves to be allowed.

11. Mr. Anmol Sharma, learned Panel Lawyer appearing for the State /

respondents, opposing the submissions advanced on behalf of both

the appellants and supporting the impugned judgment, would

submit that the prosecution has been able to bring home the

offence against the appellants, therefore, they have rightly been

convicted and sentenced. He would further submit that Om

Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2) are natural eye-

witnesses, they have witnessed the incident. So far as seizure of

3 (2019) 7 SCC 781 4 AIR 2020 SC 4894 Cr.A.Nos.706/2018 & 752/2018

articles from Ghanaram (A-2) is concerned, though no blood has

been found on the said articles as per the FSL report Ex.P-29, but

direct evidence is available in view of the testimony of Kanhaiya

Yadav (PW-2), therefore, conviction is not questionable.

12. 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

carefully as well.

13. We will take-up the two appeals in hand one by one and firstly, we

will take-up the appeal of appellant Ku. Saraswati Yadu (A-1).

14. It is the contention on behalf of the learned counsel for appellant

Ku. Saraswati Yadu (A-1) that appellant Ku. Saraswati Yadu (A-1)

is not involved in the commission of offence and she has been

falsely implicated merely on the basis of the statements of Om

Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2), who have not

witnessed the incident. Even there is no corroboration from

independent source and lathi has not been seized from the

possession of appellant Saraswati (A-1) and it was not sent for

query report inviting the medical opinion of Dr. Aditya Verma (PW-

14) who has clearly stated before the Court that deceased Rajaram

has no injury which could be caused by the said lathi and as such,

there is no evidence against appellant Saraswati (A-1). Om

Prakash Yadu (PW-1) is stated to be an eye-witness and he has

stated before the Court that Ghanaram (A-2) assaulted deceased

Rajaram by farsa and Saraswati (A-1) assaulted him by lathi by

which he suffered injuries and died. He has further stated that Cr.A.Nos.706/2018 & 752/2018

appellants Ghanaram (A-2) & Saraswati (A-1) both started running

from the spot, then he shouted and then Kanhaiya Yadav (PW-2)

came on the spot upon which he told Kanhaiya Yadav that

appellants A-1 & A-2 have assaulted the deceased.

15. Appellant Saraswati (A-1) is said to have assaulted the deceased

by lathi. Admittedly, lathi has not been seized either from the

memorandum statement of appellant Saraswati (A-1) or otherwise,

from the possession of Saraswati (A-1) and even it has not been

produced before Dr. Aditya Verma (PW-14) seeking his medical

opinion.

16. The Supreme Court in Kartarey (supra) has held that it is important

to connect the injuries with the weapon and therefore there is

necessity for seeking the opinion of the medical witness, who had

examined the injuries of the victim for the proper administration of

justice, and observed in paragraph 26 as under: -

"26. We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice. ..."

17. Furthermore, the principle of law laid down by the Supreme Court in

Kartarey (supra) has been followed by their Lordships of the Cr.A.Nos.706/2018 & 752/2018

Supreme Court in Ishwar Singh (supra) and further followed very

recently in Amar Singh (supra). As such, it was the obligation of

the prosecution to seize lathi from the possession of the appellant

and to produce it before the doctor inviting his opinion whether the

injury suffered by the deceased could have been caused by the

material object / weapon of offence by which the appellant is said to

have caused injury to the deceased. For the reasons best known

to the prosecution, neither it has been seized nor it has been

produced before Dr. Aditya Verma (PW-14) inviting his medical

opinion which is apparent from paragraph 16 of the statement of Dr.

Aditya Verma (PW-14) who has clearly stated that no such lathi has

been produced by the police before him seeking his query. Not

only this, the doctor has further stated that there was no injury on

the body of the deceased which could have been caused by the

said lathi.

18. Next remains the motorcycle seized from the possession of

appellant Saraswati (A-1). It was the motorcycle owned by

appellant Saraswati (A-1) herself on which she used to do the job of

milk vending and in modern days, it is not unusual to have a

motorcycle by villagers for personal and professional purposes in

the villages also, as it has become the necessity of the day for a

person to have a two wheeler to transact their day-to-day affairs.

Even otherwise, mere recovery of motorcycle from the possession

of appellant Saraswati (A-1) pursuant to her memorandum

statement would not connect her with the offence in question as the

five golden principles which constitute the panchsheel of the proof Cr.A.Nos.706/2018 & 752/2018

of a case based on circumstantial evidence laid down by the

Supreme Court in the matter of Sharad Birdhichand Sarda v. State of

Maharashtra5 for proving an offence against the accused person in a

case based on circumstantial evidence have not been established by

the prosecution beyond reasonable doubt. Therefore, it would be

unsafe to convict appellant Saraswati (A-1) for offence under Section

302 of the IPC, particularly when she is the daughter of Ghanaram (A-

2) out of his first marriage and it appears from the record that she was

living separately and involved in the business of milk vending for

earning her livelihood. Though conviction can rest on the sole

testimony of an eye-witness and there is no legal impediment for

convicting a person on the sole testimony of eye-witness, but if there

is doubt about the testimony, Court will insist on corroboration. It is

the case of the prosecution that appellant Saraswati (A-1) assaulted

the deceased by lathi, but since no injury caused by lathi has been

found on the body of the deceased and since no lathi has been seized

from her possession and furthermore, the alleged lathi has not been

sent for opinion of the medical witness, who had examined the injuries

of the deceased, seeking his medical opinion, we are of the opinion

that it would be unsafe to convict appellant Saraswati (A-1) only on

the basis of the testimony of eye-witness Om Prakash Yadu (PW-1).

Even for Section 34 of the IPC, the prosecution has not led any

evidence to show that there was meeting of mind between the two

appellants A-1 & A-2 to attract Section 34 of the IPC. Therefore,

conviction and sentences of appellant Ku. Saraswati Yadu (A-1) for

offence under Section 302 read with Section 34 of the IPC is liable to

be set aside.

5 AIR 1984 SC 1622 Cr.A.Nos.706/2018 & 752/2018

19. Now, we will take-up the case of appellant Ghanaram @ Julwa

Yadu (A-2) who has been convicted on the basis of the testimonies

of Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2).

20. Om Prakash Yadu (PW-1) in his statement before the Court has

clearly stated that on the fateful day he was in Duldula Khar for

grazing cow & buffalo, at that time, deceased Rajaram was also

grazing his buffaloes in the nearby place and both the appellants

came in the motorcycle of Saraswati (A-1) and Ghanaram (A-2)

armed with farsa was abusing Rajaram and assaulted Rajaram on

his head by which he fell down and thereafter, both the appellants

A-1 & A-2 tried to abscond from the spot then he (this witness PW-

1) shouted and informed Kanhaiya (PW-2), who was present in the

next field watching the agricultural produce, that A-1 & A-2 are

assaulting Rajaram whereupon Kanhaiya (PW-2) came and noticed

that the deceased suffered injuries on head and then the matter

was informed to the police. Om Prakash Yadu (PW-1) has been

subjected to lengthy cross-examination and nothing has been

extracted from him to hold that appellant Ghanaram (A-2) has not

assaulted the deceased by farsa.

21. Kanhaiya Yadav (PW-2) though has been cited as eye-witness, but

according to Om Prakash Yadu (PW-1) after deceased Rajaram

was assaulted and after he fell down, Om Prakash Yadu (PW-1)

shouted and informed Kanhaiya Yadav (PW-2) that both the

appellants (A-1 & A-2) are assaulting deceased Rajaram,

thereafter, Kanhaiya Yadav (PW-2) came and then he noticed that

Rajaram had suffered injuries on head, but Kanhaiya Yadav (PW-2) Cr.A.Nos.706/2018 & 752/2018

has stated that he has seen the incident. In paragraph 8 of his

statement Kanhaiya Yadav (PW-2) has clearly stated that when he

reached to the spot, both the appellants are running away from the

spot after assaulting the deceased. He has clearly stated before

the Court that before the cry was made by Om Prakash Yadu (PW-

1), he did not see the incident. Thus, it is quite vivid that only Om

Prakash Yadu (PW-1) is the eye-witness and Kanhaiya Yadav

(PW-2) reached after the assault was made by appellant Ghanaram

(A-2) and Kanhaiya Yadav (PW-2) has only seen one of the

appellants running away from the spot in question. As such, Om

Prakash Yadu (PW-1) is the eye-witness and he has seen the

appellant Ghanaram assaulting the deceased.

22. Not only this, pursuant to the memorandum statement of appellant

Ghanaram (A-2), farsa was seized and according to the

postmortem report Ex.P-16, injury on the head of the deceased was

measuring 8" x 2" x 1" and the doctor has clearly opined that the

injury suffered by the deceased on head could have been caused

by the farsa seized from the possession of the appellant. Thus, the

medical opinion confirms that the injury caused to the deceased

could be caused by the weapon seized from the possession of the

appellant. Though the said farsa seized was sent for query on 1-8-

2016 to the doctor after some delay, but nothing has been brought

out to hold that it was deliberately sent with delay or for any ulterior

motive, it was not sent for query report and the query report of the

medical officer is dated 1-8-2016 (Ex.P-17). The clothes & farsa

recovered from the possession of appellant Ghanaram (A-2) were Cr.A.Nos.706/2018 & 752/2018

sent for forensic examination to the FSL, Raipur and the FSL report

is Ex.P-29 according to which no blood has been found on farsa,

vest and blanket recovered from the possession of Ghanaram (A-

2), but eye-witness Om Prakash Yadu (PW-1) has seen the

incident assaulting the deceased by farsa and farsa has been

medically examined by the doctor who has clearly opined that the

injuries sustained by the deceased could have been caused by the

said farsa. Though the memorandum & seizure witness has turned

hostile, but considering the statement of I.O. Ramesh Kumar

Markam (PW-16), it cannot be held that the farsa recovered from

the possession of appellant Ghanaram (A-2) pursuant to his

memorandum statement has not been proved in accordance with

law. As such, the trial Court is absolutely justified in convicting

appellant Ghanaram (A-2) for offence under Section 302 of the IPC.

23. Accordingly, we are of the considered opinion that the trial Court is

unjustified in convicting appellant Ku. Saraswati Yadu (A-1) for

offence under Section 302 read with Section 34 of the IPC.

Consequently, conviction and sentences awarded to her under

Section 302 read with Section 34 of the IPC are hereby set aside

and she is acquitted of the said charge. She is in jail and we direct

that she be released forthwith if not required any other case. Cr.A.

No.706/2018 is thus allowed. However, conviction and sentences

imposed upon appellant Ghanaram @ Julwa Yadu (A-2) are hereby

affirmed and his appeal (Cr.A.No.752/2018) is dismissed.

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