Kamlu Mangu vs State Of Chhattisgarh
2022 Latest Caselaw 7099 Chatt

                                                                             Cr.A.No.180/2017

                                          Page 1 of 8

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.180 of 2017

{Arising out of judgment dated 28-11-2016 in Sessions Trial No.332/2011
    of the Additional Sessions Judge, Fast Track Court, South Bastar,
                               Dantewada}

Kamlu Mangu, S/o Masa, aged about 45 years, Caste Muriya, R/o
Loharpara Dugoli, Police Station Toynar, District Bijapur (C.G.)
                                                                    (In Jail)
                                                              ---- Appellant

                                            Versus

State of Chhattisgarh, through Station House Office, Police Station
Toynar, District Bijapur (C.G.)
                                                    ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant:                  Ms. Meenu Banerjee, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
--------------------------------------------------------------------------------------------------

                      Hon'ble Shri Sanjay K. Agrawal and
                 Hon'ble Shri Naresh Kumar Chandravanshi, JJ.

Judgment On Board (25/11/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under

Section 374(2) of the CrPC is directed against the impugned

judgment of conviction and order of sentence dated 28-11-2016

passed by the Additional Sessions Judge, Fast Track Court, South

Bastar, Dantewada, in Sessions Trial No.332/2011, by which the

appellant herein has been convicted for offence under Section 302

of the IPC and sentenced to undergo imprisonment for life.

2. Case of the prosecution, in brief, is that on 12-7-2011 at 6.00 a.m.

in the morning at Village Dugoli, Police Station Toynar, the Cr.A.No.180/2017

appellant assaulted Smt. Bange - mother of complainant Budhram

(PW-1) by knife and thereby caused her death. It is admitted

position on record that there was dispute between the appellant

herein and father of the complainant namely, Gundi with regard to

land. On 12-7-2011 at 6.00 a.m., Smt. Bange had gone to the

house of Smt. Pandri (PW-3) for asking for tobacco and was

standing therein then Smt. Pandri (PW-3) went inside the house for

bringing tobacco and meanwhile, the appellant reached there and

assaulted Smt. Bange by knife by which she died pursuant to which

Budhram (PW-1) reported the matter. FIR was registered vide

Ex.P-1, morgue intimation was registered vide Ex.P-2 and spot map

was prepared vide Ex.P-3. Inquest was prepared vide Ex.P-8 and

on the recommendation of panchas, dead body of the deceased

was sent for postmortem which was conducted vide Ex.P-12 by Dr.

B.L. Sharma (PW-11) and cause of death was stated to be cardio-

respiratory arrest as a result of haemorrhage and death was

homicidal in nature. Memorandum statement of the accused was

recorded vide Ex.P-4 pursuant to which knife was seized vide

Ex.P-5. Seized knife was sent to the medical officer seeking his

medical opinion as to whether the injury found on the body of the

deceased could be caused by the said knife and the medical officer

- Dr. B.L. Sharma (PW-11) submitted his query report vide Ex.P-13

stating that the injuries found on the person of the deceased could

be caused by the said knife. Seized articles were sent for forensic

examination to the FSL, Raipur from where report Ex.P-20 was

received in which blood was found on the knife, but blood group Cr.A.No.180/2017

could not be ascertained.

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

the CrPC.. Thereafter, after completion of investigation, the

appellant was charge-sheeted before the Court of Chief Judicial

Magistrate, Bijapur which was taken cognizance of and thereafter,

the case was committed to the Court of Sessions from where the

learned Additional Sessions Judge (FTC) received the case on

transfer for trial and for hearing and disposal in accordance with

law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused /

appellant abjured the guilt and entered into trial stating that he has

been falsely implicated and he has not committed the offence.

5. The prosecution in order to bring home the offence examined as

many as 12 witnesses and brought on record 20 documents Exs.P-

1 to P-20 to prove its case. However, the defence examined none,

but exhibited two documents Exs.D-1 & D-2 - statements of Guddi

& Ajay recorded under Section 161 of the CrPC. Statement of the

accused / appellant was recorded under Section 313 of the CrPC in

which he abjured the guilt and pleaded innocence and false

implication.

6. The trial Court after completion of trial and upon appreciation of oral

and documentary evidence, convicted the appellant herein for the

offence under Section 302 of the IPC and sentenced him in the

manner as mentioned in the opening paragraph of this judgment

which has been called in question in this appeal preferred under Cr.A.No.180/2017

Section 374(2) of the CrPC.

7. Ms. Meenu Banerjee, learned counsel appearing for the appellant,

would submit that eyewitnesses - Budhram (PW-1), Hunga Kamlu

(PW-2), Smt. Pandri (PW-3) & Ajay (PW-6) have not witnessed the

incident and memorandum & subsequent recovery have not been

proved in accordance with law, and no human blood has been

found on the weapon of offence knife and therefore the appeal

deserves to be allowed and the impugned judgment deserves to be

quashed.

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

the State / respondent, would submit that eyewitnesses Budhram

(PW-1) & Smt. Pandri (PW-3) have fully supported the case of the

prosecution and the prosecution has been able to bring home the

offence against the appellant and therefore the appeal deserves to

be dismissed.

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

rival submissions made herein-above and also went through the

record with utmost circumspection.

10. The first question for consideration would be, whether the trial Court

is justified in holding that death of the deceased was homicidal in

nature?

11. The trial Court after relying upon the statement of Dr. B.L. Sharma

(PW-11) and also taking into consideration the postmortem report

Ex.P-12, clearly came to the conclusion that death of the deceased

was homicidal in nature. In our considered opinion, such a finding Cr.A.No.180/2017

recorded by the trial Court that death was homicidal in nature is the

correct finding of fact based on the evidence available on record, it

is neither perverse nor contrary to the record and we hereby affirm

the said finding recorded by the trial Court. Even otherwise,

learned counsel for the appellant has not disputed the nature of

death of the deceased to be homicidal.

12. Now, the question is, whether the trial Court is justified in holding

that it is the appellant who is the author of the crime in question of

causing the death of Smt. Bange - mother of complainant Budhram

(PW-1).

13. There are four eyewitnesses to the incident who have been relied

upon by the trial Court. We will deal with the testimonies of each of

them one by one.

14. Budhram (PW-1), who is son of the deceased, in paragraph 6 of his

evidence has clearly stated that he was not present on the scene of

occurrence and he has not seen the incident, his brother informed

him about the incident. Hunga Kamlu (PW-2), in whose house the

incident took place, has clearly stated in his evidence that he was

not present in house on the date of incident, he had gone to the

forest for collecting forest produce.

15. Similarly, Smt. Pandri (PW-3), who is wife of Hunga Kamlu (PW-2),

has clearly stated that on the fateful day when the deceased came

to her house for asking tobacco, she had gone inside the house for

bringing tobacco, then the appellant came there and assaulted the

deceased and absconded. In cross-examination, she has stated

that she has seen the deceased and the appellant running from the Cr.A.No.180/2017

house. As such, her statement would be relevant under Section 6

of the Indian Evidence Act, 1872, but she cannot be said to be

eyewitness to the incident.

16. Similarly, Ajay (PW-6), aged about 10 years, is son of the

deceased. Though he had seen his mother falling on the ground, in

paragraph 7 of his evidence, he has stated that his mother has

informed him that the appellant has assaulted her and absconded.

As such, he is also not eyewitness to the incident, at the best it can

be held that the deceased has given oral dying declaration to him.

He is a child witness. However, in cross-examination, in same

breath, he has clearly admitted that his mother has fell down and

she was not able to speak.

17. In that view of the matter, it would be unsafe to rely upon the oral

dying declaration given by the deceased to the child witness - Ajay

(PW-6) and seizure of knife has not been proved by independent

witnesses Sannu Ram Kudiyam (PW-7) & Franklin Tirkey (PW-8),

but it has been proved by the investigating officer. Even if it is held

to be proved by the statement of the investigating officer, but in the

FSL report, only blood has been found and human blood has not

been found on the said knife. Whereas, in the matter of Balwan

Singh v. State of Chhattisgarh and another 1, it has been held by the

Supreme Court 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 prosecution shows that the blood found on the articles is of

1 (2019) 7 SCC 781 Cr.A.No.180/2017

human origin though, even though the blood group is not proved

because of disintegration of blood, and observed in paragraph 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 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."

18. As such, memorandum and subsequent recovery is also not useful

to the prosecution. In sum and substance, only there is evidence of

Smt. Pandri (PW-3) that she has seen the appellant and the

deceased running from the house which is relevant under Section 6

of the Evidence Act and which cannot be made basis for conviction

of the appellant under Section 302 of the IPC and there is no other

admissible evidence, direct or circumstantial, available on record. In

that view of the matter, the trial Court is absolutely unjustified in

convicting and sentencing the appellant under Section 302 of the

IPC.

19. In view of the aforesaid analysis, we are unable to sustain

conviction and sentence imposed upon the appellant under Section

302 of the IPC. Accordingly, the impugned judgment dated 28-11-

2016 passed in Sessions Trial No.332/2011 by the Additional

Sessions Judge (FTC), South Bastar, Dantewada, is hereby set Cr.A.No.180/2017

aside. The appellant stands acquitted of the charge framed against

him for the offence punishable under Section 302 of the IPC and he

shall be forthwith set at liberty, as he is in jail, unless he is required

in connection with any other case.

20. The appeal is allowed.

              Sd/-                                           Sd/-
       (Sanjay K. Agrawal)                        (Naresh Kumar Chandravanshi)
             Judge                                          Judge


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