Dharam Singh And Anr vs The State Of Chhattisgarh
2022 Latest Caselaw 7170 Chatt

                                      1

                                                                      NAFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 455 of 2013


       1. Dharam Singh, S/o Sanneram, Aged about 24 years, R/o
          Village Hafra, Police Station Korar, Civil and Revenue District
          North Bastar, Kanker, Chhattisgarh.

       2. Smt. Savitri Bai W/o Raisingh Dhruwa, Aged about 45 years,
          R/o village Dongarkatta, Police Station Bhanupratappur, Civil
          and Revenue District North Bastar-Kanker, Chhattisgarh.



                                                           ---Appellants

                                     Versus

          State of Chhattisgarh through the Station House Officer,
          Police Station Bhanupratappur, Civil and Revenue District
          North Bastar - Kanker, Chhattisgarh.

                                                        ---Respondent




          For Appellants        :-     Mr. D.N. Prajapati, Advocate
          For State             :-     Ms. Ruchi Nagar, Dy. G.A.




                 Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Rakesh Mohan Pandey
                          Judgment on Board
                              30/11/2022


Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC has been

preferred by the two appellants herein assailing the impugned

judgment dated 15/04/2013 passed by learned Additional

Sessions Judge North Bastar Kanker in Sessions Trial No.

15/2012 whereby they have been convicted for offences

punishable under Sections 302/34 and 201/34 of IPC and

sentenced to undergo life imprisonment with fine of Rs. 100/-

each, in default of payment of fine, additional R.I. for 1 year

and R.I. for three years with fine of Rs. 100/- each, in default

of payment of fine, additional R.I. for 6 months, respectively.

2. Case of the prosecution, in brief, is that on 11/12/2011 in

between 9 PM to 11 PM at village Bhodiya Bazarpara near

Electricity tower within the ambit of Police Station

Bhanupratappur, the appellants herein, in furtherance of their

common intention, assaulted Mantorabai, wife of appellant No.

1 and niece of appellant No. 2, with axe and wooden stick and

caused her death and thereafter, in order to screen themselves

from the crime in question, they threw her body in the field

and thereby, committed the aforesaid offences.

3. Further case of the prosecution is that on 11/12/2011,

deceased Mantorabai, wife of appellant No. 1 and neice of

appellant No. 2, had gone to the house of Mahtarinbai (P.W.-3)

and thereafter, both the appellants came to the house of

Mahtarinbai (P.W.-3) and asked her about the deceased and

also said that if she is here, they would kill her with axe.

Suspecting the ill will of the appellants, Mahtarinbai (P.W.-3)

did not inform the appellants that deceased Mantorabai was in

her house and thereafter, the appellants left, but, thereafter,

the dead body of Mantorabai was found on 12/12/2011 in the

fields near electricity tower in the village. Accordingly, merg

intimation was registered by appellant No. 1 vide Ex. P/23 and

thereafter, first information report was lodged at Police Station

Bhanupratappur vide Ex. P/24. Summons were issued to the

witnesses under Section 175 of CrPC vide Ex. P/6 and inquest

was conducted vide Ex. P/7. Nazri naksha was prepared vide

Ex. P/11 and with the recommendation of the panchas, the

dead body of Mantorabai was subjected to postmortem, which

was conducted by Dr. M.K. Dhruv (P.W.-7) and as per the

postmortem report (Ex. P/5), cause of death is said to be

hypovolemic shock due to excessive bleeding which led to

cardiopulmonary arrest and nature of death is said to be

homicidal. Thereafter, memorandum statement of appellant

No. 1 was recorded vide Ex. P/9 and on that basis, seizure of

blood stained axe and wooden stick was made vide Ex. P/10.

The said seized articles were though sent for FSL, but no FSL

report has been brought on record. After due investigation,

both the appellants were charge-sheeted for offence

punishable under Sections 302/34 and 201/34 of IPC which

was committed to the Court of Sessions for trial in accordance

with law.

4. In order to bring home the offence, prosecution examined as

many as 18 witnesses and brought on record 26 documents.

The statement of appellants/accused persons was recorded

wherein they examined only one witness in their defence.

5. Learned trial Court, after appreciation of oral and

documentary evidence on record, holding the death of

deceased Mantorabai to be homicidal in nature and further

holding the appellants to be the perpetrators of the crime in

question, proceeded to convict them for offences punishable

under Section 302/34 and 201/34 of IPC and sentenced them

as aforesaid.

6. Mr. D.N. Prajapati, learned counsel for the appellants, would

submit that it is a case of no evidence and merely on the basis

of seizure of axe and wooden stick vide Ex. P/10 pursuant to

memorandum statement of appellant No. 1 recorded vide Ex.

P/9, the appellants have been convicted for the aforesaid

offences, even though no FSL report has been brought on

record to prove the blood stains on the axe, as such, it is

unsustainable and bad in law in view of the decision rendered

by the Supreme Court in the matter of Balwan Singh v. State

of Chhattisgarh1.

7. Per contra, Ms. Ruchi Nagar, learned State counsel, would

support the impugned judgment and submit that prosecution

has been able to bring home the offence and the trial Court

has rightly convicted the appellants for the said offences, as

such, the instant 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 question for consideration, is whether the death of

deceased Mantorabai was homicidal in nature ?

10. Learned trial Court has recorded an affirmative finding in this

regard holding the death of deceased Mantorabai to be

1 (2019) 7 SCC 781

homicidal in nature relying upon the postmortem report (Ex.

P/5) which has been proved by Dr. M.K. Dhruv (P.W.-7) and in

which it has been clearly recorded that the cause of death is

hypovolemic shock due to excessive bleeding which led to

cardiopulmonary arrest and the nature of death is homicidal.

As such, We are of the considered opinion that the trial Court

has rightly relied upon the statement of Dr. M.K. Dhruv (P.W.-

7) as well as the postmortem report (Ex. P/5) to hold the death

of deceased to be homicidal in nature. We hereby affirm the

said finding recorded by the trial Court, more so, when it has

not been seriously questioned by learned counsel for the

appellants.

11. The next question for consideration is, whether the appellants

are the perpetrators of the crime in question ?

12. Learned trial Court has also recorded an affirmative finding in

this regard. Admittedly, in the instant case, there is no direct

evidence available on record or any eye-witness of the

incident.

13. Mehtarinbai (P.W.-3), at whose house deceased had visited on

the date of the incident along with her minor child, has clearly

stated that the two appellants came to her house asking about

the whereabouts of the deceased and also stated that if she is

in the house of Mehtarinbai (P.W.-3), they will kill her with

axe. Suspecting the ill-will of the appellants, Mehtarinbai

(P.W.-3) did not inform the appellants about the presence of

the deceased in her house. Thereafter, she has stated that at

night when deceased Mantorabai's minor child was crying, she

went to check in on him and found that deceased Mantorabai

was not there and then the next day, she came to know that

the dead body of deceased Mantorabai has been found in the

field near the electricity tower.

14. From the statement of Mehtarinbai (P.W.-3), it is not apparent

that the appellants forcefully took the deceased from the

house of Mehtarinbai (P.W.-3) at any point of time and

thereafter, they assaulted her and caused her death.

Moreover, there is no evidence of last seen together against

the appellants as well.

15. Now the circumstantial evidence that has been brought on

record and which has been relied upon by the trial Court in

order to convict the appellants is that pursuant to the

memorandum statement of appellant No. 1 vide Ex. P/9,

recovery of blood stained axe as well as wooden stick has been

made vide Ex. P/10. The said articles were also sent to Dr.

M.K. Dhruv (P.W.-7) for query as to whether the injuries

suffered by the deceased could have been caused by the said

weapons to which the Doctor has opined in the query report

(Ex. P/22) that the injuries suffered by the deceased could

very well be caused by the weapons seized from the

appellants. However, the said seized weapons were though

sent for FSL, but for the reasons best known to the

prosecution, no FSL report has been brought on record.

16. The Supreme Court in the matter of Balwan Singh (supra) has

held that if the recovery of bloodstained articles is proved

beyond reasonable doubt by the prosecution, and if the

investigation is found to be tainted, then it may be sufficient

if the prosecution 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 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."

17. In the instant case also, though recovery of axe has been

proved by the prosecution witnesses, but FSL report has not

been brought on record to establish that the blood found on

the axe was of human origin and if it was of the same blood

group as that of the deceased, therefore, mere recovery of the

weapon of offence, in absence of FSL report, would not help

the case of the prosecution as admittedly, there is no other

piece of circumstantial evidence available on record which

would constitute panchsheel principles of proving the case on

the basis of circumstantial evidence beyond reasonable doubt

as laid down by the Supreme Court in the matter of Sharad

Birdhi Chand Sarda v. State of Maharashtra 2. In that view of

2 1984 (4) SCC 116

the matter, we are of the considered opinion that learned trial

Court is absolutely unjustified in convicting the two

appellants herein for offences punishable under Sections

302/34 and 201/34 of IPC. We hereby set aside the impugned

judgment recording conviction and awarding sentence to the

appellants and they are acquitted of the charges levelled

against them. Since they are already on bail, they need not

surrender, however, their bail bonds shall remain in force for

a period of six months in light of Section 437A of CrPC.

18. Accordingly, this criminal appeal stands allowed.

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



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