Chattisgarh High Court
Amit Kumar Kurre vs State Of Chhattisgarh on 17 October, 2022
Page 1 of 9
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.23 of 2013
Amit Kumar Kurre S/o Mahettar Ram Kurre Aged About 22 Years R/o
Harethi, P.S. Bamhanidih, Dist. Janjgir-Champa At Present R/o
Krishna Nagar, Subhash Block, SECL Korba, Outpost Manikpur, P.S.
Kotwali, Korba, Chhattisgarh ---- Appellant
Versus
State Of Chhattisgarh Through P.S. Kotwali, Korba, Dist. Korba,
Chhattisgarh ---- Respondent
Criminal Appeal No.186 of 2013
Yogesh Sharma @ Vikky S/o Umashankar Sharma Aged About 21
Years R/o Khisora, Police Chowki Pantora, Distt. Janjgir Champa C.G.
At Present R/o SECL Road Mudapar Korba, Police Chowki Manikpur,
Distt. Korba, Chhattisgarh ---- Appellant
Versus
State Of Chhattisgarh Through The Station House Kotwali, Korba,
Distt. Korba, Chhattisgarh ---- Respondent
Criminal Appeal No.625 of 2014
Deepak Kumar Chouhan S/o, Gopal Kumar Chouhan Aged About 20
Years R/o. Mudapar Bazar, Behind Ravi Sweets, Korba, P.S. Outpost
Manikpur, P.S. Kotwali, Korba, Civil and Revenue Distt. Korba,
Chhattisgarh ---- Appellant
Versus
State Of Chhattisgarh Through SHO, P.S. Kotwali, Korba, Civil and
Revenue Distt. Korba Chhattisgarh ----- Respondent
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For Appellant in Cr.A.No.23/2013: Ms. Nirupama Bajpai,
Advocate.
For Appellant in Cr.A.No.186/2013: Shri Amit Sahu, Advocate.
For Appellant in Cr.A.No.625/20214: Shri Anand Kumar Gupta,
Advocate.
For State/Respondent: Shri Sudeep Verma, Dy. G.A.
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Page 2 of 9
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment On Board
(17/10/2022)
Sanjay K. Agrawal, J.
1. Since all the three Criminal Appeals have arisen out of same
judgment dated 24.12.2012 passed by the Sessions Judge, Korba,
District Korba in Sessions Trial No.138/2010 and since common
question of fact and law is involved in all the three Appeals, they have
been clubbed together, heard together and are being disposed of by
this common judgment.
2. These three Criminal Appeals have been preferred by the
accused/Appellants under Section 374(2) of the Cr.P.C against the
impugned judgment convicting them for the offences under Section
302 read with Section 34 IPC as also under Section 302 read with
Section 201 IPC and sentencing them to undergo imprisonment for life
with fine of ₹ 2,000/- each and to undergo rigorous imprisonment for 1
year with fine of Rs.1,000/- each respectively, with usual default
stipulation.
3. Case of the prosecution, in brief, is that deceased Mahendra
Sahu, who was working as a salesman at the Airtel office belonging to
one Abhishek Sharma, used to go to his office by Hero Honda
motorcycle. He was provided a mobile bearing No.9893251949 by the
said office for official purposes. It is alleged that on the date of incident
i.e. 17.08.2010, when he did not return to his house till 11.00 p.m, the
next day i.e. 18.08.2010 his father Mangal Sahu (PW-4) lodged a
missing report at P.S Kotwali, Korba which was registered as Sanha
No.20; missing person No.65/2010 pursuant to which, his mobile sim
number was sent for investigation to In-charge, Office of Cyber Crime,
Korba. On being inquired by the Cyber Crime Cell, it was found that
the mobile of deceased Mahendra Sahu was being used by one
Praveen Shankar Singh (PW-16), resident of J.P Colony, Korba, who
had disclosed that he purchased the said mobile from Appellant
Yogesh Sharma @ Vikky for an amount of Rs.700/- and thereafter, on
the memorandum statement of the said Appellant (Ex.P-15), the other
Appellants were taken into custody and the dead body of the deceased
along with his motorcycle was found to have been hidden by throwing
the same in Manikpur pokhri, from where it was recovered. During
investigation, seizure of Titan wrist watch, mobile recharge voucher
and some money have been recovered at the instance of Appellant -
Yogesh Sharma vide Ex.P-10. Pursuant to the memorandum of
Appellant Amit Kumar Kurre (Ex.P-17), one Nokia mobile (N-73) was
recovered from his possession vide seizure Ex.P-12 and pursuant to
the memorandum statement of Appellant - Deepak Kumar Chouhan
(Ex.P-16), one key of motorcycle was recovered from his possession
vide Ex.P-11. Morgue intimation was recorded vide Ex.P-20. Dehati
Nalishi was registered vide Ex.P-19. Panchnama was prepared vide
Ex.P -9. Spot map was prepared vide Ex.P-5. Call details have also
been recovered vide Ex.P-18C. The dead body of the deceased was
sent for postmortem examination and Dr. Sandeep Agrawal (PW-2),
has conducted postmortem on the dead body of the deceased and
opined that the cause of death is asphyxia secondary of antimortem
strangulation (Ex.P-1).
4. After due investigation, the jurisdictional police carried out the
investigation and charge-sheeted the Appellants under Section 302/34
as also under Section 302/201 IPC. The Appellants abjured their guilt
and entered into defence. Their defence was that they have not
committed the offence and they have been falsely implicated in the
offences in question.
5. In order to bring home the offence, the prosecution has examined
as many as 17 witnesses and exhibited 27 documents Exs.P-1 to P-27.
The defence has examined none, but exhibited only four documents
i.e. Ex.D-1 to D-4.
6. The trial Court, after appreciating oral and documentary evidence
on record, convicted and sentenced the Appellants under Section
302/34 IPC as also under Section 302/201 IPC in the manner
mentioned in the opening paragraph of this judgment against which,
these Appeals have been preferred.
7. Shri Amit Sahu, learned counsel appearing for Appellant -
Yogesh Sharma @ Vikky in Cr.A.No.186/2013 submits that though
pursuant to memorandum statement of the said Appellant (Ex.P-15),
the mobile, recharge voucher and Titan watch have been recovered
but the same were not identified by Mangalram Sahu (PW-4), father of
the deceased and no identification proceedings of Article were
conducted to prove that it was the same watch which was worn by the
deceased at the time of incident. Furthermore, only on the basis of
alleged recovery, when the motive of the offence has not been proved,
the Appellant cannot be connected with the crime in question, as Vikas
Mandal (PW-13), witness to the seizure has been declared hostile.
Therefore, the Appellant deserves to be acquitted.
8. Ms. Nirupama Bajpai, learned Counsel for Appellant - Amit
Kumar Kurre submits that only Nokia mobile (N-73) of the deceased is
said to have been seized vide Ex.P-12 pursuant to his memorandum
statement (Ex.P-17) but it has not been verified by IMEI number.
9. Shri Anand Gupta, learned Counsel appearing for Appellant -
Deepak Kumar Chauhan submits that the key of the motorcycle said to
have been recovered from the said Appellant was not proved to be the
same belonging to the motorcycle owned by deceased Mahendra
Sahu, therefore, his conviction is not liable to be sustained.
10. Shri Sudeep Verma, learned Dy. Government Advocate
appearing for the State/Respondent supports the impugned judgment
of conviction and submits that the present Appeals deserve to be
dismissed.
11. 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.
12. The first question is whether the death of deceased Mahendra
Sahu was homicidal in nature, which has been answered by the trial
Court in affirmative relying upon the evidence of Dr. Sandeep Agrawal
(PW-2) and further relying on the postmortem conducted by him, who
vide his report Ex.P-1, opined that the deceased died on account of
strangulation, the said finding recorded by the trial Court is neither
perverse nor faulted with and accordingly, we affirm the same.
13. Now, the question is whether the Appellants are the authors of
the crime in question.
14. The trial Court had relied upon the memorandum statement of
the Appellants and the recovery made from them and the said finding
has been recorded in para-38 of the judgment. It is not in dispute that
the motive of offence has neither been attributed nor established,
except some alleged dispute which occurred at the Airtel shop where
the deceased was working as a salesman and on that count, the
Appellants are said to have assaulted the deceased and caused his
death. There is nothing on the record against Appellants No.2 & 3 to
establish that there was motive to commit the aforesaid offence,
therefore, motive of the offence is not established to convict the
Appellants for the offence in question.
15. The trial Court has relied upon the memorandum statement of the
Appellants. So far as Appellant No.1-Yogesh Sharma is concerned,
pursuant to his disclosure statement Ex.P-15, one Titan watch has
been recovered from his possession vide Ex.P-10, which has been
proved by seizure witness Mintu Markam (PW-12), who had not
substantially supported the case of the prosecution whereas, another
witness Vikas Mandal (PW-13) had completely turned hostile.
Prosecution was permitted to ask leading question from Mintu Markam
(PW-12) and in para-6, he has stated that recharge voucher and watch
have been recovered from the possession of Appellant No.1. In para-
11 of his cross-examination, he refused to identify the said Appellant
and stated that he cannot tell as to what recovery has been made from
the accused persons and he put his signatures on the documents as
suggested by the police. Furthermore, the Titan watch which has been
recovered pursuant to the memorandum statement of Appellant No.1
Yogesh Sharma (Ex.P-10) has not been proved to be owned and worn
by the deceased at the time of the incident. Mangalram Sahu (PW-4),
father of the deceased, has simply stated in para-4 of his deposition
that on the date of incident, when his son started for his office, he was
wearing Titan watch but furthermore, it has not been established that
the Titan watch that has been recovered from the possession of
Appellant No.1-Yogesh Sharma was the same watch which was worn
by his son deceased Mahendra Sahu, as no identification proceeding
of the Article seized has been conducted to ensure that it is the same
watch which the deceased was wearing. It was stated that at the
instance of the Appellants, dead body of deceased Mahendra Soni and
his motorcycle have been recovered vide Ex.P-14, however, as per the
evidence of Mintu Markam (PW-12), he had no knowledge as to what
seizure has been made from which Appellant. The dead body was
recovered vide Ex.P-9 prepared in the presence of Amarjeet Singh
(PW-11). He has stated that he was informed by the father of the
deceased that his son's dead body has been recovered in Manikpur
Pokhri. He along with father of the deceased and other persons
proceeded to recover the dead body. However, in para-4 of his
deposition, he has stated that he does not know the Appellants and the
police has not recorded his statement concerning the incident. He has
been declared hostile. In that view of the matter, it cannot be said that
the dead body as well as motorcycle were recovered at the instance of
Appellant No.1 - Yogesh Sharma and there is not an iota of evidence
brought against this Appellant to prove the offence of murder.
16. As per the memorandum statement (Ex.P-17) of Appellant - Amit
Kumar, one Nokia mobile (N-73) belonging to the deceased is said to
have been recovered vide Ex.P-12 which is proved by Mintu Markam
(PW-12). However, as per his evidence, he has no knowledge about
Nokia mobile and in order to prove that it belongs to the deceased, the
IMEI Number of said mobile ought to have been brought on record and
by adducing proper evidence, it could have been proved that it was
owned by deceased Mahendra Soni.
17. In that view of the matter, owing to a mere recovery of the Nokia
mobile having only model number on it, it cannot be held that the
same was used by the deceased at the time of offence. There is no
incriminating evidence brought against Appellant No.2-Amit Kumar
Kurre and from the memorandum statement of Appellant No.3-Deepak
Kumar Chauhan, only key of the motorcycle has been recovered which
is said to be of the motorcycle of the deceased, but there is no
evidence on record to show that the key so recovered belonged to the
motorcycle of the deceased. Therefore, conviction of Appellant No.3-
Deepak Kumar Chouhan is bad in law.
18. No other evidence is brought on record to convict the Appellants
for the offence and the chain of circumstances are also not complete to
hold them guilty.
19. In that view of the matter, we are of the opinion that conviction of
the Appellants under Section 302/34 and 302/201 is hereby set aside
and they are acquitted of the said charge. Accordingly, all the three
Appeals are allowed. The Appellants are on bail. The bail bonds
furnished by them shall remain in operation for a period of 6 months
from today in view of the provisions contained under Section 437-A
Cr.P.C.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari )
Judge Judge
Priya
