Chattisgarh High Court
Aghansing Souta And Ors vs State Of Chhattisgarh on 8 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 464 of 2014
1. Aghansing Souta, S/o. Shri Mahetruram Souta, Aged About 36
Years, R/o. Mohada Soutapara, Police Station Ratanpur, Distt.
Bilaspur, Civil & Revenue Distt. Bilaspur, Chhattisgarh
2. Tiharuram Souta, S/o. Ghasiram Souta, Aged About 40 Years,
R/o. Mohada Soutapara, Police Station Ratanpur, Distt.
Bilaspur, Civil & Revenue Distt. Bilaspur, Chhattisgarh.
3. Duvasiyabai, W/o. Rajesh Souta, Aged About 20 Years, R/o.
Village Dumuhani Chouky Belgahana, Police Station- Kota,
Presently Mohada Soutapara, Police Station Ratanpur, Distt.
Bilaspur, Civil & Revenue Distt. Bilaspur, Chhattisgarh
---Appellants
Versus
State Of Chhattisgarh, Through Police Station Ratanpur, District
Bilaspur, Chhattisgarh
---Respondent
For Appellants :- Mr. Ajay Mishra, Advocate
For State/Respondent :- Mr. Ashish Tiwari, Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
(08.02.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellants under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 28.02.2014, by which the learned trial Court has convicted
the appellants herein for the offence under Sections 302 read
with Section 34, 324 read with Section 34 and 325 read with
Section 34 of I.P.C. and sentenced as under with a direction to
run all the sentences concurrently.
CONVICTION SENTENCE
U/s. 302 read with Sec. : Life imprisonment with fine of Rs.1000/-
34 of I.P.C.
each, in default of payment of fine
amount, 1 month additional rigorous
imprisonment.
U/s. 324 read with Sec. : Rigorous imprisonment for 6 months.
34 of I.P.C.
U/s. 325 read with Sec. : Rigorous imprisonment for 3 years with
34 of I.P.C.
fine of Rs.100/- each, in default of
payment of fine, 7 days additional
imprisonment.
2. Case of the prosecution, in brief, is that on 22.11.2012 at 3:00
p.m. at village Soutapara Mohada, District Bilaspur, the
appellants in furtherance of common intention assaulted the
deceased Jaisingh by Tabbal and Axe and also assaulted his
wife Shyambai (PW-5) by which she suffered injuries, which is
sufficient to cause death and thereby, the aforesaid offences
have been committed. Further case of the prosecution is that
seven months prior to 22.11.2012, nephew of Shyambai (PW-5)
Vishnu had abducted the daughter of appellant No.1 i.e.
Duvashiya Bai (appellant No.3), which was anyhow brought by
the appellant No.1 to his house after three months. On that
count, the dispute was subsisting in between the appellants and
deceased Jaisingh and his wife Shyambai (PW-5) and on
22.11.2012, at afternoon when Shyambai (PW-5) was alone in
her house and Jaisingh had gone to village Mohada, then all the
three accused persons armed with Tabli & Tangia reached to
the house of Shyambai (PW-5) and asked her to call Jaisingh
and they took her towards Mohada and assaulted her by which
she suffered grievous injuries and suffered fracture of her right
leg and at the same time, Jaisingh came and those appellants
left Shyambai (PW-5) as it is and started assaulting by their
weapon to Jaisingh, by which he suffered grievous injuries and
died on the spot. The matter was reported to the police by
Shyambai (PW-5) and Dehati-nalsi was recorded vide Ex.P-11,
merg intimation was registered by Ex.P-28 and thereafter FIR
was registered vide Ex.P-29. Inquest was conducted and on the
recommendation of panchas, the dead body of the deceased
was sent for post-mortem, which was conducted by Dr.
A.M.Shrivastava (PW-2) and Shyambai (PW-5) was medically
examined by Dr. Anil Shrivastava (PW-1) vide Ex.P-1. The post-
mortem report is Ex.P-3, in which cause of death was due to
shock and hemorrhage and nature of death was homicidal.
Pursuant to memorandum statement of the appellant No.1
(Ex.P-18), one iron Tabli and shirt were seized vide Ex.P-23.
Pursuant to memorandum statement of the appellant No.2
(Ex.P-19), one iron Tangli was seized vide Ex.P-24 and on the
memorandum statement of the appellant No.3 (Ex.P-20), one
iron made Tangli was seized vide Ex.P-27. All the seized
articles were sent for FSL and FSL report is Ex.P-43 wherein it
revealed that from the Tangli recovered from appellant No.1,
human blood was found and on the T-shirt of appellant No.2,
human blood was found and from the Tangli recovered from
appellant No.3, no blood was found. After due investigation, the
appellants were charge-sheeted for the aforesaid offences
before the jurisdictional criminal court and ultimately it was
committed to the Court of Sessions for trial in accordance with
law, in which the appellants abjured their guilt and entered into
defence.
3. In order to bring home the offence, the prosecution has
examined as many as 17 witnesses and exhibited 46
documents and the appellants/accused in support of their
defence have not examined any witness, but have exhibited the
documents Ex.D-1 to D-3.
4. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellants for the aforesaid
offences and sentenced as mentioned in the opening paragraph
of this judgment against which the present appeal has been
preferred.
5. Mr. Ajay Mishra, learned counsel for the appellant would submit
as under :-
(i) That the appellant No.1 has been convicted only on the
basis of self-serving testimony of Shyambai (PW-5), the injured
eye-witness, which is not reliable and though pursuant to the
memorandum statement, the bloodstained Tabbal has been
seized on which human blood was found, but the conviction is
based on surmises and conjectures, which is liable to be set
aside.
(ii) That, there is no evidence against the appellant No.2, as
he was stranger to the appellant No.1 and deceased also and
from the recovered article i.e. weapon of the offence, no blood/
human blood has been found except on the shirt, which would
not connect the appellant for commission of offence in question.
As per statement of Shyambai (PW-5), he was not in the village
on the date of offence, as he had gone to other village for
working as labour. Therefore, his conviction is liable to be set
aside.
(iii) That, as per the statement of Shyambai (PW-5), the
appellant No.3 was not present in the village, as she was
staying in the other village and on the recovered articles, no
blood/ human blood was found, even her presence is doubtful,
as such, the appeal deserves to be allowed.
6. Mr. Ashish Tiwari, learned State counsel, would support the
impugned judgment and submit that in view of the statement of
Shyambai (PW-5) and further in view of recoveries made from
all the appellants wherein FSL report shows that from the Tangli
seized from appellant No.1, human blood was found and from
the shirt seized from the appellant No.2, human blood has been
found, the learned trial Court has rightly convicted the appellants
herein for the aforesaid offences and the appeal deserves to be
dismissed.
7. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
8. The first question as to whether the death of the deceased
Jaising was homicidal in nature, has been answered by the trial
Court in affirmative holding the death to be homicidal in nature,
relying upon the statement of Dr. A.M.Shrivastava (PW-2) who
has proved the post-mortem report Ex.P-3, according to which,
death occurred due to hemorrhage and shock. In our considered
opinion, such finding recorded by the trial Court is a correct
finding of fact based on evidence available on record, it is
neither perverse nor contrary to the record and accordingly we
hereby affirm the said said finding.
9. Now the trial Court has convicted all three appellants holding
that they were authors of the crime. Considering the nature of
evidence available against each of them, we propose to
consider the case of each of the accused persons separately
and one by one as under :
10. Appeal of Appellant no.1 (Aghansingh Souta).
(i) The trial Court has found the motive of offence so far as
the appellant No.1 is proved, as nephew of the deceased
Jaisingh and wife Shyambai (PW-5) namely Vishnu has
abducted the daughter of the appellant No.1 and kept her for
three months and that is the motive assigned by the trial Court.
The aforesaid motive found proved by the trial Court appears to
be correct finding, as it has clearly been stated by Shyambai
(PW-5) who is injured eye-witness, whose nephew Vishnu has
taken the appellant No.3 along-with him, as such, the motive
found established by the trial Court against the appellant No.1
for commission of offence is a correct finding of fact and we
hereby affirm the said finding.
(ii) Now next circumstance that found proved by trial Court
and relied upon by the prosecution is the testimony of the
injured eye-witness Shyambai (PW-5). In her statement before
the Court, she has clearly stated that the appellant No.1
assaulted his husband by Tabbal. She has been taken to
lengthy cross-examination, but nothing has been extracted from
her to say that she is not the eye-witness and she has not seen
the incident as her presence is established on the record as
injured eye-witness and she suffered fracture of his leg by Ex.P-
2. As such, she was present on the spot and seen the incident
so far as assault made by the appellant No.1 to Jaising by
Tabbal and more particularly, pursuant to memorandum
statement of the appellant No.1 Ex.P-18, Tabbal has been
seized vide Ex.P-23 and in the FSL report Ex.P-43, human
blood has been found. As such, the motive of offence against
the appellant No.1 as well as from the oral testimony of the
injured eye-witness Shyambai (PW-5), who was present on the
spot and particularly in FSL report, the recovered article i.e.
weapon of offence, human blood has been found and according
to query report (Ex.P-5), the injury suffered by the deceased
could have been caused by Tabbal recovered from the
possession of the appellant No.1, as such, the trial Court has
rightly held the appellant No.1 as one of the author of the crime
in question. Accordingly, we hereby affirm the said finding and
the appeal on behalf of the appellant No.1 is liable to be and is
accordingly dismissed.
11. Appeal of the Appellant No.2 (Tiharuram Souta) :
(i) The appellant No.2 has also been convicted on the basis
of testimony of Shyambai (PW-5), the injured eye-witness. In
her statement before the Court, she has stated that the
appellant No.1 & 2 assaulted by Axe to her and also her
husband, by which her husband suffered injuries and died. In
the cross-examination in para 12 of her statement, she has
clearly stated that on the date on which her husband was
assassinated, appellant No.2 Tiharuram had gone to nearby
village Pachhalikhurd to work as labour. As such, his presence
on the spot of offence has become doubtful; more particularly
appellant No.2 had no any grudge against the deceased and her
wife Shyambai (PW-5). As per the statement of Shyambai (PW-
5), appellant No.2 was guest in the house of the appellant No.1
at that point of time when the offence is said to have been
committed. Though pursuant to the memorandum statement of
the appellant No.2, Axe was recovered by Ex.P-24, which was
sent for FSL, but in the FSL report vide Ex.P-43, no stain of
blood much less human blood has been found, though on the
shirt human blood has been found, but in the statement of
Shyambai (PW-5) injured/ eye-witness his presence on the
place of offence is not established and furthermore, the other
witness Sukariya Bai (PW-6), who is daughter of the deceased
and Shyambai (PW-5) was hearsay witness, as she was
informed by Shyambai (PW-5).
(ii) In light of decision of the Supreme Court in the matter of
Balwan Singh v. State of Chhattisgarh & Anr 1 the recovery is
of no use to the prosecution and only defence to be considered
is self-serving statement of Shyambai (PW-5), but she herself
has stated firstly that appellant No.2 was present on the place of
incident, but in the cross-examination she has clearly stated that
he had gone to adjoining village Pachhalikhurd to work as
labour. More particularly, he is not a family member to the
appellant No.1 & 3 and he was a distant relative, therefore, it
would be unacceptable that he kept himself involved in the
offence that too in the offence of murder. There is no other piece
of evidence available on record to implicate the appellant No.2
for commission of offence in question; therefore, the conviction
and sentence of the appellant No.2 is hereby set aside. The
appeal on his behalf is allowed.
12. Appeal of Appellant No.3 (Duvasiyabai) :
1 (2019) 7 SCC 781
(i) It is the case of the prosecution duly established from the
statement of Shyambai (PW-5) that nephew of deceased
Jaisingh and Shyambai (PW-5) namely Vishnu had kidnapped
the appellant No.3 (Duvasiyabai) and she remained with him for
three months and thereafter she was brought back by the
appellant No.1 and that is motive ascribed by the trial Court and
proved by Shyambai (PW-5). It is also admitted position on
record that Duvasiyabai thereafter was married and she is
staying with her husband at village Khurdpachhali. Though in
her statement before the Court, Shyambai (PW-5) has stated
that she has also assaulted her husband by Axe, but in the
cross-examination in para 12, she has clearly stated that on the
date of offence, the appellant No.3 was at village Khurdpachhali
along with her husband. Thereafter, Sukariya Bai, daughter of
the deceased, who was examined as PW-6, in her statement
before the Court has only stated that the appellant No.1 & 2
assaulted her mother Shyambai; as such, she has also not
stated the presence of the appellant No.3 at the place of
offence. Pursuant to the memorandum statement of the
appellant No.3 vide Ex.P-27, one Tangli (Axe) was recovered
but in FSL report Ex.P-43, which has been marked as Article 'F',
neither blood nor human blood has been found. As such, in light
of the decision in the matter of Balwan Singh (supra), the
recovery from the appellant No.3 is of no use to the prosecution.
Furthermore, the injured/ eye-witness Shyambai (PW-5) herself
has stated that she was present in the house of her husband on
the date of offence and, as such, the presence of appellant No.3
(Duvasiyabai) on the date of offence and her involvement in the
murder of Jaisingh is not established and more particularly she
was married and staying with her husband at nearby village. In
that view of the matter, the conviction and sentence awarded to
the appellant No.3 is not established and is hereby set aside
13. In the result, the conviction and sentence awarded to appellant
No.1 (Aghansingh) is hereby affirmed and the appeal on his
behalf is dismissed. The conviction and sentence of the
appellant No.2 (Tiharuram) and appellant No.3 (Duvasiyabai)
are hereby set aside and they are acquitted of the charges as
mentioned in the opening paragraph. Accordingly, the appeal
on behalf of the appellants No.2 & 3 is allowed to the above-
extent. The appellant No.2 & 3 are directed to be released
forthwith, if not required in any other offence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ashok
