Chattisgarh High Court
Kaliram Mohle And Ors vs State Of Chhattisgarh on 9 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 235 of 2014
1. Kaliram Mohle, S/o. Baliram Mohle, Aged About 60 Years.
2. Chatur Singh Mohle, S/o. Kaliram Mohle, Aged About 35 Years.
3. Subhash Chandra Mohle, S/o. Kaliram Mohle, Aged About 28
Years.
4. Yogesh Kumar Mohle, S/o. Chatur Singh Mohle, Aged About 20
Years.
All R/o. Village, Sarangpur, Police Station- Mungeli, Revenue
District Mungeli, Civil District Bilaspur, Chhattisgarh.
---- Appellants
Versus
The State Of Chhattisgarh, Through Police Station- City Kotwali,
District Mungeli, Chhattisgarh.
---- Respondent
AND
Criminal Appeal No. 340 of 2014
1. Nakul Kurre, S/o. Awadh Ram Kurre, Aged About 44 Years.
2. Vinay Singh Kurre @ Golu, S/o. Nakul Kurre, Aged About 24
Years.
All R/o. Village Sarangpur, Police Station, Tehsil & District :
Mungeli, Chhattisgarh
---- Appellants
Versus
The State Of Chhattisgarh, Through the Station House Officer,
Police Station- City Kotwali, District Mungeli, Chhattisgarh.
---- Respondent
For Appellants : Mr. Sunil Verma & Mr. Rishi Sahu,
Advocates
State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
2
Judgment On Board
(09.02.2023)
Sanjay K. Agrawal, J.
1. Criminal Appeal No.235 of 2014, which has been preferred by
Kaliram Mohle (A-1), Chatur Singh Mohle (A-3), Subhash
Chandra Mohle (A-4) and Yogesh Kumar Mohle (A-6) and
Criminal Appeal No.340 of 2014, which has been preferred by
Nakul Kurre (A-2) & Vinay Singh Kurre (A-5) are directed
against the impugned judgment of conviction and order of
sentence dated 31.01.2014 passed by the learned Additional
Sessions Judge, Mungeli in Sessions Trial No.36/2012.
2. The appellants in Criminal Appeal No.235 of 2014 have been
convicted 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/-
149 of I.P.C.
each, in default of payment of fine, 1
year additional imprisonment
U/s. 147 of I.P.C. : Rigorous imprisonment for 1 year with
fine of Rs.500/- each, in default of
payment of fine, 1 month additional
imprisonment.
3. The appellants in Criminal Appeal No.340 of 2014 have been
convicted 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/-
149 of I.P.C.
each, in default of payment of fine, 1
year additional imprisonment
U/s. 148 of I.P.C. : Rigorous imprisonment for 1 year with
fine of Rs.500/- each, in default of
payment of fine, 1 month additional
imprisonment.
4. Case of the prosecution, in short, is that on 18.07.2012 at
morning 7:00 a.m. to 4:00 p.m. at village Singarpur Khar, P.S.
Mungeli, the appellants, who were six in numbers armed with
weapons i.e. pick-axe, constituted an unlawful assembly and in
furtherance of common intention committed riot and committed
murder of the deceased Devendra Singh. Further case of the
prosecution is that on 18.07.2012 at 7:00 a.m. to 4:00 p.m.
Devendra Singh, nephew of complainant Thakur Singh (PW-7)
had gone to his field Singarpur Khar alongwith umbrella, pickaxe
and mobile. Thereafter, deceased Devendra Singh was followed
by Thakur Singh (PW-7) but Devendra Singh could not be seen
thereafter; however, he noticed the umbrella and pickaxe in the
field of Nakul (A-2) and on being asked, Sita Bai informed that
Devendra Singh had gone with the accused persons, the
appellants herein, but he could not trace out Devendra Singh
and then on the later part of the day, when he asked the
whereabouts of Devendra Singh to Nakul (A-2) then he did not
inform anything and on being searched alongwith other
villagers, then the dead body of Devendra @ Dehru was found
in the field of Nakul (A-2) and he suffered injuries and had
already dead at that time. It is also alleged that the appellants
have encroached upon the governmental land and they have
also stopped the road and on that account, the dispute erupted
between the appellants and deceased. The matter was reported
to the Out Post- Fastarpur, Police Station Mungeli vide Ex.P-27
and inquest was conducted and on recommendation of
panchas, the dead body was sent for post-mortem, which was
conducted by Dr. S.P.Baghel (PW-5) and post-mortem report is
Ex.P-21. Pursuant to memorandum statement of Nakul (A-2)
vide Ex.P-6, one pickaxe and shirt were seized vide Ex.P-10 &
P-11; on the memorandum statement of Vinay (A-5) vide Ex.P-
7, one pickaxe was seized vide Ex.P-9 and one T-shirt was
seized vide Ex.P-12. Query report is Ex.P-22 and Ex.P-23-A, by
which the injury suffered by the deceased could have been
caused by the weapon seized from A-2 & A-5 and all the seized
articles were sent for FSL, but no FSL report has been brought
on record. After due investigation, all six 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.
5. In order to bring home the offence, prosecution examined as
many as 14 witnesses and exhibited 29 documents and the
appellants/ accused in support of their defence have not
examined any witness, but have exhibited the documents
Ex.D-1, Ex.D-6, Ex.D-7, Ex.D-8 & Ex.D-9.
6. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellants for the aforesaid
offences; however, the accused Nakul (A-2) and Vinay (A-5)
were acquitted from the offence under Section 147 of I.P.C. and
other accused persons Kaliram (A-1), Chatur (A-3), Subhash
Chandra (A-4) & Yogesh (A-6) were acquitted from the offence
under Section 148 of I.P.C. and sentenced as mentioned in the
opening paragraph of this judgment, against which the present
appeals have been preferred.
7. Mr. Sunil Verma & Mr. Rishi Sahu, learned counsel appearing
for the appellants would submit that the conviction of the
appellants is based on sole testimony of the eye-witness Bhop
Singh (PW-2) and there is no other piece of evidence available
on record. Though pursuant to memorandum statement of Nakul
(A-2) and Vinay (A-5) pickaxe and clothes were seized but no
blood has been found, as FSL report has not been brought on
record. As such, it could not be said that it is the weapon of
offence and more particularly the incident is of 18.07.2012
whereas the eye-witness was examined on 20.07.2012, as
such, there is delay of 2 days in recording statement of Bhop
Singh (PW-2) and there is no explanation brought on record by
the prosecution, as such, the conviction and sentence awarded
to the appellants are liable to be set aside and the appeals
deserve to be allowed.
8. Mr. Sudeep Verma, learned State counsel would submit that the
prosecution has been able to bring home the offence beyond
reasonable doubt, therefore, the trial Court has rightly convicted
all the appellants for the aforesaid offences and as such, the
appeals deserve to be dismissed.
9. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
10. The first question as to whether the death of the deceased
Devendra Singh was homicidal in nature, has been answered by
the trial Court in affirmative holding the death to be homicidal in
nature, relying upon the post-mortem report Ex.P-21 proved by
Dr. S.P.Baghel (PW-5), 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
finding.
11. Now, the next question for consideration is whether the trial
Court is justified in holding that the appellants are authors of the
crime. The trial Court has not found the motive for the offence
established, though the prosecution has projected that dispute
between the appellants and deceased was existing but no
clinching evidence is brought on record to hold that the
appellants had any motive to commit murder of the deceased
Devendra Singh for the dispute existing in between them and in
that view of the matter, we are unable to hold that there is any
motive on the part of the appellants to commit murder of the
deceased.
12. Now the next piece of evidence is that the incident is said to
have been witnessed by Bhop Singh (PW-2). The date of
incident is 18.07.2012 and his statement under Section 161
Cr.P.C. has been recorded on 20.07.2012, though he visited the
spot on 18.07.2012 immediately after the incident and he also
met with police personnel on 18.07.2012 as per Para 7 of the
statement and he was also in the village on 19.07.2012. He also
met with the family members of the deceased, but he did not
disclose that he had seen the incident by which the appellants
have assaulted the deceased by pickaxe and caused the death.
However, when the statement under Section 161 of Cr.P.C. is
recorded on 20.07.2012, he has only stated that on the date of
incident, he had seen that the deceased Devendra @ Derhu
along with umbrella, which he kept and was going to answer the
call of nature and after him Chatur Singh (A-3) and two other
boys were following him and later on he said that Nakul (A-2),
Chatur (A-3) and Vinay (A-5) all were standing and in the
meanwhile, he wanted to consume liquor, which Chatur (A-3)
had in his room near tube-well and then immediately thereafter
he had seen that Chatur (PW-3) and Vinay (P-5) started
assaulting the deceased then he fell down on the ground then
they absconded from the spot. Thereafter, when statement was
recorded before the Court on 24.07.2013, after one year, he
made substantive improvement and in para 2, he has clearly
stated that all the six accused persons surrounded the
deceased Devendra @ Derhu and assaulted him, which he has
seen and taken the dead body to Saharanpur field, but he did
not inform anything to anyone till he was called to Police Station
on 20.07.2012. He was confronted by Section 161 Cr.P.C.
statement recorded before the Police Station in para 11 and he
simply stated that he has informed the name of all the accused
persons including Nakul (A-2), Chatur (A-3) & Vinay (A-5), but if
it has not been recorded in Ex.D-1, he cannot state any reason.
When the Investigating Officer - S.R.Ghritlahare (PW-13) was
confronted and his attention was invited to the statement Ex.D-
1, he has clearly stated that he has recorded the statement of
Bhop Singh as per the statement given by him and if he could
have named other persons, he could have also recorded the
name of other persons. As such, there is a clear contradiction in
the statement of Section 161 Cr.P.C. and court statement of
Bhop Singh (PW-2) as in the statement under Section 161
Cr.P.C. recorded on 20.07.2012, he has only named Nakul (A-
2), Chatur (A-3) and Vinay (A-5), but only stated that the injury
was caused by Chatur (A-3) & Vinay (A-5). As such, the addition
of name of Kaliram (A-1), Nakul (A-2) and Yogesh (A-6) as
assailant is not borne out from the statement of Bhop Singh
(PW-2).
13. The statement of Bhop Singh (PW-2) recorded under Section
161 Cr.P.C. on 20.07.2012, after two days of incident is also not
explained. Admittedly, incident occurred on 18.07.2012 and the
dead body was noticed in the afternoon at 4:00 p.m. and as per
the statement of Bhop Singh (PW-2), he immediately visited the
spot where the dead body was found and as per para 6 of his
statement, he came back to his house, but admittedly as per his
own statement, he did not inform about the incident including
family members or police on that date. Furthermore, on the date
on 18.07.2012, he met the police personnel but he did not tell
anything and till 20.07.2012. he was moving in the village and
also met family members of the deceased Devendra but he did
not inform anything to them also, though interacted with the
family members of the deceased and only on 20.07.2012 when
he was called in the Police Station, he is said to have disclosed
the incident to the police and his statement was recorded under
Section 161 Cr.P.C. implicating only three accused persons A-2,
A-3 & A-5. As such, delay of 2 days in recording the statement
of Bhop Singh is equally fatal to the prosecution and more
particularly when he met the police personnel on the date of
incident on 18.07.2012 and also he was available in the village
and met with the family members of the deceased, which
creates doubt on the case of the prosecution. Apart from the
aforesaid testimony of Bhop Singh (PW-2) pursuant to the
memorandum statement of Nakul (A-2) and Vinay (A-5), pickaxe
have been seized and they have been subjected to query report
and attention of the Doctor has been invited and according to
Dr. S.P.Baghel (PW-5) injuries which suffered by the deceased
could have been caused by the said weapon but though it has
been sent for FSL, but no FSL report has been brought on
record for the reasons best known to the prosecution.
14. The Supreme Court in the matter of Balwan Singh vs. State of
Chhattisgarh and another1 held 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 human origin though, even though the
blood group is not proved because of disintegration of blood and
held in Para-24 as under:
"23. From the aforementioned discussion, we can
summarise 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 human origin though, even though the
blood group is not proved because of
disintegration of blood. The Court will have to
come to the conclusion based on the facts and
circumstances of each case, and there cannot be
any fixed formula that the prosecution has to
prove, or need not prove, that the blood groups
match.
1(2019) 7 SCC 781
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."
15. Further, the Supreme Court in the matter of Mani v. State of
Tamil Nadu2, considering the nature, scope and applicability of
Section 27 of the Indian Evidence Act, 1872, has held that
discovery is a weak kind of evidence and cannot be wholly
relied upon and has observed the following in paragraph 26 of
the judgment :-
"26. The discovery is a weak kind of evidence and
cannot be wholly relied upon and conviction in
such a serious matter cannot be based upon the
discovery. Once the discovery fails, there would be
literally nothing which would support the
prosecution case. We have already held that the
prosecution has failed to prove that the house
where alleged bloodstains were found belonged
exclusively or was possessed exclusively by the
appellant, we have further pointed out that the
discovery was absolutely farcical. There is one
other very relevant factor ignored by both the
courts that the prosecution never made any
attempts to prove that the clothes belonged to the
appellants. There is literally no evidence to suggest
anything to that effect. Therefore, even if we accept
the discovery, it does not take us anywhere near
the crime. Both the courts below have ignored this
very important aspect. Once these two important
2 (2009) 17 SCC 273
circumstances are disbelieved, there is nothing
which would remain to support the prosecution
theory."
16. Thus, in view of the fact that pickaxe were seized from the
possession of Nakul (A-2) and Vinay (A-5) the recovery is of no
use to the prosecution, more particularly recovery is a weak
piece of evidence in light of decision of the Supreme Court in
the matter of Mani Singh (supra). More particularly, Bhop Singh
(PW-2) did not state in his statement before the Court or
statement before the police under Section 161 of Cr.P.C. that
two accused A-2 & A-5 were armed with pickaxe, as such, mere
proving that from A-1 and A-5, pickaxe has been seized is of no
use to the prosecution.
17. Reverting to the facts of this case in light of the aforesaid
decisions, it is quite vivid that Bhop Singh (PW-2) who is said to
be witness and cited as eye-witness on behalf of the
prosecution, there is delay of two days in recording the
statement, though he met with the police personnel on the date
of offence on 18.07.2012 and next date he was available for
examination and he also met with the family members of the
deceased and no reasonable explanation has been brought on
record for two days delay in recording the statement of Bhop
Singh (PW-2). Furthermore, in Section 161 Cr.P.C. statement,
Bhop Singh (PW-2) has only named Nakul (A-2), Chatur (A-3)
and Vinay (A-5) and main assailant is Chatur (A-3) and Vinay
(A-5) and in his statement before the Court, he has implicated
all six accused persons, which is in contradiction with his
statement under Section 161 Cr.P.C. (Ex.D-1). As such, the
statement of Bhop Singh (PW-2), who is eye-witness suffers
from contradiction followed by the fact that there is delay of two
days in recording the statement, which has not been explained
by the prosecution reasonably and sufficiently. Furthermore,
pursuant to the memorandum statement of Nakul (A-2) & Vinay
(A-5), pickaxe has been seized but no human blood or blood
has been found proved in light of the decision of Balwan Singh
(supra) and recovery is a weak piece of evidence and in that
view of the matter, the appellants are entitled for the benefit of
doubt.
18. Accordingly, the conviction and sentences of all the accused
persons are set aside, they are acquitted of the charges. All the
appellants be released from jail forthwith, if not required in any
other case.
19. The appeals are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ashok
