Chattisgarh High Court
Chhatrasal @ Chhatrapal @ Guddu vs State Of Chhattisgarh on 10 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1059 of 2013
Chhatrasal @ Chhatrapal @ Guddu, S/o. Balakdas Dubey, Aged About 29 Years,
R/o. Village Berla, Soundpara, P.S. Berla, Distt. Durg, Chhattisgarh. Present
Address : 104A, Risali Sector, P.S. Nevai, Bhilai, Distt. Durg, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh, Through S.H.O. Police Station- Bhilai Nagar, Distt. Durg,
Chhattisgarh
---Respondent
For Appellant :- Mrs. Fouzia Mirza, Senior Advocate with Mr.
Naveen Shukla, Advocate
For State-Respondent :- Mr. Sudeep Verma, Dy. Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(10.01.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of Cr.P.C. is directed
against the impugned judgment dated 03.10.2013 passed by learned
Additional Sessions Judge, Durg, in Sessions Trial No.47/2012, by
which the appellant herein has been convicted for the offence under
Sections 302 and 201 of Indian Penal Code and sentenced to
imprisonment for life with fine of Rs.2000/- and R.I. for 2 years,
respectively.
2. Case of the prosecution, in short, is that dead and burnt body of
deceased Kamlesh Tiwari was recovered in Nursery of Jayanti
Stadium Bhilai, on which merg was registered and dead body was
subjected to post-mortem and in the post-mortem report, it was
revealed that deceased died on account of injuries to head and
chest. The post-mortem report is Ex.P-7 and during course of
investigation, it was brought out that there was enmity in between the
appellant and deceased, pursuant to which the appellant has caused
his death by stone and thereafter burnt his dead body. Pursuant to
memorandum statement of the appellant Ex.P-2, stone was
recovered vide Ex.P-3 and thereafter recovery of Key of Luna was
made on 13.10.2011 after a period of one month. After due
investigation, the appellant was charge-sheeted for the aforesaid
offences, which was ultimately committed to the Court of Sessions for
trial in accordance with law, in which the appellant abjured his guilt
and stated that he has not committed the offence.
3. In order to bring home the offence, prosecution examined as many as
10 witnesses and exhibited 18 documents and the appellant-accused
in support of his defence has neither examined any witness nor
exhibited any document.
4. The trial Court, after appreciation of oral and documentary evidence
on record, convicted the appellant herein for the offence under
Sections 302 and 201 of I.P.C. and sentenced as above, against
which the present appeal has been preferred.
5. Mrs. Fouzia Mirza, learned senior counsel would submit that
appellant has been convicted without there being any evidence and
human blood was not found in the seized boulder and merely on the
basis of recovery of the Key of Luna from the possession of the
appellant, it cannot be held that the appellant is the author of the
crime, as neither panchnama was prepared nor investigation has
been done to prove that Key which has been recovered was of the
Luna of deceased, as such, the conviction of the appellant is liable to
be set aside and the appeal deserves to be allowed.
6. Mr. Sudeep Verma, learned State counsel submits that the
prosecution has been able to bring home the offence beyond
reasonable doubt, therefore, conviction of the appellant for the
offence under Sections 302 & 201 of I.P.C. is well merited 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 for consideration would be whether the death of
deceased Kamlesh Tiwari was homicidal in nature, which the trial
Court has answered in affirmative that the death is homicidal in
nature relying upon the post mortem report Ex.P-7 proved by Dr.
S.K.Bagh (PW-6). In our opinion the said finding recorded by the trial
Court is based on evidence available on record, it is neither perverse
nor contrary to the record and therefore, we hereby affirm the said
finding.
9. Now, the next question would be, whether the appellant is the author
of the crime in question, to which the trial Court has clearly recorded
a finding that pursuant to the memorandum statement of the accused
Ex.P-2, boulder (large size stone) has been seized vide Ex.P-3 which
was used for commission of offence, but unfortunately the opinion of
the Doctor has not been invited that from the seized boulder, injuries
have been caused to the deceased and he died, for the reasons best
known to the prosecution. Furthermore, on the boulder which has
been seized by Ex.P-3, it appears that bloodstain was not there,
therefore, it has not been sent for FSL and therefore merely on the
basis of seizure of stone, it cannot be held that it was used as a
weapon for commission of offence.
10. Now the next circumstance, pointed out by the prosecution is
recovery of the Key of Luna vide Ex.P-4, Luna was seized from the
spot which was shown to be in possession of the deceased at the
time of incident. Key has been recovered from the house of sister of
the appellant which is apparent from Ex.P-4, it was not seized from
the possession of the appellant, though pursuant to the
memorandum statement of the appellant, it has been recovered.
11. The case of the prosecution is that the appellant has locked the Luna
and left it at the place of incident and kept the key hidden in his
sister's house despite having opportunity to throw the same and
keeping it in the house of his sister knowing well that if police would
find it, he would be in difficulty and he would prefer the course of
preserving is a circumstance which is unbelievable. Furthermore,
there is no evidence to prove that the Key of the Luna, which was
recovered at the instance of the appellant, belongs to Luna of the
deceased as no investigation or any panchnama was prepared by
the prosecution or has been deposed by the Investigating Officer
Sanjay Pundhir (PW-10) to show that the investigation has been
done to prove that the Key of Luna recovered belongs to the Luna of
the deceased.
12. The evidence of Sanjay Sharma (PW-2), Motor Mechanic, with
regard to the Luna being opened by the key recovered at the
instance of the accused/appellant is not corroborated by the
evidence of Investigating Officer - Sanjay Pundhir (PW-10). Thus,
any motive with respect to previous enmity has not been proved. As
such, applying the principles laid down in case of Sharad
Birdhichand Sarda v. State of Maharashtra1, we are of the
considered opinion that incriminating circumstances have not been
proved beyond reasonable doubt. Accordingly, conviction and
sentences imposed upon the appellant under Sections 302 & 201 of
I.P.C. is hereby set aside and he is acquitted of the said charges.
Consequently, this criminal appeal is allowed. The appellant is on
bail, he need not surrender; however, his bail bonds shall remain in
operation for a period of 6 months in view of the provisions contained
in Section 437-A of Cr.P.C.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Aks
1(1984) 4 SCC 116
