Chattisgarh High Court
Samaylal vs State Of Chhattisgarh on 11 January, 2023
Cr.A.Nos.615/2014 & 432/2014
Page 1 of 12
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.615 of 2014
{Arising out of judgment dated 13-3-2014 in Sessions Trial
No.436/2012 of the 3rd Additional Sessions Judge, Ambikapur}
1. Satish Kumar, S/o Basant Lal Uraon, Age 20 years, R/o Village
Lalpur, P.S. Udaypur, Civil & Revenue District Sarguja (C.G.)
2. Laxman, S/o Dhansingh Agaria, Age 19 years, R/o Village Sair
Bhudumar, P.S. Udaypur, Civil & Revenue District Sarguja (C.G.)
---- Appellants
Versus
State of Chhattisgarh, Through Police Station Udaypur, District
Sarguja (C.G.)
---- Respondent
AND
Criminal Appeal No.432 of 2014
Samaylal, S/o Nohar Say, Age 40 years, R/o Village Sayar
Bhudumar, Out Post Kedma, P.S. Udaypur, Civil & Revenue
District Sarguja (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Police Station Udaypur, District
Sarguja (C.G.)
---- Respondent
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For Appellants: Mr. R.V. Ram Rajwade, Advocate.
For State / Respondent: -
Ms. Ruchi Nagar, Deputy Government Advocate.
----------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
Judgment On Board
(11/01/2023)
Cr.A.Nos.615/2014 & 432/2014
Sanjay K. Agrawal, J.
1. Two appellants namely, Satish Kumar (A-1) & Laxman (A-2) in
Cr.A.No.615/2014 and sole appellant namely, Samaylal (A-3) in
Cr.A.No.432/2014, have preferred these appeals under Section
374(2) of the CrPC calling in question the impugned judgment
dated 13-3-2014 passed by the 3rd Additional Sessions Judge,
Ambikapur, in Sessions Trial No.436/2012, by which the learned
Additional Sessions Judge has convicted the appellants herein
under Sections 302 read with Section 34 & 307 read with Section
34 of the IPC and sentenced them to undergo imprisonment for
life & pay a fine of ₹ 500/- each, in default of payment of fine to
further undergo rigorous imprisonment for three months and to
undergo rigorous imprisonment for ten years & pay a fine of ₹
500/- each, in default of payment of fine to further undergo
rigorous imprisonment for three months, respectively.
2. Since both the two criminal appeals have arisen out of one and
same judgment dated 13-3-2014 passed by the 3rd Additional
Sessions Judge, Ambikapur, in Sessions Trial No.436/2012 and
since common question of fact and law is involved in both the two
appeals, they have been clubbed together, heard together and
are being disposed of by this common judgment.
3. Case of the prosecution, in short, is that on 3-10-2012 at 9.00
p.m., at Village: Sair Bhudumar, Chowki: Kedma, Police Station:
Udaipur, in furtherance of common intention, the appellants
caused the death of Urmila Bai - wife of Nohri Ram (PW-6) and
Cr.A.Nos.615/2014 & 432/2014
also assaulted Nohri Ram, and thereby committed the offence. It
is the further case of the prosecution that on 3-10-2012 after
taking meals, Nohri Ram (PW-6) and his wife were sleeping in
separate cots and at 9.00 p.m., on torchlight, he noticed
appellant Samaylal (A-3) who assaulted him on his neck and
when he stood up for taking up the axe lying therein, then
Samaylal (A-3), Komalsai & Basant (not arrayed as accused)
assaulted his wife Urmila Bai by sword by which she suffered
injuries and succumbed to death. Nohri Ram (PW-6) reported
the matter to Police Station Udaipur, Outpost Kedma on which
first information report (FIR) under '0' number was registered
against Samalsai (A-3), Komalsai & Basant for offences under
Sections 307, 302 & 34 of the IPC vide Ex.P-24 and thereafter,
numbered FIR was registered vide Ex.P-25. Morgue intimation
under '0' number was recorded vide Ex.P-26 and registered
morgue was recorded vide Ex.P-27. Inquest was conducted vide
Ex.P-2 and dead body was sent for postmortem which was
conducted vide Ex.P-17 by Dr. A.R. Jayant (PW-13) in which
cause of death was stated to be coma due to fracture of skull and
death was stated to be homicidal in nature. Nohri Ram (PW-6)
was medically examined vide Ex.P-18. Pursuant to the
memorandum statements of appellants Satish Kumar (A-1) &
Laxman (A-2), swords were seized and same were sent for
chemical analysis to the Forensic Science Laboratory (FSL), but
the FSL report was not brought on record. Query report Ex.P-19
Cr.A.Nos.615/2014 & 432/2014
was obtained from Dr. A.R. Jayant (PW-13) in which it has been
stated that the injuries mentioned in postmortem report Ex.P-17
and the MLC report of injured Nohri Ram (PW-6) - Ex.P-18,
could be caused by the swords seized from appellants Satish
Kumar (A-1) & Laxman (A-2).
4. The investigating officer after completion of investigation, charge-
sheeted the three appellants herein before the jurisdictional
criminal court from where the case was committed to the court of
sessions and from where the learned Additional Sessions Judge
received the case on transfer for trial and for hearing and
disposal in accordance with law.
5. The prosecution, in order to bring home the offence, has
examined as many as 17 witnesses and exhibited 34 documents
Exs.P-1 to P-34. The appellants abjured the guilt and entered
into defence by stating that they have not committed the offence
and they have been falsely implicated. They have examined
none, but exhibited two documents Exs.D-1 & D-2 - statements
of Nohri Ram and Himmatlal Giri in support of their case.
Statements of the appellants were recorded under Section 313 of
the CrPC in which they abjured the guilt and pleaded innocence.
6. The trial Court after appreciating ocular, oral and documentary
evidence on record, convicted and sentenced the appellants in
the manner mentioned in the opening paragraph of this judgment
against which these appeals have been preferred.
Cr.A.Nos.615/2014 & 432/2014
7. Mr. R.V. Ram Rajwade, learned counsel appearing for the
appellants, would submit that Nohri Ram (PW-6) is the injured
eyewitness, though he has lodged FIR vide Ex.P-24, but he did
not name appellants Satish Kumar (A-1) & Laxman (A-2) and has
lodged report against Komalsai & Basant who have not been
arrayed as accused. Furthermore, though pursuant to the
memorandum of A-1 & A-2, swords have been seized vide
Exs.P-8 & P-10 and same have been sent for chemical analysis
to the FSL, but no FSL report has been brought that it was
human blood and the memorandum witnesses have also turned
hostile and have not supported the case of the prosecution.
Moreover, no direct evidence is available as Nohri Ram (PW-6)
though has stated that it is Satish Kumar (A-1) who has
assaulted him, but in the FIR (Ex.P-24) lodged by him he has not
named Satish Kumar and in the statement recorded under
Section 161 of the CrPC (Ex.D-1), he has not named Satish as
assailant and stated that unidentified assailant has assaulted his
wife, therefore, test identification parade was required to be held
to identify the accused which has not been done, in absence of
that, the direct evidence of Nohri Ram (PW-6) cannot be
accepted. Therefore, as far as A-1 & A-2 are concerned, there is
no evidence available on record to connect them with the offence
in question. So far as Samaylal (A-3) is concerned, there is no
allegation of causing injury by him in the statement of Nohri Ram
(PW-6) recorded under Section 161 of the CrPC, who is the sole
Cr.A.Nos.615/2014 & 432/2014
eyewitness of the prosecution. Furthermore, no incriminating
articles has been recovered from A-3, as such, on the basis of no
evidence, he has been implicated, therefore, he is liable to be
acquitted.
8. Ms. Ruchi Nagar, learned State counsel, supporting the
impugned judgment would submit that Nohri Ram (PW-6) is the
injured eyewitness, merely on the basis of some irregularities
and omissions, his testimony cannot be discarded. Furthermore,
swords have been recovered from A-1 & A-2 pursuant to their
memorandum statements, though the memorandum & seizure
witnesses have turned hostile, but Himmatlal (PW-8) - one of the
memorandum & seizure witnesses, has accepted the fact that
pursuant to the statements of the accused A-1 & A-2, seizure has
been made from them. The investigating officer has
corroborated the memorandum of Samalsai (A-3), though the
memorandum statement has been made made, but no seizure
has been made from him, however, the investigating officer has
supported the prosecution case. As such, the appeals deserve
to be dismissed.
9. 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.
10. The first question as to whether the death of the deceased was
homicidal in nature has been answered by the trial Court in
affirmative relying upon the postmortem report Ex.P-17 proved
Cr.A.Nos.615/2014 & 432/2014
by Dr. A.R. Jayant (PW-13) holding the death of the deceased to
be homicidal in nature, which in our considered opinion is a
finding of fact based on the evidence available on record, it is
neither perverse nor contrary to the record and we hereby affirm
the said finding.
11. Now, the question is, whether the appellants are the authors of
the crime as projected by the prosecution and found proved by
the trial Court. Since there are three accused persons, we will
take up the cases of A-1 & A-2 together and the case of A-3
separately.
Cr.A.No.615/2014 - Appeal of A-1 & A-2
12. In order to bring home the offence, the prosecution has brought
the direct evidence as well as the circumstantial evidence to
prove the guilt of A-1 & A-2 - Satish Kumar & Laxman.
13. Nohri Ram (PW-6) is the injured eyewitness as well as husband
of deceased Urmila Bai. He is also the first informant who
lodged FIR Ex.P-24 on 3-10-2012 at late night 11.30 p.m.
immediately after the incident. The incident is of 3-10-2012 at
09.00 p.m. and after 2½ hours, report has been lodged in which
he has stated that in the night firstly, Samalsai (A-3) assaulted
him by sharp-edged weapon and thereafter, A-3, Komalsai &
Basant (not arrayed as accused) assaulted his wife Urmila Bai by
which she suffered injuries and died. Thereafter, statement of
Nohri Ram (PW-6) was recorded under Section 161 of the CrPC
(Ex.D-1) on the next day i.e. 4-10-2012 in which he made
Cr.A.Nos.615/2014 & 432/2014
statement that one unknown assailant assaulted him on his left
shoulder and thereafter, he assaulted his wife Urmila Bai by
which she suffered injuries and died. Further, in Ex.D-1, he has
clearly stated that his son has sexually exploited the daughter of
A-3, therefore, on account of enmity, he has lodged report
against A-3, Komalsai & Basant and on investigation, he came to
know that Satish Kumar (A-1), Laxman (A-2) and one
Radheshyam Giri - juvenile accused, have assaulted his wife
Urmila Bai by which she suffered injuries and died. Surprisingly,
in the statement before the court which was recorded on 13-6-
2013, he took somersault and made statement that Samalsai (A-
3) assaulted him on his shoulder and Satish (A-1) assaulted his
wife by sword, and thereafter, he threatened him, but thereafter,
she died.
14. A careful perusal of the statement of Nohri Ram (PW-6) would
show that Nohri Ram is the first informant to lodge FIR Ex.P-24
after 2½ hours of the incident in which he named Samalsai (A-3),
Komalsai & Basant. In the statement recorded on the next day
under Section 161 of the CrPC, Nohri Ram (PW-6) did not name
any person, even Samalsai (A-3) and also did not name
Komalsai & Basant, but in the statement before the Court, apart
from Samalsai (A-3), he has implicated Satish Kumar (A-1) &
Laxman (A-2). Thus, from a perusal of the statement of Nohri
Ram (PW-6) - injured eyewitness, it is quite vivid that Satish
Kumar (A-1) & Laxman (A-2) were neither named in the FIR
Cr.A.Nos.615/2014 & 432/2014
(Ex.P-24) lodged by Nohri Ram (PW-6) immediately after 2½
hours of the incident nor in the statement of Nohri Ram (PW-6)
recorded under Section 161 of the CrPC on the next day of the
incident i.e. 4-10-2012 as assailants in the offence in question.
Even Laxman (A-2) was not named by Nohri Ram (PW-6) in his
statement before the court recorded on 13-6-2013. As such,
presence of Satish Kumar (A-1) & Laxman (A-2) on the scene of
occurrence on 3-10-2012 at 09.00 p.m. has even not been
established by the prosecution beyond doubt as per the injured
eyewitness / husband of the deceased. Even otherwise, in the
statement under Section 161 of the CrPC, Nohri Ram (PW-6)
has failed to identify the assailant, the prosecution was obliged to
conduct test identification parade to identify the assailant which
has not been done by the prosecution for reasons best known to
it. Therefore, the statement made by Nohri Ram (PW-6) before
the court that Satish Kumar (A-1) has assaulted his wife by
sword becomes doubtful and suspicious, if Nohri Ram had
identified the assailant well in time that Satish Kumar (A-1) was
the assailant of himself and his wife, he could have made
statement in his statement recorded Section 161 of the CrPC
before the investigating officer on the next date of incident.
Furthermore, from Satish Kumar (A-1) & Laxman (A-2), pursuant
to their memorandum statements, only swords have been
recovered which have been sent for chemical examination to the
FSL, but the FSL report has not been brought on record holding
Cr.A.Nos.615/2014 & 432/2014
that the said swords were stained with human blood. As held by
the Supreme Court in the matter of Balwan Singh v. State of
Chhattisgarh and another1, if recovery is proved beyond doubt
and if the recovered article is found to be stained with human
blood, then recovery may be useful, even though the blood group
is not ascertained, but in absence of proof of human blood found
on the swords recovered on the basis of seizure memos Exs.P-8
& P-10 at the instance of A-1 & A-2, it cannot be established that
the said swords were used as weapons of offence, particularly,
when in the medical evidence of Dr. A.R. Jayant (PW-13) only
one incised wound was found that too on right hand elbow and
rest of the injuries are lacerated wounds.
15. In that view of the matter, it is unsafe to hold that Satish Kumar
(A-1) & Laxman (A-2) are assailants of deceased Urmila Bai, as
Nohri Ram (PW-6) - injured eyewitness, could not identify them,
though only named Samalsai (A-3) in the FIR and in the
statement recorded under Section 161 of the CrPC, he could not
name any of the assailants and the assailant(s) remain
unidentified. In the statement before the court, he has improved
his version holding that it is Satish Kumar (A-1) who assaulted
his wife by sword, but no human blood was found on the sword.
Therefore, it cannot be held that Satish Kumar (A-1) & Laxman
(A-2) are authors of the offence in question and the trial Court is
absolutely unjustified in convicting them under Sections 302 &
307 of the IPC. We hold so accordingly.
1 (2019) 7 SCC 781
Cr.A.Nos.615/2014 & 432/2014
Cr.A.No.432/2014 - Appeal of A-3
16. Though Nohri Ram (PW-6) has named Samaylal (A-3), Komalsai
& Basant (not arrayed as accused) in the FIR Ex.P-24 that they
have assaulted his wife by sharp-edged weapon, but in the
statement recorded under Section 161 of the CrPC, he has
simply stated that one unknown person has assaulted him and
his wife by sharp-edged weapon and has named Samalsai (A-3)
as well as Basant & Komalsai and confirmed the report Ex.P-24
by stating that as his son has committed sexual intercourse with
the daughter of Samalsai (A-3) and absconded, he has lodged
report against A-3, his brother Basant and Komalsai. Further, in
his statement before the court, he has implicated Satish Kumar
(A-1) and only stated about Samalsai (A-3) that he has assaulted
him on his shoulder by which he suffered injuries, the MLC report
of which is Ex.P-18. However, Nohri Ram (PW-6) did not say
that it is Samalsai (A-3) who has caused sword blow to his wife
Urmila Bai by which she died. He has only named Satish Kumar
(A-1) whose case has already been dealt with in the earlier
paragraphs. Though memorandum statement of Samalsai (A-3)
has been recorded vide Ex.P-6, but no incriminating article has
been recovered nor any incriminating information has been
derived which was not in the knowledge of the police. As such,
there is no evidence, direct or circumstantial, to implicate A-3
with the offence in question. Accordingly, the trial Court is also
unjustified in convicting appellant Samaylal (A-3) under Section
Cr.A.Nos.615/2014 & 432/2014
302 of the IPC, however, his conviction under Section 307 of the
IPC is absolutely well merited.
17. In the result, conviction and sentences imposed upon the three
appellants herein for offence under Section 302 read with
Section 34 of the IPC are hereby set aside and they are
acquitted of the said charge. Conviction and sentences imposed
upon appellants Satish Kumar (A-1) & Laxman (A-2) under
Section 307 read with Section 34 of the IPC are also hereby set
aside and they are acquitted of the said charge. They are on
bail. They need not surrender. However, their bail bonds shall
remain in force for a period of six months in view of the provision
contained in Section 437A of the CrPC. However, Samaylal (A-
3) is convicted under Section 307 of the IPC and sentenced to
the period already undergone by him. Since he has already
suffered sentence, no further order is necessary. He is in jail. He
be released forthwith, if his detention is not required in any other
offence.
18. The appeals are finally disposed of.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
