Chattisgarh High Court
Faguram Kevat vs State Of Chhattisgarh on 5 January, 2023
1
Cr.A. No. 326 of 2013
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 326 of 2013
Faguram Kevat, S/o Bhagela Kevat, Aged 45 years, R/o Village
Sagar Awaspara, Thana Hirri, District Bilaspur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through - District Magistrate, Bilaspur, District
Bilaspur (C.G.)
---- Respondent
For Appellant : Mr. Dheerendra Pandey, Advocate
For Respondent : Mr. Ishan Verma, Panel Lawyer
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(05.01.2023)
Rakesh Mohan Pandey, J.
1. This criminal appeal has been filed under Section 374(2) of the
Cr.P.C. challenging therein judgment of conviction and order of
sentence recorded by the IVth Additional Sessions Judge, Bilaspur,
District Bilaspur (C.G.) in Sessions Trial No. 78/2012 dated
29.12.2012, whereby the appellant stands convicted and sentenced
as under:-
Conviction Sentence
Under Section 302 of the Life Imprisonment and fine of
Indian Penal Code (for short Rs.500/-, in default of payment
'IPC') of fine to undergo additional R.I.
for Six months.
Cr.A. No. 326 of 2013
2. The case of the prosecution, in nutshell, is that one year prior to the
date of incident i.e. 08.02.2012 there arose dispute between
deceased Dhannu Ram Kenvat and the appellant with regard to
becoming priest of a temple and quarrel also took place between
them. Later on, the dispute between them was resolved, but on
08.02.2012 at about 03:30 hours on account of previous enmity the
present appellant assaulted the deceased by means of a wooden
club (lathi) and the deceased succumbed to the injuries. The
incident was witnessed by PW-6 Rajkishor Kaushik. Information
regarding the murder of Dhannu Ram Kenvat was given by PW-2
Shriram Kenvat to the police and it was recorded in
Roznamchasanha vide Ex.-P/24. The incident was informed to the
police on 08.02.2012 at about 11:45 am by PW-4 Phekuram.
Consequently, PW-14 Ishak Khalko, Investigating Officer, registered
Dehatinalishi vide Ex.-P/10. Thereafter, Dehati Merg Intimation was
recorded vide Ex.-P/09. Notice to the witnesses was issued vide
Ex.-P/3 and the inquest was conducted vide Ex.-P/4. F.I.R. (Ex.-
P/17) was registered on the basis of Dehatinalishi (Ex.-P/10). The
sample of soil, blood stained soil, two pieces of bricks and battle-
axe were seized from the spot vide Ex.-P/5. The memorandum
statement of the appellant was recorded vide Ex.-P/7 in presence of
PW-7 Ramayan Prasad and PW-3 Chhotelal and on the instance of
the appellant, a wooden club was seized vide Ex.-P/6 containing
blood like stains. Shirt and trousers of the appellant were also
seized. The dead body of the deceased was sent for postmortem
Cr.A. No. 326 of 2013
and it was conducted by PW-13 Dr. Sunil Kumar and his report is
Ex.-P/15. The seized wooden club was sent for query to the Doctor
vide Ex.-P/21. Clothes of the deceased were also seized vide Ex.-
P/9. The seized articles were sent for FSL vide Ex.-P/13.
3. After completion of the investigation, charge-sheet was filed against
the appellant for offence punishable under Section 302 of the IPC
before the Judicial Magistrate First Class, Bilha, District Bilaspur
and it was committed to the Sessions Court for hearing and
disposal in accordance with law.
4. The trial Court has framed charge under Section 302 of the IPC on
11.06.2012 against the appellant. The accused/appellant abjured
the guilt, pleaded non-guilty and entered into defence. The
prosecution in order to bring home the offence examined as many
as 14 witnesses and exhibited 24 documents in support of the case,
whereas the defense exhibited three documents which are D1 to
D3. Statement of the accused/appellant under Section 313 of
Cr.P.C. was recorded in which he abjured the guilt and pleaded
innocence.
5. The trial Court after appreciation of oral and documentary evidence
available on record, particularly relying upon the evidence of PW-6
Rajkishor Kaushik, seizure of wooden club (lathi) on the instance of
the appellant and blood stains found over wooden club, convicted
the present appellant as mentioned in opening paragraph of this
judgment. Hence, the appellant has preferred the instant appeal
under Section 374(2) of Cr.P.C. against the impugned judgment of
Cr.A. No. 326 of 2013
conviction and order of sentence recorded by the trial Court.
6. Learned counsel for the appellant would submit that from the
evidence of PW-6 Rajkishor Kaushik and his statement recorded
under Section 161 Cr.P.C., it is apparent that the appellant was
sleeping in his house which is situated near the house of this
witness and on 08.02.2012 at about 03:30 hours the deceased and
the present appellant were quarrelling. This witness has further
stated in his 161 Cr.P.C. statement that the appellant was having
wooden club, whereas battle-axe was in the hand of the deceased.
He would further submit that this witness has not seen the entire
incident and he entered into his house. Learned counsel for the
appellant would further submit that though seized articles were sent
for FSL, but there is no FSL report. He would further submit that
from the map and site plan, it is apparent that the dead body of the
deceased was found between the house and road, and it was not
lying in the house of the present appellant, therefore, the learned
trial Court has committed illegality in recording conviction solely on
the basis of evidence of PW-6 Rajkishor Kaushik. He would pray of
order of acquittal in favour of the appellant.
7. On the other hand, learned counsel for the State would submit that
there is eyewitness, wooden club was seized on the instance of the
present appellant and seizure has been proved by the seizure
witnesses. He would further submit that ocular evidence has been
corroborated by the medical evidence. He would also submit that
the appeal preferred by the appellant deserves to be dismissed.
Cr.A. No. 326 of 2013
8. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
with utmost circumspection.
9. The questions arise for consideration :-
(i) Whether the death of Dhannu Ram Kenwat was
homicidal?
(ii) Whether appellant Faguram Kevat was perpetrator/author
of the crime?
Answer to Question No. (i):
10. The learned trial Court has recorded a finding of homicidal death of
Dhannu Ram Kenvat relying upon the evidence of Dr. Sunil Kumar
(PW-13) who conducted the postmortem and gave his report is Ex.-
P/15. As postmortem report (Ex.-P/15), Dr. Sunil Kumar (PW-13)
opined that cause of death of the deceased was homicidal in
nature. The finding of homicidal death recorded by the learned trial
Court is finding of fact based upon the substantial evidence is
neither arbitrary nor contrary to evidence. Hence, it is held that the
death of Dhannu Ram Kenvat is homicidal and the finding recorded
by the learned trial Court is hereby affirmed.
With regard to Question No. (ii):
11. PW-1 Puniya Bai is the wife of deceased Dhannu Ram Kenvat. She
has stated in para-3 that she does not know as to how her husband
died.
12. PW-2 Shriram Kenvat is a hearsay witness who has stated that at
about 05:00 am Sarpanch came to his house and narrated the fact
Cr.A. No. 326 of 2013
that Dhannu Ram Kenvat is lying near pond of Awaspara and when
they went there, they found the dead body of the deceased, but in
para-3, he has stated that he does not know as to how Dhannu
Ram Kenvat died.
13. PW-3 Chhote Lal Ratre is seizure witness and he has supported the
seizure of the wooden club from the possession of the appellant.
14. PW-5 Mahendra Kumar Tiwari has stated that on the date of
incident, he was called by Golu, who informed that Dhannu and
Fagu were fighting and when he reached there along with other
villagers, he found that Dhannu was unconscious. Thereafter,
Dhannu was taken to the hospital.
15. PW-6 Rajkishor Kaushik, who is eyewitness according to the
prosecution, has stated that at about 03:30 am he woke up for
urine, he saw that the appellant and the deceased were fighting. He
has further stated that due to fear, he entered into his house and
called the Sarpanch Mahendra Tiwari through mobile phone and
thereafter he left his house along with his children. He has further
stated that when he came back, he found that the dead body of
deceased Dhannu was lying in the kitchen garden of the appellant.
16. PW-13 Dr. Sunil Kumar who conducted the postmortem has found
five lacerated wounds and three contusions over the body of the
deceased and according to this witness; cause of death was rupture
of lungs and excessive bleeding. He has further stated that nature
of death was homicidal.
Cr.A. No. 326 of 2013
17. PW-14 Ishak Khalko conducted the investigation and filed charge-
sheet.
18. The proper scrutiny and appreciation of the evidence and judgment
passed by the learned trial Court would reveal that the basis of the
conviction is evidence of PW-6 Rajkishor Kaushik and seizure of
wooden club from the present appellant. It is not in dispute that PW-
6 was sleeping in his house. PW-6 has seen the present appellant
and the deceased fighting, but he has not seen the present
appellant committing murder of the deceased. It is also not in
dispute that the dead body of the deceased was found between the
house of the appellant and the road. The previous enmity is double
edged sword, therefore, on the basis of previous enmity, it cannot
be said that the present appellant is the author of crime in question.
The wooden club which was seized on the instance of the present
appellant was sent for FSL along with other articles, but there is no
FSL report to connect weapon with the occurrence.
19. In the matter of Balwan Singh Vs. State of Chhattisgarh reported
in (2019) 7 SCC 781 their lordships of the Hon'ble Supreme Court
have observed that 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 which reads thus :-
"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
Cr.A. No. 326 of 2013
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."
20. In the matter of State of Rajasthan Vs. Wakteng reported in (2007)
14 SCC 550 the Hon'ble Supreme Court has considered the issue
where the sword recovered was not sent for FSL and no report was
exhibited and even no question in that regard was put to the
accused and held as under :-
17. So far as recovery of the sword is concerned, the
same was not sent for any examination by the
Forensic Science Laboratory and the report if any was
not exhibited and even no question in that regard was
put to the accused while he was examined under
Section 313 of the Code.
18. Above being the position, the High Court has
rightly held that the prosecution has failed to establish
the accusations against the respondent. The appeal is
sans merit and is dismissed.
21. Above being the legal position, in light of the above stated
discussion it appears that the prosecution utterly failed to prove the
guilt of the present appellant beyond reasonable doubt. PW-6
Rajkishor Kaushik has not seen entire incident and seizure of
Cr.A. No. 326 of 2013
wooden club is not sufficient to hold the appellant guilty for the
offence punishable under Section 302 of the IPC, therefore, in our
considered opinion the benefit of doubt can be extended to the
present appellant. Hence, by extending benefit of doubt to the
present appellant, we hereby set aside the conviction so recorded
and the sentence so awarded by the trial Court to the appellant vide
the impugned judgment dated 29.12.2012. The appellant is
acquitted of charge under Section 302 of the IPC. Presently he is on
bail, therefore, there is no need to surrender, however, his bail
bonds shall remain in force for a further period of six months in view
of the provisions contained in Section 437A of Cr.P.C.
22. Accordingly, the criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti
