Chattisgarh High Court
Sharad Masih @ Lallu vs State Of Chhattisgarh on 8 August, 2023
Bench: Ramesh Sinha, Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 26/07/2023
Judgment delivered on : 08/08/2023
Criminal Appeal No.1219 of 2022
Pritam Kumar Paikra @ Pritam, S/o Shri Gopal Singh
Paikra, aged about 22 years, R/o Village Gidhamudi,
Outpost Morga, P.S. Bango, Distt. Korba (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, through Police Station-Bango, Distt.
Korba (CG)
---- Respondents
Criminal Appeal No.1398 of 2022 Sharad Masih @ Lallu, son of Shant Masih, aged about 32 years, Resident of Village Gidhmundi, Police Chowki Morga, Police Station Bango, Distt. Korba (CG)
---- Appellant (In Jail) Versus State of Chhattisgarh, through Police of Police Station- Bango, Distt. Korba (CG)
---- Respondents Criminal Appeal No.1645 of 2022 Saroj Kumar Gond @ Nan, son of Jethuram Gond, aged about 22 years, resident of Village Gidhmundi, Police Chowki Morga, Police Station Bango, District Korba, Chhattisgarh.
---- Appellant (In Jail) 2 Versus State of Chhattisgarh, through Station House Officer, Police Station-Bango, Distt. Korba (CG)
---- Respondents (Cause-title taken from Case Information System) For Appellants : Mr. Shailendra Dubey with Ms. Shivali Dubey, Advocates in CRA No.1219/2022, Mr. Rajeev Kumar Dubey, Advocate in CRA No.1398/2022 and Ms. Monika Dey, Advocate in CRA No.1645/2022.
Respondent/State : Mr. Gagan Tiwari, Dy. Govt. Advocate.
Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon'ble Smt. Justice Rajani Dubey C.A.V. JUDGMENT Per Rajani Dubey, Judge
01. The appellants in these appeals under Section 374(2) of Code of Criminal Procedure (CrPC) have challenged the validity, legality and propriety of the judgment of conviction and order of sentence dated 23rd June, 2022 passed by First Additional Sessions Judge, Katghora, Distt. Korba in Sessions Trial No.35/2020 whereby the appellants stand convicted and sentenced as under:
Conviction Sentence Under Section 302/34 of Indian Life imprisonment, pay a fine of Penal Code. Rs.5,000/- and in default thereof, to suffer additional RI for three months.
Under Section 354/34 of Indian Rigorous imprisonment for five 3 Penal Code. years, pay a fine of Rs.3,000/-, in default thereof to suffer additional RI for one month.
Both the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 6.5.2020 at around 10.00 pm the appellants went to the house of Prakash Paikra in drunken condition and enquired from his wife Usha Painkra about him, on which she told that he (Prakash Paikra) has gone to the house of her maternal grand-father. Thereafter, the appellants forcibly took her to garden, outraged her modesty and when she raised alarm, the appellants poured kerosene on her body, which was kept in her house, and set her ablaze. Thereafter, the appellants fled from the spot on motorcycle.
03. During the course of investigation, spot map was prepared vide Ex.P/3 and statements of Usha Paikra and her husband were recorded. Dying declaration of the deceased was recorded by the Executive Magistrate, Bilaspur vide Ex.P/3 on 8.5.2020. However, she died on 10.5.2020 while undergoing treatment in hospital. Hence on the information being given by the ward boy of the hospital, Merg No.30/20 (Ex.P/21) was recorded. The dead body was sent for postmortem, which was conducted by Dr. Manoj Singh (PW-16) vide Ex.P/43 wherein he noticed multiple injuries on the body of the deceased, she was 60-61% burnt and the cause of her death was septic shock due to antemortem burn 4 injuries and its complication. The appellants were arrested and their memorandum statements were recorded vide Exs.P/11, P/12 and P/13, pursuant to which one 5 liter plastic container and motorcycles were seized vide Exs.P/15, P/16 & P/17. Plain and bloodstained soil, the burnt hair and burnt clothes of the deceased and one matchbox containing 05 matchsticks were also seized from the spot vide Ex.P/14. After completing the usual formalities of investigation, charge sheet was filed against the appellants under Sections 354, 302, 34 of IPC.
04. The trial Court framed charges under Sections 302/34 and 354/34 of of IPC against the appellants, which were abjured by them and they pleaded for trial. In order to prove its case, the prosecution examined as many as 17 witnesses. Thereafter, statements of the accused/appellants were recorded under Section 313 of CrPC in which they denied the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no witness was examined by them in their defence.
05. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment dated 23rd June, 2022 convicted and sentenced the appellants as mentioned in para 1 of this judgment. Hence these appeals.
5
06. CRA No. 1219/2022 : Mr. Shailendra Dubey, learned counsel for appellant Pritam Kumar Paikra submits that conviction and sentence of the appellant are bad, improper, incorrect and contrary to the material on record. He has falsely been convicted without any basis in the present case. There is no previous enmity between the appellant and the deceased and as such, no motive was there with the appellant to commit her murder. In Dehati Nalishi (Ex.P/30), his name is written as xksiky daoj dk NksVk yM+dk izhre (younger son of Gopal Kanwar - Preetam). Thus, it is clear that his name was intentionally inserted in Dehati Nalishi. It is also worthwhile to mention here that in the dying declaration (Ex.P/3) the deceased has not stated the name of the appellant and she only disclosed the name of accused Saroj, Lallu and one Deepak. There is no eyewitness to the incident and the dying declaration and Dehati Nalishi are suspicious documents. It is clear from the memo Ex.P/27 that on 9.5.2020 the deceased was not in a position to give statement, however, the learned trial Court has heavily relied upon her dying declaration dated 8.5.2020 (Ex.P/3) which is not at all reliable. The conduct of husband of the deceased Prakash Paikra (PW-2) is also very suspicious as after the incident he first went to police station and after that, the police took the deceased to hospital for treatment. Thus, the entire prosecution story appears to be doubtful. The incident took place in the house of the deceased where her daughter was also 6 present but she has not stated against the appellant. In these circumstances, the findings recorded by the trial Court are not sustainable in law and the appellant deserves to be acquitted of the charges leveled against him.
07. CRA No.1398/2022 : Mr. Rajeev Kumar Dubey, learned counsel for appellant Sharad Masih @ Lallu has argued that the entire case is based upon circumstantial evidence and the prosecution has utterly failed to establish the link of circumstances which could unerringly indicate that it is the appellant only who along with other accused persons committed the crime in question. The prosecution has failed to establish any motive with the appellant for commission of such a heinous offence. There are major contradictions and omissions in the statements of the prosecution witnesses. In the dying declaration (Ex.P/3) and Dehati Nalishi (Ex.P/3), the deceased stated the name of accused Lallu but appellant's nick name is not Lallu and he is known as Sharad Maish only. The learned trial Court without proper appreciation of the oral and documentary evidence has recorded a finding of guilt against the appellant, which is liable to be set aside.
08. CRA No.1645/2022 : Ms. Monika Dey, learned counsel for appellant Saroj Kumar Gond has contended that the judgment of conviction and order of sentence passed by the learned trial Court 7 is illegal, contrary to the facts and circumstances of the case. There are various contradictions and omissions in the statements of the prosecution witnesses but the learned trail Court has not properly scrutinized the same before holding the appellant guilty of the aforesaid offence. Learned trial Court has relied upon the statement of Prakash Paikra (PW-2) and Vinod Kumar (PW-5) who are not reliable witnesses. The entire case of the prosecution is based upon the statements of the interested witnesses only, hence the trial Court ought to have examined their statements minutely with due care and caution. But it has not been done. The prosecution has not proved its case against the appellant beyond all reasonable doubt. Therefore, the impugned judgment in relation to the appellant Saroj Kumar Gond is liable to be set aside and he be acquitted of all the charges leveled against him.
Learned counsel appearing for the appellants have placed reliance on the judgment dated 7.5.2021 of the Hon'ble Supreme Court in CRA No.758/2010 in the matter of Jayamma and another Vs. State of Karnakata and the judgment dated 30.4.2019 in CRA No. 903/2018 in the matter of Poonam Bai Vs. State of Chhattisgarh.
09. On the other hand, Mr. Gagan Tiwari, learned Dy. Government Advocate for the State supporting the impugned judgment would submit that the learned trial Court having minutely examined the oral and documentary evidence has rightly 8 convicted and sentenced the appellants, which warrants no interference by this Court.
10. We have heard learned counsel for the parties and perused the material available on record.
11. So far as homicidal death of the deceased Smt. Usha Paikra is concerned, the same has not been disputed by learned counsel for the appellants. Even otherwise, as per the dying declaration (Ex.P/3) of the deceased, Dehati Nalishi (Ex.P/30) and the evidence of her daughter PW-1 Ku. Chhaya Paikra and husband PW-2 Prakash Paikra, it is clear that the deceased was set on fire after pouring kerosene on her body. Further, as per postmortem report (Ex.P/6) the doctor noticed antemortem injuries on her face, neck, chest, hands, hip region and other parts of the body and opined that cause of her death was septic shock due to 60- 61% burning. Thus, from the oral, documentary and medical evidence, it stands proved that death of Smt. Usha Paikra was homicidal in nature.
12. Learned trial Court relying upon the dying declaration (Ex.P/3), Dehati Nalishi (Ex.P/30) and statement of PW-1 Ku. Chhaya Paikra, aged about 11 years, daughter of the deceased, found that the prosecution has proved its case beyond all reasonable doubt against all the appellants.
13. Dehai Nalishi (un-numbered FIR) Ex.P/30 was recorded at 9 the instance of deceased Smt. Usha Paikra in the Police Outpost- Morga on 7.5.2020 at 2.15 am wherein the date and time of incident are mentioned as 6.5.2020 at 10 pm. In the last lines of Dehati Nalishi, it is stated that she along with her husband and children has come to lodge report. Thus, it is clear that after the incident the deceased along with her husband and their children went to police station to lodge report.
In Dehati Nalishi, the deceased stated against middle brother of Sheetal Masih - Lallu Masih, younger son of Gopal Kanwar - Preetam and Saroj Gond. As per Dehati Nalishi, all the three accused tried to outrage the modesty of the deceased and on her resistance, they gagged her, threw her on the floor and set her ablaze after pouring kerosene on her body. Thereafter, all the accused persons fled from the spot. However, her husband reached there and extinguish the fire.
14. As per merg intimation (Ex.P/21), Usha Paikra died on 10.5.2020 at 10.20 am during treatment. Ex.P/3 is the dying declaration of the deceased wherein she stated as under:
e`R;q iwoZ dFku LFkku flEl cuZ ;qfuV fcykliqj ¼N]x]½ csM+ u % 19] uke & m"kk ckbZ iSdjk fnukad 08@05@2020 le;% 2%15 cts] ifr & izdk'k iSdjk mez & 27 o"kZ R/o & irqfj;kMkM+ P/s & ckxks ftyk&dksjck] iz'u % eS tks iwN jgha gwa lqukbZ o le> ik jgh gks mRrj % gkW 10 iz'u % dgka vkSj dc tyh gks mRrj % irqfj;kMkM+ esa fnukad 06@05@2020 ds djhc jkfrz 10%00 cts fnu cq/kokj dks tyh gwW iz'u % fdlesa tyh gks mRrj % feV~Vh rsy ls tyh gwW iz'u % dSls tyh gks mRrj % fnukad 06@05@2020 ds jkfrz djhc 10%00 cts ljkst] yYyw vkSj fnid fru vkneh esjs ?kj esa Fkh rc vpkud fruksa ds fruksa yksx feV~Vh rsy dks esjs mij Qsd dj ekfpl ls vkx tyk fn;k ftls tyh gwW iz'u % ljkst ] yYyw vkSj fnid fruksa D;ksa tyk;s gSa mRrj % ;s fruksa blfy;s tyk;s fd ljkst] yYyw vkSj fnid ;s fruksa feydj eq>s NsM+ jgh Fkh rc eSa euk dh blh dkj.k ls ;s fruksa yksx eq>s feV~Vh rsy fNMd dj tyk;s gSaA iz'u % vkx dkSu & dkSu cq>k;s mRrj % tc fpYykbZ rc vkokt dks lqudj csVh jkuh us esjs ikl vk;s rc tyrk ns[kdj ikuh Mky ds vkx dks cq>k;s iz'u % [kwn rks ugh tyh gks mRrj % ugh iz'u % fdlh us tyk;s rks ugh mRrj % gka ljkst] yYyw vkSj fnid us tyk;sA iz'u % 'kknh dc gqvk gS vkSj cPpk gS mRrj % djhc 13 o"kZ 'kknh gqvk gS vkSj esjs cPpk gSA iz'u % fdlh ds nckc ls rks ugh cksy jgh gks mRrj % ughA iz'u % ljkst] yYyw vkSj fnid dc&dc ls NsM+NkM dj jgh Fkh mRrj % os fruksa 'kjkc fidj fcp &fcp esa eq>s NsM+ jgh FkhA iz'u % vkSj dqN dguk pkgrs gks mRrj % ugh A iz'u % nLr[kr djksxs mRrj % vaxwBk dk fu'kku xokg & m"kk iSdjk ifr izdk'k iSdjk gLrk-
dk;Zdkfyd n.Mkf/kdkjh fcykliqj ¼ N]x]½ 11
15. PW-11 Mrs. Shweta Yadav, Naib Tehsildar, has stated that on 8.5.2020 she recorded dying declaration of the deceased after consulting the doctor who opined that the patient is in a fit state to give statement. Ex.P/26 is a letter dated 8.5.2020 of Police Outpost-CIMS, Bilaspur to SDM, Bilaspur for recording dying declaration of the victim, which bears the opinion of the doctor from B to B part with his signature and seal. The time recorded in the said letter is 13:30 hours. PW-11 Mrs. Shweta Yadav states in her examination-in-chief as to how she recorded statement of the deceased, obtained her signature and thumb impression. In her cross-examination she admitted that at the time of recording of dying declaration, husband of the deceased Prakash Paikra was present there, however, she categorically denied the suggestion of the defence that she recorded the dying declaration at the instance of her husband. In her detailed cross-examination nothing could be elicited from her to render her evidence untrustworthy or doubtful.
16. Apart from the dying declaration, PW-1 Ku. Chhaya Paikra, daughter of the deceased, in para 2 of her examination-in-chief has stated as under:
"2. EkSaus eEeh ls iwNk fd vkidks dSls vkx yxh rks eEeh us cksyk fd fx)eqM+h dk 'kjn elhg vk;k FkkA fQj NsM+NkM+ fd;s Hkh crk;k FkkA NsM+NkM+ djus ds ckn feV~Vh ds rsy ls tykuk Hkh eEeh crk;h FkhA os yksx ,d yksx Fks] crk;k FkkA eq>ls 12 iqfyl us iwNrkN dh Fkh vkSj dqN ugha crk;h FkhA"
In her cross-examination, many suggestion were given to this witness by the defence that relations between her mother and father were not cordial and her father used to doubt the fidelity of her mother which were admitted by her but she denied this suggestion that on the date of incident there was any quarrel between her mother and father at any time. She also denied this suggestion that she is stating the name of Sharad Masih at the instance of her father.
17. In the matter of Panchhi v. State of UP reported in (1998) 7 SCC 177 the Hon'ble Supreme Court has held as under:-
".....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
18. With regard to the testimony of child witness the Hon'ble Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & others reported in (2009) 12 SCC 731 had noticed the case law and held as under:
"The Indian Evidence Act, 1872 does not prescribe 13 any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease - whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129}. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p.343, para 5) :-
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to given rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her 14 demeanour must be like any other competent witness and there is no likelihood of being tutored."
19. The position of law relating to the evidence of a child witness has been dealt with also by the Apex Court in Nivrutti Pandurang Kokate and others V. State of Maharashtra reported in 2008 (12) SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh reported in (2008 (4) SCALE 569). In the case of State of U.P. Vs. Krishna Master & Others reported in (2010) 47 OCR (SC) 263 the Hon'ble Apex Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.
20. PW-2 Prakash Paikra, husband of the deceased, also states that when he reached his house, his wife was burning and he extinguished the fire. Thereafter, she informed him that she was set on fire by Sharad Masih and after that, he along with his wife went to Police Outpost-Morga for lodging report. The prosecution declared this witness hostile and cross-examined him but he denied the suggestion of the prosecution that Pritam, Lallu and Saroj Gond came to his house in drunken condition on two motorcycles and knocked at the door. However, he admitted this 15 fact that his wife/deceased told him that all the three accused persons came to her house, knocked at the door and enquired about him, on which she told them that he is not in the house. He also admits that his wife informed him that all the three accused persons dragged her to the courtyard, outraged her modesty, gagged her and threw her on the floor. However, he denies the suggestion that his wife told him about setting her on fire by all the three accused, and volunteers that she told him only about one person Sharad Masih who set her on fire.
21. Learned counsel for the appellant Sharad Masih argued that the appellant's nick name is not Lallu whereas the deceased has stated against one Lallu. It is worthwhile to mention here that in this case, from the very beginning i.e. from filing of charge sheet, framing of charges to recording of statement of accused, everywhere the appellant's name is written as Sharad Masih @ Lallu, son of Shant Masih and the appellant Sharad Masih has nowhere objected to the fact that his nick name is not Lallu Masih. This apart, husband of the deceased has stated about commission of crime only by appellant Sharad Masih and not stated against other two accused persons. However, from the very beginning, while recording Dehati Nalishi at the instance of the deceased herself, names of all the three accused persons are mentioned therein. Further, in the dying declaration also, all the three accused have been named by the deceased as perpetrator 16 of the crime, which was recorded by the Sub Divisional Magistrate.
22. The Hon'ble Supreme Court in the matter of Surinder Kumar Vs. State of Haryana reported in (2011) 10 SCC 173, held that if, after careful scrutiny, the Court is satisfied that the dying declaration is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration.
23. In this case also, on the date of incident, after 2-3 hours Dehati Nalishi was recorded at the instance of the deceased herself naming all the three appellants as perpetrator of the crime. PW-15 Shri Mahendra Pandey, Assistant Sub Inspector/Investigating Officer, has also stated in his examination- in-chief that on 7.5.2020 victim Usha Paikra made an oral complaint and looking to her serious condition, she was first taken to Community Health Center, Podi Uproda for treatment and after her primary treatment, Dehati Nalishi (Ex.P/30) was recorded by him as told by the victim, which bears his signature from A to A part. On the same day, he filled in form for medical examination of the victim vide Ex.P/31 in which it is written as under:
"vkfgrk dks fnukad 06@05@2020 ds jkr djhc 10%00 cts vkjksih yYyw elhg oxSjg ds }kjk mlds 'kjhj esa feV~Vh rsy Mkydj ekfpl ls vkx yxkus ij psgjk nksuksa gkFk] xyk o 'kjhj ds vU; txg ty x;h gS d`i;k ijh{k.k dj urhtk nsus dk d"V djsaA flj ds ihNs pksV tehu esa fxjus ls vk;h gSA "17
In his lengthy cross-examination, many suggestions were put to this witness by the defence but he remained firm on his examination-in-chief.
24. So far as the judgments relied upon by learned counsel for the appellants are concerned, having gone through the same, we find that these judgments being distinguishable on facts are of no help to the appellants.
25. Thus, taking into account the overall evidence, oral and documentary on record, in particular the dying declaration, Dehati Nalishi, postmortem report; evidence of daughter of the deceased PW-1 Ku. Chhaya Paikra, PW-11 Smt. Sweta Yadav (SDM) and PW-15 Mahesh Pandey (I.O.); the principles of law laid down by the Hon'ble Supreme Court in the aforesaid judgments regarding reliability of the evidence of child witness and the dying declaration, we are of the opinion that the findings of guilt of the appellants recorded by the learned trial Court are based on proper appreciation of the oral and documentary evidence available on record. As such, there being no illegality or infirmity in the impugned judgment of the learned trial Court, the same is hereby affirmed.
26. In the result, all these appeals being bereft of any substance are liable to be dismissed and are dismissed as such.
27. The appellants are reported to be in jail and they shall serve out the sentence as ordered by the learned trial Court. 18
28. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/ Sd/
(Rajani Dubey) (Ramesh Sinha)
Judge Chief Justice
Khan