Chattisgarh High Court
Lav Kumar vs State Of Chhattisgarh on 7 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1255 of 2014
Lav Kumar son of late Bolo Ram Oraon, aged about 48
years, agriculturist by occupation, resident of village
Harri (Oraontoli), Police Station & Tahsil Kusmi,
Revenue District Balrampur Ramanujganj, Civil District
Sarguja (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh through S.H.O. Kusmi, Distt
Balrampur Ramanujganj, Civil DisttSarguja (Ambikapur)
(CG)
Respondent
For Appellant: Mr.V.K.Pandey, Advocate
For Respondent/State:Mr.Anmol Sharma and Mr.Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(7.7.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the judgment dated 01.12.2014 passed by the Additional Sessions Judge, Ramanujganj, in Sessions Trial No.264/2013, by which the appellant has been convicted for offences under Sections 302 and 201 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.500/, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 302 of the IPC and R.I. for three years and fine of Rs.500/, in default of payment of fine to 2 further undergo R.I. for one month under Section 201 of the IPC.
2. Case of the prosecution, in brief, is that on 23.3.2013 at 9 p.m. at village Harri (Uraontoli), Police Station Kusmi, the appellant murdered his mother Chechara Bai, aged about 72 years and caused disappearance of body of his mother by throwing dead body into well and thereby committed the offence. It is admitted fact on record that the deceased was mother of the appellant herein and one Sanman (PW1), Mishribai (PW2) is wife of Sanman (PW1) and Laxman @ Ladu (PW3) and Krishna Ram (PW4) are two sos of Sanman (PW1) and Mishribai (PW
2). It is also admitted position on record that during lifetime of their father i.e. Chechra Bai's husband, their property was divided in three parts namely 1/3rd share in favour of the appellant herein, 1/3rd share in favour of Sanman (PW1) and 1/3rd share in favour of Chechra Bai and her husband. After death of Chechra Bai's husband, two acres of land fell in possession of Chechra Bai was bequeathed by her in favour of Krishna Ram (PW4), son of Sanman (PW1) (nephew of the deceased) by Will on 25.11.2010 vide Ex.P24 and thereafter by Will dated 11.10.2012 (Ex.P25) Will executed in favour of Krishna Ram (PW4) on 25.11.2010 was revoked and another Will was executed in favour of the appellant bequeathing the entire two acres of land in favour of the accused / appellant herein, which was disputed by Sanman (PW1), Mishribai (PW2), Laxman @ 3 Ladu (PW3) and Krishna Ram (PW4). Thereafter on 15.3.2013 (Ex.P26) Chechra Bai executed another Will in favour of Sanman (PW1) and the appellant herein by giving 1/21/2 share to both sons and on 23.3.2013 immediately after 7 days Chechra Bai is said to have murdered and her dead body was found inside the well. On 24.3.2013 merg was registered at the instance of the appellant herein being Merg No.4/2013 (Ex.P30) that in the night of 23.3.2013 his mother had gone to the house of Laxman (PW3) to make him understand as he was quarreling someone, but she did not come back in the night and she has died by drowning into well, pursuant to which, merg inquiry was conducted by Kailash Singh (PW24) and he found that Chechra Bai has been assassinated. Pursuant to which, FIR (Ex.P36) was registered. Spot map was prepared by investigating officer vide Ex.P1. Dead body of the deceased was recovered from well and it was sent for postmortem to Community Health Center, Kusmi, where Dr.T. Sai (PW20) conducted postmortem vide Ex.P23 and opined that cause of death was asphyxia due to strangulation and death was homicidal in nature. Statements of Pushnath (PW5), Moti Ram (PW9) and Smt.Sumitrai Bai (PW14) were recorded and thereafter on 10.4.2013 the appellant herein was arrested, pursuant to his memorandum statement (Ex.P7), wooden stick which is used by the deceased for her support was seized vide Ex.P8. Other articles were also seized in accordance with law. After 4 due investigation, the appellant was chargesheeted before the Chief Judicial Magistrate, Ramanujganj, who was committed the case to the Court of Additional Sessions Judge, Ramanujganj, Surguja for trial. The accused/appellant abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 24 witnesses and exhibited 36 documents Exs.P1 to P36. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he stated that he has not committed any offence and he has falsely been implicated. The accused examined none in his defence. However, he exhibited the document Ex.D1 in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 01.12.2014, held that death of the deceased was homicidal in nature and the appellant is author of crime in question on the basis of motive of offence having been proved and presence of the appellant was noticed near the well from which dead body of the deceased was recovered on the basis of statements of Pushnath (PW5) and Smt.Sumitrai Bai (PW14) and convicted the appellant for offences under Sections 302 and 201 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred.
5
5. Mr.V.K.Pandey, learned counsel appearing for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant herein on the basis of evidence available on record. He would further submit that motive of offence has not been proved as Pushnath (PW5) and and Smt.Sumitra Bai (PW14) both have clearly stated that even after the property held by Chechra Bai was bequeathed by executing a Will in favour of the appellant herein and Sanman (PW1), relationship between Chechra Bai and the appellant herein was quite cordial and the trial Court has unnecessarily drawn inferences based on conjectures and surmises to reach that there was motive for offence as the appellant was unhappy with the property in question held by Chechra Bai bequeathed in his favour and in favour of Sanman (PW1). Such a finding is perverse finding and deserves to be set aside. He would further submit that merely on the basis that the appellant was seen by Smt.Sumitra Bai (PW14) near well where dead body of deceased Chechra was found on the next day, he has been convicted, which is totally inadmissible in evidence as there is no evidence on record to show that the appellant has strangulated the deceased and thrown her dead body into well. He would also submit that statement of Smt.Sumitra Bai (PW14) in which she has stated that she has seen the appellant throwing dead body into well is inadmissible in evidence as in her 161 CrPC statement (Ex.D1), no such 6 statement has been given and there is no other evidence to connect the appellant in offence in question. Therefore, the conviction recorded and sentence awarded deserve to be set aside.
6. On the other hand, Mr.Anmol Sharma and Mr.Soumya Rai, learned Panel Lawyer for the respondent / State, would submit that the trial Court is justified in convicting the appellant herein for offences under Sections 302 and 201 of the IPC as Smt.Sumitra Bai (PW14) has clearly stated in her statement before the Court that she has seen the accused / appellant throwing dead body into well though there was some variation in her 161 CrPC statement, but statement (Ex.D1) of Smt.Sumitra Bai (PW14) has not been confronted to investigating officer A. Kujur (PW23) and therefore, benefit of statement under Section 161 CrPC cannot be taken by the defence. As such, the trial Court has rightly convicted the appellant under Sections 302 and 201 of the IPC and the appeal deserves to be dismissed.
7. We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. The first question for consideration would be, whether death of the deceased was homicidal in nature.
9. The trial Court has clearly recorded a finding that death of the deceased was homicidal in nature in view 7 of postmortem report (Ex.P23) and statement of Dr.T.Sai (PW20) in which cause of death has been held to be strangulation and further held the death to be homicidal in nature. After going through the records and after hearing the learned counsel for the parties and in view of statement of Dr.T.Sai (PW20) and Smt.Sumitra Bai (PW14), cause of death has rightly held to be strangulation in nature and death was homicidal in nature. Such a finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Accordingly, we affirm that finding recorded by the trial Court.
10. The next question for consideration would be, whether the appellant is author of crime in question and he has rightly been convicted under Sections 302 and 201 of the IPC.
11. The trial Court has convicted the appellant herein principally on two incriminating circumstances by recording a finding in this regard, firstly, motive of offence has been proved and secondly, the appellant was seen near the well on 23.3.2013 at late night by Smt.Sumitra Bai (PW14) and her husband Pushnath (PW
5). We will deal correctness of these two findings/circumstances one by one.
Motive of the offence:
12. It is admitted fact on record and duly recorded by the 8 trial Court in para2 of its judgment that Chechra Bai and her husband had two sons i.e. the appellant herein and Sanman (PW1) and entire landed property of Chechra Bai and her husband both were divided in three parts during lifetime of Chechra Bai's husband and father of the appellant and Sanman (PW1), in which 1/3rd share fell in share of the appellant herein, 1/3rd share fell in favour of Sanman (PW1) and 1/3rd share fell in favour of Chechra Bai and her husband and after death of Chechra Bai's husband, two acres of land left came to be owned by Chechra Bai and firstly, she executed a Will of two acres of land in favour of her grandson Krishna Ram (PW4) on 25.11.2010 vide Ex.P24 and thereafter revoking that Will, fresh Will was executed on 11.10.2012 (Ex.P25) in favour of Lav Kumar / appellant herein and when it was disputed by Sanman (PW1), his wife and his two sons, then 3rd Will was executed by Chechra Bai on 15.3.2013 (Ex.P26) in favour of the appellant herein and Sanman (PW1) giving 1/21/2 share to each of them and immediately after 7 days, on 24.3.2013 her dead body was found into well and the appellant herein lodged merg intimation being Merg No.4/2013 (Ex.P30) to Police Station Kusmi that his mother had gone to the house of Laxman (PW3) to give understanding to her nephew who was quarreling with someone, but she did not come back in the night, then only wheels of investigation started running and upon merg inquiry, FIR (Ex.P36) came to be registered 9 against the appellant herein.
13. The trial Court has considered the oral and documentary evidence in this regard and held that there was motive on the part of the appellant herein to commit offence as he was unhappy with Will dated 15.3.2013 (Ex.P26) by which 1/2 share has also been given by Chechra Bai to Sanman (PW1) and 1/2 share to him and for which the trial Court has taken assistance of the statements of Sanman (PW1) and Mishri Bai (PW2), wife of Sanman (PW1), but a careful perusal of whole statement of Sanman (PW1) would show that though in para8 he has stated that the appellant was unhappy as 1/2 share has been given to Sanman also by their mother Chechara Bai and used to abuse him as he was only taking care of her mother Chechra Bai, but in para10 of his statement before the Court, he has clearly admitted the fact that after executing 3rd Will on 15.3.2013 by Chechara Bai the appellant has not entered into any dispute with him as the appellant and his mother both were residing in one house though in separate rooms and further in para 19 also, he has clearly stated that no dispute has taken place between them after executing 3 rd Will giving half share to the appellant and to him (PW1). Similarly, Mishri Bai (PW2) has clearly stated that after executing 3rd Will giving 1/21/2 share to the appellant herein and her husband, the appellant has never abused her motherinlaw Chechra Bai and has not taken possession of room held by her motherinlaw. 10 Even otherwise, Manishankar (PW22) in whose presence 3rd Will was executed vide Ex.P26 by Chechara Bai on 15.3.2013 has stated before the Court that deceased Chechra, Lav Kumar (appellant herein) and Sanman (PW1) all were present and there was no such dispute and Will was executed in cordial atmosphere. As such, on the basis of statement of brother of the appellant namely Sanman (PW1) and his wife Mishri Bai (PW2), it is quite vivid that from the date of executing 3 rd Will in favour of the appellant herein and his brother Sanman (PW1), there was no evidence on record to hold that there was some existing dispute between the appellant and Sanman (PW1) with regard to the Will executed by their mother Chechara Bai giving 1/21/2 share to the appellant herein and Sanman (PW1). As such, the finding recorded by the trial Court holding that since the appellant was aspirant of whole of the property of Chechra Bai for the reason that he was also taking care of his mother is based on no evidence, rather it is based on conjectures & surmises and is contrary to record. The prosecution has failed to prove any motive for offence in question against the appellant herein and finding recorded by the trial Court is held to be perverse.
14. The next circumstance that has been relied upon by the trial Court is that the appellant was seen by Smt.Sumitra Bai (PW14) on previous night near well from which dead body of Chechra Bai was recovered and 11 therefore, it connects the appellant herein for offence in question.
15. Smt.Sumitra Bai (PW14) has stated before the Court that on 23.3.2013 when she was returning after taking dinner from Jaduram's house, she had seen that the accused and Rupsai (not arrayed as an accused in same crime) throwing dead body of Chechra Bai into well and from where dead body was recovered in the morning of 24.3.2013. She has been contradicted to her statement under Section 161 CrPC (Ex.D1) on behalf of the defence, in which she has stated that such a statement of seeing dead body of Chechra Bai throwing into well has been made to the police, but there was no reason why such statement has not been recorded by the police in her statement under Section 161 CrPC.
16. At this stage, learned State Counsel for the respondent / State would submit that such a contradiction/omission was not read out to the investigation officer A. Kujur (PW23) when he was examined. It is well settled law that the Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The purpose for and the manner in which the police statement recorded under Section 161 CrPC can be used at any trial are indicated in Section 162 CrPC. Section 162 of the CrPC states as under: "162. Statements to police not to be signedUse of statements in evidence.(1) No statement 12 made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act."
17. The Supreme Court in the matter of V.K.Mishra and another v. State of Uttarakhand and another 1 has held that the statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re examination of the witness if necessary. It was observed as under: 1 AIR 2015 SC 3043 13 "16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C.
"if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross examination and also during the cross examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his crossexamination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the 14 defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.
19. In the case at hand, PW1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW1 nor the investigating officer were confronted with the statement and questioned about it, PW1's statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW1 and the prosecution version."
18. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in V.K.Mishra (supra), it is quite vivid that though statement made in para3 by Smt.Sumitra Bai (PW14) that she has seen the appellant and Rupsai (not arrayed as an accused) throwing dead body into well which she has not stated in Section 161 CrPC statement (Ex.D1) and she has been confronted with her 161 CrPC statement, which she has answered that she has informed this fact to the police/investigating officer, but her statement marked for the purpose of contradiction has not been read out to the investigating officer. However, the fact remains that the trial Court even in para34 while convicting the appellant herein did not take into account that part of evidence of Smt.Sumitra Bai (PW14) that she has seen the appellant throwing dead body of Chechra Bai into well and the trial Court 15 only taking into account the fact that the appellant was seen near well on previous night where dead body of Chechra Bai was found to be incriminating circumstance against the appellant, as such, the trial Court has proceeded to convict the appellant only on the ground that the appellant was seen near well where dead body of the deceased was recovered, but the trial Court did not record the finding that it is the appellant who has strangulated the deceased / his mother and thereafter thrown her dead body into well. There is neither such express finding recorded by the trial Court holding that it is the appellant who has strangulated the deceased and thrown her dead body into well nor any such piece of evidence pointed out before us to hold that it is the appellant who had strangulated his mother Chechara Bai.
19. Furthermore, even if the statement of Smt.Sumitra Bai (PW14) is accepted that she has seen the accused / appellant herein throwing dead body of Chechra Bai into well and there was no reason not to lodge FIR to the police immediately on the next day as merg was registered at the instance of the appellant and on the basis of merg inquiry, FIR was registered vide Ex.P36 on 8.4.2013 and 161 CrPC statement of Sumitra Bai was recorded after 15 days on 10.4.2013. As such, it cannot be said that her conduct is natural, which goes to show that her version that she has seen the accused throwing dead body into well is not correct one and her 16 testimony is not reliable. In absence of evidence led by the prosecution and in absence of that finding that the appellant is a person who has strangulated deceased Chechara Bai as Chechara Bai died by strangulation, conviction of the appellant for offences under Section 302 and 201 of the IPC cannot sustain.
20. For the foregoing reasons, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for offences under Sections 302 and 201 of the IPC. Accordingly, the criminal appeal is allowed and conviction & sentence of the appellant under Sections 302 and 201 of the IPC are hereby set aside, he is acquitted of the charge under Sections 302 and 201 of the IPC. It is stated at the Bar that the appellant is in jail, he be released forthwith, if not required in any other case.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/