Chattisgarh High Court
In Reference Of State Of Chhattisgarh vs Sohit Kumar Kenwat on 8 September, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Reference No.1 of 2022
Judgment reserved on: 11-8-2023
Judgment delivered on: 08-9-2023
In Reference of State of Chhattisgarh, Through Police Station Shivrinarayan,
District Janjgir Champa, Chhattisgarh
---- Applicant
Versus
1. Sohit Kumar Kenwat, S/o Dukaluram Kenwat, R/o Village Tusma,
Thana Shivrinarayan, District Jangir Champa, Chhattisgarh
2. Sunil Kenwat, S/o Mohanlal Kenwat, R/o Village Tusma, Thana
Shivrinarayan, District Janjgir Champa, Chhattisgarh
---- Non-applicants
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For Applicant/State: -
Mrs. Madhunisha Singh, Deputy Advocate General. For Non-applicants: -
Ms. Swati Verma, counsel for non-applicant No. 1. Mr. Ravindra Sharma, counsel for non-applicant No. 2.
Criminal Appeal No.1625 of 2022 Sunil Kewat, S/o Mohanlal Kewat @ Mahadev, Aged about - 23 years, R/o Village - Tusma, P.S. Shivrinarayan, Distt- Janjgir-Champa (C.G.)
---- Appellant Versus State of Chhattisgarh,Through - S.H.O. Shivrinarayan, Dist - Janjgir- Champa (C.G.)
---- Respondent
----------------------------------------------------------------------------------------------------- For Appellant: Mr. Ravindra Sharma, Advocate. For Respondent/State: -
Mrs. Madhunisha Singh, Dy. Advocate General.
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Neutral Citation 2023:CGHC:22546-DB -2- Criminal Appeal No.1864 of 2022 Sohit Kumar Kewat, S/o Dukaluram Kewat, aged about 28 years: R/o Village Tusma; Police Station - Shivrinarayan; District - Janjgir-Champa (C.G.)
---- Appellant Versus State of Chhattisgarh,Through - S.H.O. Shivrinarayan, Dist - Janjgir- Champa (C.G.)
---- Respondent
----------------------------------------------------------------------------------------------------- For Appellant: Mr. Vineet Kumar Pandey & Mr. Sumit Jhawar, Advocate. For Respondent/State: -
Mrs. Madhunisha Singh, Dy. Advocate General.
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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri N.K. Chandravanshi, Judge C.A.V. Judgment Per N.K. Chandravanshi, Judge : -
1. Both the criminal appeals i.e. CRA No. 1625 of 2022 & CRA No. 1864 of 2022 have been preferred by the appellants/accused persons, respectively, as they have been awarded with death sentence by 1 st Additional Sessions Judge, Janjgir, District Janjgir-Champa in Sessions trial No. 17 /2022 vide impugned judgment dated 19 th September, 2022 after having found them guilty for offence punishable under Section 302 read with Section 34 of the IPC and also sentenced to fine of Rs.50,000/- each. They have been sentenced to death by hanging under sub-section (5) of Section 354 of the Code of Criminal Procedure, 1973, (for short, the Cr.P.C.) .
Conviction and sentence imposed upon the appellants are as follows:-
Conviction Sentence
Section 302 of the IPC Death sentence and fine of
₹ 50,000/- each. They be hanged
by the neck till they died, subject to
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the confirmation of Hon'ble High
Court.
2. The learned 1st Additional Sessions Judge, Janjgir, District Janjgir- Champa in exercise of power conferred under Rule 273 (b) of the Rules and Orders (Criminal) and Section 366 of the Cr.P.C. after passing the sentence of death, submitted the proceedings to this Court for its confirmation and this is how this death reference is before us for consideration along with the appeal preferred by the two accused / appellants herein being CR. A. No. 1625 of 2022 & Cr. A. No. 1864 of 2022, respectively.
3. The case of the prosecution, in nutshell, is that on 20.11.2021 at about 10.00 AM, complainant Premlal Sahu, while working in his field, received a telephonic call from Gopi Chand Sahu (PW-3) that Sohit Kumar Kewat and Sunil Kumar Kewat (both the appellants herein) are assaulting his son Bhagwat Sahu by means of katta (sharp edged weapon, generally used for cutting trees) on his head and neck. After receiving aforesaid information, he immediately rushed to the spot, where he saw that infront of house of Ramjag Sahu (PW-2), near an electric poll his son Bhagwat Sahu (since deceased) was lying dead in pool of blood and he has sustained injuries on his head and neck by sharp edged weapon. Gopi Chand Sahu (PW-3) was also present there and he again told him that both the appellants have committed murder of deceased by chopping his neck by means of sharp edged weapon (Katta).
3.1 Sarpanch - Kamal @ Komal Prasad Patel (PW-10) informed about the incident at Police Station - Shivrinarayan, Inspector - Ravindra Kumar Anant (PW-13) immediately reached to the spot, where on being information Neutral Citation 2023:CGHC:22546-DB -4- given by complainant Prem Lal Sahu (PW-1), lodged Dehati Merg Intimation (Ex.P-1) and Dehati Nalishi (Ex.P-2). He also lodged FIR (Ex.P-6). He prepared spot map (Ex. P-3) and inquest report (Ex.P-5). Dead body was sent for post mortem at Shivri Narayan, District Janjgir-Champa. The post- mortem was conducted by Dr. Anvita Dhruw (PW-05) and gave her report vide Ex.P-16, in which, she opined that cause of death was excessive haemorrhage due to cutting of neck and major blood vessels and nature of injuries is homicidal.
3.2 During course of investigation, memorandum statements of both the appellants were recorded. Blood stained articles and clothes were seized from them. Spot map was also got prepared from concerned Patwari. After incident, the appellants had recorded their version about the causing incident and they also viral it through social media, it also received by Gopichand Sahu (PW-3), hence, that viral video was retrieved in a Compact Dist ('CD') and the same was seized vide seizure memo Ex. P-12 from Gopi Chand Sahu (PW-3). He also give Certificate (Ex.P-11) in this regard to Police. The Incident was recorded through CCTV camera situated in the house of Dev Prasad Sahu (PW-12), which was also got retrieved by the police in the Pen Drive with the help of Vikki Kaiwart (PW-4) and the said pen drive was seized vide Ex.P-14 from Dev Prasad Sahu (PW-12). Certificate (Ex.P-15) was also received from Vikki Kaiwart (PW-4). On the basis of memorandum statement of appellant - Sohit (Ex.P-20), one sharp edged weapon (Katta), his blood stained cloths and mobile were seized vide seizure memo (Ex.P-17), whereas, on the basis of memorandum statement of appellant Sunil (Ex.P-19), one electronic tester, knife, blood stained cloths Neutral Citation 2023:CGHC:22546-DB -5- and one mobile were seized vide Ex.P-18 from him. Blood stained clothes of deceased was also seized vide Ex.P-25 from constable, seized mobile and compact disk (CD) was sent to the Cyber Forensic Lab, Police Headquarter, Raipur. Vide Investigation report (Ex.P-27), concerned officer of Cyber Forensic Lab informed that seized mobile (Article 'A') contains facility of recording and it also contained Data, which has been retrieved in compact disk (Article 'B'). In this regard, concerned Investigating Officer also gave Certificate under Section 65 -B of the Evidence Act. Seized articles were sent for chemical examination and received chemical report vide (Ex.P-29). After usual investigation, charge-sheet under Section 302 read with Section 34 of the IPC was filed in the Court of Judicial Magistrate First Class, Pamgarh, District Janjgir-Champa , who in turn, committed the case to the Sessions Judge, thereafter, the case was transferred to First Additional Sessions Judge, Janjgir, District Janjgir-Champa for trial. 3.3 Charges under Section 302 read with Section 34 of the IPC was framed and explained to the appellants, who abjured guilt and entered into defence.
4. In support of its case, prosecution has examined as many as 13 following witnesses: -
Name of witness Serial number
of witness
Premlal Sahu PW-1
Ramjag Sahu PW-2
Gopichand Sahu PW-3
Vikki Kaiwart PW-4
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Dr. Anvita Dhruw PW-5
Chitrahan Sahu PW-6
Ganesh Ram Patel PW-7
Rajendra PW-8
Gajendra Kumar PW-9
Sahu
Kamal @ Komal PW-10
Prasad Patel
Dhannuram Sahu PW-11
Devprasad Sahu PW-12
Ravindra Kumar PW-13
Anant
5. Beside the aforesaid ocular evidence, prosecution has exhibited the following documents and articles in its evidence :-
Type of document Exhibit or Article number Dehati marg Ex.P-1 intimation Dehati nalishi Ex.P-2 Roght site-plan Ex.P-3 Notice for naksa Ex.P-4 panchayatnama Naksa Ex.P-5 panchayatnama Neutral Citation 2023:CGHC:22546-DB -7- FIR Ex.P-6 Letter for giving Ex.P-7 dead body Police statement of Ex.P-8 witness Ramjag Seizure memo Ex.P-9 Patwari naksa Ex.P-10 Certificate under Ex.P-11 Section 65 of Evidence Act Seizure memo of Ex.P-12 compact disc (in short CD) Notice Ex.P-13 Seizure memo of Ex,P-14 Pen Drive Certificate under Ex.P-15 Section 65 of Evidence Act Postmortem Ex.P-16 Report Seizure memo Ex.P-17 about weapon, cloths and Oppo mobile phone with sim No. 7804984856 from accused Sunil Seizure memo Ex.P-18 about weapon, cloths and Oppo mobile phone with sim No. 9669598360 from Neutral Citation 2023:CGHC:22546-DB -8- accused Sohit Discloser Ex.P-19 statement of accused Sunil Kewat Discloser Ex.P-20 statement of accused Sohit Kewat Notice for giving Ex.P-21 CCTV footage Duty Certificate Ex.P-23 Letter to Tahsildar Ex. P-24 Seizure Memo Ex.P-25 Letter to FSL Ex.P-26 FSL report Ex.P-27 Letter to SP Ex.P-28 FSL Report Ex.P-29 Arrest memo of Ex.P-30 accused Sohit Arrest memo of Ex.P-31 accused Sunil Intimation of arrest Ex.P-32 and to their family Ex.P-33 members Pen drive Article A 1 regarding occurrence Compact disc Article A 2 regarding Neutral Citation 2023:CGHC:22546-DB -9- occurrence Mobile phone of Article A 3 accused Sunil Katta Article 4 Weapons Article 5 & 6 Mobile phone of Article 7 accused Sohit
6. After prosecution evidence, statement of accused persons were recorded under Section 313 of Cr.P.C., in which, they pleaded their innocence and false implication. Apart from that, they have not examined any defence witness on their behalf. They have exhibited four documents i.e. application written by police for postmortem of the deceased (Ex.D-1), Rojnamchasanha (Ex.D-2). Subsequently police statement recorded 161 Cr.P.C. of Gajendra and Gopichand Sahu has also been marked as Ex. D-1 & D-2.
7. The trial Court after appreciating oral and documentary evidence on record, vide its impugned judgement convicted the appellant under Sections 302 read with Section 34 of the IPC and awarded death sentence, as mentioned in the opening paragraph of this judgment and further, made reference to this Court for confirmation of death sentence awarded to the appellants/accused.
8. The learned trial Court in order to convict the appellants herein has found proved the following facts: -
➢ There are five eye witnesses to the incident namely Ramjag Neutral Citation 2023:CGHC:22546-DB
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Sahu (PW-2), Gopi Chand Sahu (PW-3), Ganesh Ram Patel (PW-7), Rajendra (PW-8) and Gajendra Kumar Sahu (PW-9), who have seen the appellants assaulting deceased Bhagwat Sahu by means of sharp edged weapon (Katta) and even when Gopi Chand Sahu (PW-3) & Gajendra Kumar Sahu (PW-9) tried to intervene, then appellants also run towards them to kill them. ➢ After commission of incident, appellants recorded their versions about causing / committing murder of Bhagwat Sahu in mobile phone of appellant - Sunil and they themselves viral it through social media, which was received also by Gopi Chand Sahu (PW-3) in his mobile and that mobile video was retrieved from mobile of Gopi Chand Sahu (PW-3), which has been proved by the prosecution.
➢ Incident was recorded in CCTV camera situated in the house of Dev Prasad Sahu (PW-12) and its footage was retrieved in pen drive, which has also been proved by the prosecution and both the videos i.e. retrieved in CD (Article A-2) and Pen drive (Article A-1) also proved that murder of Bhagwat Sahu by both the appellants.
➢ Articles i.e. blood stained clothes seized from both the appellants, sharp edged weapon seized from appellant Sohit and electric tester & knife seized from Sunil are containing blood stained.
➢ Appellants have committed crime in a most cruel and inhuman Neutral Citation 2023:CGHC:22546-DB
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manner, which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where their act affects the entire fibre of the Society, therefore, crime committed by accused persons is in the category of 'the rarest of rare case'.
9. Feeling aggrieved with the impugned judgment of conviction & order of sentence awarded to the appellants, they have preferred Criminal Appeal Nos. 1625 of 2022 & 1864 of 2022, respectively under Section 374(2) of the CrPC challenging their conviction for the aforesaid offences, particularly against the capital punishment awarded to them. However, the learned Additional Sessions Judge in compliance with the provisions contained in Section 366(1) of the CrPC, submitted the sentence of death to this Court for confirmation and this is how the appellants alongwith reference have been clubbed together, heard together and are being disposed of by this common judgment.
10. Mr. Ravindra Sharma, Mr. Vineek Kumar Pandey & Mr. Sumit Jhanwar, learned counsel appearing for the accused/appellants would submit that deceased in the instant case is Bhagwat Sahu and all the substantive witnesses including eye-witnesses in the instant case, are relative of deceased, as they are of same caste "lkgw", therefore, it cannot be ruled out that alleged eye-witnesses are concocted. He would further submit that appellants have been falsely implicated in the case only because there was some dispute between the appellants and the deceased with regard to sale consideration of the land, which was allegedly sold through the deceased. It is further Neutral Citation 2023:CGHC:22546-DB
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submitted that alleged video footage collected from mobile of Gopichand Sahu and CCTV camera situated in the house of Dev Prasad Sahu (PW-12) are also concocted. Alleged CCTV footage was not reliable, as there was difference of time of incident and time recorded in CCTV footage. They would further submit that the prosecution has failed to prove that alleged articles seized from the appellants are contained human blood, only finding blood in articles cannot prove that, it was of deceased person or any particular person. Further, there are various discrepancies in the evidence adduced by the prosecution particularly with regard to number of injuries inflicted to the deceased in an occular and medical evidence adduced by the prosecution, Hence, it is prayed that appeals may be allowed and relief, as sought for, may be granted to the appellants. Both the learned counsel appearing for the appellants would further submit that, for the sake of argument if it is found that appellants have committed alleged crime, despite that it is a case of single murder only, that too, as per prosecution itself appellants, being poor villages, sold their land through deceased but the sale consideration was not given to them, hence, considering the fact situation of the case and law laid down by the Apex Court, it cannot be said that it is a case of "rarest of rare" but learned trial Court being over-sensitive has awarded capital punishment, without affording opportunity of hearing to the appellants to adduce evidence on the question of sentence, particularly, in respect of rehabilitation and reformation of the accused and the State has also not proved such facts against the appellants, Neutral Citation 2023:CGHC:22546-DB
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therefore, capital punishment awarded to the appellants is liable to be commuted to life sentence, in case, this Court comes to the conclusion and records finding that offence under Section 302 of IPC established beyond doubt by the prosecution, as such, the reference be rejected and appeals be allowed by setting aside impugned jugdment of the trial Court convicting the appellants under Section 302 of the IPC and sentencing them with capital punishment, as stated above.
11. Per contra, Mrs. Madhunisha Singh, learned Deputy Advocate General for the State would submit that case of the prosecution is fully rest on the deposition of five eye-witnesses to the incident, who have unequivocally supported the case of the prosecution. It is further submitted that although some of the eye-witnesses are belonging to the caste of deceased, but only on that ground, their deposition cannot be discarded. Further after commission of crime, appellants had recorded their versions in the mobile phone of appellant - Sunil, and they themselves viral it through social media, which was retrieved from the mobile phone of Gopi Chand Sahu (PW-3) and live incident was also recorded in the CCTV camera situated in the house of Dev Prasad Sahu (PW-12), which was retrieved in Pen Drive and both footages were seen in the court during trial in presence of Investigating Officer, accused persons and their counsels, which has been discussed in detail by the learned trial Court, likewise, blood stained clothes and weapons were also seized from appellants, which has been proved by the prosecution. Thus, aforesaid electronic Neutral Citation 2023:CGHC:22546-DB
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evidence and FSL report also support the deposition of eye-witnesses that appellants are the persons, who committed murder of deceased - Bhawgwat Sahu, hence, it is prayed that impugned judgment passed by the trial Court is well merited, which does not call for any interference of this Court.
12 . We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record of the trial Court thoroughly and extensively.
13. Instant case of the prosecution rests in three sets of evidence; firstly eye-witness account, secondly circumstantial evidence i.e. seizure of blood stained weapons and clothes from the appellants at the behest of their memorandum statement; thirdly Electronic Evidence.
14. Learned trial Court has held in the impugned judgment that prosecution has proved those evidence against the appellants and relying on the same has convicted them.
15. Prem Lal Sahu (PW-1), who is father of deceased - Bhagwat Sahu, has deposed in his court statement that after receiving information over phone from Gopi Chand Sahu (PW-3) that the appellants are assaulting his son Bhagwat Sahu by means of sharp edged weapon (Katta)on his head and neck, he immediately rush to the spot where he saw the dead body of his son. He has also proved that he lodged un-numbered merg report (Ex.P-1), Dehati Nalishi (Ex.P-2) and FIR (Ex.P-6), which are well supported by Ravindra Kumar Anant (PW-13), who recorded aforesaid documents. Neutral Citation 2023:CGHC:22546-DB
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16. Ravindra Kumar Anant (PW-13), who is the Investigating Officer of the case, has proved in his deposition that after preparation of inquest request (Ex.P-5), he sent dead body of deceased for postmortem to CHC, Shivrinarayan where Dr. Anvita Dhruw (PW-5) conducted postmortem over dead body of the deceased. As per postmortem report (Ex.P-16), which has been proved by Dr. Anvita Dhruw (PW-5), she has found following injuries on the person of the deceased :-
(i) An incised wound measuring 15 x 3 inches cutting the neck, only 4 inches of neck was remained intact.
(ii) An incised wound measuring 4 x1 inches over right clavicular region.
(iii) An incised wound measuring 7 x 1 inches below clavicular region.
(iv) An incised wound measuring 7 X1 inches over right side of the chest.
(iv) An incised wound measuring 12 x 5 inches from left chin to left external pinna.
(v) Bandage over left foot, found old healed abrasion.
17. Thus, the postmortem report (Ex.P-16) itself shows that neck of the deceased was almost chopped and only left 4 inches was remained intact. Dr. Anvita Dhruw (PW-5) has further opined that cause of death was excessive haemorrhage due to cutting of neck and major blood vessels of neck, she has also opined that nature of Neutral Citation 2023:CGHC:22546-DB
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death is homicidal. The manner in which, almost whole neck of deceased was chopped brutally and Doctor has opined that nature of death of deceased is homicidal, we are of the considered view that learned trial Court has rightly held proved that death of deceased Bhhagwat Sahu is homicidal, hence, we affirmed the aforesaid finding of fact recorded by the trial Court.
18. Now, the next question for consideration would be whether the accused-appellants herein are the perpetrator of causing homicidal death of deceased ?
19. In this regard, as has been stated above that case of the prosecution rests in three sets of evidence i.e. direct evidence of eye- witnesses, circumstantial evidence i.e. memorandum and seizure of blood stained clothes & weapons, and electronic evidence.
Direct evidence / Eye-witnesses account
20. Ramjag Sahu (PW-2), Gopichand Sahu (PW-3), Ganesh Ram Patel (PW-7), Rajendra (PW-8) & Ganendra Kumar Sahu (PW-09) are the eye-witnesses to the incident.
21. Ramjag Sahu (PW2) has deposed in his court statement that when he came from Raipur to his house, then he saw that in-front of his house, appellants assaulting deceased Bhgawat Sahu. He has also stated that appellant Sohit was assaulting upon the deceased by means of Katta (sharp edged weapon). He has also stated that when Gajendra Kumar Sahu (PW-9) and Gopi Chand Sahu (PW-3) went there and tried to intervene, then appellants also run towards them to Neutral Citation 2023:CGHC:22546-DB
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assault them. Hence, they run away. In cross-examination, although he has admitted that at the time of incident, he was not knowing the appellants by their names, but this could not be a ground to discard his whole statement, rather suggestion taken from him in paragraph 6 that after assaulting neck of deceased by Katta, he fell down, which this witness has admitted. This fact also corroborates his deposition that he was present on the spot and has seen the incident.
22. Gopi Chand Sahu (PW-3) & Gajendra Kumar Sahu (PW-9) have stated in their deposition recorded before the trial Court that at the time of incident, there was corona vaccination programme was going on, in the Government School, hence, they were sitting there and the deceased was also present there. Gopichand Sahu (PW-3) has stated that on being received phone call, deceased - Bhagwat Sahu went from there and after sometime, they listen scream and they went there, then they saw that appellants were assaulting the deceased. He has also stated that appellant - Sohit was assaulting the deceased by sharp edged weapon (Katta) whereas appellant Sunil was holding the deceased and when they tried to intervene, the appellants tried to assault also to them, hence, they run away from the spot.
23. Ganesh Ram Patel (PW-7) has also stated in his deposition that he alongwith deceased and various other persons were present in the Vaccination Centre, deceased went from there and after sometime, after hearing scream, he saw that appellants are assaulting the deceased by means of katta & screw-driver. Neutral Citation 2023:CGHC:22546-DB
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24. Rajendra (PW-8), who is also eye-witness to the incident, has stated in his deposition that after listening scream, when he went behind his house, then, he saw that both the appellants were assaulting the deceased. He has also stated that appellant - Sohit was assaulting the deceased by katta (sharp edged weapon) on his neck whereas appellant Sunil was holding his both the hands. He has also stated that, at that time appellant Sohit Kewat was asking Sunil Kenwat that "ejhl /ku ugh js (vFkkZr~ ejk ;k ugha/ died or not)". He has also stated that Ramjag Sahu (PW-2) was also witnessing from the gate of his house. He has denied the suggestion that appellants had assaulted 30-40 times, but he has stated that he has seen only 2 - 3 assaults. The manner in which, this witness has cross-examined does not rebut his statements made in examination-in-chief that he is the eye-witness to the incident, rather he has further stated in cross- examination that after committing murder of deceased, appellants climbed over the water tank, from where the police bring them down, which has also been corroborated by Investigating Officer Ravindra Kumar Anant (PW-13) in para 4 of this deposition.
25. Thus, aforesaid eye-witnesses to the incident have clearly stated that the appellants are the persons, who assaulted the deceased by means of katta (sharp edged weapon) and in that incident, appellant Sohit chopped the neck of deceased by means of katta and appellant Sunil also played active role in commission of alleged murder by assaulting and holding the deceased. Neutral Citation 2023:CGHC:22546-DB
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26. Although, there are some discrepancies in the statements of the eye witnesses particularly with regard to the factum and manner of assault and at that time appellant Sunil was holding his (deceased) hands or not ? But, the trial Court has rightly considered this aspect in paragraphs 27 & 28 of its judgment that presence of all the eye- witnesses on the spot and witnessing the commission of crime by accused persons is not under dispute as they have not challenged their presence on the spot and witnessing the commission of crime either by cross-examination or by putting any suggestion during their respective cross-examination. Learned trial Court has also rightly held that different witnesses may watch the occurrence at different point of time, when accused persons are in different role and when appellant Sunil might had assaulting the deceased at one point of time and holding his hand at different point of time and standing at different time, which was seen by eye-witnesses in different point of times, therefore, alleged contradictions cannot be termed as vital to discard deposition of eye witnesses.
27. Learned counsel appearing for the appellants argued that deceased and most of the eye witnesses to the incident are of a person of same caste, hence, they are concocted and, as such, their evidence is not reliable.
28. It is well settled principle of law that evidence of a "related witnesses" cannot be discarded only on the ground of relationship. Neutral Citation 2023:CGHC:22546-DB
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29. The Supreme Court in the case of Rupinder Singh Sandhu Vs. State of Punjab and others reported in (2018) 16 SCC 475 has held as under :-
"50. The fact that Pws 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of Pws 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits."
30. The Supreme Court in case of Shamim v. State (Government of NCT of Delhi), reported in (2018) 10 SCC 509 has held as under :-
"9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit........."
31. The Supreme Court in case of Rizan and another v. State of Chhattisgarh through the Chief Secretary, Govt. of Chhattisgarh , Raipur, Chhattisgarh reported in (2003) 2 SCC 661 has held as under :-
"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a Neutral Citation 2023:CGHC:22546-DB
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relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made......"
32. In the instant case, although some of eye witnesses to the incident are of the same caste of deceased but Ganesh Ram Patel (PW-7) & Rajendra (PW-8) are not of the caste of deceased. Further, only because of having same caste, statements of the eye- witnesses cannot be discarded assuming therein that they are "related witnesses". If it is supposed for the sake of argument, then question arise that as to why "related witnesses" would spare the real culprit in order to falsly implicate some innocent person ? Further, there is difference between "related witnesses" and "interested witnesses".
"Interested witness" is a witness, who is vitally interested in conviction of a person due to previous enmity.
33. "An Interest witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali and others Vs. State of Assam , Ministry of Home Affairs Through Secretary reported in (2019) 19 SCC 567 and held as under:-
"10. As regards the contention that all the eye- witnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an 'interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating Neutral Citation 2023:CGHC:22546-DB
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that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused ......"
34. This difference has further been reiterated by the Apex Court in the case of Ganpati v. State of Tamilnadu 1 by referring to 3-judges bench decision in State of Rajasthan vs. Kalki 2.
35. As has been stated above that in the instant case some of the eye-witnesses namely Ramjag Sahu (PW-2), Gopi Chand Sahu (PW-3) & Gajendra Kumar Sahu (PW-9) belonged to caste of the deceased, but only on this count, their deposition cannot be held untrusworthy. Furthermore, there are other eye witnesses belonging to the different caste, hence, contention putforth by learned counsel for the appellants to disbelieve the deposition of eye witnesses are not sustainable.
Memorandum statement and seizure of clothes & weapon from the appellants.
36. It has been proved by the Investigating Officer Ravindra Kumar Anant (PW-13) & Dhannu Ram Sahu (PW-11) that on the basis of memorandum statement (Ex.P-19) of appellant - Sunil, one blood stained tester, one knife used for cutting vegetables, one sweater (blue colour), full pant, which he was wearing and one mobile of OPPO 1 Criminal Appeal Nos. 1312 of 2008 & 1313 of 2008 2 1981 SCC (2) 752 Neutral Citation 2023:CGHC:22546-DB
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company A -55 was seized from him vide Ex.P-18. It has further been proved by aforesaid witnesses that on the basis of memorandum statement (Ex.P-20) of appellant - Sohit, one sharp edged weapon of iron "Katta" , jeans pant, full pant, tea shirt, which he was wearing during incident and one mobile A-54 of Oppo company was seized from him vide Ex.P-17.
37. FSL report (Ex.29) shows that clothes of deceased, which were seized, from Constable vide Ex.P-25, contains human blood except plain soil (marked as "A"). It has been reported in FSL report that human blood was found in Katta ("D") & jeans pant ("E") seized from the appellant - Sohit and human blood was also reported to be found in electronic tester (H), knife (I), Sweater (J-1) and full pant (J-2) seized from appellant Sunil. Since blood group could not have been reported in FSL report / serological report, therefore, learned trial Court has held that since group of human blood on Article B, C1, C2, C3, C4, C5, D, E, H, I, J1 & J2 has not found to be reported, therefore, it cannot be said that blood found on aforesaid articles are of the deceased. Learned counsel for the appellants supported aforesaid finding of learned trial Court and stated that in absence of serological report, vide those articles, appellants cannot be connected in the commission of instant crime. In this regard, counsel for the appellants relied upon the decision of the Supreme Court in the matter of Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra 3 3 (2008) 3 SCC 210 Neutral Citation 2023:CGHC:22546-DB
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38. In Sattatiya alias Satish Rajanna Kartalla (supra), the two- Judges Bench of the Supreme Court has held that as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased and thereby there was serious lacuna in the prosecution story. The Supreme Court, however, in Balwan Singh Vs. State of Chhattisgarh and another 4 (three-Judges Bench), has considered the decision in Sattatiya alias Satish Rajanna Kartalla (supra) in paragraph 12 of its report and also noticed the Constitution Bench decision in the matter of Raghav Prapanna Tripathi v. State of U.P. 5 and summarised the law relating to effect of failure to establish origin of blood as being of human origin and/or its blood group and held that the same has to be ascertained in the facts and circumstances of each case, and there is no fixed formula for the same. It has been observed in paragraphs 15, 16, 20, 21, 22 and 23 of the report - Balwan Singh (supra) as under: -
"15. We are also conscious of the fact that, at times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insufficiency of bloodstains, or haematological changes, etc. In such situations, the court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the court about the investigation.
16. Thus, in R. Shaji v. State of Kerala 6, this Court had observed:
4 (2019) 7 SCC 781 5 AIR 1963 SC 74 6 (2013) 14 SCC 266 Neutral Citation 2023:CGHC:22546-DB
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"31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance."
(emphasis in original)
20. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in R. Shaji, Gura Singh7, Jagroop Singh8 and Teja Ram9 relating to the bloodstains is applied in each and every case. Non- confirmation of blood-group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of the prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of the crime.
21. In John Pandian v. State10, this Court, on facts, observed that the evidence of recovery of weapons was credible. The forensic science laboratory (FSL) report had disclosed that the blood was of human origin. The Court proceeded to conclude that since the evidence of recovery of weapon was proved to the satisfaction of the Court, it was sufficient that the prosecution had proved that the bloodstains were of human origin, even though the blood group could not be ascertained.
22. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, 7 Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 8 Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 9 State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 10 (2010) 14 SCC 129 Neutral Citation 2023:CGHC:22546-DB
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depending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered against the accused. At the same time, as mentioned above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account of the time-lapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan 11, where one of us (Mohan M. Shantanagoudar, J.) had the occasion to author the judgment, this Court, relying on Teja Ram, had held that the failure to determine the blood group of the bloodstains collected from the scene of offence would not prove fatal to the case of the prosecution. In Prabhu Dayal case, although the FSL report could not determine the blood group of the bloodstains on account of disintegration, the report clearly disclosed that the bloodstains were of human origin, and the chain of circumstantial evidence was completed by the testimonies of the other witnesses as well as the reports submitted by the ballistic expert and the forensic science laboratory regarding the weapon used to commit murder.
23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."
39. Reverting to the facts of the instant case, it is apparent that in the instant case, there are so many eye-witnesses, who have proved in their deposition that they have seen committing murder of deceased by both 11 (2018) 8 SCC 127 Neutral Citation 2023:CGHC:22546-DB
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the appellants and it has also been proved by the prosecution that human blood stained weapon, clothes and other articles have been seized at the behest of the appellants. It has also been proved by Rajendra (PW-8) and Ravindra Anant (PW-13) that after killing deceased, appellants were climed on water tank, from where they were got down by the police and other officials and, thereafter, at their behest blood staind clothes and weapons were seized from them, just within 4- 5 hours of the incident, till that, they were well within the site of the villagers. Therefore, considering aforesaid facts and the principles of law laid down in Balwan Singh (Supra), since FSL report (Ex.P-29) has clearly disclosed that blood stained weapons and clothes have been seized from the appellants i.e. Katta (D), jeans pant (E), seized from appellant - Sohit whereas electronic tester (H), knife (I), sweater (J1) and full pant (J2) seized from appellant Sunil, therefore, FSL report very well support the deposition of eye- witnesses that they caused murder of deceased and, therefore, in light of law laid down by the Apex Court in the case of Balwan Singh (Supra), non
- cofirmation of blood group would not be fatal to the prosecution case as held by their Lordships of the Supreme Court in the case of John Pandian (supra).
40. In view of the foregoing discussion, we set-aside the observation made by learned trial Court that FSL report (Ex.P-29) is not helpful to the case of the prosecution and held that it also supports the deposition of eye-witnesses to the incident that the appellants are the perpetrator of the crime and they caused murder of the deceased.
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Electronic Evidence
41. Ravind Kumar Anant (PW-13), who is Investigating Officer of the case, has stated in his deposition that the incident was recorded in CCTV camera situated in the house of Dev Prasad Sahu (PW-12) and with the help of Vikki Kaiwart (PW-4), footage of incident was retrieved in pen- drive from the receiver of aforesaid CCTV by giving Notice under Section 91 of Cr.P.C. (Ex.P-21) to Dev Prasad Sahu (PW-12). This fact has also been proved by Vikki Kaiwartya (PW-4) & Dev Prasad Sahu (PW-12). Aforesaid pen-drive was seized vide Ex.P-14 from Dev Prasad Sahu (PW-12) and the said pen drive has been marked as Article A-1.
42. After commission of murder of deceased, appellants have suited a Video from mobile phone of accused/appellant - Sunil Kumar i.e. Article A-3 and viral the same on social media. In that video, they have confessed the murder of Bhagwat Sahu. Through social media, that confessional statement was also reached in the mobile phone of Gopi Chand Sahu (PW-3) and during course of investigation, that video was down loaded in Compact Disk (CD) and that CD was seized vide seizure memo (Ex.P-12) by Investigating Officer - Ravindra Kumar Anant (PW-13). Aforesaid facts have been proved by Investigating Officer Ravindra Kumar Anant (PW-13), Gopi Chand Sahu (PW-3) and Ganesh Ram Patel (PW-7) also. That 'CD' has been marked as Article A-2.
43. Aforesaid articles i.e. Pen Drive (Article A-1) & CD (Article A-2) have been seized by collecting certificate from concerned person in compliance of Section 65-B of the Evidence Act. This fact has also been Neutral Citation 2023:CGHC:22546-DB
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proved by Vikki Kaiwart (PW-4) and Gopi Chand Sahu (PW-3), who gave aforesaid certificate.
44. Learned trial Court has discussed about electronic evidences adduced by prosecution in detail in para 35 to 48 of the impugned judgment, particularly, with regard to Pen Drive (Article A-1) and CD (Article A-2).
45. In paragraph 42 of the judgment, learned trial Court has observed that during trial, aforesaid articles i.e. Article-1, Article-2 alongwith mobile phone of accused Sunil Kewat Article-3 & Mobile phone of accused Sohit Kewat Article-7 were played in the Court in presence of accused persons, their counsel & Investigating Officer Ravindra Anant (PW-13) and after watching the same, Investigating Officer - Ravindra Kumar Anant (PW-13) has specifically stated that the person assaulting with katta is accused Sohit and other assailant is accused Sunil Kewat. In this regard, specific question was put to both the accused/appellants in their statements under Section 313 of Cr.P.C., but they have simply stated that the video is fabricated. Although some difference of time of incident, as has been recorded in CCTV footage and as has been projected in the case of prosecution, is pointed out by learned defence counsel, but it is not found to be vital to discard aforesaid evidence, as due to technical glitch, power-cut, etc. setting of time got disturbed in such electronic devices.
46. As has been stated above that, learned trial Court has discussed in detail in paragraphs 35 to 48 of its judgment with regard to aforesaid Neutral Citation 2023:CGHC:22546-DB
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electronic evidence and its contents. After having due consideration, We affirmed the finding of learned trial Court that aforesaid electronic evidence also support the deposition of eye witnesses to the incident that the appellants are the persons, who caused brutal murder of deceased by chopping his neck including vital blood vessels and due to such assault, only about some portion of his neck was left intact with the body of deceased.
47. Eye witnesses to the incident deposed that appellant Sohit chopped the neck of deceased by sharp edged weapon katta and as per deposition of Ramjag Sahu (PW-2), Gopi Chand Sahu (PW-3) and Rajendra (PW-8) while assaulting by appellant Sohit, appellant Sunil was holding the deceased. Ganesh Ram Patel (PW-7) has also deposed that deceased was also assaulted by screw-driver (Pechkas) [Tester], blood stained such devices have been seized from appellant Sunil. Thus, these facts specifically proved full and active involvement of appellant Sunil Kumar in commission of murder of deceased.
48. Thus, after appreciating the entire occular, electronic and seizure / circumstantial evidence alongwith other documents available on record, we do not find any illegality or infirmity in appreciation of evidence available on record or arriving at a conclusion as to the guilt of appellants by learned trial Court that both the appellants are the perpetrator of causing brutal murder of deceased Bhagwat Sahu. Hence, finding recorded by learned trial Court in this regard does not warrant interference of this Court. We accordingly herein affirm the conviction of Neutral Citation 2023:CGHC:22546-DB
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the appellants recorded under Section 302 read with Section 34 of the IPC.
49. Now the next question to be considered is that, whether capital punishment awarded by learned Additional Sessions Judge to the appellants that they be hanged to death, till their death is in accordance with settled principle of law ?
50. In this regard, it is to be considered that whether this case falls under the category of "rarest of rare case" justifying capital punishment ?
51. For the offence of murder only sentence provided in Section 302 of IPC are death penalty or imprisonment for life.
52. Their Lordships of the Hon'ble Apex Court in catena of judgments have laid down principles for awarding capital punishment, for which, balance between aggravating circumstances and mitigating circumstances has to be struck. Whereas other factors have also to be taken into consideration like age of accused, possibility of reformation and lack of intention of murder, etc.
53. For awarding such punishment, law also requires from the Courts to assign special reason in accordance with sub-section (3) of Section 354 of the CrPC, which reads as under :-
"S. 354 (3): When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of Neutral Citation 2023:CGHC:22546-DB
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death, the special reasons for such sentence."
54. The provisions of Section 354 (3) of the CrPC specifically envisazed the legislative concerned and the conditions which needs to be satisfied prior to imposition of capital punishment. The words 'in case of sentence of death, special reason for such sentence' unambiguously demonstrate the commands of legislature that such reasons have to be recorded for imposing punishment of death sentence i.e. the Court is required to hold that it is a case of 'rarest of rare' warranting imposition of only death sentence.
55. The Supreme Court in the matter of Manoj and others v. State of Madhya Pradesh12 reviewing the entire case laws on the point beginning from Bachan Singh (supra) held in paragraph 204 as under: -
"204. Mitigating factors in general, rather than excuse or validate the crime committed, seek to explain the surrounding circumstances of the criminal to enable the judge to decide between the death penalty or life imprisonment. An illustrative list of indicators first recognised in Bachan Singh 11 itself:
"Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
12 2023 (2) SCC 353 Neutral Citation 2023:CGHC:22546-DB
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(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." These are hardly exhaustive; subsequently, this court in several judgments has recognised, and considered commutation to life imprisonment, on grounds such as young age13, socio-economic conditions14, mental illness15, criminal antecedents16, as relevant indicators on the questions of sentence. Many of these factors reflect demonstrable ability or merely the possibility even, of the accused to reform (i.e. (3) and (4) of the Bachan Singh list), which make them important indicators when it comes to sentencing."
Their Lordships further emphasised the need for pre-sentence hearing - opportunity and obligation to provide material on the accused and in paragraphs 211 and 212 held as under: -
"211. However, this too, is too little, too late and only offers a peek into the circumstances of the accused after conviction. The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of
13 Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292, Gurvail Singh v. State of Punjab (2013) 2 SCC 713, etc. 14 Mulla and another v. State of U.P. (2010) 3 SCC 508; Kamleshwar Paswan v. U.T. Chandigarh (2011) 11 SCC 564; Sunil Gaikwad v. State of Maharashtra (2014) 1 SCC 129 15 Shatrughan Chauhan v. Union of India (2014) 3 SCC 1 16 Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775 Neutral Citation 2023:CGHC:22546-DB
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an incomplete, and hence, incorrect application of the Bachan Singh test.
212. The goal of reformation is ideal, and what society must strive towards - there are many references to it peppered in this court's jurisprudence across the decades
- but what is lacking is a concrete framework that can measure and evaluate it. Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general, to be a space of limited potential for systemic reformation. The goal of reformative punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making. As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation. These guidelines may also offer guidance or ideas, that such a legislative framework could benefit from, to systematically collect and evaluate information on mitigating circumstances."
Thereafter, their Lordships issued practical guidelines to collect mitigating circumstances and observed in paragraphs 213 to 217 as under: -
"213. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.
214. To do this, the trial court must elicit information from the accused and the state, both. The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological Neutral Citation 2023:CGHC:22546-DB
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evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for the other factors of (3) and (4) - an onus placed squarely on the state - conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.
215. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:
a) Age
b) Early family background (siblings, protection of parents, any history of violence or neglect)
c) Present family background (surviving family members, whether married, has children, etc.)
d) Type and level of education
e) Socio-economic background (including conditions of poverty or deprivation, if any)
f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)
g) Income and the kind of employment (whether none, or temporary or permanent etc);
h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.
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216. Lastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court's conviction, or High Court's confirmation, as the case may be - a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for an more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.
217. It is pertinent to point out that this court, in Anil v. State of Maharashtra17 has in fact directed criminal courts, to call for additional material:
"Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case."
(emphasis supplied) We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence."
17 (2014) 4 SCC 69 Neutral Citation 2023:CGHC:22546-DB
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56. Reverting to the facts of the instant case, learned trial Court has stated aggravating circumstances of instant case in paragraph 57 of its judgment and holding therein that appellants have murdered Bhagwat Sahu in day-light and there is no reason to believe that they can be reformed or rehabilitated and they are likely to continue criminal act of violence. Learned trial Court further observed that appellants are menace to the society, as they have committed instant crime in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society, hence, learned trial Court by holding the case in the category of "rarest of rare case" has awarded capital punishment to both the appellants.
57. Considering the aforesaid practical guidelines issued by the Supreme Court in case of Manoj & others (Supra), it is apparent from the record of trial that it has awarded capital punishment without taking consideration the probability of the appellants to be reformed and rehabilitated and has only taken into consideration the brutleness of crime and the manner in which, it was committed, but has not been given effective opportunity of hearing on the question of sentence to the appellants. No evidence was brought on record on behalf of the prosecution to reach conclusion to the Court that appellants cannot be reformed or rehabilitated, while producing evidence, no such evidence has been adduced by the State / prosecution about their negative conduct in jail. No adequate opportunity has been given to the appellants also, that why capital punishment should not be given to them, as on the same day, learned trial Court held guilty and awarded capital Neutral Citation 2023:CGHC:22546-DB
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punishment to them. Although, in the instant case, appellants have caused brutal murder of deceased by chopping his neck, but there is no evidence on record that the appellants cannot be reformed or rehabilitated or they are having huge criminal antecedents. Though act of the appellants shocks the conscious of the society at large, but, yet, in the facts & circumstances of the case, upon thoughtful consideration, we are of the view that extreme sentence of death penalty is not warranted in the instant case and this case is not fall in the category of "rarest of rare case" in the principles of law laid down by Apex Court. In our considered view, imprisonment for life would be complete, adequate and would meet the ends of justice. Therefore, we direct commutation of death sentence into imprisonment for life.
58. Consequently, Cr. Ref. No. 1/2022 made by 1 st Additional Sessions Judge, Janjgir, District Janjgir-Champa to the extent of confirmation of imposition of death sentence to both the appellants is rejected accordingly.
59. However, Criminal Appeal No. 1625 of 2022 filed on behalf of Sunil Kewat and Criminal Appeal No. 1864 of 2022 filed on behalf of Sohit Kumar Kewat, are partly allowed. Conviction of both the appellants under Section 302 read with Section 34 of the IPC are maintained, but, sentence of death is commuted to life imprisonment by maintaining the fine amount. We further direct that if fine amount is not paid, then they be remained in jail for a further period of six months.
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60. We direct the Registrar (Judicial) to send a duly attested copy of this judgment to the concerned Court of Session as mandated under Section 371 of the CrPC for compliance / needful. Record of trial Court also be returned forthwith.
Sd/- Sd/-
(N.K. Chandravanshi) (Ramesh Sinha )
Judge Chief Justice
Dubey/-
Judgment date 08 September, 2023
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