Chattisgarh High Court
Mahadav Alias Nanhe vs State Of Chhattisgarh on 15 June, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1746 of 2017
Mahadev alias Nanhe S/o Sukhal Gond, Aged 22 years, R/o
Village Kedarpur, P.S.Prem Nagar, Dist. Soorajpur
(CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police Station Prem
Nagar, Dist.Sooorajpur (CG)
Respondent
For Appellant: Mr.Viprasen Agrawal, Advocate
For Respondent/State: Mr.Sudeep Verma, Dy.G.A.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(15.6.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal is directed against the judgment dated 22.6.2017 passed by the Third Additional Sessions Judge, Surajpur, in CNR No.CGSJ010000752012, by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/, in default of payment of fine to further undergo rigorous imprisonment for 90 days.
2. Case of the prosecution, in brief, is that on 21.10.2011 at Atem river, village Kedarpur, Police Station Premnagar, the appellant caused death of Krishna Singh, aged about 4 years. Further case of the 2 prosecution is that on 24.10.2011 (Ex.P1) merg intimation was lodged by Sidhe Singh (PW1) that on 21.10.2011 he had come to the police station for lodging some report against Sukhdev along with his wife and his son Krishna Singh, aged about 4 years was in his house along with one Nanhu and thereafter his son Krishna had gone to Atem river along with other two brothers Sunil (PW2) and Anil (PW3), but thereafter his son Krishna Singh did not came back, which he searched 2nd and 3rd day, but Krishna Singh could not be searched out. Ultimately, he went Atem river where he found his son dead. On the basis of merg intimation, the matter was taken into investigation. Inquest was conducted vide Ex.P4 in which cause of death was shown that deceased Krishna fell down in the water and consequently, he died. FIR was registered vide Ex.P11 on 20.11.2011 on the basis of merg, dead body of deceased Krishna Singh was sent for postmortem, which was conducted by Dr.Deep Kumar (PW12) and postmortem report is Ex.P12 in which cause of death was shown to be asphyxia and even diatom test was advised. In diatom test (Ex.P14), it was found to be positive. The appellant was chargesheeted before the Additional Chief Judicial Magistrate, Surajpur, who was committed the case to the Court of Session, Surguja (Ambikapur), from where the Third Additional Sessions Judge, Surajpur received the case on transfer for trial. The accused/appellant abjured the guilt and entered into 3 defence.
3. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 14 documents Exs.P1 to P14. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. The accused examined none in his defence. However, he exhibited the documents Exs.D1 and D2 in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 22.6.2017, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred.
5. Mr.Viprasen Agrawal, learned counsel for the appellant, would submit that the prosecution has failed to prove the offence beyond reasonable doubt as death is established to be drowning, but it has not been established that death was homicidal in nature or it is the appellant who pushed the deceased into water by which he drowned & died and the prosecution story is based on improbable and contradictory statement of eyewitnesses Sunil (PW2) and Anil (PW3) who have given contradictory statements with regard to the manner in which the appellant murdered their brother Krisha Singh. He would further submit that on material aspect, their Court's statements suffers from material 4 omission and their case diary statement. Therefore, the appellant ought to have given benefit of doubt. He would also submit that evidence has come that 15 years before, Krishna's grandmother had jumped into the well to save life of uncle of the accused and both of them died because of which there was long standing enmity between two families and that is why the appellant has been falsely implicated and as such, the impugned judgment of conviction and sentence deserves to be set aside.
6. On the other hand, Mr.Sudeep Verma, learned Deputy Government Advocate for the respondent/State, would oppose the submissions made by learned counsel for the appellant and submit that medical evidence proves that Krishna died of asphyxia and Sunil (PW2) and Anil (PW3) are eyewitnesses to the incident though there are some minor contractions, but the trial Court has rightly placed reliance upon statements of them and as such, conviction is well merited 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. It is apparent from evidence brought on record that three brothers namely Sunil (PW2), Anil (PW3) and deceased Krishna Singh went to Atem river on 21.10.2011 5 at 5 p.m. and thereafter Sunil (PW2) and Anil (PW3) came back to their house in that evening, but Krishna Singh did not come back to his house and on account of which, his father Sidhe Singh (PW1) started searching Krishna Singh 2nd and 3rd day, but he could not be searched out and ultimately, on 24.10.2011, dead body was noticed by Sidhe Singh in Atem river and pursuant to which, intimation was given by Sidhe Singh (PW1) to Police Station Premnagar by which merg intimation was registered and wheels of investigation started running. In the inquest (Ex.P4), cause of death was shown that Krishna Singh fell down accidentally in water and died by drowning and he was suggested to have postmortem. In postmortem report (Ex.P12), no external injury was found over the body of the deceased and mode of death was shown to be asphyxia and for cause of death, diatom test was advised. In diatom test, it has been found to be positive vide Ex.P14. Thus, it is established that mode of death was asphyxia and according to statement of Dr.Deep Kumar (PW12), asphyxia can also be on account of drowning.
9. The Orissa High Court in the matter of Adi Bhumiani v. State1 relying upon Modi's Medical Jurisprudence and Toxicology has held that in the case of death by drowning, asphyxia is a common cause in the majority of cases, as water getting into the lungs gets churned up with air and mucus, and produces a fine froth which 1 AIR 1957 ORISSA 216 6 blocks the air vesicles.
10. As per postmortem report (Ex.P12), lungs of the deceased were found congested. Therefore, it is duly established that it was death of drowning.
11. It has been attempted by the prosecution to establish that it is the appellant who pushed deceased Krishna Singh into water, therefore, he is author of the crime in question.
12. In order to prove the said fact, two alleged eyewitnesses Sunil (PW2) and Anil (PW3) (brothers of the deceased) have been examined. We will take their statements one by one. Sunil has been examined before the Court as PW2. He has stated that before the Court that on the date of incident he along with Anil (PW3) and deceased Krisha Singh had gone into Atem river for fishing, at that time, the accused has taken his brother Krishna Singh along with him and when he did not search out and they found that the appellant was strangulating his brother and thereafter the appellant had thrown his brother Krishna Singh into river and also placed stone over his body and thereafter he and his brother Anil returned to their house and reported the matter to their father Sidhe Singh, though this witness has stated that the appellant was strangulating his brother, but there is no external injury over the body of the deceased particularly on neck and the alleged stone which is said to have placed over the 7 body of the deceased has also not been seized by the police. This witness is said to have reported the incident to his father Sidhe Singh (PW1) on the same day, but his father did not lodge any report to the police station on 21.10.2011 or next day or day after next and only it was reported on 24.10.2011. There is no explanation for delay of 3 days in lodging the FIR by Sidhe Singh (PW1). As such, this witness cannot be said to be reliable witness particularly in absence of external injury over the body of the deceased, cause of death to be drowning and delay in lodging the FIR by his father Sidhe Singh (PW1).
13. Next witness Anil (PW3) was also present on the spot on the date of incident. He has only stated that on the date of incident, all three were fishing and the appellant had taken his brother Krishna Singh inside the water. He has stated new version that the appellant had set over stomach of deceased Krishna Singh, which he reported to his father. Statement of this witness is fully contradictory to the statement of Sunil (PW2) and further stated that the appellant has covered his mouth by scarf, but no scarf has been seized from the accused by the police during the course of investigation and that part is omitted in his statement Ex.D2. As such, we are of the considered opinion that this witness Anil (PW3) is also not reliable in absence of recovery of scarf.
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14. Sidhe Singh (PW1) (father of the deceased) was examined as PW1. Admittedly, on 21.10.2011 Sunil (PW2) and Anil (PW3) both have reported the matter to his father Sidhe Singh (PW1) though his son Krishna Singh aged about 4 years did not came back to his house right in time along with his two sons namely Sunil (PW2) and Anil (PW3), but he did not report the matter immediately to the police, he started searching of his own on 22.10.2011 and 23.10.2011 and even on 24.10.2011 till he noticed the dead body of Krishna Singh on the bank of Atem river, then only he lodged merg intimation vide Ex.P4 to the police and delay in lodging the FIR has not been explained by Sidhe Singh (PW4) though long standing enmity between the appellant and the deceased family has been pleaded and plea of false implication has been taken, but no sufficient evidence has been brought on record.
15. It is pertinent to mention here that incident took place on 20.10.2011 and merg intimation was made on 24.10.2011 vide Ex.P4, but statement of Anil (PW3) one of the alleged eyewitness was recorded on 26.11.2011. There is delay of about one month in recording the statement of alleged eyewitness. As such, possibility of falsely implicating the appellant cannot be ruled out. Similarly, investigating officer C.Kerketta (PW11) has been explained in para11 before the Court that since Sidhe Singh (PW1) who has lodged the report did not suspect any person in death of his 9 son Krishna Singh, therefore, statements of the witnesses were not recorded, which creates doubt in the mind of the Court particularly merg intimation was registered on 24.10.2011.
16. At this stage, learned Deputy Government Advocate for the respondent/State, would submit that diatom test has been found positive and therefore, it is clearly established that cause of death is of drowning.
17. In Modi's Medical Jurisprudence and Toxicology, 24 th Edition 2011, diatom test has been defined as under: "(f) Diatom Test: Finding of diatoms by microscopic examination of tissues like brain, liver or bone marrow from the femur or humerus, after acid digestion is also helpful in confirming death from drowning. Diatoms are a class of tiny unicellular algae of different shapes found in fresh or seawater. There are about 15,000 types of diatoms of which half are found in fresh water and the rest in seawater. They may be fan shaped (stellate), ribbon like and seen singly or in groups. They vary in size from 2m1.0 millimeter, the usual size being 10.80m. They have hard siliceous, almost indestructible outer covering (frustule) and can pass through the alveolar valls of the lungs of a living person to the brain, liver and bone marrow. The diatom flora of the samples of water from the site of immersion must be carefully collected with special technique and compared with those found from the body to get a reliable report.
Learned author has further stated that diatom test has certain limitations like diatoms could have been inhaled or ingested with material containing diatoms before death or aspirated water containing diatoms or contamination of the glassware and reagents that are used to detect diatoms. Limitation of diatom 10 test has been stated as under: • Diatoms can also be inhaled • Ingestion of material containing diatoms • Aspiration of water containing diatoms • Contamination of the glassware and reagents that are used to detect diatoms.
18. This Court in the matter of Pawan Kumar Pandey v. State of C.G.2 has held qua diatom test as under: "25. When a body is recovered from water, there is usually a suspicion whether it was a case of antemortem or postmortem drowning i.e. whether the body was drowned before or after death. To diagnose the cause of death in such cases, the diatom test is conducted. However, the diatom test is not confirmatory because diatom could be detected in the postmortem drowning, if the same water in which the body was found was drunk by the deceased before the death. As per Modi's Medical Jurisprudence and Toxicology, 23rd Edition, water may not be present in the stomach, if the person died from sudden cardiac arrest or became unconscious immediately after falling into water, so that he could not struggle and swallow water in the act of drowning. It further says that the typical signs of drowning are seen only in the body of drowned person when it is removed from water within a few hours after death and examined immediately."
19. Reverting to the facts of the present case in light of aforesaid legal proposition, it is quite established that deceased Krishna Singh died by drowning. As per medical report and postmortem report coupled with statement of Dr.Deep Kumar (PW12) and further as per diatom test, it is death by drowning, but it has not been established that it is only and only the appellant who is author of the crime and who pushed the deceased into water by which he drowned & died as statements of 2 2018(2) C.G.L.J. 99 (DB) 11 Sunil (PW2) and Anil (PW3) are contradictory to each other with regard to the manner in which the appellant is said to have murdered their brother Krishna Singh and it also suffers from material omissions and their case diary statement and there is delay of 3 days in lodging the FIR and further delay of more than one month in recording the statement of eyewitness Anil (PW3), which is fatal to the prosecution and which was unsuccessfully explained by investigating officer C. Kerketta (PW11). (please see Harbeer Singh v. Sheeshpal and others3).
20. In that view of the matter, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for offence under Section 302 of the IPC. Accordingly, the criminal appeal is allowed and conviction & sentence of the appellant under Section 302 of the IPC are hereby set aside, he is acquitted of the charge under Section 302 of the IPC. He is in jail, he be released forthwith, if not required in any other case.
21. Appeal has been filed by the appellant through High Court Legal Aid Committee. In that view of the matter, a copy of this judgment be sent to the appellant as well as to the Superintendent of Jail wherein the appellant is languishing and also sent to the Secretary, High Court Legal Aid Committee and the District Judge / Third Additional Sessions Judge, 3 (2016) 16 SCC 418 12 Surajpur for further needful action. It be also sent by Email/fax.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/