Chattisgarh High Court
Kaliram Mohle And Ors vs State Of Chhattisgarh on 9 February, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 235 of 2014
1. Kaliram Mohle, S/o. Baliram Mohle, Aged About 60 Years.
2. Chatur Singh Mohle, S/o. Kaliram Mohle, Aged About 35 Years.
3. Subhash Chandra Mohle, S/o. Kaliram Mohle, Aged About 28
Years.
4. Yogesh Kumar Mohle, S/o. Chatur Singh Mohle, Aged About 20
Years.
All R/o. Village, Sarangpur, Police Station- Mungeli, Revenue
District Mungeli, Civil District Bilaspur, Chhattisgarh.
---- Appellants
Versus
The State Of Chhattisgarh, Through Police Station- City Kotwali,
District Mungeli, Chhattisgarh.
---- Respondent
AND
Criminal Appeal No. 340 of 2014
1. Nakul Kurre, S/o. Awadh Ram Kurre, Aged About 44 Years.
2. Vinay Singh Kurre @ Golu, S/o. Nakul Kurre, Aged About 24
Years.
All R/o. Village Sarangpur, Police Station, Tehsil & District :
Mungeli, Chhattisgarh
---- Appellants
Versus
The State Of Chhattisgarh, Through the Station House Officer,
Police Station- City Kotwali, District Mungeli, Chhattisgarh.
---- Respondent
For Appellants : Mr. Sunil Verma & Mr. Rishi Sahu,
Advocates
State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
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Judgment On Board
(09.02.2023)
Sanjay K. Agrawal, J.
1. Criminal Appeal No.235 of 2014, which has been preferred by Kaliram Mohle (A-1), Chatur Singh Mohle (A-3), Subhash Chandra Mohle (A-4) and Yogesh Kumar Mohle (A-6) and Criminal Appeal No.340 of 2014, which has been preferred by Nakul Kurre (A-2) & Vinay Singh Kurre (A-5) are directed against the impugned judgment of conviction and order of sentence dated 31.01.2014 passed by the learned Additional Sessions Judge, Mungeli in Sessions Trial No.36/2012.
2. The appellants in Criminal Appeal No.235 of 2014 have been convicted and sentenced as under with a direction to run all the sentences concurrently.
CONVICTION SENTENCE U/s. 302 read with Sec. : Life imprisonment with fine of Rs.1000/- 149 of I.P.C.
each, in default of payment of fine, 1 year additional imprisonment U/s. 147 of I.P.C. : Rigorous imprisonment for 1 year with fine of Rs.500/- each, in default of payment of fine, 1 month additional imprisonment.
3. The appellants in Criminal Appeal No.340 of 2014 have been convicted and sentenced as under with a direction to run all the sentences concurrently.
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CONVICTION SENTENCE U/s. 302 read with Sec. : Life imprisonment with fine of Rs.1000/- 149 of I.P.C.
each, in default of payment of fine, 1 year additional imprisonment U/s. 148 of I.P.C. : Rigorous imprisonment for 1 year with fine of Rs.500/- each, in default of payment of fine, 1 month additional imprisonment.
4. Case of the prosecution, in short, is that on 18.07.2012 at morning 7:00 a.m. to 4:00 p.m. at village Singarpur Khar, P.S. Mungeli, the appellants, who were six in numbers armed with weapons i.e. pick-axe, constituted an unlawful assembly and in furtherance of common intention committed riot and committed murder of the deceased Devendra Singh. Further case of the prosecution is that on 18.07.2012 at 7:00 a.m. to 4:00 p.m. Devendra Singh, nephew of complainant Thakur Singh (PW-7) had gone to his field Singarpur Khar alongwith umbrella, pickaxe and mobile. Thereafter, deceased Devendra Singh was followed by Thakur Singh (PW-7) but Devendra Singh could not be seen thereafter; however, he noticed the umbrella and pickaxe in the field of Nakul (A-2) and on being asked, Sita Bai informed that Devendra Singh had gone with the accused persons, the appellants herein, but he could not trace out Devendra Singh and then on the later part of the day, when he asked the whereabouts of Devendra Singh to Nakul (A-2) then he did not inform anything and on being searched alongwith other villagers, then the dead body of Devendra @ Dehru was found 4 in the field of Nakul (A-2) and he suffered injuries and had already dead at that time. It is also alleged that the appellants have encroached upon the governmental land and they have also stopped the road and on that account, the dispute erupted between the appellants and deceased. The matter was reported to the Out Post- Fastarpur, Police Station Mungeli vide Ex.P-27 and inquest was conducted and on recommendation of panchas, the dead body was sent for post-mortem, which was conducted by Dr. S.P.Baghel (PW-5) and post-mortem report is Ex.P-21. Pursuant to memorandum statement of Nakul (A-2) vide Ex.P-6, one pickaxe and shirt were seized vide Ex.P-10 & P-11; on the memorandum statement of Vinay (A-5) vide Ex.P- 7, one pickaxe was seized vide Ex.P-9 and one T-shirt was seized vide Ex.P-12. Query report is Ex.P-22 and Ex.P-23-A, by which the injury suffered by the deceased could have been caused by the weapon seized from A-2 & A-5 and all the seized articles were sent for FSL, but no FSL report has been brought on record. After due investigation, all six appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court and ultimately it was committed to the Court of Sessions for trial in accordance with law, in which the appellants abjured their guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 29 documents and the appellants/ accused in support of their defence have not 5 examined any witness, but have exhibited the documents Ex.D-1, Ex.D-6, Ex.D-7, Ex.D-8 & Ex.D-9.
6. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the aforesaid offences; however, the accused Nakul (A-2) and Vinay (A-5) were acquitted from the offence under Section 147 of I.P.C. and other accused persons Kaliram (A-1), Chatur (A-3), Subhash Chandra (A-4) & Yogesh (A-6) were acquitted from the offence under Section 148 of I.P.C. and sentenced as mentioned in the opening paragraph of this judgment, against which the present appeals have been preferred.
7. Mr. Sunil Verma & Mr. Rishi Sahu, learned counsel appearing for the appellants would submit that the conviction of the appellants is based on sole testimony of the eye-witness Bhop Singh (PW-2) and there is no other piece of evidence available on record. Though pursuant to memorandum statement of Nakul (A-2) and Vinay (A-5) pickaxe and clothes were seized but no blood has been found, as FSL report has not been brought on record. As such, it could not be said that it is the weapon of offence and more particularly the incident is of 18.07.2012 whereas the eye-witness was examined on 20.07.2012, as such, there is delay of 2 days in recording statement of Bhop Singh (PW-2) and there is no explanation brought on record by the prosecution, as such, the conviction and sentence awarded 6 to the appellants are liable to be set aside and the appeals deserve to be allowed.
8. Mr. Sudeep Verma, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt, therefore, the trial Court has rightly convicted all the appellants for the aforesaid offences and as such, the appeals deserve to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
10. The first question as to whether the death of the deceased Devendra Singh was homicidal in nature, has been answered by the trial Court in affirmative holding the death to be homicidal in nature, relying upon the post-mortem report Ex.P-21 proved by Dr. S.P.Baghel (PW-5), according to which, death occurred due to hemorrhage and shock. In our considered opinion, such finding recorded by the trial Court is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly we hereby affirm the said finding.
11. Now, the next question for consideration is whether the trial Court is justified in holding that the appellants are authors of the crime. The trial Court has not found the motive for the offence established, though the prosecution has projected that dispute between the appellants and deceased was existing but no 7 clinching evidence is brought on record to hold that the appellants had any motive to commit murder of the deceased Devendra Singh for the dispute existing in between them and in that view of the matter, we are unable to hold that there is any motive on the part of the appellants to commit murder of the deceased.
12. Now the next piece of evidence is that the incident is said to have been witnessed by Bhop Singh (PW-2). The date of incident is 18.07.2012 and his statement under Section 161 Cr.P.C. has been recorded on 20.07.2012, though he visited the spot on 18.07.2012 immediately after the incident and he also met with police personnel on 18.07.2012 as per Para 7 of the statement and he was also in the village on 19.07.2012. He also met with the family members of the deceased, but he did not disclose that he had seen the incident by which the appellants have assaulted the deceased by pickaxe and caused the death. However, when the statement under Section 161 of Cr.P.C. is recorded on 20.07.2012, he has only stated that on the date of incident, he had seen that the deceased Devendra @ Derhu along with umbrella, which he kept and was going to answer the call of nature and after him Chatur Singh (A-3) and two other boys were following him and later on he said that Nakul (A-2), Chatur (A-3) and Vinay (A-5) all were standing and in the meanwhile, he wanted to consume liquor, which Chatur (A-3) had in his room near tube-well and then immediately thereafter 8 he had seen that Chatur (PW-3) and Vinay (P-5) started assaulting the deceased then he fell down on the ground then they absconded from the spot. Thereafter, when statement was recorded before the Court on 24.07.2013, after one year, he made substantive improvement and in para 2, he has clearly stated that all the six accused persons surrounded the deceased Devendra @ Derhu and assaulted him, which he has seen and taken the dead body to Saharanpur field, but he did not inform anything to anyone till he was called to Police Station on 20.07.2012. He was confronted by Section 161 Cr.P.C. statement recorded before the Police Station in para 11 and he simply stated that he has informed the name of all the accused persons including Nakul (A-2), Chatur (A-3) & Vinay (A-5), but if it has not been recorded in Ex.D-1, he cannot state any reason. When the Investigating Officer - S.R.Ghritlahare (PW-13) was confronted and his attention was invited to the statement Ex.D- 1, he has clearly stated that he has recorded the statement of Bhop Singh as per the statement given by him and if he could have named other persons, he could have also recorded the name of other persons. As such, there is a clear contradiction in the statement of Section 161 Cr.P.C. and court statement of Bhop Singh (PW-2) as in the statement under Section 161 Cr.P.C. recorded on 20.07.2012, he has only named Nakul (A-
2), Chatur (A-3) and Vinay (A-5), but only stated that the injury was caused by Chatur (A-3) & Vinay (A-5). As such, the addition of name of Kaliram (A-1), Nakul (A-2) and Yogesh (A-6) as 9 assailant is not borne out from the statement of Bhop Singh (PW-2).
13. The statement of Bhop Singh (PW-2) recorded under Section 161 Cr.P.C. on 20.07.2012, after two days of incident is also not explained. Admittedly, incident occurred on 18.07.2012 and the dead body was noticed in the afternoon at 4:00 p.m. and as per the statement of Bhop Singh (PW-2), he immediately visited the spot where the dead body was found and as per para 6 of his statement, he came back to his house, but admittedly as per his own statement, he did not inform about the incident including family members or police on that date. Furthermore, on the date on 18.07.2012, he met the police personnel but he did not tell anything and till 20.07.2012. he was moving in the village and also met family members of the deceased Devendra but he did not inform anything to them also, though interacted with the family members of the deceased and only on 20.07.2012 when he was called in the Police Station, he is said to have disclosed the incident to the police and his statement was recorded under Section 161 Cr.P.C. implicating only three accused persons A-2, A-3 & A-5. As such, delay of 2 days in recording the statement of Bhop Singh is equally fatal to the prosecution and more particularly when he met the police personnel on the date of incident on 18.07.2012 and also he was available in the village and met with the family members of the deceased, which creates doubt on the case of the prosecution. Apart from the 10 aforesaid testimony of Bhop Singh (PW-2) pursuant to the memorandum statement of Nakul (A-2) and Vinay (A-5), pickaxe have been seized and they have been subjected to query report and attention of the Doctor has been invited and according to Dr. S.P.Baghel (PW-5) injuries which suffered by the deceased could have been caused by the said weapon but though it has been sent for FSL, but no FSL report has been brought on record for the reasons best known to the prosecution.
14. The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another1 held 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 and held in Para-24 as under:
"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.
1(2019) 7 SCC 781 11
24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."
15. Further, the Supreme Court in the matter of Mani v. State of Tamil Nadu2, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important 2 (2009) 17 SCC 273 12 circumstances are disbelieved, there is nothing which would remain to support the prosecution theory."
16. Thus, in view of the fact that pickaxe were seized from the possession of Nakul (A-2) and Vinay (A-5) the recovery is of no use to the prosecution, more particularly recovery is a weak piece of evidence in light of decision of the Supreme Court in the matter of Mani Singh (supra). More particularly, Bhop Singh (PW-2) did not state in his statement before the Court or statement before the police under Section 161 of Cr.P.C. that two accused A-2 & A-5 were armed with pickaxe, as such, mere proving that from A-1 and A-5, pickaxe has been seized is of no use to the prosecution.
17. Reverting to the facts of this case in light of the aforesaid decisions, it is quite vivid that Bhop Singh (PW-2) who is said to be witness and cited as eye-witness on behalf of the prosecution, there is delay of two days in recording the statement, though he met with the police personnel on the date of offence on 18.07.2012 and next date he was available for examination and he also met with the family members of the deceased and no reasonable explanation has been brought on record for two days delay in recording the statement of Bhop Singh (PW-2). Furthermore, in Section 161 Cr.P.C. statement, Bhop Singh (PW-2) has only named Nakul (A-2), Chatur (A-3) and Vinay (A-5) and main assailant is Chatur (A-3) and Vinay (A-5) and in his statement before the Court, he has implicated 13 all six accused persons, which is in contradiction with his statement under Section 161 Cr.P.C. (Ex.D-1). As such, the statement of Bhop Singh (PW-2), who is eye-witness suffers from contradiction followed by the fact that there is delay of two days in recording the statement, which has not been explained by the prosecution reasonably and sufficiently. Furthermore, pursuant to the memorandum statement of Nakul (A-2) & Vinay (A-5), pickaxe has been seized but no human blood or blood has been found proved in light of the decision of Balwan Singh (supra) and recovery is a weak piece of evidence and in that view of the matter, the appellants are entitled for the benefit of doubt.
18. Accordingly, the conviction and sentences of all the accused persons are set aside, they are acquitted of the charges. All the appellants be released from jail forthwith, if not required in any other case.
19. The appeals are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ashok