Chattisgarh High Court
Mritunjay Singh vs State Of Chhattisgarh on 22 February, 2022
Author: R.C.S. Samant
Bench: Rajendra Chandra Singh Samant
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on: 08/02/2022
Judgment delivered on: 22/02/2022
CRA No. 701 of 2014
1. Mritunjay Singh S/o. Vijay Singh Aged About 23 Years R/o. Pahlejpur, P.S.
Gotiya Kothi, Distt. Shivan Bihar, Presently R/o. Patrapali House Of Jaitram
Patel, P.S. Kotraroad, Distt.-Raigarh, Chhattisgarh
---- Appellant
Versus
1. State of Chhattisgarh Through The Distt. Magistrate Raigarh, Distt. Raigarh
C.G., Chhattisgarh
---- Respondent
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For the Appellant : Mr. Mahendra Dubey, Advocate.
For the State/Respondent : Mrs. Madhunisha Singh, Dy. Adv. General.
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Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
CAV Judgment
Per R.C.S. Samant, J.
22/02/2022
1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 30.06.2014 passed by the 2 nd Additional Session Judge, Raigarh, Chhattisgarh in Sessions Trial No.35/2012 convicting the accused/appellant under Section 302 of the Indian Penal Code (for short 'the IPC') and Section 25 & 27 of Arms Act and sentencing him to undergo life imprisonment with fine of Rs.5,000/-, RI for 1 year with fine of Rs.1,000/- and RI for 7 years 2 with fine of Rs.5,000/- respectively with default stipulations.
2. The prosecution case, in brief, is this that deceased Sanjeev Singh was engaged as contractor in Jindal Iron Factory, Patrapali. It is alleged that the deceased had illicit relation with the wife of the appellant. On the intervening night, of 18-19/9/2011 deceased was invited by the appellant and the other accused persons namely- Sohan Lal and Rajkishore for having drinks and subsequent to that the deceased was shot thrice from a Desi Katta by this appellant causing him fatal injuries, which resulted in his death. Vinod Kumar Chouhan PW-1 lodged the morgue intimation Ex.P-1 and FIR Ex.P-2. The police registered offence under Section 302 of IPC against unknown person. Postmortem examination was conducted by Dr. S. Lakda PW-6, who opined by his report Ex.P-12, that the death of the deceased Sanjeev Kumar Singh was homicidal. Investigation was taken-up, in which, the appellant was apprehended and interrogated who gave statement on memorandum vide Ex.P-19, leading to the discovery of the firearm. At the instance of the appellant, the seizure of firearm a Desi Katta was made from the possession of this appellant vide Ex.P-22. The Investigating Officer had made inspection of the spot and prepared Crime Details Forrn Ex.P-3 and from the very spot seizure of articles were made which were three blank shells of cartridges, on the bottom of which it was written 8 MM KF., other belongings of the deceased, the blood stained soil and plain soil, The seized firearm and the empty cartridges were sent for 3 ballistic examination vide ballistic report Ex.P39. It has been reported that the empty cartridges found from the spot were shot from the firearm that was seized from the appellant. The statement of witnesses were recorded under Section 161 CrPC and on completion of investigation, the charge-sheet has filed before the Court.
3. After the committal procedure, the learned Sessions Court took cognizance in the case and charged the appellant with offences under Section 120B, 302 of IPC and Section 25 & 27 of Arms Act. The co-accused persons Sohan Lal and Rajkishore were charged with commission of offences under Section 120B, 302/34 of IPC. The appellant and the co-accused persons denied the charges and pleaded not guilty. The prosecution examined in all 18 witnesses. On completion of prosecution evidence, the appellant and the co- accused persons were examined under Section 313 of CrPC, in which, they denied all the incriminating evidence present against them and made a statement of their innocence. No evidence was led in defence. The learned trial Court after giving opportunity of hearing to the prosecution and defence has delivered the impugned judgment, in which, the appellant has been convicted and sentenced as mentioned hereinabove. However, the co-accused persons were acquitted of all the charges against them.
4. It is submitted by the learned counsel for the appellant, that the conviction against the appellant is totally erroneous. The evidence of prosecution was not of the quality to have inspired confidence of the Court. The case against the appellant was totally based on the 4 circumstantial evidence. The FIR Ex.P-2 was lodged against unknown person. Their was no witness to depose about the deceased and the appellant being last seen together. Parsuram Mehto PW-4 has not supported the prosecution case. He has only stated that he was only acquainted with the deceased. Further, the witnesses of search and seizure namely-Jaiky Minj PW-10 and Shailendra Pandey PW-11 have not supported the prosecution case. The conviction against the appellant is based only on the evidence of Inspector Mamta Ali PW-18, who is not a reliable witness. Further, the reliance of the trial Court on the ballistic report Ex.P-39 is not an evidence against the appellant without seizure of the firearm from the appellant being proved.
Learned counsel for the appellant has placed reliance on the judgment of Supreme Court in the case of Mohd. Aman Vs. State of Rajsthan, reported in AIR 1997 SC 2960, in the case of Modan Singh Vs. State of Rajasthan, reported in AIR 1978 SC 1511, in the case of Vijay Singh Vs. State of M.P., reported in 2005 CRI.L.J. 299, in the case of Chotelal Nishad Vs. State of Chhattisgarh in Criminal Appeal No.19/2002 and in the case of Upendra Pradhan Vs. State of Orissa, reported in (2015) 11 SCC 124.
It is further submitted that there is no evidence of last seen together and motive. The memorandum and seizure from the appellant is also not proved. Apart from that there is also no evidence regarding keeping in safe custody of the seized firearm until the same was sent for ballistic examination. Further, the description of the firearm in the seizure Ex.P-22 does not match with the firearm 5 examined in Ex.P-39. Hence, the case against the appellant is full of doubt and his conviction is not sustainable.
5. Learned State counsel opposes the submissions and rebuts all the arguments advanced by the counsel for the appellant. It is submitted that the prosecution has very clearly proved the case against the appellant beyond reasonable doubt. The seizure of Desi Katta from the appellant was clearly found connected with the death of the deceased. The ballistic report Ex.P-39 has no ambiguity. The whole chain of the circumstances have been proved, hence, the conviction against the appellant is sustainable which cannot be interfered with.
6. In rebuttal, it is submitted by the counsel for the appellant that the ballistic report Ex.P-39 has not been explained by the prosecution and it would not be the burden of the appellant/accused to explain the same. However, the ballistic report alone could not have been made a ground for conviction of the appellant.
7. We have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment.
8. Considered on the submissions.
9. There is no challenge to this fact established in the case, that the deceased Sanjeev Singh has died a homicidal death due to gun shot injury on his body. The other circumstance on which the learned trial Court has relied upon is the seizure of firearm from the possession of the appellant vide Ex.P-22 on the basis of his memorandum statement given vide Ex.P-19. The proof of the same is under 6 challenge in this appeal. The 3rd circumstance on which the learned trial Court has placed reliance is the ballistic report Ex.P-39, regarding which objection has been raised by the counsel for appellant.
10. On careful scrutiny of the evidence present in the record of the case, it has come to the notice of this Court that the ballistic report Ex.P-39 was received at the later on stage of the trial, regarding which there is noting in the order-sheet dated 21.1.2014. There is no such mention in the order-sheet of this date or in the order-sheets of the subsequent dates that the copy of this ballistic report was provided to the appellant and the co-accused persons, which implies that the copy of this ballistic report was not provided to the appellant. Further, the report has been exhibited by a plain statement of Investigating Officer Inspector Mamta Ali PW-18 mentioning, that the attached ballistic report is Ex.P-39. There is no statement regarding the contents of the said ballistic report. On further, examining the record, it is seen that the learned Sessions Judge has put only one question to the appellant and the co-accused persons, in their examination under Section 313 CrPC which that the ballistic report is Ex.P-39 and that such statement has been made by Inspector Mamta Ali PW-18 and that the ballistic report Ex.P-39 is attached with challan regarding which the appellant and the co-accused had answered that they are ignorant. The content of the report Ex.P-39 was never put-forth and no opportunity was given to the appellant to challenge the veracity of the report present in ExP-39.
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11. The report of a Ballistic Officer, who is a Government scientific expert is although admissible under Section 293 of the CrPC, but before placing reliance on such a report, the person placing trial has to be given full opportunity to challenge and rebut the report as it is already held hereinabove that neither the copy of the report was supplied to the applicant nor the contents of the report were brought in evidence, therefore, it can be clearly held that the appellant did not have the opportunity to challenge the report Ex.P-39, hence, on this basis, the learned Sessions Judge also omitted to put any question to the appellant in his examination under Section 313 of CrPC on the basis of contents present in the report Ex.P-39 which were admissible in evidence under Section 293 of CrPC.
12. We are of the view that a grave error has been committed by the learned Sessions Judge. An accused person has an entitlement of a fair trial which is a constitutional right available to him under Article 21 of the Constitution, hence, we are of the view that the conviction against the appellant is technically not sustainable due to the reasons mentioned hereinabove. On the basis of these considerations, the present appeal is allowed. The conviction and sentence against the appellant is set aside. The trial against the appellant stands revived. The case is remanded back to the learned trial Court. The trial Court is directed to supply the copy of the ballistic report Ex.P-39 to the appellant, either the report ExP-39 may be admitted under Section 293 of CrPC in evidence or if a necessary or if demanded by the appellant, the witness concerned may be 8 summoned with respect to the ballistic report Ex.P-39, either for examination and cross-examination. It is further directed that the learned trial Court shall after completion of this evidence re-examine the appellant under Section 313 of CrPC by putting specific questions with regard to the evidence on ExP-39 and afford further opportunity for defence to him. On completion of all these procedure the learned trial Court shall decide the case afresh. The acquittal of the co-accused persons by the learned trial Court is not interfered with.
13. With these observations, this appeal is disposed off.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Nisha