Chattisgarh High Court
Bharat Vishwas & Another vs State Of Chhattisgarh on 26 April, 2016
Bench: Pritinker Diwaker, I.S. Uboweja
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 571 of 2011
1. Bharat Vishvas S/o Gopal Vishvas, aged about 42 years, occupation
cultivation
2. Neetai Rai S/o late Krishnkant Rai, aged about 48 years, occupation
cultivation
Both R/o PV 14, PS Pakhanjoor, District Kanker, CG
---- Appellants
Versus
1. State of Chhattisgarh through District Magistrate, Kanker District
Kanker CG
---- Respondent
For Appellant No.1 : Shri Arvind Sinha, Advocate For Appellant No.2 : Shri Santosh Bharat, Advocate For Respondent/State: Shri Vaibhav Goverdhan, PL Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice I.S. Uboweja Judgment on Board by Pritinker Diwaker, J 26/04/2016 This appeal has been filed against the judgment of conviction and order of sentence dated 27.6.2011 passed by Sessions Judge Kanker, in Sessions Trial No. 98/2010 convicting the accused/appellants under Section 302/34 IPC and sentencing each of them to undergo imprisonment for life with fine of Rs. 500, plus default stipulations.
2. Facts of the case leading to disposal of the present appeal, in brief, are that on 16.5.2010 merg intimation Ex. P-1 was lodged by Sapan Vaidya (PW-1) - the father of the deceased alleging that on that day while his younger son Sanjit was returning home on his motorcycle, near Anjali Nala he saw his elder son Sanjay (the deceased herein) in injured condition. It is alleged that while 2 offering water, Sanjay informed Sanjit to have been assaulted by accused Bharat. Thereafter, on hearing the cries of Sanjit, he (Sapan Vaidya) along with his wife went to the spot and saw his son Sanjay lying there in injured condition. However, after being taken to hospital, he succumbed to the injuries sustained by him. FIR Ex. P-2 was registered immediately after the merg at the instnace of Sapan Vaidya against accused Bharat and another. After inquest, the body was sent for postmortem examination which was conducted by Dr. N.R. Navratna (PW-6) who gave his report Ex. P-
11. After completion of investigation, charge sheet was filed against the accused/appellants for the offence under Section 302/34 IPC and then the charge was also framed under the same Section.
3. In order to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined 09 witnesses. Statements of the accused/appellants under Section 313 Cr.P.C. were also recorded in which they denied their guilt and pleaded innocence and false implication in the case.
4. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned above.
5. According to Shri Sinha, accused/appellant No.1 namely Bharat has been falsely implicated in the case in hand on account of previous enmity between him and the deceased. He submits that according to the autopsy surgeon brain material of the deceased had come out immediately after the assault and thus question of oral dying declaration said to be made by him to his brother does not arise. Shri Sinha further submits that even Sapan Vaidya (PW-1) and Sanjit Vaidya (PW-2) have stated that brain material of the deceased had come out and it is so, the oral dying declaration 3 becomes doubtful. According to him, though the blood stained axe was seized under Ex. P-6, but in the absence of serological report it has no significance in the eye of law.
As regards accused/appellant No.2 Nitai, it is submitted by Shri Santosh Bharat that there is no evidence against him and even in the merg and FIR his name does not find place.He submits that though as per FSL report blod was found on the pant of accused Nitai but merely on that basis he cannot be convicted for the commission of the murder of the deceased particularly when serological report is not on record.
6. State counsel however supports the judgment impugned and submits that the findings recorded by the Court below are based on due appreciation of the evidence on record and there is no infirmity in the same. He submits that in the promptly given merg intimation and the FIR at the instance of Sapan Vaidya (PW-1) name of accused Bharat is there and there was no occasion for the deceased to implicate him in a false case. He submits that whatever was disclosed to Sanjit by the deceased, the same thing was disclosed to Sapan Vaidya also. According to him, apart from oral dying declaration made by the deceased before PW-1 and PW- 2, other evidence such as seizure of blood stained axe and positive FSL report is also there. According to the State counsel, seizure witness Dukhiram Ojha (PW-4) has also supported the case of the prosecution.
7. Swpan alias Sapan Vaidya (PW-1) has stated that on the date of incident when he and his wife were to go to sleep after taking dinner, at about 10 PM his younger son Sanjit called him out saying accused Bharat had murdered his elder son Sanjay. On this, he, his 4 servant and wife rushed to the Anjani Nala and saw his son Sanjay lying there drenched with blood and his younger son Sanjit was trying to make him drink water. On being asked as to what had happend, Sanjay told him that he was assaulted by accused Bhart with axe and the other one had held his legs. He also told him that he had identified accused Bhart in the light of mobile phone. When he asked the deceased about the other person, his younger son Sanjit told him not to waste time and shift Sanjay to the hospital. Thereafter, Sanjay was shifted to the hospital where he disclosed to have sustained injuries on his temple and neck. According to this witness, four months prior to the incident when the deceased was bringing fire wood from the forest, the accused/appellants had complained the same to the forest department and thereafter they had come to his house and told to kill the deceased as he was defaming them. In paragraph No. 10 this witness has admitted that when he reached the spot, brain material of the deceased had come out and he was lying there drenched with blood. According to this witness, in his diary statement he did not inofrmed to police that the brain material of the deceased had come out. Sanjit Vaidya (PW-2) - the younger brother of the deceased has stated that on the date of incident at about 10/10.15 PM when he was returning from Pankhajoor on motorcycle, he saw one person lying near Anjani Nala and blood was oozing from his head. In the headlight of the motorcycle he identified him to be his brother Sanjay and then he tried to make him drink water. According to him, while taking water, his brother looked at him and on being asked he told him that accused Bharat had assaulted him and that in the light of mobile phone he identified him but he could not identify the other person who held the legs of his brother. According to him, looking 5 to the condition of his brother, he called out his parents urgently and after their arrival he made him (deceased) drink water. He has stated that when his father asked Sanjay as to who assaulted him, he told that it was accused Bharat who did so and that he was not aware of the other person dragging him by legs. This witness has also admitted that the brain material of the deceased had come out. Rati Ram Kashyap (PW-3) is also the witness before whom oral dying declaration was made by the deceased and he too has suppoted the case of the prosecution. Dukhiram Ojha (PW-4) - the witness to memorandum of the accused/appellants Ex. P-5 and P-7 and seizure of axe and clothes of accused Nitai made under Ex. P-6 and Ex. P-8 has also supported the case of the prosecution. Avinash Sarkar (PW-5) has stated that when he reached the spot, accused Nitai was standing there. Dr. N.R. Navratna (PW-6) is the witness who conducted postmortem examination on the body of the deceased and gave his report Ex. P-11 stating that he noticed incised wounds on right temporal 6 x 3 cm; on cheek, chin and neck 6 x 4 cm; on fronto-parieto-occipital region and in the middle of scalp where cerebrum is expelled out and scalp bone was fractured. Cause of death according to this witness was shock, haemorrahage and cerebral injury and it was homicidal in nature. In paragraph No.4 this witness has admitted that brain material of the deceased had come out. He has also admitted that on account of brain material being out, the person concerned loses the power of speaking, thinking and seeing. He however has denied that after the brain material comes out, the victim meets an instataneous death. To a query as to after how much time of sustaining head injury, the brain material would have come out, this witness has failed to give any answer. Ishwar Nag (PW-8) is the Patwari who 6 prepared spot map Ex. P-17. S. Kiro (PW-9) is the investigating officer who has duly supported the case of the prosecution.
8. Close scrutiny of the material available on record thus makes it clear that the only piece of evidence against accused Nitai is his memorandum Ex. P-7 based on which a full pant was seized and the FSL report Ex. P-28 shows the presence of blood on it. Except this, there is no evidence to show his involvement in the commission of murder of the deceased. Even in the oral dying declaration made by the deceased before three persons namely Sapan Vaidya (PW-1), Sanjit Vaidya (PW-2) and Ratiram kashyap (PW-3) name of accused Nitai does not find place. Thus as the prosecution has not been able to establish the guilt of accused Nitai Rai by adducing sufficient evidence, he is entitled for benefit of doubt and being so he is acquitted of the charge under Section 302/34 IPC.
9. As regards accused Bharat Vishvas, merg intimation Ex. P-1 was given by the father of the deceased (PW-1) promptly, based on which FIR came to be registered and in both these documents his name finds place. In the oral dying declaration made by the deceased before Sapan Vaidya (PW-1), Sanjit Vaidya (PW-2) and Ratiram kashyap (PW-3), name of this accused is mentioned to have assaulted him with axe. This apart, blood stained axe was seized at his instance under Ex. P-6 and FSL report Ex. P-28 is also positive. Further, accused Bharat has not explained the presence of blood on the axe in his statement recorded under Section 313 of the Code of Criminal Procedure. We do not find force in the argument of shri Sinha that the doctor conducting postmortem examination has stated that after the brain material comes out, the victim loses his power to see, speak or think because the autopsy 7 surgeon cannot be supposed to visualise on-the-spot situation. Further, when a question was put to the autopsy surgeon as to after how much time of sustaining head injury, the brain material would have come out, he has failed to give any answer. Thus taking into consideration the cumulative effect of the evidence adduced by the prosecution, conviction of accused Bharat Vishvas appears to be justified and there is no reason for this Court to disturb the same.
10. In the result, the appeal is allowed in part. Conviction of accused Nitai Rai under Section 302/34 IPC is hereby set aside whereas that of accused Bhart Vishvas is hereby maintained. Accused/appellant Nitai Rai is directed to be set free forthwith whereas accused Bharat Vishvas has to remain in jail and serve out the sentence imposed on him.
Sd/- Sd/-
(Pritinker Diwaker) (I.S.Uboweja)
Judge Judge
Jyotishi