Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 272 (CHH)

Heera Singh v. STATE OF C. G.

2013-09-12

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 26.3.2007 passed by the Second Additional Sessions Judge, Baloda Bazar, Dist. Raipur, in Sessions Trial No.312/2006. By the impugned judgment, accused/appellant Heera Singh has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine, to further undergo rigorous imprisonment for one year. 2. Case of the prosecution, in brief, is as under: Deceased Kachara Bai was mother of the appellant Heera Singh and both were residing in a same house. On 28.5.2006 at about 3.00 pm, Dashru Ram (PW-12), Upsarpach of Village Khaira lodged Merg Intimation (Ex-P/18) in Police Station, Kasdol that on the same day at about 11.00 am, the appellant assaulted his mother Kachara Bai (deceased) with a lathi (bamboo stick) and murdered her. On receiving the information of death of Kachara Bai, Dashru Ram (PW-12) went to the house of the deceased and found the dead body of the deceased, there. He saw that blood was oozing out of her throat. On being asked by Dashru Ram (PW-12), mother-in-law and wife of the appellant told him that the appellant assaulted the deceased with the lathi. First Information Report (Ex-P/19) was recorded in Police Station Kasdol. On the basis of the information, Investigating Officer reached the place of occurrence, gave notice (Ex-P/5) to Panchas and prepared inquest (Ex-P/6) on the dead body of the deceased. The dead body of the deceased was sent to Primary Health Centre, Kasdol for postmortem examination vide Ex-P/21. The postmortem examination was conducted by Dr. On the basis of the information, Investigating Officer reached the place of occurrence, gave notice (Ex-P/5) to Panchas and prepared inquest (Ex-P/6) on the dead body of the deceased. The dead body of the deceased was sent to Primary Health Centre, Kasdol for postmortem examination vide Ex-P/21. The postmortem examination was conducted by Dr. R.S. Joshi (PW-10) who gave his report (Ex-P/14) finding: (i) lacerated wound, 2cm x ½cm x bone deep on the right side of the head on occipital region obliquely present, (ii) lacerated wound, 2 ½cm x ½ cm x ½cm on the back of the right ear and blood clot was also present, (iii) lacerated wound, 2 ½ cm x ½cm cut through on pinna of the right ear, (iv) lacerated wound, 2cm x ½cm x ½cm before the right side of the chin, (v) lacerated wound, 6cm x 1 cm x skin deep back of the supiliac spine, (vi) contusion, 6cm x 2 cm just below the right ear with reddish colour, (vii) dark reddish contusion, 10cm x 2cm below the neck, (viii) contusion, 5cm x 2cm on the back of right shoulder, (ix) contusion with reddish skin, 20cm x 16cm on right arm ante-lateral and abrasion over it 2½cm x 1cm on right shoulder, (x) abrasion, 1½cm x ½cm over the right shoulder, (xi) redness with bluish discolouration of skin (blood diffusion,) 21 cm x 21 cm on right shoulder. He opined that the cause of death was shock and haemorrhage as a result of injuries over head and neck, fracture and dislocation of shoulder joint and the death was homicidal in nature. In further investigation, spot map (Ex. P/10) was prepared by Patwari Krishna Kumar Sahu (PW-9) vide Ex-P/11. Statement of Rameshwari - wife of appellant was recorded vide Ex-P/1, statement of Ghasin Bai - daughter of the appellant was recorded vide Ex-P/2, and statements of Khorbaharin Bai (PW-3), Heera Lal (PW-4), Hem Bai (PW-6) and Sushila (PW-7) were recorded vide Ex-P/3, P/4, P/6A and P/7, respectively. Blood stained bamboo stick (danda), blood stained soil and plain soil were seized from the place of occurrence vide Ex-P/8 and P/9. Seized gamchha, kathari and danda were sent to Community Health Centre, Kasdol for examination vide Ex-P/16 and P/17. Lungi of the appellant was seized vide Ex-P/23. Seized articles were sent to Forensic Science Laboratory, Raipur vide Ex-P/27. The appellant was arrested vide Ex-P/25. Seized gamchha, kathari and danda were sent to Community Health Centre, Kasdol for examination vide Ex-P/16 and P/17. Lungi of the appellant was seized vide Ex-P/23. Seized articles were sent to Forensic Science Laboratory, Raipur vide Ex-P/27. The appellant was arrested vide Ex-P/25. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by the Second Additional Sessions Judge, Baloda Bazar, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Janak Ram Verma, learned counsel for the appellant argued that the appellant has been falsely implicated. The prosecution has relied on the evidence of Dashru Ram (PW-12) and circumstantial evidence that the appellant was present in the room along with the deceased, but on the basis of above evidence, the prosecution has not been able to prove that the appellant had killed the deceased. Statement of Dashru Ram (PW-12) is not reliable. Dashru Ram (PW-12) lodged Merg Intimation (Ex-PI 1 8) and First Information Report (Ex-P/19). In Ex-P/18 and P/19, Dashru Ram (PW-12) reported that Koushal Prasad told him that the appellant killed the deceased. Looking to Ex-P/18 and P/19, it appears that he did not witness the incident, therefore, his evidence cannot form the basis for conviction. He further argued that the appellant and the deceased were residing together in the same house happily. The appellant had no motive to murder his mother (deceased). He further argued that suspicion, however, grave it may be, cannot be a substitute for a proof. He further argued that it was a day- time murder and looking to the evidence of prosecution witnesses, it is established that the appellant was not present in the house at the time of the incident. Therefore, the conviction of the appellant cannot be sustained. He placed reliance on Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699 , Mohan Singh Vs. Prem Singh and another,(2002) 10 SCC 236, Siddaiah alias Sundi Vs. State of Karnataka, (2003) 10 SCC 224 and State of Goa Vs. Sanjay Thakran and another, (2007) 3 SCC 755 . 4. He placed reliance on Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699 , Mohan Singh Vs. Prem Singh and another,(2002) 10 SCC 236, Siddaiah alias Sundi Vs. State of Karnataka, (2003) 10 SCC 224 and State of Goa Vs. Sanjay Thakran and another, (2007) 3 SCC 755 . 4. On the other hand, Shri S.K. Mishra, learned Panel Lawyer for the State/respondent, opposed the above arguments and supported the impugned judgment passed by the learned Additional Sessions Judge. 5. We have heard learned counsel for the parties at length and have also perused the records of Sessions Trial No.312 of 2006 carefully. Conviction of the appellant is based on the evidence of Dashru Ram (PW-12) as also the presence of the appellant near the dead body of the deceased. 6. Rameshwari Dhruv (PW-1) - wife of the appellant, Ghasin Bai (PW-2)- daughter of the appellant, Khorbaharin (PW-3) - mother-in-law of the appellant and Heera Lal (PW-4) - father-in-law of the appellant were examined as eye witnesses by the prosecution. Dashru Ram (PW-12) was also examined by the prosecution and Dashru Ram (PW-12) claimed himself to be an eye witness. 7. Rameshwari (PW-1) deposed that the appellant is her husband and Kachara Bai (deceased) was her mother-in-law and mother of the appellant. Ghasin Bai (PW-2) also deposed that deceased was her grand-mother and the appellant is her father. Khorbaharin (PW-3) and Heera Lal (PW-4) deposed that the appellant is their son-in-law. 8. Rameshwari Dhruv (PW-1) deposed that on the date of incident at about 12.00 noon, she had gone to tank for taking bath and the deceased was sleeping in the house and at that time the appellant was not present in the house. At about 1.30 pm, when she returned home after washing clothes, she saw that many people had gathered in her house and her mother-in-law (deceased) was lying dead on the cot. The prosecution has declared her a hostile witness and cross examined her. In the cross-examination, she specifically deposed that the appellant was not present in the house and he had gone for digging a pit. She further deposed that she did not witness any quarrel between the deceased and the appellant. It is wrong to say that when she returned home, she saw the appellant assaulting the deceased with a danda. In the cross-examination, she specifically deposed that the appellant was not present in the house and he had gone for digging a pit. She further deposed that she did not witness any quarrel between the deceased and the appellant. It is wrong to say that when she returned home, she saw the appellant assaulting the deceased with a danda. Ghasin Bai (PW-2) and Khorbaharin (PW-3) did not support the case of the prosecution. They specifically deposed that they did not know who killed Kachara Bai (deceased). 9. Heera Lal (PW-4), in examination-in-chief, deposed that he went to the house of the appellant along with his wife Khorbaharin Bai (PW-3) and at that time Kachara Bai (deceased) was alive and the appellant was standing in the veranda. At that time, the appellant was not carrying any weapon in his hand. The prosecution also declared him a hostile witness and cross-examined him. In cross-examination, he specifically deposed that he did not witness the incident. He did not know how the deceased sustained injuries on her body. 10. Dashru Ram (PW-12) deposed that he was the Upsarpanch of Village Khaira. On the date of incident, he went to the house of the appellant and saw that the deceased was lying dead on a cot and the appellant was present near the cot. Thereafter, the appellant entered his room and closed the door. In para 21 of his cross-examination, he deposed that Heera Singh (appellant) assaulted the deceased. He further deposed that he lodged Merg Intimation (Ex-P/18) and First Information Report (Ex-P/19). 11. Merg Intimation (Ex-P/18) was recorded on 28.5.2006 at about 15.00 hours and the date and time of the incident was the same day at about 11.00 am. Merg Intimation (Ex-P/18) and First Information Report (Ex-P/19) were lodged by Dashru Ram (PW-12). He further deposed that he lodged Merg Intimation (Ex-P/18) and First Information Report (Ex-P/19). 11. Merg Intimation (Ex-P/18) was recorded on 28.5.2006 at about 15.00 hours and the date and time of the incident was the same day at about 11.00 am. Merg Intimation (Ex-P/18) and First Information Report (Ex-P/19) were lodged by Dashru Ram (PW-12). In the Merg Intimation (Ex-P/18), it is mentioned that : ^^eS xkze [kSjk dk miljiap gw¡ [ksrh fdlkuh dke djrk gw¡ vkt 12 cts es ?kj es Fkk xkao ds iap dkS’ky izlkn vkdj crk;k fd fgjk flax mQZ eqUuk viuh eka dpjk ckbZ dks ykBh ls ekj dj gR;k dj fn;k gS rc es ogk x;k ?kj ds Hkhrj [kkV es dpjk ckbZ ejh iM+h Fkh xys es [kwu cg jgk Fkk] fgjkyky ifRu jes’ojh crkbZ fd nkekn ghjkflax ykBh ls dpjkckbZ dks ekj fn;k] ekjrs le;] fgjkyky] jes’ojh ,oa fgjkflax dh ifRu Fkh D;ks ekjs gS ugh ekywe] blds ckjs es fgjkyky vkSj jes’ojh gh crk,sxsa fd fjiksVZ ij exZ dk;e dj tkap iUp es fy;k x;kA The above facts are also mentioned in the FIR (Ex-P/19). 12. Looking to Merg Intimation (Ex-P/18) and FIR (Ex-P/19), it appears that Koushal Prasad came to Dashru Ram (PW-12) and told him that the appellant assaulted the deceased. It appears that Dashru Ram (PW-12) did not witness the incident, therefore, he is not an eyewitness to the incident. Koushal Prasad was not examined by the prosecution and in the Merg Intimation (ExP/18) and in the FIR (Ex-P/19), Dashru Ram (PW-12) specifically reported that Koushal Prasad came to his house and told him that Heera Singh (appellant) assaulted the deceased with the lathi. Thereafter, he went to the house of the appellant and saw that the deceased was lying dead on the cot and the appellant was present in the house. 13. Dashru Ram (PW-12) deposed that when he reached the house of the appellant, many people had gathered there, a meeting was held and thereafter, he went to the police station and lodged the report. 14. Dashru Ram (PW-12) did not witness the incident. The incident was told to him by Koushal Prasad and when Dashru Ram (PW-12) reached the place of occurrence, many people had gathered there and at that time, the appellant was also present near the dead body of the deceased. The incident took place in the house of the appellant. 14. Dashru Ram (PW-12) did not witness the incident. The incident was told to him by Koushal Prasad and when Dashru Ram (PW-12) reached the place of occurrence, many people had gathered there and at that time, the appellant was also present near the dead body of the deceased. The incident took place in the house of the appellant. According to Rameshwari (PW -1), the appellant was not present in the house, he had gone for digging the pit. Ghasin Bai (PW -2) also deposed that on the date of incident, she was not present in the house. Khorbaharin (PW-3) deposed that when she reached the place of occurrence, she saw that the appellant was not present in the house. Therefore, mere presence of the appellant at the place of occurrence is not sufficient to connect the appellant with the crime in question. It is a daytime murder and other inmates of the house were also present in the house and Dashru Ram (PW-12) deposed that the appellant and the deceased were residing in the same house, living happily. There was no quarrel between them and their relationship was cordial. It is true that the appellant did not assault the deceased in presence of Dashru Ram (PW-12). Dashru Ram (PW-12) did not know who assaulted the deceased. Therefore, it is not established that the appellant is the assailant. 15. Inspector Subhash Das (PW-11) deposed that at the instance of the appellant, lungi was seized from the appellant vide Ex-P/23. He further deposed that lathi was also seized from the appellant. The seized lathi was sent to FSL, Raipur for chemical examination vide Ex-P/27, but FSL report could not be brought on record by the prosecution. Therefore, the prosecution has not been able to prove that the lathi was stained with human blood. It has not been proved by the prosecution that the group of the blood found on the lathi matched with the blood group of the deceased. 16. In the light of the above facts and circumstances of the case, we are of the view that mere recovery of the lathi would not be sufficient to hold the appellant guilty for an offence like murder. 17. The prosecution has not been able to prove that the appellant assaulted the deceased with the lathi and the deceased died due to the injuries caused by the appellant. 17. The prosecution has not been able to prove that the appellant assaulted the deceased with the lathi and the deceased died due to the injuries caused by the appellant. The evidence of the prosecution witnesses also did not support the case of the prosecution, therefore, the conviction and sentence awarded to the appellant by learned Additional Sessions Judge cannot be sustained. 18. For the foregoing reasons, we are unable to sustain the conviction and sentence of the appellant on the above set of evidence. The evidence adduced by the prosecution is not fully established and cannot form the basis for conviction. 19. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. He is acquitted of the charge framed against him. It is stated that he is in jail since 29.5.2006. He be released forthwith, if not required in any other case. Appeal Allowed.