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2020 DIGILAW 124 (CHH)

Parasram Sahu v. State Of Chhattisgarh

2020-01-31

ARVIND SINGH CHANDEL

body2020
JUDGMENT 1. The instant appeals arise out of a common judgment, therefore, they are decided together. 2. The appeals have been preferred against the judgment dated 30.11.2018 passed by the Additional Sessions Judge (Special Judge, CBI), Raipur in Sessions Trial No.235 of 2017, whereby the accused persons/Appellants have been convicted and sentenced as under: Accused Persons/ Appellants Conviction Sentence All the Accused Persons/Appellants Under Section 307/120B of the Indian Penal Code Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation Under Section 120B of the Indian Penal Code Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation Accused/Appellant Bhupendra (In addition to his above conviction under the Indian Penal Code) Under Section 25(1A) of the Arms Act Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation Under Section 27(1) of the Arms Act Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation 3. Prosecution case, in brief, is that on 4.9.2017 at about 7 pm Goverdhan alias Babla (PW3) and Jivrakhan (PW1) were returning from Kurud on a motorcycle, which was being driven by Jivrakhan. On the way, they stopped for consuming gutkha. Jivrakhan went to a shop for purchasing gutkha. Goverdhan alias Babla was talking with someone on his mobile phone. At that time, two persons covering their faces with cloth came from towards Samoda on a motorcycle. The pillion rider of that motorcycle asked Goverdhan alias Babla about way and thereafter he took out a revolver and shot two fires which hit his stomach and chest. Thereafter, both the riders of that motorcycle fled from there towards Chikhli. Injured Goverdhan was taken to Ramkrishna Care Hospital, Raipur on a Tata Sumo Vehicle by Rakesh Sahu, Ramnath and Nakul Chakradhari. On getting information, Investigating Officer Bodhan Sahu (PW17), Inspector, Police Station Aarang reached the hospital. Thereafter, Dehati Nalishi (Ex.P21) was lodged by Roopkumar (PW6). During the course of investigation, Investigating Officer Bodhan Sahu reached the spot and prepared spot-map (Ex.P17). Blood stains lying on a stone were collected from the spot vide Ex.P24. Two numbers of empty cartridges were also seized from the spot vide Ex.P19. After return to the police station, Investigating Officer Bodhan Sahu recorded First Information Report (Ex.P33) on the basis of Dehati Nalishi. During the course of treatment, injured Goverdhan was examined and treated by Dr. Vikram Sharma (PW15). Two numbers of empty cartridges were also seized from the spot vide Ex.P19. After return to the police station, Investigating Officer Bodhan Sahu recorded First Information Report (Ex.P33) on the basis of Dehati Nalishi. During the course of treatment, injured Goverdhan was examined and treated by Dr. Vikram Sharma (PW15). Total 5 injuries were found on the body of injured Goverdhan. Out of them, two gun shot injuries were found. Injury No.4 was entry wound of 2x2 cms. on left side of the stomach. Injury No.5 was exit wound of 2x0.5 cms. on right side of the stomach at a distance of 4 cms. away from the navel. After CT scan, it was found that there were holes in small and big intestines and there was bleeding due to which the injured undergone surgery on 4.9.2017. His medical report is Ex.P28. He was discharged from the hospital on 19.9.2017. During the course of investigation, statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure in which a fact emerged that Appellants Parasram and Doman were at inimical terms with injured Goverdhan. On 12.9.2017, Appellants Doman, Parasram and Lalit were taken into custody and their memorandum statements (Ex.P1, P6 and P3 were recorded, respectively). On 19.9.2017, memorandum statement of Appellant Bhupendra was recorded vide Ex.P8A. It is disclosed by these four Appellants that there was an enmity between Appellants Parasram, Doman and injured Goverdhan due to election rivalry since 2015. In February, 2017, Appellant Parasram came to Appellant Doman and prepared a plan for killing of Goverdhan. Thereafter, Appellant Doman met with Appellant Bhupendra. Appellant Bhupendra also got ready for killing of Goverdhan. In February, 2017 itself, Appellant Doman took a sum of Rs.50,000/- from Appellant Parasram for purchasing a pistol. In July, 2017, Appellant Doman contacted with Suresh Mishra, a guard of Medishine Hospital, Raipur for purchasing a pistol. Along with Suresh Mishra, Appellant Doman went to Bhadauhi, Gopiganj, Uttar Pradesh where Suresh Mishra settled purchase of a pistol for Rs.90,000/-. At that time, Appellant Doman had a sum of Rs.30,000/- and, therefore, he returned from there without purchasing a pistol. On 25.8.2017, Appellant Doman again went to Bhadauhi, Gopiganj, Uttar Pradesh along with Appellant Bhupendra for purchasing a pistol from where they purchased a pistol and cartridges and returned. At that time, Appellant Doman had a sum of Rs.30,000/- and, therefore, he returned from there without purchasing a pistol. On 25.8.2017, Appellant Doman again went to Bhadauhi, Gopiganj, Uttar Pradesh along with Appellant Bhupendra for purchasing a pistol from where they purchased a pistol and cartridges and returned. Thereafter, Appellants Doman and Bhupendra met with Appellant Parasram and settled to commit murder of Goverdhan for Rupees Six Lakhs. Thereafter, on 2.9.2017, Appellants Lalit and Bhupendra went to Village Kurud and made a search of the area. On 4.9.2017, both again went to Village Kurud on a motorcycle. Appellant Lalit was driving the motorcycle. Appellant Bhupendra fired two shots from a pistol on Goverdhan. Thereafter, both fled from there. It is also disclosed by the Appellants in their memorandum statements that after the incident, in the night, at about 10 pm, Appellant Bhupendra informed Appellant Doman on mobile phone that they had fired gun shots on Goverdhan. Thereafter, on 5.9.2017, Appellant Parasram came to Raipur and gave a sum of Rupees Three Lakhs to Appellant Doman. Out of which, Appellant Doman gave sums of Rs.50,000/- each to Appellants Bhupendra and Lalit. On the basis of memorandum statement of Appellant Doman, cash of Rs.88,000/- and a mobile phone containing two sims were seized from Appellant Doman vide Ex.P2. On the basis of memorandum statement of Appellant Lalit, a Yamaha motorcycle and a mobile phone of Apple Company were seized from Appellant Lalit vide Ex.P4. On the basis of memorandum statement of Appellant Lalit, cash of Rs.30,000/- was seized vide Ex.P5 from Appellant Lalit on being given by him after taking out from behind Khallari Temple situated over Kodar Dam in the jungle. A Wagon R car and a microphone mobile were seized from Appellant Parasram vide Ex.P7A. A country-made pistol and two numbers of empty cartridges were seized from Appellant Bhupendra vide Ex.P9. A mobile phone of Vivo Company and cash of Rs.5,000/- were seized from Appellant Bhupendra vide Ex.P10. Out of the amount which was received by Appellant Doman from Appellant Parasram, a sum of Rs.17,000/- each was given by Appellant Doman to Rikhiram and Virendra which were seized from Rikhiram and Virendra vide Ex.P11 and P20, respectively. It is the further case of the prosecution that on 2.9.2017 and 4.9.2017, Appellants Bhupendra and Lalit had gone to the shop of Manharan Chakradhari (PW2) and purchased gutkha from there. It is the further case of the prosecution that on 2.9.2017 and 4.9.2017, Appellants Bhupendra and Lalit had gone to the shop of Manharan Chakradhari (PW2) and purchased gutkha from there. Test Identification Parade of Appellants Bhupendra and Lalit was conducted by Tahsildar Parvati Patel (PW13) vide Ex.P7 and Ex.P8 in which Manharan (PW2) had identified Appellants Bhupendra and Lalit. After completion of investigation, a chargesheet was filed against the accused persons/Appellants. Charges were framed against them. 4. In support of its case, the prosecution examined as many as 19 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the accused persons/Appellants denied the guilt and pleaded innocence. No witness has been examined in defence. 5. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the accused persons/Appellants as mentioned in the second paragraph of this judgment. Hence, these appeals by the accused persons and the injured/victim. 6. Learned Counsel appearing for the Respective accused persons/Appellants submitted that without there being any conclusive evidence on record against the accused persons/Appellants, the Trial Court has wrongly convicted them. It was further submitted that the Trial Court has failed to appreciate that the whole prosecution case was based on circumstantial evidence and the chain of circumstantial evidence was completely lacking in the present case. The Trial Court has also failed to appreciate that it is settled principle of law that in the case based on circumstantial evidence, the circumstances from which the guilt is sought to be drawn must be conjointly and firmly established and those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused persons. Moreover, all the circumstances taken cumulatively should form a chain and there should be no gap left in the chain of circumstances. It was further submitted that witnesses of memorandum and seizure are interested witnesses and there are material contradictions and omissions in their statements and, therefore, their statements cannot be reliable. It was further submitted that in the test identification parade of Appellants Bhupendra and Lalit according to the prosecution both the Appellants were identified by Manharan (PW2), but the documents Ex.P7 and P8 vide which the test identification parade of the said two Appellants was conducted do not bear signature of identifier Manharan (PW2). It was further submitted that in the test identification parade of Appellants Bhupendra and Lalit according to the prosecution both the Appellants were identified by Manharan (PW2), but the documents Ex.P7 and P8 vide which the test identification parade of the said two Appellants was conducted do not bear signature of identifier Manharan (PW2). From the statement of Manharan (PW2), it is only established that Appellants Bhupendra and Lalit had gone to his shop for purchasing gutkha. Mere from this statement, it is not established that these two Appellants fired gun shots on Goverdhan because Manharan (PW2) was not present at the spot nor did he witness the incident or saw fleeing these two Appellants from the spot. It was further submitted that mere from recovery of the pistol and empty cartridges offence is not established because the pistol and the empty cartridges were recovered and seized from an open place and apart from this, armorer Laxminarain (PW14), who examined the seized gun and empty cartridges has not given any opinion that any firing was done from the seized pistol. Therefore, even from seizure of the pistol, the prosecution does not get any help. It was further submitted that according to Dr. Vikram Sharma (PW15), two gun shot injuries were found on the body of Goverdhan out of which injury No.5 was an exit wound. In these circumstances, the said bullet should have been recovered and seized from the spot or its nearby places or from the body of Goverdhan, but the said bullet was not found. It was further submitted regarding criminal conspiracy that there is no clinching or conclusive evidence available on record. Goverdhan (PW3), in paragraph 10 of his cross-examination, has admitted the fact that Appellant Doman is not a resident of his village and he has no quarrel or dispute with him. In paragraph 19 of his cross- examination, this witness has further admitted that from 2005 to 2016-17, no report against any of them was lodged in any police station. It was further submitted that according to the prosecution, all the Appellants had contacted with each other on mobile phones prior and after the incident and mobile phones were seized by the prosecution, but no call detail or location of the mobile phones were collected and produced by the prosecution. It was further submitted that according to the prosecution, all the Appellants had contacted with each other on mobile phones prior and after the incident and mobile phones were seized by the prosecution, but no call detail or location of the mobile phones were collected and produced by the prosecution. Therefore, it is not established that any talk had taken place between the Appellants with each other or any conspiracy was done by any of them. It was further submitted that according to the prosecution, Appellant Doman had gone along with guard Suresh Mishra to Uttar Pradesh for purchasing a pistol and later on through Suresh Mishra himself a pistol was purchased. But, Suresh Mishra has not been cited as a witness and examined in the Court. Likewise, after the incident, a sum of Rs.17,000/- each was given to Rikhiram and Virendra, but none of them has been examined before the Court. All the investigation is faulty. Therefore, the Trial Court has wrongly convicted the Appellants. 7. Learned Counsel appearing for injured/objector Goverdhan submitted that looking to the manner in which the crime was committed by the Appellants, the sentence imposed upon them is on lower side and, therefore, their sentence should be enhanced. 8. Learned Counsel appearing for the State/Respondent supported the impugned judgment of conviction and sentence. 9. I have heard Learned Counsel appearing for the parties and perused the record with due care. 10. With regard to the incident, Goverdhan (PW3) and Jivrakhan (PW1) have deposed that on 4.9.2017 at about 8:30 pm, they were returning from Kurud on a motorcycle. Near the bus stand, Goverdhan stopped for discharging urine and Jivrakhan went to a grocery shop for purchasing gutkha. At that time, two boys were standing with a motorcycle at a nearby place. The pillion rider of that motorcycle asked about way and thereafter he took out a revolver and fired two shots on Goverdhan. According to Goverdhan, the assailant who fired gun shot had covered his face with a gamchha and he could not identify the boy who was driving the motorcycle. Jivrakhan has further deposed that as soon as he reached at the shop, he heard twice sound like crackling of crackers. He went near Goverdhan, who told him that someone fired gun shots on him. At that time, Romnath and Rikhi Chakradhari came there and some other persons also gathered there. Jivrakhan has further deposed that as soon as he reached at the shop, he heard twice sound like crackling of crackers. He went near Goverdhan, who told him that someone fired gun shots on him. At that time, Romnath and Rikhi Chakradhari came there and some other persons also gathered there. Thereafter, Goverdhan was taken to the hospital. Then Dehati Nalishi (Ex.P21) was lodged by Roop Kumar (PW6). Injured Goverdhan was treated and medically examined by Dr. Vikram Sharma (PW15). His report is Ex.P28. Total 5 injuries were found in the body of Goverdhan, which are as under: (i) Lacerated wound of 3x1 cms. on left side of the chest, (ii) Lacerated wound of 4x2 cms. below sternum of the chest, (iii) Lacerated wound of 2x1 cms. on right side of the chest, (iv) Entry wound of 2x2 cms. on left side of the stomach parallel to the naval and (v) Exit wound of 2x0.5 cms. on right side of the stomach at a distance of 4 cms. from the naval. According to Dr. Vikram Sharma (PW15), on 19.9.2017, Goverdhan was discharged. During the course of treatment, surgery of stomach of Goverdhan was done on 4.9.2017. However, in paragraph 10 of his cross-examination, this witness has admitted that there was no entry in any of the medical documents regarding finding of any bullet in the body of Goverdhan. 11. Inspector Bodhan Sahu (PW17) is the Investigating Officer of the offence in question. He seized two empty cartridges made of brass from the spot vide Ex.P19. There is no statement given by this witness that he found any bullet on the spot. 12. From the above evidence, it is clear that two unknown persons came to the spot on a motorcycle and out of them the pillion rider who had covered his face with a gamchha fired two shots from a gun on Goverdhan. There is no eyewitness to the incident except victim Goverdhan and according to him, he could not identify any of the said two persons. Jivrakhan (PW1) who was accompanying Goverdhan has also not been able to identify any of those two persons. In the Dehati Nalishi (Ex.P21) also, those two persons have not been named. Thus, the entire case of the prosecution is based upon the circumstantial evidence. 13. Jivrakhan (PW1) who was accompanying Goverdhan has also not been able to identify any of those two persons. In the Dehati Nalishi (Ex.P21) also, those two persons have not been named. Thus, the entire case of the prosecution is based upon the circumstantial evidence. 13. As already discussed above, according to the prosecution, there was an enmity between Appellants Parasram, Doman and victim Goverdhan due to election rivalry since 2015 and due to which Appellant Parasram along with Appellant Doman prepared a plan to commit murder of Goverdhan. Thereafter, Appellant Doman met with Appellant Bhupendra and gave him a contract of killing of Goverdhan. Thereafter, through Suresh Mishra, Appellants Doman and Bhupendra obtained a pistol and cartridges from Bhadauhi, Gopiganj, Uttar Pradesh. Thereafter, Appellant Parasram finalised the deal for a sum of Rupees Six Lakhs. Thereafter, Appellants Bhupendra and Lalit went to the village of Goverdhan on 2.9.2017 and made a search of that area and thereafter on 4.9.2017 again, both they went to the village of Goverdhan and Appellant Lalit fired two gun shots on Goverdhan. 14. With regard to his previous enmity with Appellants Parasram andDoman, Goverdhan (PW3) has deposed that against him, Appellant Parasram had contested an election of the office of Sarpanch in 2005. In 2008, Appellant Parasram brought a no confidence motion against Goverdhan which fell. Thereafter, in 2015, wife of Goverdhan and wife of Appellant Parasram contested an election against each other in which wife of Goverdhan won the election. It has been further deposed by Goverdhan that thereafter a dispute arose between him and Appellant Parasram with regard to installation of chain machine for loading of sand. With regard to Appellant Doman, Goverdhan has deposed that in 2015, Appellant Doman had contested an election of Janpad Panchayat Member in which Doman had been defeated and, therefore, he was having enmity with him. However, in cross-examination, in paragraph 10, Goverdhan has admitted that Appellant Doman does not belong to his village. At the time of election or thereafter, no dispute or quarrel had taken place between them. In paragraph 19, Goverdhan has further admitted that from 2005 to 2016-17, no report was lodged against him or Appellant Parasram. Thus, from the above admissions, it is only established that Goverdhan and Appellant Parasram belonged to separate parties and contested elections against each other. In paragraph 19, Goverdhan has further admitted that from 2005 to 2016-17, no report was lodged against him or Appellant Parasram. Thus, from the above admissions, it is only established that Goverdhan and Appellant Parasram belonged to separate parties and contested elections against each other. Except political rivalry, there was any enmity or dispute between Goverdhan and Appellant Parasram, there is no evidence on record in this regard. From the evidence on record, it appears that Appellant Parasram would have conspired to commit murder of Goverdhan only due to political rivalry, is suspicious. 15. According to the memorandum statements of the accused persons, prior to the incident and after the incident, a meeting had taken place between Appellants Parasram and Doman and all the accused persons were also in contact with each other through mobile phones. During the course of investigation, on the basis of memorandum statements of accused persons, their mobile phones were seized. But, no call details or location of the said seized mobile phones were collected and produced by the prosecution. Why was so not done, no explanation has been offered by the prosecution. Thus, from the evidence on record, it is not established in any manner that any meeting of the Appellants had taken place prior to and after the alleged incident. 16. According to the statement of Manharan (PW2), on 2.9.2017, in the afternoon and thereafter on 4.9.2017 at about 6:30 pm, Appellants Bhupendra and Lalit had come to his shop for purchasing gutkha. Thereafter, during the course of test identification parade, this witvess identified both Appellants Bhupendra and Lalit vide Ex.P7 and P8, but Ex.P7 and P8 do not bear signature of this witness. On taking the entire statement of Manharan (PW2) as it is, it is only established that Appellants Bhupendra and Lalit had come to his shop for purchasing gutkha, but the alleged incident did not take place in his presence nor did he see the assailants fleeing from the spot. In these circumstances, mere on the basis of the statement that Appellants Bhupendra and Lalit had come to the shop of Manharan (PW2) for purchasing gutkha in the evening, drawing conclusion that Appellants Bhupendra and Lalit shot gun fires on Goverdhan would not be proper. 17. In these circumstances, mere on the basis of the statement that Appellants Bhupendra and Lalit had come to the shop of Manharan (PW2) for purchasing gutkha in the evening, drawing conclusion that Appellants Bhupendra and Lalit shot gun fires on Goverdhan would not be proper. 17. Injury No.5 was an exit injury, therefore, the bullet which caused injury No.5 should have been found at the spot or its nearby places, but the same was not found or recovered and during recording of statement of Goverdhan (PW3), it has been categorically observed by the Trial Court that in the T-shirt (Article A) and in the body of Goverdhan, there is no mark of exit of any bullet and Goverdhan has also stated that no bullet had exit from his body. Meaning thereby, no exit wound was present in the body of Goverdhan. In these circumstances, a bullet should have been found inside his body, but no bullet was found inside his body. In this regard also, no proper explanation has been offered by the prosecution. 18. According to the case of the prosecution, from Appellant Bhupendra, a country-made pistol and two empty cartridges were seized from him vide Ex.P9 and from the spot two numbers of empty cartridges made of brass were seized vide EX.P19. The seized pistol, two empty cartridges and two empty magazines were examined by armorer Laxminarain (PW14). According to Laxminarain (PW14), the pistol was in running condition. Any fire was done from that pistol, there is no opinion given by this witness. In paragraph 9, he has admitted that when bullet exit from the barrel, led oxide is collected in the barrel. He has further admitted that on doing fire from a fire arm, a shine appears on hammers-trip. He has admitted that he did not mention in his report whether any led oxide had been collected inside the barrel or not and any shine was found on the hammers-trip or not. He has further admitted that during examination he had fired from the said pistol, but he did not mention anything in this regard in his report. In these circumstances, on what basis this witness reported that the pistol was in running condition is not established. Any fire was done from this pistol, no definite opinion is available on record. 19. He has further admitted that during examination he had fired from the said pistol, but he did not mention anything in this regard in his report. In these circumstances, on what basis this witness reported that the pistol was in running condition is not established. Any fire was done from this pistol, no definite opinion is available on record. 19. On a minute examination of the evidence available on record, it is clear that there is no eyewitness to the incident. Injured Goverdhan alias Babla (PW3) himself did not identify any of the assailants. Though Manharan (PW2) identified Appellants Bhupendra and Lalit, from his statement it is only established that on 2.9.2017 and 4.9.2017 both these Appellants had come to his shop for purchasing gutkha. At the time of incident or immediately prior to the incident or after the incident, he did not see any of the assailants. Therefore, only on the basis of his statement, drawing conclusion that these two Appellants were assailants is not safe. 20. With regard to previous enmity with Appellants Parasram and Doman, from the statement of victim Goverdhan (PW3), it is already established that he had no previous enmity with Appellant Doman. Appellant Doman belongs to other village. From the statement of Goverdhan, it is further established that there was only an election rivalry between him and Appellant Parasram and since 2005 to 2016-17 no report has been lodged against any of them by any of these two persons. Since Goverdhan is a political person, he can have political rivalry with other persons also. Therefore, only on the ground that there was an election rivalry with Appellant Parasram, drawing conclusion that Appellant Parasram would have conspired to commit murder of Goverdhan would not be safe. Apart from this, there is nothing on record from which it could be established that prior to the incident and after the incident any meeting had taken place between the Appellants and they had contacted with each other through mobile phones. Though mobile phones have been seized from the Appellants, no call details and locations of the mobile phones have been collected and produced by the prosecution. Material witness Suresh Mishra, Rikhiram and Virendra have also not been examined. Apart from this, any fire was done from the seized pistol has not been established. Though mobile phones have been seized from the Appellants, no call details and locations of the mobile phones have been collected and produced by the prosecution. Material witness Suresh Mishra, Rikhiram and Virendra have also not been examined. Apart from this, any fire was done from the seized pistol has not been established. Though armorer Laxminarain (PW14) has stated that the pistol was in running condition, on what basis he opined so has not been cleared by him. There is no mention in his report that there was any led oxide collected in the barrel and shine was present in the hammers-trip. In these circumstances, it is not established that any fire was done from the said pistol. No bullet was seized from the spot or from the body of injured Goverdhan. On this point, proper investigation has not been done. Looking to the above evidence, in my considered opinion, the offence in question is not proved beyond reasonable doubt. Therefore, all the accused persons/Appellants are entitled to get benefit of doubt. 21. Consequently, Criminal Appeal No.273 of 2019 preferred by injured/objector Goverdhan for enhancement in sentence is dismissed. Criminal Appeal No.1887 of 2018 preferred by accused Parasram, Criminal Appeal No.1897 of 2018 preferred by accused Lalit, Criminal Appeal No.63 of 2019 preferred by accused Bhupendra and Criminal Appeal No.74 of 2019 preferred by accused Doman are allowed. The impugned judgment of conviction and sentence is set aside. The Appellants/accused persons are acquitted of the charges framed against them. 22. Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.