Chhotu Samal Singh vs State Of Madhya Pradesh

C.V. Sirpurkar, J

This criminal appeal under Section 374 (2) of the Cr.P.C. filed on behalf of the appellant/accused Chhotu @ Samal Singh is directed against the

judgment dated 21.7.2007 passed by the Court of Sessions Judge, Chhindwara in Sessions Trial No. 97/2006, whereby accused/appellant Chhotu @

Samal Singh was convicted of the offence punishable under Section 302 of the I.P.C. and was sentenced to undergo rigorous imprisonment for life

and pay fine in the sum of Rs. 1000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six

months.

The prosecution case may briefly be stated thus: About 17-18 years ago, when the accused Chhotu @ Samal Singh was about 13-14 years old,

deceased Gurdu had committed murder of Sumer Singh, elder brother of accused Chhotu in his presence, with regard to a matter relating to

agricultural land. At about 8:30 p.m. on 2.3.2006., first informant Santosh, who was nephew of deceased Gurdu, came out of his house carrying his

bicycle for going to his duty in the office of General Manager, Dungaria. He saw that deceased Gurdu and appellant Chhotu were siting on the raised

platform (chabutara) near Mata Maddhiya. Immediately thereafter, Santosh heard a sound as if someone had thrown a stone down on the platform,

coming for the direction of Mata Maddhiya platform. On hearing aforesaid sound, Santosh immediately went to the platform. He saw that

accused/appellant Chhotu was killing Gurdu by beating him with a stone on his head. As accused/appellant Chhotu was leaving the place, first

informant Santosh accosted him and asked him as to where was he going after killing his uncle Gurdu? He asked Chhotu to stop but Chhotu did not

stop; whereon, Santosh ran after him for a long distance; however, accused Chhotu managed to escape towards Vishnu temple and from there to

jungle. First informant Santosh returned and saw that deceased Gurdu had suffered severe injuries to his head and had died. Santosh went home and

informed his father Ramesh, aunt-Sunita and grand-mother Saddiya about the incident. Thereafter, the first information report was lodged about an

hour later at 9:30 p.m. the same day, in Police Station Junnardeo, District Chhindwara.

It is also the case of the prosecution that the police arrived on the spot and seized the blood stained stone, which was used in commission of murder.

On 3.3.2006 the accused was arrested. On the disclosure statement made by him under Section 27 of the Evidence Act, blood stained clothes, which

accused Chhotu was wearing at the time of the incident, were seized. As per the report of the Serologist, human blood was found on his shirt and

pant, as also on the stone; however, the group of the human blood could not be determined upon any of the aforesaid articles.

After investigation, charge-sheet was filed and accused Chhotu was tried for the offence under Section 302 of the I.P.C. In his examination under

Section 313 of the Cr.P.C., the accused has stated that he had been falsely implicated in the case. About eight days before the date of the incident,

accused Chhotu had gone along with Santosh (DW-2) to Mahadev Fair to assist him in his tea shop, which he had set up at Mahadev Fair. He had

stayed at Mahadev Fair for a period of about eight days. He had returned along with Santosh, Rakesh and Guddiya, who was resident of village

Tarak. At village Barah Choupri they had separated. Thereafter, he had gone to village Tarak in order to inquire as to whether Guddiya had reached

her home safely. However, the police caught him at village Tarak and brought him to police out-post at Dungria. After keeping him in custody for a

day, he was charged with murder. After trial, he was convicted and sentenced by the trail Court as hereinabove stated.

The accused/appellant has challenged the conviction and sentence mainly on the ground that there was only one eye witness namely first informant

Santosh. He has deviated from his statement in material aspects, before the trial Court. In the cross-examination, his statement was further dented,

yet the trial Court placed reliance upon his uncorroborated statement. So far as the recovery of blood stained clothes is concerned, it has been

contended that out of two panch witnesses before whom the disclosure statement was said to have been made, only one namely Vijal Singh was

examined by the prosecution. In his cross-examination, he admitted that no disclosure statement was made by the appellant in his presence. It has

further been submitted that group of the blood allegedly found on the clothes of the deceased, could not be determined; as such, there is no evidence

that it matched with that of the deceased; therefore, recovery of blood stained clothes allegedly on the disclosure statement made by the appellant,

was inconsequential. In these circumstances, it has been argued that the judgment of the conviction and sentence is unsustainable; therefore, it has

been prayed that the appeal against conviction be allowed and appellant be acquitted granting him benefit of doubt.

Learned Government Advocate for the respondent/State on the other hand has supported the impugned judgment and has prayed that this appeal

against conviction be dismissed and sentence of life imprisonment imposed upon the appellant, be affirmed.

On perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal appeal must succeed for the reasons

hereinafter stated:

Dr. B.S. Uikey (PW-4) has stated that deceased Gurdu had sustained three lacerated wounds on his forehead and ear. He had sustained fracture

of frontal bone, upper and lower mandible and nasal bone. He had died as a result of injuries caused to his head and face by heavy a stone. The death

was homicidal in nature. Though, Dr. B.S. Uikey (PW-4) has admitted in the cross-examination that aforesaid injuries could have been caused due to

fall on stones from a height but there is no evidence available in the case to the effect that the deceased had indeed fallen on the stones from a height.

Moreover, the platform on which the deceased was sitting prior to his death, was only one and half feet from the ground. In these circumstances, the

trial Court has held that the death was homicidal in nature. No serious challenge has been mounted by the learned counsel for the appellant in this

regard. In these circumstances, this Court is also of the view that the death of the deceased was homicidal in nature.

Now the question remains for consideration is whether it was caused by appellant Chhotu? Apart from Dr. B.S. Uikey (PW-4), the prosecution had

examined sole eye witness Santosh (PW-1), his father-Ramesh (PW-2), Sarpanch Vijal Singh (PW-3) and Investigating Officer Deepak Mishra (PW-

5). The appellant has examined three witnesses namely Rakesh (DW-1), Santosh S/o Bhuta (DW-2) and Guddiya (DW-3).

First of all we shall consider whether appellant Chhotu had sufficient motive to commit murder of deceased Gurdu. In this regard Santosh (PW-1)

has stated nothing in his examination-in-chief. In the cross-examination (paragraph no.5) he has stated that there was enmity between the accused on

one hand and his uncle deceased Gurdu on the other since before his birth; however, he was not aware as to what the reason for such enmity was?

Ramesh (PW-2), who was younger brother of deceased Gurdu, has stated in paragraph number 3 of his examination-in-chief that about 18-19

years before the date of the incident, Sumer Singh, brother of appellant Chhotu, had died in Gurdu's house which was situated at his field but he was

not aware whether the appellant harboured any enmity against the deceased on that account. He was not in a position to tell as to why the appellant

had killed the deceased.

The only fact that comes out of aforesaid testimony is that about 18-19 years before the present incident, Sumer Singh, elder brother of the

appellant Chhotu had died in Gurdu's house located on the field. At that time, the appellant was around 13-14 years old; therefore, it appears highly

unlikely that he would harbour any grudge in his heart against deceased for such a long period and would kill him 18-19 years later. Thus, the

prosecution had failed to prove any sufficient motive for the appellant to have killed the deceased.

Now we shall consider the prosecution evidence available on record with regard to the incident. Ramesh (PW-2) has stated that deceased Gurdu

was his uncle, who lived in this village Kohiliya near his house. Ramesh (PW-2) has stated that Santosh (PW-1) is his son. Deceased Gurdu was his

elder brother. Santosh (PW-1) and Ramesh  (PW-2) have stated that appellant Chhotu also lived in their village Kohiliya.

Santosh (PW-1) has stated that at about 8:30 p.m. on 2nd of March, 2006, he brought his cycle out of his house for going to his duty. He heard the

sound of a stone being thrown down on the platform from the direction of Mata Mandir platform, which was situated about 20 meters away from his

house. He looked towards Mata Mandir platform and saw and identified appellant Chhotu, who was wearing white clothes. He did not pay any

attention to Chhotu. However, he again heard sound of stone being thrown down on platform. The stone was thrown down by Chhotu. He took his

cycle and started to go to his work but when Chhotu saw him, he started to run away whereon, he grew suspicious as to why Chhotu was running

away on seeing him. After that he put his bicycle on the stand and ran after Chhotu but Chhotu managed to escape. Thereafter, he returned towards

the Mata Mandir platform and went inside his home. He woke up his aunt Sunita and returned to the platform with a torch. He saw that his uncle

Gurdu was lying dead on the platform. He had wounds on his forehead, nose and ear and he was bleeding. Thereafter, he woke up his father Ramesh

and grand-mother Sudiya.

Ramesh (PW-2) has stated that at about 8:00 p.m. on 2nd of March, he heard children crying outside his house; therefore, he came out. He went

to Mata platform, where he found his brother Gurdu lying dead. Deceased Gurdu had injuries on his forehead and was bleeding. Santosh told him that

appellant Chhotu had killed Gurdu by beating him with a stone.

A comparative examination of the first information report (Ex.P-1), morgue intimation (Ex.P-2) and statement of first informant Santosh under

Section 161 of the Cr.P.C. (Ex. D-1) on one hand and his court statement on the other, reveals that there are several discrepancies of a fundamental

nature. In the first information report Santosh (PW-1) had stated that when he came out of his house, he had seen his uncle Gurdu and appellant

Chhotu sitting on the platform. There is no mention of aforesaid fact in his court statement. In the court statement he has stated that when he looked

towards Mata Mandir platform, he only saw accused Chhotu. In the first information report, he has stated that when he heard sound of stone being

thrown down upon the platform, he went towards the platform and saw that Chhotu was killing Gurdu by beating him with stone on the head;

however, in the court statement he states that he did not pay any attention to accused Chhotu but when he started going on the bicycle for his work,

Chhotu ran away which aroused his suspicion. In the first information report he has stated that he accosted the appellant Chhotu and asked him as to

where was he running after killing his uncle Gurdu? There is no mention of aforesaid fact in his statement before the Court. In the court statement he

has stated that after Chhotu had managed to escape, he returned towards platform but without taking note of the fact that dead body of Gurdu was

lying near platform, went inside his house and about 15 minutes later came out with his aunt Sunita and torch and after that, for the first time, he saw

Gurdu, who was lying dead on the platform. The attention of Santosh (PW-1) was invited to aforesaid contradictions and omissions in the Court;

however, he had failed to reconcile aforesaid divergent versions given by him.

That apart, in the cross-examination Santosh (PW-1) has categorically admitted that there was darkness on the spot; therefore, he had to go inside

his home and bring out a torch. Thus, it is clear that the place of incident was dark. There is no mention of any source of light on the spot in the

statement of either first informant Santosh (PW-1) or his father Ramesh (PW-2). There is no mention of any source of light on the spot, in the spot

map (Ex. P-3) either. It may be noted that the incident had taken place at about 8:30 p.m. By that time even in the month of March, it becomes quite

dark. Moreover, in his cross-examination (paragraph no.5) first informant Santosh has specifically stated that he could only see the shirt of the

appellant, while he was running. He could not see his face. In examination-in-chief he has stated that appellant Chhotu was wearing white clothes;

whereas, the clothes that were allegedly seized at the instance of the appellant were not white. The jeans were blue and the T-shirt was beige with

pinkish red checks.

We may note that Santosh (PW-1) is sole eye witness in the case but his testimony is not reassuring. He is related to the deceased. He is said to

have seen the incident from a distant about 20 meters. It was dark at the time of incident and it may safely be assumed that there was no source of

light available on the spot. There are serious discrepancies between the first information report, the morgue intimation and the statement under Section

161 of the Cr.P.C. on one hand and the court statement of the witness on the other. He has failed to reconcile the two versions. He has categorically

admitted that he had failed to see the face of the appellant on the spot and could only see his shirt. The colour of the shirt, which he mentions in his

statement, does not match with the colour of the T-shirt which was allegedly seized at the instance of the appellant and which he was allegedly

wearing at the time of the incident. Santosh (PW-1) states that he had put his bicycle on the stand and had ran after the appellant on foot, in order to

catch him. It is unnatural that someone with a bicycle would put the same on the stand and would run after an accused on foot. In aforesaid

circumstances, notwithstanding the fact that the first information report was lodged promptly within an hour of the incident, it appears that named FIR

against the appellant was in fact result of conjectures and surmises on the part of the first informant and his family members. It appears that the first

informant had failed to recognize the appellant on the spot as the person, who had actually assaulted the deceased and on the ground of incident

involving appellant's brother Sumer Singh, which had taken place about 18-19 years ago, had surmised that the assailant must, in all probability, be the

appellant and had; therefore, lodged first information report against him. Thus, it would be unsafe to place reliance upon the statements of sole eye

witness Santosh (PW-1).

The second piece of evidence that is available against the appellant, is the disclosure statement allegedly made by him under Section 27 of the

Evidence Act leading to discovery of blood stained clothes allegedly worn by him at the time of the incident from the jungle. Town Inspector Deepak

Mishra (PW-5) has stated that during investigation, he had seized a blood stained stone lying on the spot and had prepared seizure memo Ex.P-10. He

further stated that he had taken appellant Chhotu in custody and had interrogated him in the presence of the witness. The appellant had disclosed that

the jeans pant and T-shirt which he was wearing at the time of the incident, had been concealed by him in the bushes. Thereafter, he had prepared

memorandum under Section 27 of the Evidence Act (Ex.P-7). After that, at the instance of the appellant Chhotu, he had seized a blood stained full

pant and a T-shirt from bushes. Thereafter, he had sent seized full pant and T-shirt to the FSL, Sagar for serological examination. Report of Assistant

Chemical Examiner FSL, Sagar reveals that there was human blood upon the stone, full pant and T-shirt allegedly seized at the instance of appellant

Chhotu and upon the shirt and full pant of deceased Gurdu; however, the group of the blood could not be determined on any of the aforesaid articles

for different reasons.

We have already noted that the colour of the clothes which the appellant was wearing at the time of the incident does not match with the colour of

the clothes allegedly seized at his instance. That apart, seizure witness Vijal Singh (PW-3) has stated in his cross-examination that the police had told

him that they had arrested appellant Chhotu and there were clothes in the packet. Thereafter, he had signed the memo because the police had asked

him to do so. In the cross-examination which was conducted about 9 months later, he has stated that the police had not interrogated the appellant in his

presence and the appellant had not given any statement to the police in his presence.

Moreover, the Supreme Court has held in the case of Kansa Behera Vs. State of Orissa, AIR 1987 SC 1507 as hereunder:

The recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no

evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. The evidence

about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our

opinion, even this is not a circumstance on the basis of which any inference could be drawn.

As regards the recovery of a shirt or a dhoti with blood-stains which according to the serologist reports were stained with human blood but there is

no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the

evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small

blood-stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The

evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the

matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.

It is true that in the case of Molai Vs. State of M. P. AIR 2000 SC 177 the Supreme Court has held as follows:

As far as the knife recovered at the instance of Molai (A 2), it did have the human blood but the blood group could not be determined. These

incriminating articles connect the accused with the crime in question. Mr. Shukla, the learned senior counsel, however, urged that it would be unsafe to

connect the said knife with the crime in question and attribute the use of the same by the accused persons in the absence of determination of the blood

group. This argument does not appeal to us because the FSL's report has clearly certified that the blood found on the knife was human origin. This

question fell for consideration in State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 : (1999 AIR SCW 1514 : AIR 1999 SC 1776 : 1999 Cri LJ 2588)

and this Court held that it would be an incriminating circumstance if blood on the weapon was found to be of human origin.

However, in the case of Molai (supra) the human blood was found on the knife and not merely on the clothes of the appellant. That apart in the

present case there is no evidence other than the presence of human blood on the clothes of the deceased, which is against the appellant. As noted

above, even recovery of clothes stained with human blood at the instance of the appellant, has not been proved beyond reasonable doubt; therefore,

this circumstance alone would not be sufficient to fasten guilt upon the appellant.

On the basis of foregoing discussion, the Court is of the view that the prosecution has failed to establish the guilt of the appellant beyond

reasonable doubt and the appellant is entitled to benefit of that doubt. As such, the trial Court had grievously erred in holding the appellant guilty of the

murder of the deceased. Thus, the conviction of the appellant under Section 302 of the I.P.C. and the consequent sentence of life imprisonment and

fine imposed upon the appellant are not sustainable in the eyes of law and deserves to be set aside.

Consequently, this criminal appeal is allowed. The conviction of the appellant Chhotu @ Samal Singh under Section 302 of the I.P.C. for murder of

deceased Gurdu, is set aside. The appellant is acquitted of the charge for the offence punishable under Section 302 of the I.P.C.

The appellant be set at liberty forthwith, if not required in connection with any other case.