Devnath Nishad @ Lulu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 12/10/2012 passed by learned Sessions Judge, Raipur in Sessions Trial No. 237/2011 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 1,000/-, in default of payment of fine, further R.I. for one month.

Case of the prosecution, in brief, is that on 28/07/2011, the appellant herein assaulted Bhagwantinbai Nishad with pickaxe on account of which she suffered grievous injuries and died.

Further case of the prosecution is that deceased Bhagwantinbai Nishad was married to Pardesiram Nishad (P.W.-5) and they used to stay with father of the deceased at Village Jawa. It is admitted position on record that earlier appellant used to take the land owned by Ramesh Verma (P.W.-13) on lease for the purpose of growing vegetables but in the year 2008, Ramesh Verma (P.W.-13) had given his land to deceased and her husband Pardesiram Nishad (P.W.-5) on lease for three years, on account of which the appellant was unhappy and he used to quarrel with the deceased and her husband and there was enmity between them.

In the afternoon of 28/07/2011, deceased Bhagwantinbai Nishad was stealing vegetables grown in the land of the appellant which was witnessed by appellant's son Lukeshwar (P.W.-10), who informed his father about the same. Appellant came therein and he also saw the deceased and thereafter, out of anger, he picked up the pickaxe kept therein and assaulted the deceased due to which she sustained grievous injuries on his head and died on the spot. When deceased did not return to her home, her husband Pardesiram Nishad (P.W.-5) started searching for her and on the next day, he found her lying dead in the field. He informed the villagers as well as to the Police pursuant to which inquest was conducted vide Ex. P/1 and the dead body was subjected to postmortem, which was conducted by Dr. S.G. Bagh (P.W.-11), who has proved the postmortem report (Ex. P/12), in which cause of death is said to be hemorrhage and shock due to head injuries and the nature of death is said to be homicidal. Merg intimation was registered vide Ex. P/5 and first information report was lodged vide Ex. P/16. Memorandum statement of the appellant was recorded vide Ex. P/2 and recovery of blood-stained pickaxe was made at his instance vide Ex. P/3. The said pickaxe was sent for forensic examination along with other seized articles and as per the FSL report (Ex. P/21), blood was found on the said pickaxe. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 17 witnesses and brought on record 22 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Bhagwantinbai Nishad to be homicidal in nature and further finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

Mr. Ashish Gupta, learned counsel for the appellant, would submit that appellant has been convicted for offence punishable under Section 302 of IPC only on the basis of his memorandum statement (Ex. P/2) and recovery of pickaxe vide Ex. P/3, which is unsustainable and bad in law particularly when as per the FSL report (Ex. P/21), it is said that blood was found on the said pickaxe and it could not be ascertained whether it was human blood or not. Even otherwise, recovery is a weak piece of evidence and cannot be made sole basis for conviction under Section 302 of IPC, unless corroborated by other legally admissible evidence. As such, the impugned judgment of appellant's conviction and sentence is liable to be set aside.

Per contra, Mr. Wasim Miyan, learned State counsel, would support the impugned judgment and submit that prosecution has proved the offence beyond reasonable doubt, as such, the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and accordingly, the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question for consideration would be whether the death of deceased Bhagwantinbai Nishad is homicidal in nature ?

Learned trial Court has answered this question in affirmative and held the death of deceased Bhagwantinbai to be homicidal in nature relying upon the expert medical opinion of Dr. S.K. Bagh (P.W.-11) who has proved the postmortem report (Ex. P/12) in which cause of death is said to be hemorrhage and shock due to head injuries and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/12) as well as the statement of Dr. S.K. Bagh (P.W.-11) and looking to the injuries suffered by the deceased on her head, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Bhagwantinbai Nishad is homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellant is the author of crime in question ?

The case of the prosecution is based on direct evidence as well as circumstantial evidence. It is the case of the prosecution that appellant's son Lukeshwar (P.W.-10) is the eye-witness to the incident and he is said to have seen the deceased stealing vegetables from appellant's land and thereafter, he is said to have informed his father about the same, who came therein and after seeing the deceased stealing his vegetables, he became angry and assaulted her with the pickaxe kept therein. However, a careful perusal of the statement of Lukeshwar (P.W.-10) would show that he has turned hostile and has not supported the case of the prosecution at all.

So far as the circumstantial evidence is concerned, the Supreme Court has laid down the five golden principles to be followed while deciding a case based on circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, which provides as under :-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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(2) the facts so established should be consistent only with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be prove, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The one and only incriminating circumstance that has been put forth by the prosecution and has been found proved by the trial Court is that pursuant to memorandum of the appellant vide Ex. P/2, seizure of blood-stained pickaxe has been recovered at his instance vide Ex. P/3, which has been proved by prosecution witnesses Dhelu Ram Nishad (P.W.-1) and Mannulal Sahu (P.W.-3) and it was sent for forensic examination along with other seized articles and as per the FSL report (Ex. P/21), only blood has been found on the said pickaxe and it could not be ascertained whether it was stained with human blood or not.

In the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, the Supreme Court has held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation is found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and observed in paragraph 24 as under :-

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

Reverting to the facts of the present case in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court in Balwan Singh (supra), it is quite vivid that though the pickaxe has been recovered at the instance of the appellant vide Ex. P/3 pursuant to his memorandum statement and it was sent for forensic examination, however, in the FSL report (Ex. P/21), it could not be ascertained as to whether the blood found on the said pickaxe was human blood or not and the trial Court has based the conviction of the appellant on the mere recovery of the said pickaxe from the possession of the appellant.

The Supreme Court in the matter of Mani v. State of Tamil Nadu (2009) 17 SCC 273, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

As noticed above, in light of the decision rendered by the Supreme Court in Mani (supra), recovery is a weak piece of evidence and cannot be wholly relied upon in absence of other corroborative evidence, as such, the evidence of recovery of axe from the possession of the appellant vide Ex. P/6 stands rejected and there is no other incriminating circumstance available on record to convict the appellant for the offence in question. In that view of the matter, we are of the considered opinion that prosecution has not been able to prove beyond reasonable doubt that appellant is the author of the crime in question and the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of the charges levelled against him on the basis of principle of benefit of doubt. Since the appellant is already on bail, he need not surrender, however, his bail bonds shall remain in force for a period of six months in view of the provision contained under Section 437A of CrPC.

Accordingly, this criminal appeal stands allowed.