Ghurau @ Ghurau Baiga vs State Of Chhattisgarh,

The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is directed against the judgment of conviction and order of sentence dated 21.11.2019 passed by the Additional Sessions Judge, Gharghoda, District Raigarh, Chhattisgarh in Sessions Trial No.05 of 2019. By the impugned judgment, the appellant has been convicted under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine amount, he would further undergo rigorous imprisonment for two months.

The case of the prosecution, in brief, is that on 19.09.2018, at about 6.00 – 7.00 PM, the accused/appellant was abusing his wife, namely, Indro Bai and also beating her. She tried to save herself and hidden in the neighbourer’s house, namely, Smt. Budhwaro Bai (PW-2). Thereafter, the appellant/accused in search of his wife, reached to the house of Budhwaro Bai and started beating with his wife. At that relevant time, son-in-law of Budhwaro Bai, namely, Firan Baiga (deceased) was present on the place of incident and when he intervened in the said quarrel, the appellant/accused assaulted him over his head by axe. After the said incident, Firan Baiga was taken to the Community Health Centre, Dharamjaigarh where the doctors declared him dead.

Thereafter, wheels of investigation started running, in which, crime details form was prepared vide Ex.P/2. Memorandum statement of the appellant/accused was recorded vide Ex.P/3. Property seizure memo was prepared vide Exs.P/4 & P/5. Panchnama regarding preparing of the spot map of the place of occurrence has been prepared vide Ex.P/6. Inquest report was prepared vide Ex.P/7. The doctor informed about the death of the deceased vide Ex.P/8. Merg intimation was recorded by the Sub-Inspector L.R. Bhagat (PW-7) vide Ex.P/9. The dead body of the deceased was sent for postmortem vide Exs.P/10A and P/ 10, respectively and the postmortem report was received vide Ex.P/11, in which, mode of death was due to head injury and the same is homicidal in nature. The memo for query report of the axe and the query report was prepared vide Exs.P/12A and P/12, respectively. Merg intimation was recorded by the Head Constable Ramlal Sidar (PW-8) vide Ex.P/13 and First Information Report was lodged vide Ex.P/14. After due investigation, the charge-sheet was filed.

In order to establish the guilt of the appellant/accused, prosecution has examined 8 witnesses and exhibited 14 documents. Statement of the appellant/accused were recorded under Section 313 of the Cr.P.C. in which, he denied the charges levelled against him and pleaded his innocence and false implication in the case. In support of his defence, appellant/accused has not examined any witness.

After hearing the parties, the trial Court by judgment impugned, has convicted and sentenced the appellant/accused as mentioned in paragraph-1 of the judgment. Hence, the present appeal.

Learned counsel for the appellant/accused submits as under :-

· learned trial Court has failed to appreciate the contradiction and omission of eyewitness Budhwaro Bai (PW-2). Apart from this, there is serious omission with regard to the statement recorded under Section 161 of the Cr.P.C. and Court statement;

· learned trial Court also failed to appreciate the fact that concerned axe does not contain any human blood and story of the prosecution become doubtful;

· prosecution was completely failed to prove the motive and intention of the appellant, as such, prima facie Section 302 of IPC is not attracted;

· prosecution has failed to prove the case beyond all reasonable doubts against the appellant;

· in view of the aforementioned grounds, impugned judgment of conviction and order of sentence is against the evidence and material available on record, which is liable to be set-aside.

On the other hand, learned Penal Lawyer for the respondent/State would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering all incriminating materials and circumstances available against the appellant/accused has rightly convicted him for the offence, he has charged. Hence, the instant criminal appeal is bereft of merits and liable to be dismissed looking into the commission of offence done by the appellant/accused.

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

Dr. S.S. Bhagat (PW-6) has give the postmortem report (Ex.P/11) stating that the examination of Firan Baiga’s dead body was done on 20.09.2018, according to which, he had found following external injuries on Firan Baiga’s body :

(i) on the left frontal head transverse injury of 3 ½ cm, 1 ½ cm wide, depth upto bone;

(ii) on the right frontal head injury 5 cm x 1 cm wide x upto bone, transverse;

(iii) injury on the both side of face transverse below the both eye left - 2 ½ cm x 1 cm x 1 ½ cm, and right – 2 ½ cm x 1 cm x 1 ½ cm;

(iv) injury on the left upper lower lip 7 ½ cm x 2 ½ cm x 2 cm, all the injuries are caused by hard and sharp object;

(v) contusion with lacerated wound on the occipital region 5 cm x 1 ½ cm x upto bone and skull bone compressed caused by hard and blunt object;

(vi) excessive bleeding occurs – grievous in nature.

On internal examination of the dead body of Firan Baiga, following injuries were found :- cranium and spinal cord – there was injury on the head of the deceased, the injury was caused by hard and blunt object was on the back of the head, the bone of skull was sunken at the place of injury and excessive bleeding was found in the brain, which was coagulated.

In the opinion of Dr. S.S. Bhagat (PW-6), Firan Baiga died due to unconsciousness because of head injury; the death was homicidal in nature and the death of deceased seems to be occurred within 6 – 8 hours from the postmortem period.

Dr. S.S. Bhagat (PW-6) further opined that the cut injuries found on the body of the deceased are likely to have come from sharp part of the seized axe and internal and lacerated injuries found on the body of the deceased are likely to come from the blunt part of the seized axe. He also opined that death of deceased had occurred due to the aforesaid injuries. In this regard, he has given a query report vide Ex.P/12.

The case of the prosecution against the appellant is wholly based on the statement of Budhwaro Bai (PW-2), who is eyewitness of the incident. Budhwaro Bai is the mother-in-law of the deceased Firan Baiga. In cross-examination of Budhwaro Bai (PW-2), it has come that one year prior to the incident, deceased Firan Baiga had killed his own daughter and wife and he had come out from jail only 6-7 months before the incident. Bandhani Bai (PW-3), mother of deceased and Baljeet Baiga (PW-1), brother of deceased have confirmed the said fact, which was narrated by Budhwaro Bai (PW-2) in her cross-examination. It appears from the above evidence that daughter and granddaughter of Budhwaro Bai (PW-2), who were the wife and daughter of deceased Firan Baiga, were murdered by the deceased himself. Hence, it can be conferred that on account of such behaviour of deceased Firan Baiga, Budhwaro Bai (PW-2) must have been irritated with him. In such a situation, evidence of Budhwaro Bai (PW-2) needs to be carefully assessed because the case of prosecution against the appellant is solely based on her evidence. Therefore, it is necessary to think that to what extent Budhwaro Bai is a reliable witness.

Budhwaro Bai (PW-2) has stated in her evidence that at around 03.00 p.m., appellant Ghurau came to her house with an axe on his hand and assaulted Firan Baiga who was sleeping in the room and caused injuries upon his face and back of the head. When she intervened, appellant was also assaulted her, due to which, she suffered injury on her head and ran away from the spot. Thereafter, she informed the incident to Bandhani Bai (PW-3), mother of Firan Baiga, who told the incident to her son Baljeet Baiga (PW-1). Both of them came to her house and took Firan Baiga to Dharamjaygarh Hospital for treatment, where Firan Baiga was died.

Budhwaro Bai (PW-2) in her cross-examination has admitted that there was no previous dispute between the appellant Ghurau and deceased Firan Baiga. Thus, Budhwaro Bai (PW-2) has not given any clear statement as to why the appellant has assaulted the deceased Firan Baiga by an axe.

Budhwaro Bai (PW-2) has stated in paragraph-5 of her cross-examination that under the influence of liquor, Firan Baiga had quarreled with her. She has denied a suggestion that she assaulted the deceased during the course of quarrel. She has also denied a suggestion that she has taken the name of Ghurau to save herself. There were also a suggestion and argument of defense that Firan Baiga had murdered the daughter and granddaughter of Budhwaro Bai (PW-2) and also made a quarrel with Budhwaro Bai on the date of incident, as such, Budhwaro Bai had murdered her son-in-law Firan Baiga by an axe. The aforesaid suggestion and argument on behalf of the appellant/defence cannot be completely ignored, because Budhwaro Bai (PW-2) has admitted the fact of quarreling with Firan Baiga before the incident in question. Apart from Budhwaro Bai (PW-2), there is no eyewitness to the incident. She has not made any complaint regarding the incident. She neither given any report nor any medical examination to prove the fact that during the course of rescue, she has been suffered the head injury. In her Court statement, she has not stated that Indro Bai (wife of the appellant) was hiding in her house to escape herself from the appellant and during this, appellant came there and murdered Firan Baiga. For all these reasons, evidence of Budhwaro Bai (PW-2) cannot be trusted beyond reasonable doubt.

Budhwaro Bai (PW-2) has stated that the incident was happened at around 03.00 pm, but as per case of the prosecution, the incident is said to have occurred at 09.00 pm. During cross-examination, Budhwaro Bai (PW-2) has denied the suggestion that she has stated that the incident is said to have occurred at 09.00 p.m in her police statement (Ex.D/1). Thus, there is a gap of about 06.00 hours between the time of the incident mentioned in Court statement and in police statement. It is also noticed that Budhwaro Bai (PW-2) herself has not given any information to the police and she has informed about the incident to Baljeet Baiga (PW-1) and Bandhani Bai (PW-3), brother and mother of Firan Baiga, respectively. Baljeet Baiga (PW-1) and Bandhani Bai (PW-3) stated that they have taken to Firan Baiga in an Ambulance to Dharamjaygarh Hospital, where during the course of treatment, he died on the second day.

Dr. S.S. Bhagat (PW-6) has certified the postmortem report (Ex.P/11) and stated in paragraph-12 of his cross-examination that he has not mentioned the period of injury in the postmortem report. As such, whether the injuries were caused at 03.00 pm or 09.00 pm is not clear from the medical evidence.

The defence of the appellant in the instant case is that Budhwaro Bai (PW-2), eyewitness of the incident, is an old aged lady who cannot see properly. In this regard, Budhwaro Bai in paragraph-7 of her cross-examination has accepted that she is more than 50 years old and her eyes have become weak as well as she cannot see any person properly even in day time. This admission of Budhwaro Bai (PW-2) creates doubt on the identity of the appellant.

According to the case of the prosecution, Budhwaro Bai (PW-2) has told the incident to Baljeet Baiga (PW-1) and Bandhani Bai (PW-3), brother and mother of deceased Firan Baiga, respectively. Baljeet Baiga (PW-1) has stated that after Budhwaro Bai came to his house and informed him about the incident, he went to her house. She has informed that the appellant has assaulted Firan Baiga by an axe. He has stated that this information was given to him at about 08.00 pm. Bandhani Bai (PW-3) has stated that when she returned to her house from the field at around 03.00 p.m., Firan Baiga was not present in the house, at that relevant time, she had gone to the house of Budhwaro Bai (PW-2), she told that when appellant Ghurau had assaulted Firan Baiga on his head and face by an axe, Firan Baiga was alive at that time. It is noteworthy that no dying declaration of Firan Baiga could be made. The incident was actually taken place at 03.00 pm or 09.00 pm. On this point, there is a contradiction in the statements of prosecution witnesses. There is a gap of about 06.00 hours between the time of the incident mentioned in Court statement and in police statement of Budhwaro Bai vide Ex.D/1. Hence, the apprehension of assaulting Firan Baiga by Budhwaro Bai (PW-2) during the quarrel cannot be completely ignored.

As per the prosecution case, appellant Ghurau was chasing his wife Indro Bai to kill the appellant Ghurau, who lived in the neighbourhood, then Indro Bai went to the room where the incident happened to save herself, where Firan Baiga was sleeping on the cot. The said house belongs to the eyewitness Budhwaro Bai (PW-2), Firan Baiga’s mother-in-law. But in the Court statement, Budhwaro Bai has not made a clear statement that Indro Bai came to her house for hiding herself and the appellant Ghurau came to her house for looking to his wife. Indro Bai is also an eyewitness to the incident. She was included as witness, but her statement was not recorded before the Court. Hence, the case of the prosecution seems to be doubtful.

Budhwaro Bai (PW-2) was mother-in-law of the deceased. Baljeet Baiga (PW-1) and Bandhani Bai (PW-3) are the brother and mother of deceased, respectively. According to their evidence, Firan Baiga had suffered fatal injuries on his face and skull, which were seen by these three witnesses at the time of incident and they took Firan Baiga to Dharamjaygarh Hospital for treatment. But, in spite of all this, none of these witnesses neither informed the police nor filed any report. As such, their behavior seems contrary to human nature. After the death of Firan Baiga at Dharamjaygarh hospital on the second day morning, zero merg intimation (Ex.P/9) was registered by Ward Boy Lalit Kumar Mahant (PW-4), where after postmortem and Panchnama proceedings, merg intimation was registered at Police Station Kapu vide Ex.P/13, which was done on 26.09.2018, i.e., 7 days after the incident. Thereafter, First Information Report (Ex.P/14) was registered by the Police on 27.09.2018 at Police Station Kapu, i.e., 8 days after the incident, meaning thereby that till that time, Police has no information against the appellant.

The statement of Budhwaro Bai (PW-2) under Section 161 of the Cr.P.C. was recorded before the Police vide Ex.D/1 on 06.11.2018, i.e., about 1½ months after the incident. It does not appear that before 06.11.2018, statement of Budhwaro Bai has been recorded before the Police. No explanation has been afforded as to why there was delay of 1 ½ months in recording the statement of Budhwaro Bai (PW-2). At this stage, when no information was given by the nearest relatives after the incident and crime was established by the Police on the basis of evidence, doubt has been created on the statement of Budhwaro Bai (PW-2) and the same cannot be believed, because she has admitted in her cross-examination that before the alleged incident, she had an altercation with Firan Baiga, who was in drunken condition. She had also admitted that Firan Baiga had killed her daughter and granddaughter, respectively. At this juncture, statement of Budhwaro Bai is found to be not credible or beyond reasonable doubt.

The seizure of an axe (Ex.P/5), which was allegedly used in the incident was stated to be seized on a memorandum statement of Ghurau vide Ex.P/3. The said deliberation was done by Inspector- T.R. Sidar. Due to death of Inspector- T.R. Sidar, his evidence could not be recorded before the Court. Ramlal Sidar (PW-8), Head Constable, who worked with Inspector- T.R. Sidar, has stated that he is familiar with T.R. Sidar's handwriting and signature and on the basis of the same, he has given his evidence regarding the deliberation process done by Inspector-T.R. Sidar. It may be noted that said deliberation was not a personal action taken by Ramlal Sidar (PW-8), Head Constable, hence, a lacuna remains in the case of prosecution. Witness of memorandum statement of appellant and seizure of axe, namely, Karan Sai has not been examined by the prosecution. Other witness, namely, Baljeet Baiga (PW-1) is the the brother of deceased Firan Baiga. According to his, memorandum statement (Ex.P/3) appellant has stated that he had kept the axe in his house and he would get it recovered, which was seized by the Police vide Ex.P/5. Dr. S.S. Bhagat (PW-6) has examined the axe presented by the Police and given his report vide Ex.P/12. He opined that the injuries found on the body of the deceased were likely to have come from the said axe, due to which, death is also possible.

Now, the question arises whether the alleged axe was recovered at the instance of the appellant ?

In this regard, considering the fact that Inspector- T.R. Sidar, who had recorded the memorandum statement of appellant as also seized the articles used in the crime in question has not been examined due to his death and further the fact that independent witness Karan Sai has also not been examined, the statement made by Baljeet Baiga (PW-1) regarding the said action is not consistent. Baljeet Baiga (PW-1) has stated in his evidence that the Police did not interrogate the appellant Ghurau before him. It has been further stated that appellant Ghurau took out an iron axe from his in-laws house and got it seized by the Police. It is not clear that where the in-laws’ house of the appellant Ghurau. On being declared as hostile by the prosecution, he stated that appellant Ghurau was interrogated by the Police in front of him, then he asked to keep the hidden axe in the house and get it recovered. In his cross-examination, he stated that appellant Ghurau had not told anything to the Police in front of him. He further stated that the axe was seized from the house of Budhwaro Bai (PW-2), mother-in-law of Firan Baiga. Hence, Baljeet Baiga (PW-1) has not made such a clear statement that appellant Ghurau told the Police about keeping the axe in the house because it was not clarified that in whose house, the axe was kept in. Similarly, this witness does not corroborate that appellant has got seized the axe from his house. Rather firstly he stated that seizure of axe was made from the house of appellant's mother-in-law and secondly stated that seizure was made from the house of deceased’s mother-in-law. It is worth mentioned that Budhwaro Bai (PW-2) is the mother-in-law of deceased Firan Baiga and the place of incident is the house of Budhwaro Bai. Budhwaro Bai (PW-2) has clearly admitted that before the incident, she had a quarrel with deceased Firan Baiga. In such a situation, statement of Baljeet Baiga (PW-1) casts more doubt on the case of the prosecution in view of the facts emerged in the discussion of the evidence. From the evidence of Baljeet Baiga (PW-1) and memorandum statement of appellant (Ex.P/3) as well as seizure (Ex.P/5), it has not been proved that the axe was seized at the instance of the appellant. It was also not been proved that the axe was recovered from the house of the appellant. Rather, seizure of axe is being reflected from the house of eyewitness Budhwaro Bai (PW-2), hence, a serious doubt has been cast upon Budhwaro Bai (PW-2).

In view of the aforementioned facts and circumstances of the case as well as considering the aforesaid discussions, it is reflected that Budhwaro Bai (PW-2), sole eyewitness to the prosecution case, is not a credible and believable witness. As such, we are of the view that the judgment of conviction and order of sentence passed by the trial Court cannot be sustainable and therefore, benefit of doubt should have been given in favour of the appellant.

Accordingly, the appeal is allowed. The conviction and sentence imposed upon the appellant under Section 302 of the IPC is hereby set aside and he is acquitted of the said charges levelled against him. It is stated that the appellant is in jail, he shall be released forthwith, if not required in any other case.