Kamlu Mangu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 28-11-2016 passed by the Additional Sessions Judge, Fast Track Court, South Bastar, Dantewada, in Sessions Trial No.332/2011, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life.

Case of the prosecution, in brief, is that on 12-7-2011 at 6.00 a.m. in the morning at Village Dugoli, Police Station Toynar, the appellant assaulted Smt. Bange – mother of complainant Budhram (PW-1) by knife and thereby caused her death. It is admitted position on record that there was dispute between the appellant herein and father of the complainant namely, Gundi with regard to land. On 12-7-2011 at 6.00 a.m., Smt. Bange had gone to the house of Smt. Pandri (PW-3) for asking for tobacco and was standing therein then Smt. Pandri (PW-3) went inside the house for bringing tobacco and meanwhile, the appellant reached there and assaulted Smt. Bange by knife by which she died pursuant to which Budhram (PW-1) reported the matter. FIR was registered vide Ex.P-1, morgue intimation was registered vide Ex.P-2 and spot map was prepared vide Ex.P-3. Inquest was prepared vide Ex.P-8 and on the recommendation of panchas, dead body of the deceased was sent for postmortem which was conducted vide Ex.P-12 by Dr. B.L. Sharma (PW-11) and cause of death was stated to be cardio-respiratory arrest as a result of haemorrhage and death was homicidal in nature. Memorandum statement of the accused was recorded vide Ex.P-4 pursuant to which knife was seized vide Ex.P-5. Seized knife was sent to the medical officer seeking his medical opinion as to whether the injury found on the body of the deceased could be caused by the said knife and the medical officer– Dr. B.L. Sharma (PW-11) submitted his query report vide Ex.P-13 stating that the injuries found on the person of the deceased could be caused by the said knife. Seized articles were sent for forensic examination to the FSL, Raipur from where report Ex.P-20 was received in which blood was found on the knife, but blood group could not be ascertained.

Statements of the witnesses were recorded under Section 161 of the CrPC.. Thereafter, after completion of investigation, the appellant was charge-sheeted before the Court of Chief Judicial Magistrate, Bijapur which was taken cognizance of and thereafter, the case was committed to the Court of Sessions from where the learned Additional Sessions Judge (FTC) received the case on transfer for trial and for hearing and disposal in accordance with law.

The trial Court has framed charge under Section 302 of the IPC against the appellant and proceeded on trial. The accused / appellant abjured the guilt and entered into trial stating that he has been falsely implicated and he has not committed the offence.

The prosecution in order to bring home the offence examined as many as 12 witnesses and brought on record 20 documents Exs.P-1 to P-20 to prove its case. However, the defence examined none, but exhibited two documents Exs.D-1 & D-2 – statements of Guddi & Ajay recorded under Section 161 of the CrPC. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication.

The trial Court after completion of trial and upon appreciation of oral and documentary evidence, convicted the appellant herein for the offence under Section 302 of the IPC and sentenced him in the manner as mentioned in the opening paragraph of this judgment which has been called in question in this appeal preferred under Section 374(2) of the CrPC.

Ms. Meenu Banerjee, learned counsel appearing for the appellant, would submit that eyewitnesses – Budhram (PW-1), Hunga Kamlu (PW-2), Smt. Pandri (PW-3) & Ajay (PW-6) have not witnessed the incident and memorandum & subsequent recovery have not been proved in accordance with law, and no human blood has been found on the weapon of offence knife and therefore the appeal deserves to be allowed and the impugned judgment deserves to be quashed.

Mr. Sudeep Verma, learned Deputy Govt. Advocate appearing for the State / respondent, would submit that eyewitnesses Budhram (PW-1) & Smt. Pandri (PW-3) have fully supported the case of the prosecution and the prosecution has been able to bring home the offence against the appellant and therefore the appeal deserves to be dismissed.

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

The first question for consideration would be, whether the trial Court is justified in holding that death of the deceased was homicidal in nature?

The trial Court after relying upon the statement of Dr. B.L. Sharma (PW-11) and also taking into consideration the postmortem report Ex.P-12, clearly came to the conclusion that death of the deceased was homicidal in nature. In our considered opinion, such a finding recorded by the trial Court that death was homicidal in nature is the correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding recorded by the trial Court. Even otherwise, learned counsel for the appellant has not disputed the nature of death of the deceased to be homicidal.

Now, the question is, whether the trial Court is justified in holding that it is the appellant who is the author of the crime in question of causing the death of Smt. Bange – mother of complainant Budhram (PW-1).

There are four eyewitnesses to the incident who have been relied upon by the trial Court. We will deal with the testimonies of each of them one by one.

Budhram (PW-1), who is son of the deceased, in paragraph 6 of his evidence has clearly stated that he was not present on the scene of occurrence and he has not seen the incident, his brother informed him about the incident. Hunga Kamlu (PW-2), in whose house the incident took place, has clearly stated in his evidence that he was not present in house on the date of incident, he had gone to the forest for collecting forest produce.

Similarly, Smt. Pandri (PW-3), who is wife of Hunga Kamlu (PW-2), has clearly stated that on the fateful day when the deceased came to her house for asking tobacco, she had gone inside the house for bringing tobacco, then the appellant came there and assaulted the deceased and absconded. In cross-examination, she has stated that she has seen the deceased and the appellant running from the house. As such, her statement would be relevant under Section 6 of the Indian Evidence Act, 1872, but she cannot be said to be eyewitness to the incident.

Similarly, Ajay (PW-6), aged about 10 years, is son of the deceased. Though he had seen his mother falling on the ground, in paragraph 7 of his evidence, he has stated that his mother has informed him that the appellant has assaulted her and absconded. As such, he is also not eyewitness to the incident, at the best it can be held that the deceased has given oral dying declaration to him. He is a child witness. However, in cross-examination, in same breath, he has clearly admitted that his mother has fell down and she was not able to speak.

In that view of the matter, it would be unsafe to rely upon the oral dying declaration given by the deceased to the child witness – Ajay (PW-6) and seizure of knife has not been proved by independent witnesses Sannu Ram Kudiyam (PW-7) & Franklin Tirkey (PW-8), but it has been proved by the investigating officer. Even if it is held to be proved by the statement of the investigating officer, but in the FSL report, only blood has been found and human blood has not been found on the said knife. Whereas, in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781, it has been held by the Supreme Court that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not 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.”

As such, memorandum and subsequent recovery is also not useful to the prosecution. In sum and substance, only there is evidence of Smt. Pandri (PW-3) that she has seen the appellant and the deceased running from the house which is relevant under Section 6 of the Evidence Act and which cannot be made basis for conviction of the appellant under Section 302 of the IPC and there is no other admissible evidence, direct or circumstantial, available on record. In that view of the matter, the trial Court is absolutely unjustified in convicting and sentencing the appellant under Section 302 of the IPC.

In view of the aforesaid analysis, we are unable to sustain conviction and sentence imposed upon the appellant under Section 302 of the IPC. Accordingly, the impugned judgment dated 28-11-2016 passed in Sessions Trial No.332/2011 by the Additional Sessions Judge (FTC), South Bastar, Dantewada, is hereby set aside. The appellant stands acquitted of the charge framed against him for the offence punishable under Section 302 of the IPC and he shall be forthwith set at liberty, as he is in jail, unless he is required in connection with any other case.

The appeal is allowed.