Lokesh Kant vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Two appellants herein have preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 26.03.2013 passed by the learned First Additional Sessions Judge, Bilaspur in Sessions Trial No.79/2011, by which two appellants herein have been convicted for the offence under Sections 302 and 324 read with Section 34 of Indian Penal Code and sentenced to life imprisonment with fine of Rs.1000/- each, in default of payment of fine, 1 month additional rigorous imprisonment and rigorous imprisonment for 1 year respectively, with a direction to run the sentences concurrently.

Case of the prosecution, in a nutshell, is that on 22.02.2011 at 9:00 p.m. at village Malhar, two appellants and their father Harprasad (died during pendency of trial) assaulted deceased Rajkapoor by sword and knife, by which he suffered grievous injuries and died and also assaulted Sushila Kant (PW-12) by deadly weapon, by which she suffered simple injury and thereby they committed the offence. Further case of the prosecution is that on 22.02.2011 at 10:00 p.m., at village Malhar, two appellants and their father Harprasad came to the house of the deceased and knocked the door, which was opened by deceased Rajkapoor and thereafter, two appellants and Harprasad assaulted Rajkapoor and then Lokesh (A-1) assaulted by sword and Mukesh (A-2) assaulted by knife, which was intervened by Sushila Kant (PW-12) by which she also suffered injury and after death of Rajkapoor, who died on spot, the matter was informed by Shushila Kant to the Police Station vide Ex.P-9, pursuant to which, merg was registered vide Ex.P-8 and panchnama was conducted by Ex.P-2 and thereafter dead body was sent for post-mortem, which was conducted by Dr.S.K.Sinha (PW-13) who proved the post-mortem report Ex.P-16, according to which cause of death was stated to be shock due to excessive bleeding and death was homicidal in nature. The offence was registered and the memorandum statement of Lokesh Kant and Mukesh Kant was recorded vide Ex.P-20 & Ex.P-22 and from Lokesh Kant (A-1), sword was seized vide Ex.P-21 and from Mukesh Kant (A-2), knife and motorcycle were seized by Ex.P-23. Sushila Kant (PW-12) was also medically examined by Dr. J.P.Arya (PW-18) and the medical report is Ex.P-22. The seized articles were sent for FSL, in which on the sword, blood was found vide Ex.P-21.

After due investigation, the appellants were charge-sheeted for the aforesaid offence under Sections 302 & 324 read with Section 34 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 28 documents including the FSL report and the appellants/accused in support of their defence have exhibited the documents Ex.D-1 to D-6. On the closure of evidence, the trial Court recorded the statements of accused persons under Section 313 of Cr.P.C. and proved the incriminating circumstances to the accused persons.

The trial Court, after appreciation of oral and documentary evidence on record, convicted both the appellants herein for the offence under Sections 302 and 324 read with Section 34 of I.P.C. and sentenced them as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred.

Mrs. Kiran Jain, learned counsel for the appellants would submit that the trial Court is absolutely unjustified in convicting two appellants for the aforesaid offences by recording perverse finding on record. Particularly Vishalkant (PW-1) and Ravikant (PW-16) are sons of the deceased and they are tutored witnesses and they have given statement at the instance of their mother Sushila Kant and they are not reliable evidence. She further submits that Sushila Kant (PW-12) who is said to be the eye-witness has not seen the incident, as there was complete darkness and there was no facility of electricity available in the village and more particularly from Ex.P-21, which is sword seized from the possession of the appellant No.1, no human blood has been found and even from Ex.P-23, knife seized from appellant No.2 no blood has been found and in view of the decision of the Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh & Anr. (2019) 7 SCC 781

the recovery is of no use to the prosecution. Therefore, the impugned judgment is liable to be set aside and appeal deserves to be allowed by acquitting the appellants.

Per contra, Mr. Sudeep Verma, learned State counsel, would submit that the prosecution has been able to prove the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellants for the aforesaid offences. Particularly there is direct evidence of Sushila Kant, wife of the deceased, available on record, who has clearly supported the case of the prosecution and her statement was fully endorsed by Vishalkant (PW-1) and Ravikant (PW-16) who are sons of the deceased and were present on the place of incident. More particularly, recovery of sword and knife from A-1 & A-2 respectively has been proved by the investigating officer K.P.Kashyap (PW-15), though the panch witnesses have become hostile and as such, the 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 as to whether the death of deceased Rajkapoor was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. S.K.Sinha (PW-13), who has conducted the post-mortem (Ex.P-16). Considering the nature of injury, the trial Court has rightly come to the conclusion that death was homicidal in nature, which in our considered opinion, is a correct finding of fact based on evidence available on record and even otherwise it has not been seriously questioned on behalf of the appellants. Accordingly, we hereby affirm the said finding.

Now, the next question for consideration is whether the trial Court is justified in holding that the appellants are authors of the crime, for which the trial Court relied upon the direct evidence as well as circumstantial evidence.

Sushila Kant (PW-12), who is wife of the deceased, is injured eye-witness and the incident took place in the house of the deceased. It is also the case of the prosecution that the appellants and the deceased were relatives and known to each other. Sushila (PW-12) in her statement before the Court has clearly stated that on the fateful day, on 22.02.2011 at 9:30 p.m., father of the appellants Harprasad @ Ganjha along with A-1 & A-2 came to her house and knocked the door, which her husband opened and thereafter, appellant No.1 started assaulting him by sword and appellant No.2 assaulted by knife for which he cried not to kill, but they made several blows to her husband by which he immediately died. In course of intervention, she also suffered injury but her husband died on the spot and thereafter she reported the matter to the Police Station by Ex.P-8 then the wheels of investigation started running. She has been subjected to some extent of cross-examination and it was suggested to her that there was no electricity in the night on account of which there was darkness and on that account, she could not see as to whether two appellants assaulted by sword and knife, but suggestion was clearly refuted by her saying that she is the eye-witness and she has seen the incident, she being close relative and, as such, the defence has not been able to establish that she is not the eye-witness and she has not seen the incident by which the two appellants killed deceased Rajkapoor. Apart from the testimony of Vishalkant (PW-1) and Ravikant (PW-16) both sons of deceased and Sushila Kant (PW-12) have also supported the case of the prosecution and clearly stated that they have seen the appellants assaulting his father Rajkapoor and mother Sushila and they have also been subjected to some extent of cross-examination, but they have fully supported the case of the prosecution. In addition to this, Sushila Kant (PW-12) the injured eye-witness also suffered injury vide Ex.P-28 proved by Dr. J.P.Arya (PW-18). As such, we are unable to hold that Vishalkant (PW-1), Sushila kant (PW-12) & Ravikant (PW-16) are not the eye-witnesses and they have not seen the incident. Rather, it is clear from their testimony that it is the appellants who have assaulted by sword and knife by which the deceased suffered 15 injuries vide Ex.P-16 which were incised wounds/ stab injuries. Apart from this, pursuant to the memorandum statement of appellant No.1, sword has been seized vide Ex.P-21 in which as per FSL report dated 17.08.2011, blood has been found and from appellant No.2, knife has been seized vide Ex.P-23 and both seizure have been proved by K.P.Kashyap (PW-15) though the panch witnesses have turned hostile. As such, on the basis of the testimonies of Vishalkant (PW-1), Sushila kant (PW-12) & Ravikant (PW-16) and on the basis of memorandum statement of the two appellants, sword and knife have been seized and seizure of weapons has also been proved by the prosecution. It has been established by the prosecution that the two appellants are the author of the crime in question and, as such, we are of the considered opinion that the trial Court is absolutely justified in convicting two appellants for the offence under Section 302 of I.P.C. and further justified in convicting two appellants under Section 324 read with Section 34 of I.P.C. for causing simple injury to Sushila Kant (PW-12), as such, we do not find any merit in this case. Accordingly, this criminal appeal is dismissed.