Rajkumar Vishwakarma vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) By way of this criminal appeal filed under Section 374(2) of Cr.P.C. the appellant-accused is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 31.01.2013, passed by the Court of learned Addl. Sessions Judge, Bilaspur in Sessions Trial No.173/2012, whereby the appellant-accused has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1000/- and, in default of payment of fine, additional rigorous imprisonment of three months.

(2) The case of the prosecution, in short, is that on 30.08.2012 at about 07:30 in the evening in front of Panchayat Bhawan at Village Bhimpuri within the ambit of Police outpost Junapara, Police Station Takhatpur, District Bilaspur the accused-appellant with the intention to kill Santosh Jaiswal (herein after referred to as the “deceased”) assaulted him by means of axe on the back side of his head, neck and chest by which he suffered grievous injuries and died on the spot and, thereby, committed offence under Section 302 of IPC.

(3) It is further case of the prosecution that on 07.04.2012, on the question of raising wall, a dispute arose between the appellant and Bishmbhar (PW-12) and Santosh (deceased) and the appellant is said to have broken the hand of Bishmbhar (PW-12), in which police took action and on that account the appellant had grudge and enmity with Santosh (deceased) and his father. It is further case of the prosecution that on 30.08.2012 at about 07:30 PM in the evening, while deceased was standing near the Panchayat Bhawan of Village Bhimpuri, at that juncture, the appellant armed with axe came from back side of the deceased and assaulted him thrice, due to which deceased sustained multiple injuries and died. Thereafter, Jaleshwar (PW-01) reported the matter to police, pursuant to which marg intimation (Ex.P/01) and FIR (Ex.P/02) were registered. Inquest proceedings were conducted vide Ex.P/08 and Nazari Naksha was also prepared vide Ex.P/10. On the recommendation of ‘panchas’ the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/25), conducted by Dr. R.S. Ayam (PW-18), it was opined that the cause of death of deceased is shock due to homicidal injuries and excessive hemorrhage. Thereafter, appellant-accused was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/12. Pursuant to memorandum statement of the appellant, an axe was seized vide Ex.P/13. The aforesaid seized axe was sent for FSL examination alongwith other seized articles, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Takhatpur and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 19 witnesses and exhibited 34 documents, whereas the appellant-accused in support of his defence has neither examined any witnesses nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Ms. Indira Tripathi, learned counsel appearing for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that the eye-witnesses, namely, Jaleshwar (PW-01), Ku. Reena (PW-02) and Pratap Singh (PW-08) are not reliable witnesses, as they have not seen the incident. Further, in the weapon (i.e. axe), which is said to have been seized pursuant to the memorandum statement of the appellant, no human blood has been found and no FSL report has been brought on record to substantiate the said fact. Hence, the impugned judgment deserves to be set aside and appellant is liable to be acquitted/discharged.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of statements of Jaleshwar (PW-01), Ku. Reena (PW-02) and Pratap Singh (PW-08) the learned trial Court has rightly convicted the appellant for the offence mentioned herein-above. Thus, the present appeal deserves to be dismissed.

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

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/25), wherein it has been opined that the cause of death of deceased is shock due to homicidal injuries and excessive hemorrhage, which is duly proved by Dr. R.S. Ayam (PW-18), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/25) and the statement of Dr. R.S. Ayam (PW-18), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

(10) Now the next question would be whether the learned trial Court is justified in convicting the accused-appellant herein for offence under Section 302 of IPC ?

(11) The conviction of the appellant is mainly premised on the testimonies of eye-witnesses, namely, Jaleshwar (PW-01), Ku. Reena (PW-02) and Pratap Singh (PW-08). The presence of Jaleshwar (PW-1) on the spot has also been established by the testimony of Pratap Singh (PW-08). Jaleshwar (PW-01) in his statement before the Court has clearly stated that: incident is of 30.08.2012 at 07:30 PM; at that time incident occurred near Panchayat Bhawan and there was no arrangement for light; he has seen the incident with a distance of 30 meter (i.e. approximately 100 ft.) and furthermore he has gone ahead from Santosh (deceased) and appellant has assaulted deceased on his back side; he has seen when fourth injury/blow was caused by the appellant on the deceased. Since the incident took place on 07:30 PM in the evening and there was no arrangement for light, it is difficult to accept that Jaleshwar (PW-01) has actually seen the incident that too from a distance of 30 meter (i.e. approximately 100 ft.) and more particularly when the appellant is said to have assaulted the deceased from his back side and Jaleshwar (PW-01) at that particular point of time had gone ahead from the deceased and especially when he has seen the incident when fourth/final blow was inflicted by the appellant on the deceased. Further, considering the nature of injury and nature of weapon i.e. axe, it is difficult to accept that after sustaining three injuries by axe, the deceased was in a condition to stand properly rather he must have fell down on the spot and, therefore, the question of seeing the appellant causing the last blow (i.e. fourth injury) by means of axe to the deceased is completely unacceptable and doubtful specially when, admittedly, as per PM report (Ex.P25) the deceased suffered four injuries (all incised wounds).

(12) Similarly, Ku. Reena (PW-02), who is maternal niece of the deceased and staying in the house of the deceased for her studies, in Para-03 of her statement before the Court has stated that she has seen accused assaulting deceased from far distance and accused thereafter absconded from the spot. Thereafter, in the same breath in Para-04 she has clearly stated that she has not seen the appellant assaulting the deceased. More particularly, Pratap Singh (PW-08) has said that Ku. Reena (PW-02) reached on the spot after some time. Pratap Singh (PW-08) has also been cited as an eye-witness, but the learned trial Court did not accept his testimony as an eye-witness particularly in view of the fact that in Para-04 he has made a clear statement that he has not seen the incident and he has not seen the appellant assaulting deceased, but has seen him absconding from the spot and at the relevant point of time of incident he was in drunken state. As such, the testimonies of so called eye-witnesses, namely, Jaleshwar (PW-01), Ku. Reena (PW-02) and Pratap Singh (PW-08) cannot be relied upon and the conviction of the appellant cannot be based on their testimonies.

(13) Now the next evidence which has to be considered by us is recovery of weapon i.e. axe pursuant to memorandum statement of the appellant. Admittedly, pursuant to memorandum statement of appellant recorded vide Ex.P/12, recovery of axe has been affected vide seizure memo (Ex.P/13), in which blood like stains were found. Further, the aforesaid seized axe was sent for FSL examination vide Ex.P/34, but no FSL report has been brought on record to establish that it was actually used for commission of offence by the appellant or it contains human blood.

(14) The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another (2019) 7 SCC 781 held 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 held in Para-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.”

(15) Reverting to the facts of the present case in light of principle of law laid down by their Lordships of the Supreme Court in the matter of Balwan Singh (supra), it is quite vivid that there is no evidence available on record to show that human blood was found on the axe seized pursuant to the memorandum statement of appellant, in absence of which, such a recovery is of no help to the prosecution.

(16) In that view of the matter, neither the three eye-witnesses, namely, Jaleshwar (PW-01), Ku. Reena (PW-02) and Pratap Singh (PW-08) are reliable nor the recovery of axe is of any help to the prosecution, therefore, we are unable to sustain the conviction of the appellant recorded by the learned trial Court under Section 302 of IPC. Accordingly, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set aside. He is acquitted of the said charge. Since the appellant is in jail from 30.08.2012, we direct that he be released from jail forthwith, if not required in any other matter/case.

(17) This criminal appeal is allowed.