Rohit Kumar Sahu vs State Of Chhattisgarh

Sanjay Kumar Jaiswal, J

This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) is directed against the impugned judgment dated 30.01.2020 passed by the Third Additional Sessions Judge, Surajpur District Surajpur (Chhattisgarh) in Sessions Trial No.53 of 2018 whereby the appellant has been convicted under Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced to undergo imprisonment for life with fine of ₹ 1,000/-, in default of payment of fine amount, he would further undergo additional imprisonment for six months.

The case of the prosecution in brief is that on 17.03.2018, at about 10.30 a.m. at Village Sonpur, Police Station Surajpur, appellant herein assaulted his grandmother namely, Smt. Samdariya Bai by means of wooden club due to which, she suffered grievous injury and during the course of her treatment Smt Samdariya Bai died thereby, the appellant committed an offence under Section 302 of IPC.

In the instant case, on 18.03.2018, Radheshyam (PW-11) lodged FIR at Police Station Surajpur stating therein that he is a resident of Village Sonpur and he lives along with his mother, his younger brother, daughter-in-law (wife of his younger brother) and his sons in the same house. On 17.03.2018, there was quarrel took place between the appellant, (who is nephew of Radheshyam) and his mother (deceased Smt. Samdariya Bai), upon which the appellant struck/hit his mother by means of wooden club on her head. Thereafter she was taken to the hospital by his brothers, namely Shriram (PW-3) and Shobhnath at Surajpur, where after primary treatment, doctors referred her to Holy Cross Hospital, Ambikapur. During the course of treatment at Holy Cross Hospital, Ambikapur, Smt. Samdariya Bai died on 18.03.2018. On the information so lodged by Radheshyam (PW-11), merg intimation (Ex.P/25) and First Information Report (Ex.P/23) were registered by the Police. Thereafter, inquest proceedings were conducted vide Ex.P/6 and spot map was prepared vide Ex.P/22. Summons under Section 175 of CrPC were issued vide Ex.P/5. Thereafter, the dead-body of deceased was sent for postmortem and in the postmortem report (Ex.P/9), conducted by Dr. Mithlesh Minj (PW-8), it was opined that the cause of death of deceased is cerebral hemotoma with fracture on head due to head injury. The appellant-accused was arrested vide Ex.P/13 and his memorandum statement was recorded vide Ex.P/12, pursuant to which, a wooden club (batta) used by him in the crime in question was seized vide Ex.P/7. The aforesaid seized wooden club (batta) was sent to FSL examination alongwith other seized articles vide Ex.P/18 and in the FSL report (Ex.P/20) human blood (Group ‘O’) has been found on the said wooden club (batta) along with other articles. Thereafter, statement of witnesses were recorded under Section 161 of CrPC and after due investigation, the police filed the charge-sheet.

The prosecution in order to bring home the offence examined as many as 14 witnesses and exhibited 27 documents Exhibits P/1 to P/27. Statement of the appellant was recorded under Section 313 of the CrPC, in which, he abjured the guilt and entered into defence stating that he has not committed the offence and he has been falsely implicated. No witness has been examined on behalf of the appellant as defence witness as well as no document has been exhibited.

Learned counsel for the appellant submits that the appellant has not committed any offence and he has been falsely implicated. He further submits that there is no direct or circumstantial evidence to prove the offence beyond reasonable doubt and therefore, conviction of the appellant is liable to be set aside and the appeal deserves to be allowed by acquitting the appellant of the charge leveled against him.

Per contra, learned counsel for the respondent/State supports the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant by leading evidence of clinching nature and the trial Court has rightly convicted the appellant and therefore, conviction cannot be competently questioned by the appellant and 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 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 oral and documentary evidence available on record and particularly, considering the postmortem report (Ex.P/9) conducted by Dr. Mithlesh Minj (PW-8), is that:-

(a) on the right part of head of deceased, there was a rush of blood in the parietal part under the skin of the head.

(b) The bone of the parietal and temporal part of the right side of the head was found to be broken and there was accumulation of blood in the internal part.

(c) Curtain, rib, soft tissue, epipharynx, larynx, right lung, left lung, periorbitum parecium were congested.

(d) A small amount of dark thick blood was present in both the lobes of the heart, blood was present in the vessel.

(e) On internal examination of the abdomen, the membrane of the intestinal wall, mouth and esophagus, pharynx were congested.

(f) The stomach was empty and congested.

(g) Small intestine and large intestine, liver, spleen, kidney, bladder were congested, internal and external genitals were normal.

(h) The lacerated wound and bone injury found on the head of the deceased was inflicted by some hard object.

Dr. Mithlesh Minj (PW-8) opined that the cause of death of deceased is cerebral hemotoma with fracture on head due to head injury. Accordingly, taking into consideration the postmortem report (Ex.P/9) and the statement of Dr. Mithlesh Minj (PW-8), 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 is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

Now, whether the appellant is the author of the crime as held by the trial Court, is the next question ?

The witnesses examined on behalf of the prosecution includes PW-1 Shivprasad (neighbour), PW-2 Devnarayan Singh (neighbour), PW-3 Shriram Sahu (appellant's father), PW-4 Rajmani (neighbour), PW-5 Pramila ( Neighbour), PW-7 Sunita Sahu (appellant's cousin) and PW-11 Radheshyam (appellant's elder father and reporter) are witnesses to what was heard. The fact has come in his evidence that the appellant Rohit Kumar Sahu had fought and assaulted earlier also. It has also been said about the appellant that he is an eccentric person, but this fact is not found to be of special importance to establish the events under consideration, unless his special conduct is established from the events.

There is no eyewitness to the alleged incident. Mother of the appellant as per the prosecution case P.W.-6 Bhagwatiya Sahu is an important witness who after serving tea to the appellant and the deceased had gone to collect cow dung and on hearing the sound of lathi blows, she found her mother- in- law Samdaria Bai in an injured state where the appellant was standing with a wooden stick in his hand. PW-6 Bhagwatiya Sahu has turned hostile in her court statement, she has not confirmed the above facts. She has not stated that she has seen the appellant on the spot holding a wooden stick in his hand and at this stage it becomes absence of an important evidence.

Another important ground of prosecution against the appellant has been that after the incident, he was seen standing near the transformer of the house carrying a wooden stick, in which, PW-2 Dev Narayan Singh and PW-5 Pramila Sahu were important witnesses of the prosecution. Both these witnesses have turned hostile. They have not corroborated this fact that they have seen the appellant standing with a wooden stick near the transformer immediately after the incident. Thus, the said circumstantial evidence and the matter of fact of the conduct of the appellant after the offence has not been established.

The prosecution case against the appellant is also based on circumstantial evidence. In the subject of circumstantial evidence, the Hon'ble Supreme Court in the matter of Sharad Birdhichand Sarda vs. state of Maharashtra reported in (1984) 4 SCC 116, a concept has been expressed that such chain of circumstances should be completed on which only the inference of the appellant's guilt, then only he can be convicted. The important facts in the above mentioned case are given below:-

“The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:-

(1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,

(2) The facts so established should be consistent only with the hypothesis of the 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 proved, 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.”

Considering the other evidence against the appellant in the light of the aforesaid precedent, after the incident, the deceased / injured Samdaria Bai was referred from District Hospital Surajpur to Holycross Hospital in Ambikapur, where, PW-14 Dr. Madhu treated her and prepared M.L.C. Bed Head Ticket Ex.P-27, according to which, the deceased was brought by his son PW.-3 Shriram Sahu and nephew Shobhnath. According to Ex.P-27, the persons who brought her, informed him that on 17/03/2018, around 09.00 am, the accused injured the deceased by hitting her with a stick. This is important because of the fact that the medical record was made immediately after the incident but Shobhanath, who gave the said information, has not been examined in the court. Appellant's father P.W.-3 Shriram Sahu has not seen the incident himself and he has given this information in the hospital only on the basis of what he heard, therefore, being a fact of hearsay, this information cannot form the basis of conviction against the appellant.

PW-11 Radheshyam Sahu who is the uncle of the appellant, on his information, the FIR was registered as Ex.P-23 in the police station Surajpur by PW-12 Sanjay Singh Sengar(A.S.I.). The First Information Report (Ex.P-23) has been lodged against the appellant on the basis of information given by Radheshyam Sahu (PW-11). P.W.-11 Radheshyam Sahu himself is not an eyewitness to the incident. P.W.-11 Radheshyam Sahu asked to meet Shivprasad (neighbor) about the incident. Thus, Radheshyam Sahu is a hearsay witness. Similarly, PW-1 Shivprasad is also a hearsay witness. Hence, the FIR Ex.P-23 which is only a supporting evidence and the one who lodged the FIR, is not an eye-witness but he is a hearsay witness. Therefore, the said document cannot form the basis of conviction of the appellant.

The fourth ground of prosecution against the appellant is the seizure of the wooden stick allegedly used in the incident. On 02/04/2018 i.e. about 15 days after the incident, PW-9 Laxman Khute (S.I.), after taking the statement of the appellant Rohit Kumar Sahu, has asked to prepare Memorandum Ex.P-12, according to which the appellant had given information that the wooden stick used in the incident was thrown near the transformer in the field, thereafter, he went to Sahu Mohalla in the Sonpur village where the appellant presented a wooden stick of Sarai, which was three feet one and half inches in length and seven and half inches in width, with dried blood at the end, in which hair was stuck and the other end was torn, it was seized as Ex.P-7.

P.W-8 Dr. Mithlesh Minj has certified the report Ex.P-10 and on examination, he had found and opined on the query of the police that the injury found on the deceased could have come from that wooden stick. According to the investigation report of Regional Forensic Science Laboratory, Ambikapur, Ex.P-20, human blood (O group) was found in the wooden stick. Similarly, PW-9 Laxman Khunte (S.I.), seized plain nylon rope and blood- stained nylon rope from the cot (Ex.P-8) and according to the FSL report, blood has not been found in the plain nylon rope. While the blood stained nylon rope is the only human blood (O group) has been found. From this, it appears that the blood of the deceased was of “O” group and the alleged wooden stick was used in the crime.

Now it has to be seen whether the said wooden stick was recovered at the instance of the accused/ appellant?

Taking into consideration the provisions of Section 27 of the Indian Evidence Act by the appellant’s counsel in support of its argument Jurisprudence Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh AIR 2022 Supreme Court 5273 has been cited.

Section 27 of the Indian Evidence Act has been mentioned by the Hon’ble Supreme Court in the above cited case in paragraph 52 and in paragraph 53 in the same case, it has been stated that after the statement, how should the seizure proceedings be certified on the basis of the memorandum which is as follows:-

“52. Section 27 of the Evidence Act, 1872 reads thus:

“27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

53.If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.”

In the light of the above precedent, now considering the seizure of the alleged wooden stick told by the police, it is noteworthy that Ram Charan, a witness of the memorandum of the statement of the appellant Ex.P-12, was not included in the list of prosecution evidence by the prosecution and has not been examined. The second witness is PW-7 Sunita Sahu who is the cousin of the appellant. PW-7 Sunita Sahu has not made any statement regarding the memorandum statement Ex.P-12. She has also been declared hostile by the prosecution, but no inquiry has been made regarding the memorandum statement of the appellant. Accordingly the judicial precedent Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh AIR 2022 Supreme Court 5273, the memorandum statement of the appellant Ex.P-12 is not found proved by any independent witness.

As far as question is about the seizure of wooden stick (batta) Ex.P-7 from the appellant, the cousin of the appellant PW-7 Sunita Sahu has only stated to sign, she has not confirmed that the wooden stick is recovered from the possession of appellant.

Seizure of wooden stick from the appellant as Ex.P-7, other witness is PW-11 Radheshyam, who is the Uncle of the appellant. Radheshyam has stated in his court statement that the police had seized a blood-stained wooden stick from the appellant in front of him. In the light of the above case, from the statement of PW-11 Radheshyam it cannot be established that where the appellant has hidden the wooden stick. It also cannot be establish that PW-11 Radheshyam saw from where the appellant collected the wooden stick and handed it over to the police. Henceforth, the statement of PW-11 Radheshyam cannot be said as corroborating the case of the prosecution for the purpose of Section-27 of the Indian Evidence Act.

If we look at the statement of Laxman Khunte, Sub-Inspector, PW-9, then according to the memorandum Ex.P-12 of the statement of the appellant prepared by him, the appellant had told to throw the weapon in the field near the transformer and it has not come in the fact that he was hiding it somewhere in the field. A field is a place which is open to the eyes of the general public. Therefore, it cannot be said that anything lying there was in the knowledge of the appellant alone. Looking at the court statement of Sub- Inspector Laxman Khunte in this matter, he has not clearly stated in his statement that he had taken the appellant to the said place and there the appellant would have looked for or took out the wooden stick from somewhere he had hidden it and handed it over to the Inspector. Thus, considering in the light of the aforesaid precedent, the fact that the wooden stick was in the knowledge of the sole appellant and was brought out and presented by him only, has not been duly proved by the statements of the critic, then the seizure was made. Thus, the seizure of wooden sticks in pursuance of Memorandum Ex.P-12 at the instance of the sole appellant, the seizure under Ex.P-7 is not found to be duly proved.

While considering the evidence presented above the chain of circumstantial evidence is not fulfilled as required by the above cited precedents and therefore it cannot be concluded that the appellant is the person who hit the deceased by wooden stick and injured her which resulted in her death. Thus, the chain of circumstantial evidence against the appellant is not complete. The evidence produced against the appellant are not sufficient and credible to convict him for the murder of the deceased, rather the prosecution case against the appellant was doubtful. The finding of the conviction by the trial Court and not giving benefit of doubt to the accused is sustained.

Therefore, the appeal of the appellant Rohit Kumar Sahu is allowed. The finding of the trial court in the conviction and alleged sentence is set aside. The Court acquits Rohit Kumar Sahu by giving him the benefit of doubt in the offence of Section 302 of the Indian Penal Code. Any other case of the appellant Rohit Kumar Sahu if he is not needed he should be released immediately.

Accordingly, the present CRA is allowed.