Shankar Nath vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant under Section 374(2) of CrPC against the impugned judgment dated 07/03/2017 passed by learned Additional Sessions Judge, Ramanujganj in Sessions Case No. R-93/2014 whereby he has been convicted for offence punishable under Sections 307 and 302 of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs. 500/- and in default of payment of fine, additional R.I. for 50 days and for life imprisonment with fine of Rs. 500/- and in default of payment of fine, additional R.I. for 50 days, respectively, with a direction to run both the sentences concurrently.

Case of the prosecution, in brief, is that on 04/07/2014 at about 6 PM at village Aamgaon within the ambit of Police Station Shankargarh, assaulted his father Mundar Ram with spade and caused his death and also assaulted his mother Runibai (P.W.-3) on account of which she suffered injuries which were sufficient to cause death.

Further case of the prosecution is that on 04/07/2014 at about 6 PM, appellant's father Mundar Ram and mother Runibai (P.W.-3) were making their share of the field cultivable when the appellant came therein armed with a spade on account of the dispute pertaining to partition, he started digging out the crops sown in the field by his father Mundar Ram and when Mundar Ram and Runibai (P.W.-3) tried to stop him, appellant assaulted Mundar Ram with spade and caused injury on his head due to which he died on the spot. Thereafter, with the intention of causing death of Runibai (P.W.-3) as well, the appellant assaulted her with spade and caused a few injuries due to which Runibai (P.W.-3) fell and became unconscious. At the time of the incident, appellant's brother Fuldev (P.W.-2) was present and appellant also tried to assault him but he ran away and saw the incident by hiding himself. When appellant went from the spot, Fuldev (P.W.-1) escorted his father Mundar Ram and mother Runibai (P.W.-3) to the Hospital wherein Mundarram was declared dead and Runibai (P.W.-3) was admitted to undergo treatment.

The matter was reported by Fuldev (P.W.-1) on the basis of which merg intimation was registered vide Ex. P/21 and first information report was lodged against the appellant vide Ex. P/1. Summons were issued to the witnesses vide Ex. P/10 and inquest was conducted vide Ex. P/11 and pursuant thereof, the dead body of Mundar Ram was subjected to postmortem which was conducted by Dr. Shashikala Toppo (P.W.-11) and as per the postmortem report (Ex. P/17), cause of death is said to be shock due to head injury and nature of death is said to be homicidal. Runibai (P.W.-3) was subjected to medical examination and MLC report has been brought on record as Ex. P/16. The appellant was taken into custody and pursuant to his memorandum statement (Ex. P/13), recovery of spade has been made vide Ex. P/14 and it was sent for forensic examination along with other seized articles and as per FSL report dated 14/10/2014 (page 38 of the paperbook) blood has been found on the spade. After due investigation, the appellant was charge-sheeted which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 14 witnesses and brought on record 28 documents. Statement of the appellant under Section 313 of CrPC was recorded wherein he denied guilt, however, he examined none in his defence and did not bring any document in his support either.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Mundar Ram to be homicidal in nature and further finding the appellant to be the author of the crime in question, proceeded to convict him for offence punishable under Sections 307 and 302 of IPC and sentenced him as aforesaid.

Mr. Manoj Mishra, learned counsel for the appellant, would submit that the two eye-witnesses Fuldev (P.W.-1) and Runibai (P.W.-3), both have turned hostile and have not supported the case of the prosecution. Moreover, though pursuant to memorandum statement of the appellant, seizure of spade has been made vide Ex. P/14, but the memorandum and seizure witnesses namely Harinath (P.W.-10) and Kondo (P.W.-13) have also turned hostile and as per the FSL report, only blood has been found on the spade and it could not be ascertained whether it was stained with human blood, as such, in light of the decision rendered by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, recovery is of no use to the prosecution and even otherwise, in light of the decision rendered by the Supreme Court in Mani v. State of Tamil Nadu (2009) 17 SCC 273, discovery is a weak piece of evidence and cannot be wholly relied upon. Thus, the appeal be allowed and appellant be acquitted of the charges levelled against him.

Per contra, Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt, as such, the trial Court has rightly convicted the appellant for the aforesaid offence and this 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 the consideration would be whether the death of deceased Mundar Ram was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Mundar Ram to be homicidal in nature relying upon the expert medical opinion of Dr. Shashikala Toppo (P.W.-11) who has proved the postmortem report (Ex. P/17) in which cause of death is said to be shock due to head injury and nature of death is said to be homicidal. Considering the statement of Dr. Shashikala Toppo (P.W.-11) as well as the postmortem report (Ex. P/17) and the grievous injury suffered by the deceased on his head, we are of the considered opinion that the trial Court has rightly held the death of deceased Mundar Ram to be homicidal in nature, more so, when it has not been seriously questioned by learned counsel for the appellant. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellant is the author of crime in question and whether the trial Court is justified in convicting the appellant for offence punishable under Sections 302 and 307 of IPC ?

Admittedly, Runibai (P.W.-3) is an eye-witness who was present along with her husband deceased Mundar Ram at the time when the appellant is said to have assaulted the deceased as it is the case of the prosecution that appellant also assaulted Runibai (P.W.-3) and she was subjected to medical examination (Ex. P/16), however, she has completely turned hostile and has not supported the case of the prosecution at all. Apart from her, Fuldev (P.W.-1), who is the son of deceased Mundar Ram and brother of the appellant, has also been cited as an eye-witness by the prosecution, but he too, has not supported the prosecution case. Another eye-witness cited by the prosecution is Sangeeta (P.W.-5), who is not related to the appellant and the deceased, however, she has turned hostile as well and has clearly stated in her deposition that she has not witnessed the incident. Thus, there is no direct evidence available on record.

So far as circumstantial evidence is concerned, pursuant to memorandum of the appellant (Ex. P/13), seizure of spade has been made from him vide Ex. P/14 and though memorandum and seizure witnesses namely Harinath (P.W.-10) and Kondo (P.W.-13) have turned hostile and have not supported the case of the prosecution, but the said spade was sent for forensic examination and as per the FSL report dated 14/10/2014 (page 38 of the paperbook), blood has been found on it.

The Supreme Court in the matter of Balwan Singh (supra) has held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation is 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.”

Moreover, in the matter of Mani (supra), considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, their Lordships of the Supreme Court have held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

In view of the aforesaid principles of law laid down by the Supreme Court in Balwan Singh (supra) and Mani (supra), mere recovery of spade pursuant to the memorandum statement of the appellant would not help the case of the prosecution when it could not be proved that the said spade was stained with human blood and it would not connect the with the crime in question. In that view of the matter, prosecution has not been able to prove the offence against the appellant as eye-witnesses Fuldev (P.W.-1), Runibai (P.W.-3) and Sangeeta (P.W.-5) have turned hostile and have not supported the case of the prosecution at all and seizure of spade pursuant to the memorandum statement of the appellant would be a weak piece of evidence in light of the decision of the Supreme Court in Mani (supra) in absence of any other corroborative evidence, particularly when in FSL report, only blood has been found on the said spade and it could not be ascertained whether it was stained with human blood in light of the decision of the Supreme Court in Balwan Singh (supra). Thus, we are of the considered opinion that the trial Court is absolutely unjustified in holding the appellant to be the author of the crime in question and convicting him for offence punishable under Sections 307 and 302 of IPC. Accordingly, we hereby set the impugned judgment of conviction and order of sentence and acquit the appellant from the charges levelled against him. The appellant be released forthwith, if his detention is not required in any other case.

Accordingly, this criminal appeal stands allowed.

Let a certified copy of this order along with the original record be transmitted to trial Court concerned for necessary information and action, if any.