Shrawan Kumar Khairwar vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 24/07/2014 passed by learned 2nd Additional Sessions Judge, Janjgir Champa in Special Sessions Trial No. 13/2013 whereby he has been convicted for offence punishable under Section 302 of IPC (two times) and he has sentenced to undergo life imprisonment with fine of Rs. 2000/-, in default of payment of fine, further S.I. for 4 months (two times) directing both the sentences to run concurrently.

Case of the prosecution, in brief, is that on 04/11/2012 at about 4 AM at Village Khairwarpara Bodsara within the ambit of Police Station Janjgir, the appellant herein assaulted two of his daughters namely Jyoti Khairwar and Ranjita Khairwar at his house with adze (basoola) and caused them grievous injuries on account of which they died and the appellant, thereby, committed the aforesaid offence.

Further case of the prosecution is that on 04/11/2012 at about 08:30 AM, complainant Ravina Khairwar (P.W.-1), appellant's daughter and sister of the deceased girls, through dehati nalishi (Ex. P/1) lodged an oral report that she along with her three sisters and one brother resided with her parents at village Bodsara and except for their father, all of them had gone to their maternal uncle's house at Village Bharrakuda. The appellant was asking them to come back but Ravina Khairwar (P.W.-1) had refused stating that their mother was unwell and they would return later on due to which the appellant was annoyed. On 03/11/2012, complainant's paternal aunt namely Laxmin Bai (P.W.-5) was coming from Village Bharrakuda to Bodsara and complainant Ravina khairwar (P.W.-1) along with her sisters Jyoti Khairwar and Ranjita Khairwar (deceased persons) returned home with her. At night, complainant cooked food and after taking their meals, the three sisters (complainant and two deceased persons) and their father (appellant) went to sleep. Suddenly, at about 4 AM, appellant pulled Ravina Khairwar's (P.W.-1) hand forcefully and when she woke up she saw that the appellant was holding an adze in one hand which was stained with blood and her sisters Jyoti Khairwar and Ranjita Khairwar were lying on the cot in an unconscious condition and they were covered with blood, thereafter, Ravina Khairwar (P.W.-1) ran and cried for help. After hearing her cries, Sonai Bai (P.W.-2), Champa Bai (P.W.-6), Birij Bai (P.W.-7), Budhwara Bai (P.W.-3) and Bajrang Khairwar (P.W.-8) came therein and till then the appellant had come out empty-handed and told them that he had killed two of his daughters and when they went inside the room, they found that Jyoti Khairwar and Ranjita Khairwar were injured badly and they were covered with blood and were lying in an unconscious condition. Thereafter, both the deceased girls were taken to the Hospital, however, Jyoti Khairwar died on the way and Ranjita Khairwar was in a critical condition and was undergoing treatment but she too died at about 8 AM in the morning.

On the basis of dehati nalishi (Ex. P/1), first information report was registered against the appellant vide Ex. P/34 and inquest was conducted vide Ex. P/23 and P/24 and the dead bodies were subjected to postmortem which was conducted by Dr. Mamta Jagat (P.W.-11) and as per the postmortem reports (Ex. P/16 and P/17), cause of death is said to be coma due to head injury caused with a heavy object. Pursuant to the memorandum statement of the appellant vide Ex. P/8, recovery of blood-stained adze was made vide Ex. P/9. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 (two times) of IPC 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 21 witnesses and brought on record 34 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 (two times) of IPC and sentenced him as aforesaid.

Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that there is no evidence available against the appellant in the entire record to convict him for the aforesaid offence and the trial Court has gravely erred in convicting him on the basis of his subsequent conduct under Section 8 of the Indian Evidence Act, 1872, as such, his conviction is liable to be set aside by allowing this appeal and setting aside the impugned judgment as only on the basis of subsequent conduct under Section 8 of the Evidence Act, conviction cannot be recorded for a serious offence punishable under Section 302 of IPC.

Per contra, Mr. Sudeep Verma, learned State counsel would support the impugned judgment and submit that the appellant rightly been convicted for the aforesaid offence as prosecution has been able to prove the offence against him beyond reasonable doubt, as such, the instant 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 would be whether the death of deceased persons Jyoti Khairwar and Ranjita Khairwar is homicidal in nature ?

Learned trial Court has answered this question in affirmative and held the death of both these girls to be homicidal in nature relying upon the expert medical opinion of Dr. Mamta Jagat (P.W.-11) who has proved postmortem reports (Ex. P/16 and P/17) in which cause of death is said to be coma induced due to head injury. Considering the postmortem reports (Ex. P/16 and P/17) as well as the statement of Dr. Mamta Jagat (P.W.-10) and looking to the injuries suffered by the deceased girls on their head and other vital parts of the body, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Jyoti Khairwar and Ranjita Khairwar is homicidal in nature. 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 the crime in question ?

There in no direct evidence available on record and the instant case is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has laid down the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence, which state as under :-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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

The first incriminating circumstance put forth by the prosecution against the appellant is the extra-judicial confession allegedly made by the appellant. The trial Court has recorded a finding that both deceased girls Jyoti Khairwar and Ranjita Khairwar along with complainant Ravina Khairwar (P.W.-1) and the appellant were sleeping after taking their meals and all of a sudden at about 4 AM, the appellant pulled complainant's hand forcefully. When she woke up, she saw that appellant was standing with adze in one hand which was stained with blood and he had already assaulted Jyoti Khairwar and Ranjita Khairwar as they were lying in an unconscious condition covered with blood. Ravina Khairwar (P.W.-1) managed to escape and after hearing her, other family members gathered and appellant confessed before them that he had killed his daughters.

The extra-judicial confession said to have been given by the appellant has not been proved beyond reasonable doubt as Ravina Khairwar (P.W.-1) has not stated in her statement before the Court that any such confession has been made by the appellant which shows that there is a huge contradiction in the statement of Ravina Khairwar (P.W.-1), otherwise, that could have been used as evidence and could have been used against the appellant as an extra-judicial confession, but Ravina Khairwar (P.W.-1) has omitted to support the case of the prosecution and the incriminating circumstance of extra-judicial confession hat not at all been established. However, the trial Court, taking cognizance of the fact, that when appellant pulled Ravina Khairwar's hand forcefully and when she woke up she saw that he was armed with blood stained adze and both of her sisters were lying injured covered with blood, proceeded to convict the appellant for the offence in question on that basis.

The second incriminating circumstance found proved by the trial Court is that pursuant to the memorandum statement of the appellant vide Ex. P/8, blood stained adze has been seized vide Ex. P/9, but surprisingly, it has not been sent for FSL in order to ascertain whether it was stained with human blood which is absolutely necessary in light of the decision rendered by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh  (2019) 7 SCC 781 wherein it 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.”

FSL report ought to have been brought on record by the prosecution to show whether the adze recovered from the possession of the appellant was stained with human blood and to ascertain the correctness of the statement made by Ravina Khairwar (P.W.-1), but for the reasons best known to the prosecution, FSL report has not been brought on record and prosecution is entirely to blame for that. As such, recovery of blood stained adze from the possession of the appellant pursuant to his memorandum statement is of no use.

The third and last circumstance that has been put forth by the prosecution and found favour by the trial Court is that when Ravina Khairwar (P.W.-1), she saw the appellant standing there holding blood-stained adze in one hand by which he had assaulted both the deceased girls Jyoti Khairwar and Ranjita Khairwar and caused their death. It has been contended by learned counsel for the respondent that it is subsequent conduct of the appellant that he was armed with blood-stained adze, therefore, he must have caused the death of his two daughters and his subsequent conduct is relevant under Section 8 of the Evidence Act.

At this stage, it would be appropriate to notice Section 8 of the Indian Evidence Act which states as under: -

“8. Motive, preparation and previous or subsequent conduct.—Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”

The Indian Evidence Act intends to make only those statements admissible which are the essential complement of acts done or refused to be done, so that the act itself or the omission to act acquires a special significance as a ground for inference with respect to the issues in the case under trial. Section 8 of the Evidence Act deals with mainly three aspects:

(1) A fact which shows or constitutes a motive for any fact in issue or relevant fact.

(2) The acts constituting preparation for any fact in issue or relevant fact.

(3) The conduct of the person either previous or subsequent to the offence.

The Supreme Court in the matter of Anant Chintaman Lagu v. The State of Bombay AIR 1960 SC 500 while considering the conduct of the accused has held that conduct which destroys the presumption of innocence can alone be considered as material and observed as under:-

“15. … A criminal trial, of course, is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. The contention of the appellant, briefly, is that the medical evidence is inconclusive, and that his conduct is explainable on hypotheses other than his guilt.”

The Supreme Court in the matter of Vikramjit Singh alias Vicky v. State of Punjab (2006) 12 SCC 306 has held that conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after commission of the offence as envisaged under Section 8 of the Indian Evidence Act. It was observed as under:-

“17. … Conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after commission of the offence as envisaged under Section 8 of the Indian Evidence Act. No such inference was drawn, nor in the fact situation obtaining herein such an inference could be drawn. Whether any obstacles were put or were not found to have been placed on road by the attackers is also a question which would be of not much significance as no such evidence was brought on record. If some persons stand on the road, the same may itself be sufficient for a driver to stop his vehicle. In any event, it does not appear that such a question was even put to the appellant in his examination under Section 313 of the Code of Criminal Procedure.”

Very recently in the matter of Subramanya v. State of Karnataka 2022 SCC Online SC 1400, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in paragraph 95 as under :-

“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

Reverting to the facts of the present case in light of Section 8 of the Evidence Act and aforesaid decisions of the Supreme Court in Anant Chintaman Lagu (supra), Vikramjit Singh alias Vicky (supra) and Subramanya (supra), it is quite vivid that only on the basis of subsequent conduct of the appellant that he was seen holding a blood stained adze in his hand immediately after the incident, the trial Court has convicted him for offence punishable under Section 302 of IPC. Admittedly, subsequent conduct is relevant fact under Section 8 of the Evidence Act, but conviction cannot be rested solely on that basis without there being any other incriminating evidence found proved against the accused. As such, the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 (two times) of the IPC as prosecution has miserably failed to prove the offence beyond reasonable doubt and neither of the three incriminating circumstances have been found proved against the appellant, as such, the conviction of the appellant for offence under Section 302 (two times) of IPC deserves to be and is hereby quashed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of the charges levelled against him. He be released forthwith, if his detention is not required in any other case.

Accordingly, this criminal appeal stands allowed.