HIOH COURT OF CHHATTISGARH AT BiLASPUR HON'BLESHRIDHIRENDRAMISHRA.& HON'BLESHRIMANI 3RAMOHANSHRIVASTAVA.JJ Crimsnal ftDDea! No. 778 of 1991 •:-'(..: (In Jaii) i'i!.[ Versus Kamal Singh The State ofMadhya Pradesh (NowChhattisgarh) IUDGMENT FOR CONStDERATiON Sd/- DHIRENDRA.MISHRA Judge HON'BLE SHR! MANINDRAMOHAN SHRIVASTAVA. J '°t'i;i' i'l;if HB IM i-'l •:1!^^] :^'i^ Sd/- Manindra Mohan Shrivastava Judge -i-srr—s^^vsv ^(\ . ::: :! . . • i POS^FORJUDGMEJNTON 11 JANlJiAR¥,20'ta Sd/- .TUT3]QTE^ (g. II^QIO S<c ^i. yi HIGHCOURTOF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, JJ Criminal Appea! No. 778 of 1991 Kamal Singh, son of Raghunath Dhakad, aged about 19 years,Student, resident of Village: Parapur, P.S. Lohandiguda, Distt. Bastar. (InJait) Versus The Stateof Madhya Pradesh (Now Chhattisgarh) Mr. Prafuli Bharat.counsel forthe appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (Deiivered on f3 January> 2010) PerDhirendra Mishra. J \ 01. This criminal appeal und^r Section 374(2) of the Code of Cnminal Procedure is directedagainst the judgment of conviction and order of sentence dated 31st July, 1991 passed in S.T.No.216/90, whejreby tearned Sessions Judge, Bastar at Jagdaipur has convictedi the appellant under Saction 3D2 ofthe IPC and sentenced him to life imprisonment for Gausing hpmicidai death of deceased Premdas. 02. Briefly statgd, case of the Iprosecution is that the appeilant and the deceased were students of Class-XII. A year before the incident| the deceased had eveteased sister of the appeilant during a Gliiama staged in Village-Lohandigyda. They had quarreled on accountipf the above incident. In the previous nightoftheincidentalso.thedecfeased and the appellant had gonBtoseeDiffsroteavandthereatsQ.lspme oral altercation took placeiana deceased Premdas had slappecf the appellant. Because of the| above ihcictent, the appellant nourished grudge with him. On 7.10.1989at about 11, the deceased was igbjng i '[ to school with PW-1 Pocxan Singh, iwhen the accused came| from behind armed with an axe. Deceasecf IPremdas tried to flee from tHere, however, he slipped and.feil dawn an^the appellant attacked himjwith anaxe. ^ •; ; . : PW-1 Pooran Sihgh i-an towards the local post qffice, wh^r^ his father Jai Singh (FW 2) wpFked. He narrated abouf ths incident Ibihis t ji f ! :1 |! -•^ father Jai Singh. Report of the incident was lodged by Ghasiram (PW 3) vide Ex.P/3. After preparing inquest over the person of the deceased, the dead body was sent for autopsy to Primary Health Centre, Lohandiguda where Dr. J.K. Verma (PW-10) conducted postmortem and gave his report of Ex.P/15.Weapon of offence - bloodstained axe and bicycle were taken into possession on being produced by the accused vide Ex.P/6 & P/7 respectively. Similariy, shirtand pant worn by the accused,stained with blood, were taken into possession vide Ex.P/16. Bloodstaihed articles were sent for chemical examination to Forensic Science Laboratory, Sagar; The FSL vide its report of Annexure P/17 opined that ampngst lother articles, axe, shirt and pant were stained with blood. However, ijeport of the serologistis not ayailablein the record. I 03. After completing investigation, charge sheet iwas filed against the accused/appellant in the Coyrt of Judicial Magistrate First Class, Jagdalpur, who, in turn, committed the case to the Court of Segsions Judge for trial, I I Learned trial Court framed charge under Section 302 of the IPC against the accused, who abjured his guilt. The prosecution ih|Qrder to establish charge againstthe accused examined 11 witnesseslin atl. Thereafter, statement of the accused was recorded under Section 313 of Gr.P.G., in which he denied the circumstances appearing against him in the prosecution lease and pleaded innocencs and [false implication.Me further stated that he has been implicated in ths said offence due to animosity as few months back, the deceaseql had eveteased his sister and he had warned him, and on ttjis, the deceased hadslapped him twice. 05. Learned trial Court, afterjhearing counsel Tor the respectiye 06. convicfed and sentencedlhe appellant as mentioned jn Para-1 judgment. • p^rties, Ofthis Homicidal death of Premdas is not in dispute. Even otherwi^ei from frieevidence of Dr. J.K. Verms? (PW-10),who cqndusted postiT)]ortem and proved his repprtof Ex.P/15, in which he foynd|followtng|ii?juries qn the person of the decsased anel opined that the deceased idied as a result of sxcessive bleeSingidtie to.above injuries and the ;deailh was • homicidal in natur®as injuries sustained by him were sufflfci^nt to cause his death in the brdinary course of nature, homicidal ^ath of 'remdas is establishecf. ti 4.! (i) (ii) 07. One incised wound 15 cm long over right side of scalp running downwards and anteriorly from perieto temporal region to angle of mandible (lower jaw) by cutting right ear, skull bone is cut at side of injury up to back of right ear (about 6 cm). One incised wound about 13 cm long over right lateral of chest deep up to thoraciccavity by cutting the adjacent muscle and lower four costal cartilage and diaphragm extending from 3 cm behind the post auxiliary border. Wound is superficiai at upper side and deep at lowerend. Blood is present. One incised wound 5 cm long and deep te the thoradc |cavity extending from lower end of medial side of left scapula and running downwards. Three ribs below iower angel of scapula arecut by injunes. . (iv) On internal examination, lower lobe of left lung was cut and thoracic cavity was full with blood and fluid. Shri Prafull Bharat, learned counsel for the appellant, argued that conviction ofthe appellant is basedon the evidence of RA/-1I Pooran Slngh. The triai Court has considered him as an eyewitness | of the incident, though from the evidence ofthis witness, it would be evident that he did not see the assault as he had fled from the place of incident. Thus, there is no eyewitness to the incident. He |further argued that recovery ofjbloodstainedclothes from the appetlElnt has been heaviiy relied upon bythetrial Curt as a cprroboratory eyi|dence, whereas there is no evidence that the appellant was wearing the aforesaid ciothes at the time of incident and there is no scientific evidence that it contained human blood and that too, of thd blood group ofthe deceased, therefore.the same cannot be consi,d^red to be an incriminating evidence againstthe appellant. 08. Reliance is placed on the judgments in the matters of| Birdhichand Sarda Vs-iState ofMaharashtra , BaiuSonba Vs. State o/MaAarash&'a2 and K. SukumaranVs.State ofK^rala On the other hand, impugned judgment. 'AIR 1984 SC 1622 2:2002 Cri.L.I. 4650 '(2000) 10 SCC 365 • •• te^rned counsel for the State supported the Shinde .3 ^ > -J.. 10. We have heard tearned counsel for the respective parties and perused the material available on record as also the impugned judgment. 11. The trial Court has convicted the appellant relying upon the evidence ofPW-1 Pooran Singh. The triat Court has further observed that from the uncontroverted evidence of Pooran Singh, it is established that there was animosity between the appellant and the deceased due to quarrel and marpeet on account of eveteasing the sister of the appellant by the deceased. On the date and time of incident, the deceased tried to flee on seeing the accused armed With axe. However, the deceased, white running away, slipped and fell ori the ground. The accused chased him and thereafter.raised axe for assautting the deceased. The above- evidence has not been controverted in his cross-examination.PW-1 Pooran Singh and PW-2 Jai Singh are independent and impartial witnesses. There is no material omission or contradiction in their evidence. The seizure of weapon of offence - axe(Ex,P/6) and shirt & pantfrom the aceUsed (Ex.P/16) has been duly proved by PW-5 Sudu, PW-9 Suryapal Singh- HeadConstable and PW-11 R.P. Singh-Sub Inspector. The|Aove seizedarticles were found to be stained with blood by the report of FSL vide Ex.P/17. Though the prosecution has failed to provfe the origin and nature ofthe blood, however, this evidence is admissible as corroboratory piece ofevidence, and conviction is not based only on recovery of above bloodstained articles. 12. PW-1 Pooran Singh has dteposed thatthe appellant and the dec^ased were students of his school. The appellant was his class fellow^ On the date and time of incident,the deceased while going to sohool, informed him that in the night, he had quarrel with the acGUsed. However, he (deceased) did nottel] himanyreason,forthequarr^l. At thattime, the appsllant catne from behind armed withaxeand]s|eeing him, the deceased fied from there. The accused chased hjra, the deceased slipped and fell down and the aecused raised his sx®for assaulting. Thereafter, h® (Pooran Singh) fled from thecq and therefore, he could not see as to how many axe blows the ap^ellant gave to the deceased. l-1e narrateei about the incident to his father in 11 the post office and wentfei sclwol. Thiswitness wascross-ex^inined T : ;'... ;.^: :.; . ' .:;1 ' . . • ..- • I 'l.i ; by the prosecution aftei'declarlhg him hostile. However, this^tness; stuck to his ®caiDinatiorj-in-chief;jIn the cross-examinatiQn i t^y the | defenceialso, tlits witn^ss Stuck to his examination-in-chi^ The| ^. version of this witness is substantially corroborated from the evidence of his father Jai Singh (FW-2). This witness has also been cross- examined by the prosecution after deotaring him hostile, however, the prosecution could not extract anything more from this witness. 13. PW-3 Ghasiram has lodged the FIR of Ex.P/3 as he found the dead body of the deceased lying on the spot. PW-5 Sudu is a witness of seizure memos of Ex.P/6 & P/7 whereby bloodstained weapon of offence - axe and bicycle were taken into possession on being produced by the appellant. PW-6 Jainath is a witness of the earlier incident of quarrel between the appellant and the deceased on account of eveteasing in a drama staged in their village Lohandiguda. He is also a witness 6f the incident of previous night when the deceased slapped the appellant twice. PW-9 Suryapal Smgh-Head Constable has also proved the ddcuments of Ex.P/6 & P/7, whereby bloodstained weapon - axe and bicycte were seized on| being produced by the appellant, PW-11 R.P. Singh-Sub Inspector has deposed that on 8.10.1989 he seized bloodstained full pant and shirt fromtheappellantvideseizurememoofEx.P/16. | 14. In Sharacf Birdhichand Sarda , the Hon'ble Supreme Court has underiined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 asunder: ' "152. Acloseanalysisofthisdecisionwoi./ldshawthat} ihe following condiffons musi be fulfilled befbfe acase] agatnst an accused can be sakl to be fully establisheS: I [ (1) the circiimstances from which fhe conclusion of\ guiltistobedrawnshoiridbefullyestabSshed. | ! St may be noted here that this^Court indicated that fhfe| circumstances concemed 'must or slmuld' and not 'may, be' established. There is not only a grammaScal but a| legai distinction beiween 'maybeproved' arx! 'must be on stiouV be proved'\as was lield by this Coiirt in Shivaii1, SalTebraoBobadeiVs.StateafMaharashtra, (1973) 2] SCC 793 ; (AIR 1973 SC 2622} whefe the foltowing\ obsefvationswefemade: H "certainly, jtls apftmary piincipte thatthe accused must\ be and not merely may be guilty betore a \CQurt ean, conyict and the mi^ntal distance between 'may ibe' a^| must be'is teng ariidcSyides vague corgecturesfrom sw^\ conclusions." I 1 (2) the facts sa established sh^l befconsistei^\ only with^the hypstl'iesis o|)|p7e guili of t^e\ A t? ^.. 15. accused, that is to say, they should not be explainabie on any other hypothesis except that ffi?e accused/s guilty. (3) the circumstances slwukl be of a conclusive nature and tendency. (4) they should exciude every possibie hypothesis except the one tobe pmved, and (5) there must be a chain of evidence so compSete as not to leave any reasonable ground for the conclusion consistent vi/ith the innocence of the acwsed and must shaw that in al! human probability the act must have been ctone by the accused." in Baiu Sonba Shinde , there were some differences between the deceased and the accused, who were rea! brothers, over some fsmily property. However, thesame was subsequently; resolved and a deed of partition was entered into between them. Shankar was fencing his portion of iand in pursuance of the deed when he was brutally axed by his brother Balu. The prosecution case was based on the evidence of two witnesses; one of them was a'eclared hostile. The trial pourt placing strong reliance on the evidence of PW-4 Dharu convicted the accused under Section 302 of IPC. The High Court also dismissed the appeal. The Hon'ble Supreme Court dealt with the evidence of PW-4 Dharu in great detail, who deposed that while he was goingto his|fieid on the fateful day, he saw (he appellant and the deceased involved in hot exchange of words, headvisedthem not to fight and proceedsd towards his field, and by the time he had advanced barely 30-40 feet, he heard wailing of Baby (PW-5) and on return, he found Shankar in grossly injured condition. However, he was siient about Baby (PW-5) as also about the assailant brother as he did not state anything|about the whereabouts of both of them. In these circumstances, it has been observed that the deponent did not seethe actual axe-hit, n^ither could he see the accused from behind - the vision obviously befiame totally blurred otherwise there was no earthlychance of missing iboth the accused person and RW-5. Though Gorakh was present but he was not called to give evidence. in these circumstances, evidence of the above witness was notaccepted. 16. In K. Sukumaran3, the appellant was conyicted on the b^is of circumstantial eyidence, as detailed ih Parai'1 of the cited judgrhent. Al % ..--/, 1 Circumstance No.10 was that the same group of blood was found on MOs 5 and 6,the clothes ofthe deceased (sfc accused) and MOs 8 and 9, the clothes worn by the deceased at the time of her death. It was argued on behalf of the State that even if the disciosure statement of the accused was r.ejected by the Courts below, the fact that the blood group found on the clothes of the deceased was same as that in the clothes of the accused, establishes the seizure. Rejecting the above argument of the State, it was held that since there is no evidence on record that the appellant was wearing the same clothes on the date and time of the incident, the seizure of clothes from the accused containing the same blood group as that in the clothes of the deceased, is immateria! and inconsequential. , i 17. In the instant case, as already obsen/ed by the trial Courf and reproduced in the foregoing paragraphs, it is evident that there was animosity between the appellant and the deceased and quarre! between them in the previous night ofthe incidentwhen the deceased slapped the appeliant. From the evidence of PW-1 Pooran |Singh, which is substantially corroborated from the evidence of his falihfer Jai Singh (PW-2), it is further proved that while the deceasedi was narrating about the incident of previous night toPooran Singh,, ^t that juncture, the appellant armed with a deadly weapon axe came|there from behind, and seeing him, the deceased tried to flee away, however, he feil on the ground. PW-1 PooranSingh has categol'icaily stated that thereafEer, the appeliant raised his axe for assaultirig the decsased and only thereafter, he fled from the place of occut^ence and therefore, couid not witness as to hbw many axe blowp the appeiianf gave to the deceased. Report of the incident was lodged by PW-3 Ghasiram and thereafter, the dead body was found frpm the pIace,wheretheincidentoccurredaccordingtoPW-1. ] From close scrutiny of the entire evidence available onlrecord, we are of the opinion that the trial Court was wholly justifjed in observing in Para-25 of its judgment that normally the burden bf proof lies upon the prosecutidn in criminal cases. However, whei|e the accused fails to offer any explanation with respect to the facfe and cireumstances established, and proved by the prosecution\ tjaising .strong probabilitiesagainst the accused, conviction can be ba^ed on such evidence. ' , K i,, . ^. ^"•^ 18. The facts of Balu Sonba Shinde , are distinguishable from the facts of the presentcase. In the said case.the evidence of PW-4 Dharu was not aceepted pn certain grounds and therefore, benefit of doubt was extended to the appeliant, whereas, in the instant case, the evidence of PW-1 Pooran Singh is free from any blemish and inspires confidence. 19. Similarly, in Ku Sukumaran , the conviction was based only on the seizure of bloodstained clothes from the accused, and the prosecution case that recovery was made at the instance of the accused was held to be not proved; However, in the present case, the appellant has not disputed the recovery of bloodstained cfothes by PW-11 R.P. Silngh vide Ex.P/16 and the same were found stained with blood. Moreower, conviction ofthe appellantis not based solelyon this evidence and the trial Court has considered the above evidence onlyas a Corroboratclry evidence against the appellant. • I 20. For the aforesaid reasons, we are of the opinion that finding of the itrlai Court is based on proper appreeiation of the evidence avai|able ion record and there is no illegality or infirmity in the impugnedjudgrttent 21. In the result.-the appeal faHS. Judgment of the.trial Court convictihg and sentencing the appel!ant:under Section 302 of IPCis upheld. The appellant is on bail, therefore, his bail bonds are canceiled and he|is directed to be taken into custodyforthwith to undergo thesentenpe imposed on him. 1 Sd/- DHIBENDRA .MBHRA Judge Sd/- Manindra Mohan Shrivastava Judge