Chattisgarh High Court

In Reference Of State Of Chhattisgarh vs Sohit Kumar Kenwat on 8 September, 2023

Author:
Ramesh Sinha

Bench:
Ramesh Sinha

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Reference No.1 of 2022

Judgment reserved on: 11-8-2023

Judgment delivered on: 08-9-2023

In Reference of State of Chhattisgarh, Through Police Station Shivrinarayan,
District Janjgir Champa, Chhattisgarh
---- Applicant

Versus

1. Sohit Kumar Kenwat, S/o Dukaluram Kenwat, R/o Village Tusma,
Thana Shivrinarayan, District Jangir Champa, Chhattisgarh

2. Sunil Kenwat, S/o Mohanlal Kenwat, R/o Village Tusma, Thana
Shivrinarayan, District Janjgir Champa, Chhattisgarh
---- Non-applicants

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For Applicant/State: -

Mrs. Madhunisha Singh, Deputy Advocate General.
For Non-applicants: -

Ms. Swati Verma, counsel for non-applicant No. 1.
Mr. Ravindra Sharma, counsel for non-applicant No. 2.

Criminal Appeal No.1625 of 2022

Sunil Kewat, S/o Mohanlal Kewat @ Mahadev, Aged about - 23 years, R/o
Village - Tusma, P.S. Shivrinarayan, Distt- Janjgir-Champa (C.G.)

---- Appellant

Versus

State of Chhattisgarh,Through - S.H.O. Shivrinarayan, Dist - Janjgir-
Champa (C.G.)

---- Respondent

-----------------------------------------------------------------------------------------------------
For Appellant: Mr. Ravindra Sharma, Advocate.
For Respondent/State: -

Mrs. Madhunisha Singh, Dy. Advocate General.

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Criminal Appeal No.1864 of 2022

Sohit Kumar Kewat, S/o Dukaluram Kewat, aged about 28 years: R/o Village
Tusma; Police Station - Shivrinarayan; District - Janjgir-Champa (C.G.)

---- Appellant

Versus

State of Chhattisgarh,Through - S.H.O. Shivrinarayan, Dist - Janjgir-
Champa (C.G.)

---- Respondent

-----------------------------------------------------------------------------------------------------
For Appellant: Mr. Vineet Kumar Pandey & Mr. Sumit Jhawar, Advocate.
For Respondent/State: -

Mrs. Madhunisha Singh, Dy. Advocate General.

-----------------------------------------------------------------------------------------------------

Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri N.K. Chandravanshi, Judge

C.A.V. Judgment

Per N.K. Chandravanshi, Judge : -

1. Both the criminal appeals i.e. CRA No. 1625 of 2022 & CRA No. 1864

of 2022 have been preferred by the appellants/accused persons,

respectively, as they have been awarded with death sentence by 1 st

Additional Sessions Judge, Janjgir, District Janjgir-Champa in Sessions trial

No. 17 /2022 vide impugned judgment dated 19 th September, 2022 after

having found them guilty for offence punishable under Section 302 read with

Section 34
of the IPC and also sentenced to fine of Rs.50,000/- each. They

have been sentenced to death by hanging under sub-section (5) of
Section
of the Code of Criminal Procedure, 1973, (for short, the
Cr.P.C
.) .

Conviction and sentence imposed upon the appellants are as follows:-

Conviction Sentence

Section 302
of the IPC Death sentence and fine of
₹ 50,000/- each. They be hanged
by the neck till they died, subject to
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the confirmation of Hon'ble High
Court.

2. The learned 1st Additional Sessions Judge, Janjgir, District Janjgir-

Champa in exercise of power conferred under Rule 273 (b) of the Rules and

Orders (Criminal) and
Section 366
of the Cr.P.C. after passing the sentence

of death, submitted the proceedings to this Court for its confirmation and this

is how this death reference is before us for consideration along with the

appeal preferred by the two accused / appellants herein being CR. A. No.

1625 of 2022 & Cr. A. No. 1864 of 2022, respectively.

3. The case of the prosecution, in nutshell, is that on 20.11.2021 at about

10.00 AM, complainant Premlal Sahu, while working in his field, received a

telephonic call from Gopi Chand Sahu (PW-3) that Sohit Kumar Kewat and

Sunil Kumar Kewat (both the appellants herein) are assaulting his son

Bhagwat Sahu by means of katta (sharp edged weapon, generally used for

cutting trees) on his head and neck. After receiving aforesaid information, he

immediately rushed to the spot, where he saw that infront of house of

Ramjag Sahu (PW-2), near an electric poll his son Bhagwat Sahu (since

deceased) was lying dead in pool of blood and he has sustained injuries on

his head and neck by sharp edged weapon. Gopi Chand Sahu (PW-3) was

also present there and he again told him that both the appellants have

committed murder of deceased by chopping his neck by means of sharp

edged weapon (Katta).

3.1 Sarpanch - Kamal @ Komal Prasad Patel (PW-10) informed about the

incident at Police Station - Shivrinarayan, Inspector - Ravindra Kumar

Anant (PW-13) immediately reached to the spot, where on being information
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given by complainant Prem Lal Sahu (PW-1), lodged Dehati Merg Intimation

(Ex.P-1) and Dehati Nalishi (Ex.P-2). He also lodged FIR (Ex.P-6). He

prepared spot map (Ex. P-3) and inquest report (Ex.P-5). Dead body was

sent for post mortem at Shivri Narayan, District Janjgir-Champa. The post-

mortem was conducted by Dr. Anvita Dhruw (PW-05) and gave her report

vide Ex.P-16, in which, she opined that cause of death was excessive

haemorrhage due to cutting of neck and major blood vessels and nature of

injuries is homicidal.

3.2 During course of investigation, memorandum statements of both the

appellants were recorded. Blood stained articles and clothes were seized

from them. Spot map was also got prepared from concerned Patwari. After

incident, the appellants had recorded their version about the causing

incident and they also viral it through social media, it also received by

Gopichand Sahu (PW-3), hence, that viral video was retrieved in a Compact

Dist ('CD') and the same was seized vide seizure memo Ex. P-12 from Gopi

Chand Sahu (PW-3). He also give Certificate (Ex.P-11) in this regard to

Police. The Incident was recorded through CCTV camera situated in the

house of Dev Prasad Sahu (PW-12), which was also got retrieved by the

police in the Pen Drive with the help of Vikki Kaiwart (PW-4) and the said

pen drive was seized vide Ex.P-14 from Dev Prasad Sahu (PW-12).

Certificate (Ex.P-15) was also received from Vikki Kaiwart (PW-4). On the

basis of memorandum statement of appellant - Sohit (Ex.P-20), one sharp

edged weapon (Katta), his blood stained cloths and mobile were seized vide

seizure memo (Ex.P-17), whereas, on the basis of memorandum statement

of appellant Sunil (Ex.P-19), one electronic tester, knife, blood stained cloths
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and one mobile were seized vide Ex.P-18 from him. Blood stained clothes of

deceased was also seized vide Ex.P-25 from constable, seized mobile and

compact disk (CD) was sent to the Cyber Forensic Lab, Police Headquarter,

Raipur. Vide Investigation report (Ex.P-27), concerned officer of Cyber

Forensic Lab informed that seized mobile (Article 'A') contains facility of

recording and it also contained Data, which has been retrieved in compact

disk (Article 'B'). In this regard, concerned Investigating Officer also gave

Certificate under
Section 65
-B of the Evidence Act. Seized articles were

sent for chemical examination and received chemical report vide (Ex.P-29).

After usual investigation, charge-sheet under
Section 302
read with
Section
of the IPC was filed in the Court of Judicial Magistrate First Class,

Pamgarh, District Janjgir-Champa , who in turn, committed the case to the

Sessions Judge, thereafter, the case was transferred to First Additional

Sessions Judge, Janjgir, District Janjgir-Champa for trial.

3.3 Charges under
Section 302
read with
Section 34
of the IPC was

framed and explained to the appellants, who abjured guilt and entered into

defence.

4. In support of its case, prosecution has examined as many as 13

following witnesses: -

Name of witness Serial number
of witness

Premlal Sahu PW-1

Ramjag Sahu PW-2

Gopichand Sahu PW-3

Vikki Kaiwart PW-4
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Dr. Anvita Dhruw PW-5

Chitrahan Sahu PW-6

Ganesh Ram Patel PW-7

Rajendra PW-8

Gajendra Kumar PW-9
Sahu

Kamal @ Komal PW-10
Prasad Patel

Dhannuram Sahu PW-11

Devprasad Sahu PW-12

Ravindra Kumar PW-13
Anant

5. Beside the aforesaid ocular evidence, prosecution has exhibited the

following documents and articles in its evidence :-

Type of document Exhibit or Article
number

Dehati marg Ex.P-1
intimation

Dehati nalishi Ex.P-2

Roght site-plan Ex.P-3

Notice for naksa Ex.P-4
panchayatnama

Naksa Ex.P-5
panchayatnama
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FIR Ex.P-6

Letter for giving Ex.P-7
dead body

Police statement of Ex.P-8
witness Ramjag

Seizure memo Ex.P-9

Patwari naksa Ex.P-10

Certificate under Ex.P-11

Section 65
of
Evidence Act

Seizure memo of Ex.P-12
compact disc (in
short CD)

Notice Ex.P-13

Seizure memo of Ex,P-14
Pen Drive

Certificate under Ex.P-15

Section 65
of
Evidence Act

Postmortem Ex.P-16
Report

Seizure memo Ex.P-17
about weapon,
cloths and Oppo
mobile phone with
sim No.
7804984856 from
accused Sunil

Seizure memo Ex.P-18
about weapon,
cloths and Oppo
mobile phone with
sim No.
9669598360 from
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accused Sohit

Discloser Ex.P-19
statement of
accused Sunil
Kewat

Discloser Ex.P-20
statement of
accused Sohit
Kewat

Notice for giving Ex.P-21
CCTV footage

Duty Certificate Ex.P-23

Letter to Tahsildar Ex. P-24

Seizure Memo Ex.P-25

Letter to FSL Ex.P-26

FSL report Ex.P-27

Letter to SP Ex.P-28

FSL Report Ex.P-29

Arrest memo of Ex.P-30
accused Sohit

Arrest memo of Ex.P-31
accused Sunil

Intimation of arrest Ex.P-32 and
to their family Ex.P-33
members

Pen drive Article A 1
regarding
occurrence

Compact disc Article A 2
regarding
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occurrence

Mobile phone of Article A 3
accused Sunil

Katta
Article 4

Weapons
Article 5

& 6

Mobile phone of
Article 7

accused Sohit

6. After prosecution evidence, statement of accused persons were

recorded under
Section 313
of Cr.P.C., in which, they pleaded their

innocence and false implication. Apart from that, they have not

examined any defence witness on their behalf. They have exhibited

four documents i.e. application written by police for postmortem of the

deceased (Ex.D-1), Rojnamchasanha (Ex.D-2). Subsequently police

statement recorded 161
Cr.P.C
. of Gajendra and Gopichand Sahu has

also been marked as Ex. D-1 & D-2.

7. The trial Court after appreciating oral and documentary

evidence on record, vide its impugned judgement convicted the

appellant under Sections 302 read with
Section 34
of the IPC and

awarded death sentence, as mentioned in the opening paragraph of

this judgment and further, made reference to this Court for

confirmation of death sentence awarded to the appellants/accused.

8. The learned trial Court in order to convict the appellants herein

has found proved the following facts: -

➢ There are five eye witnesses to the incident namely Ramjag
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Sahu (PW-2), Gopi Chand Sahu (PW-3), Ganesh Ram Patel

(PW-7), Rajendra (PW-8) and Gajendra Kumar Sahu (PW-9),

who have seen the appellants assaulting deceased Bhagwat

Sahu by means of sharp edged weapon (Katta) and even when

Gopi Chand Sahu (PW-3) & Gajendra Kumar Sahu (PW-9) tried

to intervene, then appellants also run towards them to kill them.

➢ After commission of incident, appellants recorded their versions

about causing / committing murder of Bhagwat Sahu in mobile

phone of appellant - Sunil and they themselves viral it through

social media, which was received also by Gopi Chand Sahu

(PW-3) in his mobile and that mobile video was retrieved from

mobile of Gopi Chand Sahu (PW-3), which has been proved by

the prosecution.

➢ Incident was recorded in CCTV camera situated in the house of

Dev Prasad Sahu (PW-12) and its footage was retrieved in pen

drive, which has also been proved by the prosecution and both

the videos i.e. retrieved in CD (Article A-2) and Pen drive (Article

A-1) also proved that murder of Bhagwat Sahu by both the

appellants.

➢ Articles i.e. blood stained clothes seized from both the

appellants, sharp edged weapon seized from appellant Sohit

and electric tester & knife seized from Sunil are containing blood

stained.

➢ Appellants have committed crime in a most cruel and inhuman
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manner, which is an extremely brutal, grotesque, diabolical,

revolting and dastardly manner, where their act affects the entire

fibre of the Society, therefore, crime committed by accused

persons is in the category of 'the rarest of rare case'.

9. Feeling aggrieved with the impugned judgment of conviction &

order of sentence awarded to the appellants, they have preferred

Criminal Appeal Nos. 1625 of 2022 & 1864 of 2022, respectively under

Section 374(2)
of the CrPC challenging their conviction for the

aforesaid offences, particularly against the capital punishment

awarded to them. However, the learned Additional Sessions Judge in

compliance with the provisions contained in
Section 366(1)
of the

CrPC, submitted the sentence of death to this Court for confirmation

and this is how the appellants alongwith reference have been clubbed

together, heard together and are being disposed of by this common

judgment.

10. Mr. Ravindra Sharma, Mr. Vineek Kumar Pandey & Mr. Sumit

Jhanwar, learned counsel appearing for the accused/appellants would

submit that deceased in the instant case is Bhagwat Sahu and all the

substantive witnesses including eye-witnesses in the instant case, are

relative of deceased, as they are of same caste "lkgw", therefore, it

cannot be ruled out that alleged eye-witnesses are concocted. He

would further submit that appellants have been falsely implicated in

the case only because there was some dispute between the

appellants and the deceased with regard to sale consideration of the

land, which was allegedly sold through the deceased. It is further
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submitted that alleged video footage collected from mobile of

Gopichand Sahu and CCTV camera situated in the house of Dev

Prasad Sahu (PW-12) are also concocted. Alleged CCTV footage was

not reliable, as there was difference of time of incident and time

recorded in CCTV footage. They would further submit that the

prosecution has failed to prove that alleged articles seized from the

appellants are contained human blood, only finding blood in articles

cannot prove that, it was of deceased person or any particular person.

Further, there are various discrepancies in the evidence adduced by

the prosecution particularly with regard to number of injuries inflicted

to the deceased in an occular and medical evidence adduced by the

prosecution, Hence, it is prayed that appeals may be allowed and

relief, as sought for, may be granted to the appellants. Both the

learned counsel appearing for the appellants would further submit

that, for the sake of argument if it is found that appellants have

committed alleged crime, despite that it is a case of single murder

only, that too, as per prosecution itself appellants, being poor villages,

sold their land through deceased but the sale consideration was not

given to them, hence, considering the fact situation of the case and

law laid down by the Apex Court, it cannot be said that it is a case of

"rarest of rare" but learned trial Court being over-sensitive has

awarded capital punishment, without affording opportunity of hearing

to the appellants to adduce evidence on the question of sentence,

particularly, in respect of rehabilitation and reformation of the accused

and the State has also not proved such facts against the appellants,
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therefore, capital punishment awarded to the appellants is liable to be

commuted to life sentence, in case, this Court comes to the

conclusion and records finding that offence under
Section 302
of IPC

established beyond doubt by the prosecution, as such, the reference

be rejected and appeals be allowed by setting aside impugned

jugdment of the trial Court convicting the appellants under
Section 302

of the IPC and sentencing them with capital punishment, as stated

above.

11. Per contra, Mrs. Madhunisha Singh, learned Deputy Advocate

General for the State would submit that case of the prosecution is fully

rest on the deposition of five eye-witnesses to the incident, who have

unequivocally supported the case of the prosecution. It is further

submitted that although some of the eye-witnesses are belonging to

the caste of deceased, but only on that ground, their deposition cannot

be discarded. Further after commission of crime, appellants had

recorded their versions in the mobile phone of appellant - Sunil, and

they themselves viral it through social media, which was retrieved

from the mobile phone of Gopi Chand Sahu (PW-3) and live incident

was also recorded in the CCTV camera situated in the house of Dev

Prasad Sahu (PW-12), which was retrieved in Pen Drive and both

footages were seen in the court during trial in presence of

Investigating Officer, accused persons and their counsels, which has

been discussed in detail by the learned trial Court, likewise, blood

stained clothes and weapons were also seized from appellants, which

has been proved by the prosecution. Thus, aforesaid electronic
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evidence and FSL report also support the deposition of eye-witnesses

that appellants are the persons, who committed murder of deceased -

Bhawgwat Sahu, hence, it is prayed that impugned judgment passed

by the trial Court is well merited, which does not call for any

interference of this Court.

12 . We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through the

record of the trial Court thoroughly and extensively.

13. Instant case of the prosecution rests in three sets of evidence;

firstly eye-witness account, secondly circumstantial evidence i.e.

seizure of blood stained weapons and clothes from the appellants at

the behest of their memorandum statement; thirdly Electronic

Evidence.

14. Learned trial Court has held in the impugned judgment that

prosecution has proved those evidence against the appellants and

relying on the same has convicted them.

15. Prem Lal Sahu (PW-1), who is father of deceased - Bhagwat

Sahu, has deposed in his court statement that after receiving

information over phone from Gopi Chand Sahu (PW-3) that the

appellants are assaulting his son Bhagwat Sahu by means of sharp

edged weapon (Katta)on his head and neck, he immediately rush to

the spot where he saw the dead body of his son. He has also proved

that he lodged un-numbered merg report (Ex.P-1), Dehati Nalishi

(Ex.P-2) and FIR (Ex.P-6), which are well supported by Ravindra

Kumar Anant (PW-13), who recorded aforesaid documents.
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16. Ravindra Kumar Anant (PW-13), who is the Investigating Officer

of the case, has proved in his deposition that after preparation of

inquest request (Ex.P-5), he sent dead body of deceased for

postmortem to CHC, Shivrinarayan where Dr. Anvita Dhruw (PW-5)

conducted postmortem over dead body of the deceased. As per

postmortem report (Ex.P-16), which has been proved by Dr. Anvita

Dhruw (PW-5), she has found following injuries on the person of the

deceased :-

(i) An incised wound measuring 15 x 3 inches cutting

the neck, only 4 inches of neck was remained intact.

(ii) An incised wound measuring 4 x1 inches over right

clavicular region.

(iii) An incised wound measuring 7 x 1 inches below

clavicular region.

(iv) An incised wound measuring 7 X1 inches over

right side of the chest.

(iv) An incised wound measuring 12 x 5 inches from

left chin to left external pinna.

(v) Bandage over left foot, found old healed abrasion.

17. Thus, the postmortem report (Ex.P-16) itself shows that neck of

the deceased was almost chopped and only left 4 inches was

remained intact. Dr. Anvita Dhruw (PW-5) has further opined that

cause of death was excessive haemorrhage due to cutting of neck

and major blood vessels of neck, she has also opined that nature of
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death is homicidal. The manner in which, almost whole neck of

deceased was chopped brutally and Doctor has opined that nature of

death of deceased is homicidal, we are of the considered view that

learned trial Court has rightly held proved that death of deceased

Bhhagwat Sahu is homicidal, hence, we affirmed the aforesaid finding

of fact recorded by the trial Court.

18. Now, the next question for consideration would be whether the

accused-appellants herein are the perpetrator of causing homicidal

death of deceased ?

19. In this regard, as has been stated above that case of the

prosecution rests in three sets of evidence i.e. direct evidence of eye-

witnesses, circumstantial evidence i.e. memorandum and seizure of

blood stained clothes & weapons, and electronic evidence.

Direct evidence / Eye-witnesses account

20. Ramjag Sahu (PW-2), Gopichand Sahu (PW-3), Ganesh Ram

Patel (PW-7), Rajendra (PW-8) & Ganendra Kumar Sahu (PW-09) are

the eye-witnesses to the incident.

21. Ramjag Sahu (PW2) has deposed in his court statement that

when he came from Raipur to his house, then he saw that in-front of

his house, appellants assaulting deceased Bhgawat Sahu. He has

also stated that appellant Sohit was assaulting upon the deceased by

means of Katta (sharp edged weapon). He has also stated that when

Gajendra Kumar Sahu (PW-9) and Gopi Chand Sahu (PW-3) went

there and tried to intervene, then appellants also run towards them to
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assault them. Hence, they run away. In cross-examination, although

he has admitted that at the time of incident, he was not knowing the

appellants by their names, but this could not be a ground to discard

his whole statement, rather suggestion taken from him in

paragraph 6 that after assaulting neck of deceased by Katta, he fell

down, which this witness has admitted. This fact also corroborates his

deposition that he was present on the spot and has seen the incident.

22. Gopi Chand Sahu (PW-3) & Gajendra Kumar Sahu (PW-9) have

stated in their deposition recorded before the trial Court that at the

time of incident, there was corona vaccination programme was going

on, in the Government School, hence, they were sitting there and the

deceased was also present there. Gopichand Sahu (PW-3) has stated

that on being received phone call, deceased - Bhagwat Sahu went

from there and after sometime, they listen scream and they went

there, then they saw that appellants were assaulting the deceased. He

has also stated that appellant - Sohit was assaulting the deceased by

sharp edged weapon (Katta) whereas appellant Sunil was holding the

deceased and when they tried to intervene, the appellants tried to

assault also to them, hence, they run away from the spot.

23. Ganesh Ram Patel (PW-7) has also stated in his deposition

that he alongwith deceased and various other persons were present in

the Vaccination Centre, deceased went from there and after

sometime, after hearing scream, he saw that appellants are assaulting

the deceased by means of katta & screw-driver.
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24. Rajendra (PW-8), who is also eye-witness to the incident, has

stated in his deposition that after listening scream, when he went

behind his house, then, he saw that both the appellants were

assaulting the deceased. He has also stated that appellant - Sohit

was assaulting the deceased by katta (sharp edged weapon) on his

neck whereas appellant Sunil was holding his both the hands. He has

also stated that, at that time appellant Sohit Kewat was asking Sunil

Kenwat that "ejhl /ku ugh js (vFkkZr~ ejk ;k ugha/ died or not)". He has also

stated that Ramjag Sahu (PW-2) was also witnessing from the gate of

his house. He has denied the suggestion that appellants had

assaulted 30-40 times, but he has stated that he has seen only 2 - 3

assaults. The manner in which, this witness has cross-examined does

not rebut his statements made in examination-in-chief that he is the

eye-witness to the incident, rather he has further stated in cross-

examination that after committing murder of deceased, appellants

climbed over the water tank, from where the police bring them down,

which has also been corroborated by Investigating Officer Ravindra

Kumar Anant (PW-13) in para 4 of this deposition.

25. Thus, aforesaid eye-witnesses to the incident have clearly

stated that the appellants are the persons, who assaulted the

deceased by means of katta (sharp edged weapon) and in that

incident, appellant Sohit chopped the neck of deceased by means of

katta and appellant Sunil also played active role in commission of

alleged murder by assaulting and holding the deceased.
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26. Although, there are some discrepancies in the statements of the

eye witnesses particularly with regard to the factum and manner of

assault and at that time appellant Sunil was holding his (deceased)

hands or not ? But, the trial Court has rightly considered this aspect in

paragraphs 27 & 28 of its judgment that presence of all the eye-

witnesses on the spot and witnessing the commission of crime by

accused persons is not under dispute as they have not challenged

their presence on the spot and witnessing the commission of crime

either by cross-examination or by putting any suggestion during their

respective cross-examination. Learned trial Court has also rightly held

that different witnesses may watch the occurrence at different point of

time, when accused persons are in different role and when appellant

Sunil might had assaulting the deceased at one point of time and

holding his hand at different point of time and standing at different

time, which was seen by eye-witnesses in different point of times,

therefore, alleged contradictions cannot be termed as vital to discard

deposition of eye witnesses.

27. Learned counsel appearing for the appellants argued that

deceased and most of the eye witnesses to the incident are of a

person of same caste, hence, they are concocted and, as such, their

evidence is not reliable.

28. It is well settled principle of law that evidence of a "related

witnesses" cannot be discarded only on the ground of relationship.
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29. The Supreme Court in the case of
Rupinder Singh Sandhu

Vs. State of Punjab and others
reported in (2018) 16 SCC 475 has

held as under :-

"50. The fact that Pws 3 and 4 are related to the

deceased Gurnam Singh is not in dispute. The

existence of such relationship by itself does not

render the evidence of Pws 3 and 4 untrustworthy.

This Court has repeatedly held so and also held that

the related witnesses are less likely to implicate

innocent persons exonerating the real culprits."

30. The Supreme Court in case of
Shamim v. State (Government of

NCT of Delhi
), reported in (2018) 10 SCC 509 has held as under :-

"9. In a criminal trial, normally the evidence of the

wife, husband, son or daughter of the deceased, is

given great weightage on the principle that there is

no reason for them not to speak the truth and shield

the real culprit........."

31. The Supreme Court in case of
Rizan and another v. State of

Chhattisgarh
through the Chief Secretary, Govt. of

Chhattisgarh , Raipur, Chhattisgarh reported in (2003) 2 SCC 661

has held as under :-

"6. We shall first deal with the contention regarding

interestedness of the witnesses for furthering

prosecution version. Relationship is not a factor to affect

credibility of a witness. It is more often than not that a
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relation would not conceal actual culprit and make

allegations against an innocent person. Foundation has

to be laid if plea of false implication is made......"

32. In the instant case, although some of eye witnesses to the incident

are of the same caste of deceased but Ganesh Ram Patel (PW-7) &

Rajendra (PW-8) are not of the caste of deceased. Further, only

because of having same caste, statements of the eye- witnesses

cannot be discarded assuming therein that they are "related

witnesses". If it is supposed for the sake of argument, then question

arise that as to why "related witnesses" would spare the real culprit in

order to falsly implicate some innocent person ? Further, there is

difference between "related witnesses" and "interested witnesses".

"Interested witness" is a witness, who is vitally interested in conviction

of a person due to previous enmity.

33. "An Interest witness" has been defined by the Supreme Court in

the case of
Mohd. Rojali Ali and others Vs. State of Assam ,

Ministry of Home Affairs Through Secretary
reported in (2019) 19

SCC 567 and held as under:-

"10. As regards the contention that all the eye-

witnesses are close relatives of the deceased, it is

by now well settled that a related witness cannot be

said to be an 'interested' witness merely by virtue of

being a relative of the victim. This Court has

elucidated the difference between 'interested' and

'related' witnesses in a plethora of cases, stating
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that a witness may be called interested only when

he or she derives some benefit from the result of a

litigation, which in the context of a criminal case

would mean that the witness has a direct or indirect

interest in seeing the accused punished due to

prior enmity or other reasons, and thus has a

motive to falsely implicate the accused ......"

34. This difference has further been reiterated by the Apex Court in

the case of Ganpati v. State of Tamilnadu 1 by referring to 3-judges

bench decision in
State of Rajasthan vs. Kalki
2.

35. As has been stated above that in the instant case some of the

eye-witnesses namely Ramjag Sahu (PW-2), Gopi Chand Sahu (PW-3)

& Gajendra Kumar Sahu (PW-9) belonged to caste of the deceased,

but only on this count, their deposition cannot be held untrusworthy.

Furthermore, there are other eye witnesses belonging to the different

caste, hence, contention putforth by learned counsel for the appellants

to disbelieve the deposition of eye witnesses are not sustainable.

Memorandum statement and seizure of clothes & weapon
from the appellants.

36. It has been proved by the Investigating Officer Ravindra Kumar

Anant (PW-13) & Dhannu Ram Sahu (PW-11) that on the basis of

memorandum statement (Ex.P-19) of appellant - Sunil, one blood

stained tester, one knife used for cutting vegetables, one sweater (blue

colour), full pant, which he was wearing and one mobile of OPPO

1 Criminal Appeal Nos. 1312 of 2008 & 1313 of 2008
2 1981 SCC (2) 752
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company A -55 was seized from him vide Ex.P-18. It has further been

proved by aforesaid witnesses that on the basis of memorandum

statement (Ex.P-20) of appellant - Sohit, one sharp edged weapon of

iron "Katta" , jeans pant, full pant, tea shirt, which he was wearing during

incident and one mobile A-54 of Oppo company was seized from him

vide Ex.P-17.

37. FSL report (Ex.29) shows that clothes of deceased, which were

seized, from Constable vide Ex.P-25, contains human blood except

plain soil (marked as "A"). It has been reported in FSL report that

human blood was found in Katta ("D") & jeans pant ("E") seized from the

appellant - Sohit and human blood was also reported to be found in

electronic tester (H), knife (I), Sweater (J-1) and full pant (J-2) seized

from appellant Sunil. Since blood group could not have been reported

in FSL report / serological report, therefore, learned trial Court has held

that since group of human blood on Article B, C1, C2, C3, C4, C5, D, E,

H, I, J1 & J2 has not found to be reported, therefore, it cannot be said

that blood found on aforesaid articles are of the deceased. Learned

counsel for the appellants supported aforesaid finding of learned trial

Court and stated that in absence of serological report, vide those

articles, appellants cannot be connected in the commission of instant

crime.
In this regard, counsel for the appellants relied upon the decision

of the Supreme Court in the matter of Sattatiya alias
Satish Rajanna

Kartalla v. State of Maharashtra
3 (2008) 3 SCC 210
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38.
In Sattatiya alias
Satish Rajanna Kartalla
(supra), the two-

Judges Bench of the Supreme Court has held that as per the chemical

examiner's report the bloodstains found on the shirt, pants and half

blade were those of human blood, the same could not be linked with the

blood of the deceased and thereby there was serious lacuna in the

prosecution story.

The Supreme Court, however, in
Balwan Singh Vs.

State of Chhattisgarh and another
4 (three-Judges Bench), has

considered the decision in Sattatiya alias
Satish Rajanna Kartalla

(supra) in paragraph 12 of its report and also noticed the Constitution

Bench decision in the matter of
Raghav Prapanna Tripathi v. State of

U.P.
5 and summarised the law relating to effect of failure to establish

origin of blood as being of human origin and/or its blood group and held

that the same has to be ascertained in the facts and circumstances of

each case, and there is no fixed formula for the same.

It has been

observed in paragraphs 15, 16, 20, 21, 22 and 23 of the report -

Balwan Singh
(supra) as under: -

"15. We are also conscious of the fact that, at times, it
may be very difficult for the serologist to detect the origin of
the blood due to the disintegration of the serum, or
insufficiency of bloodstains, or haematological changes,
etc. In such situations, the court, using its judicious mind,
may deny the benefit of doubt to the accused, depending
on the facts and circumstances of each case, if other
evidence of the prosecution is credible and if reasonable
doubt does not arise in the mind of the court about the
investigation.

16. Thus, in
R. Shaji v. State of Kerala
6, this Court had
observed:

4 (2019) 7 SCC 781
5 AIR 1963 SC 74
6 (2013) 14 SCC 266
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"31. A failure by the serologist to detect the origin of
the blood due to disintegration of the serum does not
mean that the blood stuck on the axe could not have
been human blood at all. Sometimes it is possible,
either because the stain is insufficient in itself, or due
to haematological changes and plasmatic coagulation,
that a serologist may fail to detect the origin of the
blood in question. However, in such a case, unless
the doubt is of a reasonable dimension which a
judicially conscientious mind may entertain with some
objectivity, no benefit can be claimed by the accused
in this regard. Once the recovery is made in
pursuance of a disclosure statement made by the
accused, the matching or non-matching of blood
group(s) loses significance."

(emphasis in original)

20. However, we cannot lose sight of the fact that the
accused would be in a disadvantageous position in case if
the aforementioned dictum
laid down by
this Court in R.
Shaji, Gura Singh7, Jagroop Singh8 and Teja Ram9 relating
to the bloodstains is applied in each and every case. Non-
confirmation of blood-group or origin of the blood may
assume importance in cases where the accused pleads a
defence or alleges mala fides on the part of the
prosecution, or accuses the prosecution of fabricating the
evidence to wrongly implicate him in the commission of the
crime.

21.
In
John Pandian v. State10
, this Court, on facts,
observed that the evidence of recovery of weapons was
credible. The forensic science laboratory (FSL) report had
disclosed that the blood was of human origin. The Court
proceeded to conclude that since the evidence of recovery
of weapon was proved to the satisfaction of the Court, it
was sufficient that the prosecution had proved that the
bloodstains were of human origin, even though the blood
group could not be ascertained.

22. The cases discussed above highlight the burden that
the prosecution would ordinarily have to discharge,
Gura Singh v. State of Rajasthan
, (2001) 2 SCC 205
8 Jagroop Singh v. State of Punjab, (
2012) 11 SCC 768
9 State of Rajasthan v. Teja Ram
, (1999) 3 SCC 507
10 (2010) 14 SCC 129
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depending on the other facts and circumstances of the
case, for the evidence relating to recovery to be considered
against the accused. At the same time, as mentioned
above, we are conscious of the fact that it may not always
be possible to inextricably link the bloodstains on the items
seized in recovery to the blood of the deceased, due to the
possibility of disintegration of bloodstains on account of the
time-lapse in carrying out the recovery. For this reason, in

Prabhu Dayal v. State of Rajasthan
11, where one of us
(Mohan M. Shantanagoudar, J.) had the occasion to author
the judgment, this Court, relying on Teja Ram, had held that
the failure to determine the blood group of the bloodstains
collected from the scene of offence would not prove fatal to
the case of the prosecution.

In
Prabhu Dayal
case,
although the FSL report could not determine the blood
group of the bloodstains on account of disintegration, the
report clearly disclosed that the bloodstains were of human
origin, and the chain of circumstantial evidence was
completed by the testimonies of the other witnesses as well
as the reports submitted by the ballistic expert and the
forensic science laboratory regarding the weapon used to
commit murder.

23. From the aforementioned discussion, we can
summarise 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. The Court will have to come to the conclusion
based on the facts and circumstances of each case, and
there cannot be any fixed formula that the prosecution has
to prove, or need not prove, that the blood groups match."

39. Reverting to the facts of the instant case, it is apparent that in the

instant case, there are so many eye-witnesses, who have proved in their

deposition that they have seen committing murder of deceased by both
11 (2018) 8 SCC 127
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the appellants and it has also been proved by the prosecution that human

blood stained weapon, clothes and other articles have been seized at the

behest of the appellants. It has also been proved by Rajendra (PW-8) and

Ravindra Anant (PW-13) that after killing deceased, appellants were

climed on water tank, from where they were got down by the police and

other officials and, thereafter, at their behest blood staind clothes and

weapons were seized from them, just within 4- 5 hours of the incident, till

that, they were well within the site of the villagers. Therefore, considering

aforesaid facts and the principles of law
laid down in

Balwan Singh

(Supra), since FSL report (Ex.P-29) has clearly disclosed that blood

stained weapons and clothes have been seized from the appellants i.e.

Katta (D), jeans pant (E), seized from appellant - Sohit whereas electronic

tester (H), knife (I), sweater (J1) and full pant (J2) seized from appellant

Sunil, therefore, FSL report very well support the deposition of eye-

witnesses that they caused murder of deceased and, therefore, in light of

law
laid down by
the Apex Court in the case of
Balwan Singh
(Supra), non

- cofirmation of blood group would not be fatal to the prosecution case as

held by their Lordships of the Supreme Court in the case of
John

Pandian
(supra).

40. In view of the foregoing discussion, we set-aside the observation

made by learned trial Court that FSL report (Ex.P-29) is not helpful to the

case of the prosecution and held that it also supports the deposition of

eye-witnesses to the incident that the appellants are the perpetrator of the

crime and they caused murder of the deceased.

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Electronic Evidence

41. Ravind Kumar Anant (PW-13), who is Investigating Officer of the

case, has stated in his deposition that the incident was recorded in CCTV

camera situated in the house of Dev Prasad Sahu (PW-12) and with the

help of Vikki Kaiwart (PW-4), footage of incident was retrieved in pen-

drive from the receiver of aforesaid CCTV by giving Notice under
Section
of Cr.P.C. (Ex.P-21) to Dev Prasad Sahu (PW-12). This fact has also

been proved by Vikki Kaiwartya (PW-4) & Dev Prasad Sahu (PW-12).

Aforesaid pen-drive was seized vide Ex.P-14 from Dev Prasad Sahu

(PW-12) and the said pen drive has been marked as Article A-1.

42. After commission of murder of deceased, appellants have suited a

Video from mobile phone of accused/appellant - Sunil Kumar i.e. Article

A-3 and viral the same on social media. In that video, they have

confessed the murder of Bhagwat Sahu. Through social media, that

confessional statement was also reached in the mobile phone of Gopi

Chand Sahu (PW-3) and during course of investigation, that video was

down loaded in Compact Disk (CD) and that CD was seized vide seizure

memo (Ex.P-12) by Investigating Officer - Ravindra Kumar Anant

(PW-13). Aforesaid facts have been proved by Investigating Officer

Ravindra Kumar Anant (PW-13), Gopi Chand Sahu (PW-3) and Ganesh

Ram Patel (PW-7) also. That 'CD' has been marked as Article A-2.

43. Aforesaid articles i.e. Pen Drive (Article A-1) & CD (Article A-2)

have been seized by collecting certificate from concerned person in

compliance of
Section 65-B
of the Evidence Act. This fact has also been
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proved by Vikki Kaiwart (PW-4) and Gopi Chand Sahu (PW-3), who gave

aforesaid certificate.

44. Learned trial Court has discussed about electronic evidences

adduced by prosecution in detail in para 35 to 48 of the impugned

judgment, particularly, with regard to Pen Drive (Article A-1) and CD

(Article A-2).

45. In paragraph 42 of the judgment, learned trial Court has observed

that during trial, aforesaid articles i.e. Article-1, Article-2 alongwith mobile

phone of accused Sunil Kewat Article-3 & Mobile phone of accused Sohit

Kewat Article-7 were played in the Court in presence of accused

persons, their counsel & Investigating Officer Ravindra Anant (PW-13)

and after watching the same, Investigating Officer - Ravindra Kumar

Anant (PW-13) has specifically stated that the person assaulting with

katta is accused Sohit and other assailant is accused Sunil Kewat. In

this regard, specific question was put to both the accused/appellants in

their statements under
Section 313
of Cr.P.C., but they have simply

stated that the video is fabricated. Although some difference of time of

incident, as has been recorded in CCTV footage and as has been

projected in the case of prosecution, is pointed out by learned defence

counsel, but it is not found to be vital to discard aforesaid evidence, as

due to technical glitch, power-cut, etc. setting of time got disturbed in

such electronic devices.

46. As has been stated above that, learned trial Court has discussed in

detail in paragraphs 35 to 48 of its judgment with regard to aforesaid
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electronic evidence and its contents. After having due consideration, We

affirmed the finding of learned trial Court that aforesaid electronic

evidence also support the deposition of eye witnesses to the incident that

the appellants are the persons, who caused brutal murder of deceased

by chopping his neck including vital blood vessels and due to such

assault, only about some portion of his neck was left intact with the body

of deceased.

47. Eye witnesses to the incident deposed that appellant Sohit

chopped the neck of deceased by sharp edged weapon katta and as per

deposition of Ramjag Sahu (PW-2), Gopi Chand Sahu (PW-3) and

Rajendra (PW-8) while assaulting by appellant Sohit, appellant Sunil was

holding the deceased. Ganesh Ram Patel (PW-7) has also deposed that

deceased was also assaulted by screw-driver (Pechkas) [Tester], blood

stained such devices have been seized from appellant Sunil. Thus,

these facts specifically proved full and active involvement of appellant

Sunil Kumar in commission of murder of deceased.

48. Thus, after appreciating the entire occular, electronic and seizure /

circumstantial evidence alongwith other documents available on record,

we do not find any illegality or infirmity in appreciation of evidence

available on record or arriving at a conclusion as to the guilt of appellants

by learned trial Court that both the appellants are the perpetrator of

causing brutal murder of deceased Bhagwat Sahu. Hence, finding

recorded by learned trial Court in this regard does not warrant

interference of this Court. We accordingly herein affirm the conviction of
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the appellants recorded under Section 302 read with
Section 34
of the

IPC.

49. Now the next question to be considered is that, whether capital

punishment awarded by learned Additional Sessions Judge to the

appellants that they be hanged to death, till their death is in accordance

with settled principle of law ?

50. In this regard, it is to be considered that whether this case falls

under the category of "rarest of rare case" justifying capital punishment ?

51. For the offence of murder only sentence provided in
Section 302
of

IPC are death penalty or imprisonment for life.

52. Their Lordships of the Hon'ble Apex Court in catena of judgments

have laid down principles for awarding capital punishment, for which,

balance between aggravating circumstances and mitigating

circumstances has to be struck. Whereas other factors have also to be

taken into consideration like age of accused, possibility of reformation

and lack of intention of murder, etc.

53. For awarding such punishment, law also requires from the Courts to

assign special reason in accordance with sub-section (3) of
Section 354
of

the CrPC, which reads as under :-

"S. 354 (3): When the conviction is for an offence

punishable with death or, in the alternative, with

imprisonment for life or imprisonment for a term of

years, the judgment shall state the reasons for the

sentence awarded, and, in the case of sentence of
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death, the special reasons for such sentence."

54. The provisions of
Section 354 (3)
of the CrPC specifically

envisazed the legislative concerned and the conditions which needs to

be satisfied prior to imposition of capital punishment. The words 'in case

of sentence of death, special reason for such sentence' unambiguously

demonstrate the commands of legislature that such reasons have to be

recorded for imposing punishment of death sentence i.e. the Court is

required to hold that it is a case of 'rarest of rare' warranting imposition

of only death sentence.

55. The Supreme Court in the matter of
Manoj and others v. State

of Madhya Pradesh12
reviewing the entire case laws on the point

beginning from
Bachan Singh
(supra) held in paragraph 204 as under: -

"204. Mitigating factors in general, rather than excuse or
validate the crime committed, seek to explain the surrounding
circumstances of the criminal to enable the judge to decide
between the death penalty or life imprisonment. An illustrative
list of indicators first recognised in Bachan Singh 11 itself:

"Mitigating circumstances.--In the exercise of its discretion in
the above cases, the court shall take into account the following
circumstances:

(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.

(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to
society.

12 2023 (2) SCC 353
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(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing
the offence.

(6) That the accused acted under the duress or domination of
another person.

(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct."

These are hardly exhaustive; subsequently, this court in
several judgments has recognised, and considered
commutation to life imprisonment, on grounds such as young
age13, socio-economic conditions14, mental illness15, criminal
antecedents16, as relevant indicators on the questions of
sentence. Many of these factors reflect demonstrable ability or
merely the possibility even, of the accused to reform (i.e. (3)
and (4) of the Bachan Singh list), which make them important
indicators when it comes to sentencing."

Their Lordships further emphasised the need for pre-sentence

hearing - opportunity and obligation to provide material on the

accused and in paragraphs 211 and 212 held as under: -

"211. However, this too, is too little, too late and only offers
a peek into the circumstances of the accused after
conviction. The unfortunate reality is that in the absence of
well-documented mitigating circumstances at the trial
level, the aggravating circumstances seem far more
compelling, or overwhelming, rendering the sentencing
court prone to imposing the death penalty, on the basis of
Mahesh Dhanaji Shinde v. State of Maharashtra
(2014) 4 SCC 292, Gurvail Singh v. State of
Punjab (2013) 2 SCC 713, etc.
Mulla and another v. State of U.P.
(2010) 3 SCC 508;
Kamleshwar Paswan v. U.T. Chandigarh

(2011) 11 SCC 564;
Sunil Gaikwad v. State of Maharashtra
(
2014) 1 SCC 129
15 Shatrughan Chauhan v. Union of India
(
2014) 3 SCC 1
16 Dilip Premnarayan Tiwari v. State of Maharashtra
, (2010) 1 SCC 775
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an incomplete, and hence, incorrect application of the
Bachan Singh test.

212. The goal of reformation is ideal, and what society
must strive towards - there are many references to it
peppered in this court's jurisprudence across the decades

- but what is lacking is a concrete framework that can
measure and evaluate it. Unfortunately, this is mirrored by
the failure to implement prison reforms of a meaningful
kind, which has left the process of incarceration and
prisons in general, to be a space of limited potential for
systemic reformation. The goal of reformative punishment
requires systems that actively enable reformation and
rehabilitation, as a result of nuanced policy making. As a
small step to correct these skewed results and facilitate
better evaluation of whether there is a possibility for the
accused to be reformed (beyond vague references to
conduct, family background, etc.), this court deems it
necessary to frame practical guidelines for the courts to
adopt and implement, till the legislature and executive,
formulate a coherent framework through legislation.
These guidelines may also offer guidance or ideas, that
such a legislative framework could benefit from, to
systematically collect and evaluate information on
mitigating circumstances."

Thereafter, their Lordships issued practical guidelines to collect

mitigating circumstances and observed in paragraphs 213 to 217 as

under: -

"213. There is urgent need to ensure that mitigating
circumstances are considered at the trial stage, to avoid slipping
into a retributive response to the brutality of the crime, as is
noticeably the situation in a majority of cases reaching the
appellate stage.

214. To do this, the trial court must elicit information from the
accused and the state, both. The state, must - for an offence
carrying capital punishment - at the appropriate stage, produce
material which is preferably collected beforehand, before the
Sessions Court disclosing psychiatric and psychological
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evaluation of the accused. This will help establish proximity (in
terms of timeline), to the accused person's frame of mind (or
mental illness, if any) at the time of committing the crime and offer
guidance on mitigating factors (1), (5), (6) and (7) spelled out in
Bachan Singh. Even for the other factors of (3) and (4) - an onus
placed squarely on the state - conducting this form of psychiatric
and psychological evaluation close on the heels of commission of
the offence, will provide a baseline for the appellate courts to use
for comparison, i.e., to evaluate the progress of the accused
towards reformation, achieved during the incarceration period.

215. Next, the State, must in a time-bound manner, collect
additional information pertaining to the accused. An illustrative,
but not exhaustive list is as follows:

a) Age

b) Early family background (siblings, protection of parents, any
history of violence or neglect)

c) Present family background (surviving family members, whether
married, has children, etc.)

d) Type and level of education

e) Socio-economic background (including conditions of poverty or
deprivation, if any)

f) Criminal antecedents (details of offence and whether convicted,
sentence served, if any)

g) Income and the kind of employment (whether none, or
temporary or permanent etc);

h) Other factors such as history of unstable social behaviour, or
mental or psychological ailment(s), alienation of the individual
(with reasons, if any) etc.

This information should mandatorily be available to the trial court,
at the sentencing stage. The accused too, should be given the
same opportunity to produce evidence in rebuttal, towards
establishing all mitigating circumstances.

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216. Lastly, information regarding the accused's jail conduct and
behaviour, work done (if any), activities the accused has involved
themselves in, and other related details should be called for in the
form of a report from the relevant jail authorities (i.e., probation
and welfare officer, superintendent of jail, etc.). If the appeal is
heard after a long hiatus from the trial court's conviction, or High
Court's confirmation, as the case may be - a fresh report (rather
than the one used by the previous court) from the jail authorities is
recommended, for an more exact and complete understanding of
the contemporaneous progress made by the accused, in the time
elapsed. The jail authorities must also include a fresh psychiatric
and psychological report which will further evidence the
reformative progress, and reveal post-conviction mental illness, if
any.

217. It is pertinent to point out that this court, in
Anil v. State of
Maharashtra17
has in fact directed criminal courts, to call for
additional material:

"Many a times, while determining the sentence, the courts take it
for granted, looking into the facts of a particular case, that the
accused would be a menace to the society and there is no
possibility of reformation and rehabilitation, while it is the duty of
the court to ascertain those factors, and the State is obliged to
furnish materials for and against the possibility of reformation and
rehabilitation of the accused. The facts, which the courts deal
with, in a given case, cannot be the foundation for reaching such
a conclusion, which, as already stated, calls for additional
materials. We, therefore, direct that the criminal courts, while
dealing with the offences like
Section 302
IPC, after conviction,
may, in appropriate cases, call for a report to determine, whether
the accused could be reformed or rehabilitated, which depends
upon the facts and circumstances of each case."

(emphasis supplied)

We hereby fully endorse and direct that this should be implemented

uniformly, as further elaborated above, for conviction of offences that carry

the possibility of death sentence."

17 (2014) 4 SCC 69
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56. Reverting to the facts of the instant case, learned trial Court has

stated aggravating circumstances of instant case in paragraph 57 of its

judgment and holding therein that appellants have murdered Bhagwat Sahu

in day-light and there is no reason to believe that they can be reformed or

rehabilitated and they are likely to continue criminal act of violence. Learned

trial Court further observed that appellants are menace to the society, as

they have committed instant crime in a most cruel and inhuman manner

which is an extremely brutal, grotesque, diabolical, revolting and dastardly

manner, where his act affects the entire moral fibre of the society, hence,

learned trial Court by holding the case in the category of "rarest of rare

case" has awarded capital punishment to both the appellants.

57. Considering the aforesaid practical guidelines issued by the Supreme

Court in case of
Manoj & others
(Supra), it is apparent from the record of

trial that it has awarded capital punishment without taking consideration the

probability of the appellants to be reformed and rehabilitated and has only

taken into consideration the brutleness of crime and the manner in which, it

was committed, but has not been given effective opportunity of hearing on

the question of sentence to the appellants. No evidence was brought on

record on behalf of the prosecution to reach conclusion to the Court that

appellants cannot be reformed or rehabilitated, while producing evidence,

no such evidence has been adduced by the State / prosecution about their

negative conduct in jail. No adequate opportunity has been given to the

appellants also, that why capital punishment should not be given to them, as

on the same day, learned trial Court held guilty and awarded capital
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punishment to them. Although, in the instant case, appellants have caused

brutal murder of deceased by chopping his neck, but there is no evidence

on record that the appellants cannot be reformed or rehabilitated or they are

having huge criminal antecedents. Though act of the appellants shocks the

conscious of the society at large, but, yet, in the facts & circumstances of

the case, upon thoughtful consideration, we are of the view that extreme

sentence of death penalty is not warranted in the instant case and this case

is not fall in the category of "rarest of rare case" in the principles of law
laid

down by
Apex Court. In our considered view, imprisonment for life would be

complete, adequate and would meet the ends of justice. Therefore, we

direct commutation of death sentence into imprisonment for life.

58. Consequently, Cr. Ref. No. 1/2022 made by 1 st Additional Sessions

Judge, Janjgir, District Janjgir-Champa to the extent of confirmation of

imposition of death sentence to both the appellants is rejected

accordingly.

59. However, Criminal Appeal No. 1625 of 2022 filed on behalf of Sunil

Kewat and Criminal Appeal No. 1864 of 2022 filed on behalf of Sohit

Kumar Kewat, are partly allowed. Conviction of both the appellants

under Section 302 read with
Section 34
of the IPC are maintained, but,

sentence of death is commuted to life imprisonment by maintaining the

fine amount. We further direct that if fine amount is not paid, then they

be remained in jail for a further period of six months.

Neutral Citation
2023:CGHC:22546-DB

- 39 -

60. We direct the Registrar (Judicial) to send a duly attested copy of

this judgment to the concerned Court of Session as mandated under

Section 371
of the CrPC for compliance / needful. Record of trial Court

also be returned forthwith.

Sd/- Sd/-
(N.K. Chandravanshi) (Ramesh Sinha )
Judge Chief Justice
Dubey/-

Judgment date 08 September, 2023
Neutral Citation
2023:CGHC:22546-DB

- 40 -