Nafr High Court
Case Details
SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 1 2025:CGHC:26753-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1449 of 2016 Ramsharan Gond S/o Late Raysing Gond, Aged About 30 Years, R/o Village Shardapur, Dubapara, Police Station Chalgali, District Balrampur Ramanujganj, Chhattisgarh ... Petitioner(s) versus State Of Chhattisgarh, Through Police Station Chalgali, District Balrampur- Ramanujganj Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Arvind Sinha, Advocate For State (s) : Mr. Afroz Khan, Panel Lawyer DIVISION BENCH Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board 23/06/2025 2 Sanjay K. Agrawal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘Cr.PC’), the present criminal appeal has been preferred by the appellant, calling in question the legality, validity and correctness of the judgment dated 26.10.2016 passed by the learned Second Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Sarguja (CG) in Sessions Case No.R 07/2016, by which, the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 302 of the Life imprisonment and to pay a IPC 2. fine of Rs.25,000/-, in default of payment of fine, to undergo additional RI for 2 years Under Sections 4 & 5 of the RI for 3-3 years and to pay a Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 fine of Rs.5000/- (twice), in default of payment of fine, to further undergo additional RI for 6-6 months 3 3. Case of the prosecution, in short, is that on 28.11.2015, at about 5-6 p.m., at Dubapara, Shardapur falling within the jurisdiction of Police Station Chalgali, District Balrampur, the appellant assaulted Jukman Bai (deceased), who was his relative, with a wooden log on her head under the belief that she was practicing witchcraft and thereby, committed the offence.
Legal Reasoning
4. Merg intimation and FIR were registered vide Ex.P/1 and Ex.P/2 respectively. Inquest Report was prepared vide Ex.P/5 and thereafter, the dead body of the deceased was subjected to postmortem, which was conducted by Dr. Vinod Singh (PW-10), who gave his report vide Ex.P/19 opining that the mode of death is shock due to multiple crush injury on head and the death was antemortem in nature. Pursuant to the memorandum statement of the appellant (Ex.P/9), the weapon of offence i.e. wooden log was seized, which was sent for FSL examination, but the FSL report has not been brought on record. 5. After due investigation, the appellant herein was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant /accused abjured his guilt and entered into defence. 4 6. In order to bring home the charges, the prosecution examined as many as 11 witnesses and exhibited 23 documents. The appellant in his defence has examined Lal Sai (DW-1). 7. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned above, against which, this Appeal has been preferred by the appellant.
Legal Reasoning
8. Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 of the IPC and 4 & 5 of the Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 (in short “the Act, 2005”) as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that PW-2 Fullpati Bai and PW-5 Dharmjeet, both have turned hostile and did not support the prosecution’s case. However, the trial Court, relying on their statements recorded under Section 161 of the Cr.PC, convicted the appellant. Thus, the appeal deserves to be allowed and the appellant is entitled for acquittal. 9. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the 5 appellant for the aforesaid offence. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions and have gone through the record with utmost circumspection. 11.The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying upon the Postmortem Report (Ex.-P/19), which is proved by Dr. Vinod Singh (PW-10), wherein, it was opined that the death was antemortem in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record and the said finding is hereby affirmed. 12. Now, the next question is, whether the trial Court has rightly held the appellant to be the author of crime in question? 13. Fullpati Bai (PW-2) has stated that she was informed by her husband Ramayan (PW-1) that the appellant had caused the death of Jukman Bai, and that the appellant had also made an extra-judicial confession before him. Ramayan (PW-1) deposed that he had received this information from Ramnath, who informed him that the appellant had killed the deceased. However, Ramnath was not examined. From the above 6 evidence, it appears that Fullpati Bai (PW-2) was informed about the incident by her husband Ramayan (PW-1), who, in turn, was informed by Ramnath. 14. Now, coming to the evidence of Dharmjeet (PW-5), he stated that the appellant did not make any extra judicial confession before him. However, in the statement recorded under Section 161 of Cr.P.C., he has stated that appellant Ramsharan informed him about the incident and made an extra judicial confession. Subsequently, this witness has completely turned hostile. However, when a question was put to him in this regard, he stated that Ramsharan caused the death of deceased- Jukman Bai because she was practicing witchcraft. It is the case of the prosecution that the appellant made an extra judicial confession before Dharmjeet (PW-5), however, this witness turned hostile and did not support the case of the prosecution and as such, the said fact has not been proved. 15. Furthermore, Dharmjeet (PW-5) has stated that he informed Kapil Dev (PW-7) about the incident. However, Kapil Dev (PW-7) denied having been informed by Dharmjeet (PW-5) and as such, the testimony of this witness (PW-7) is of no use to the prosecution. On close scrutiny of the above evidence, it appears that Ramayan (PW-1), Fullpati Bai (PW-2), 7 Dharmjeet (PW-5) and Kapil Dev (PW-7) have not supported the case of the prosecution. 16. For basing the conviction against the appellant, the trial Court has relied upon the statements of Fullpati Bai (PW-2) and Dharmjeet (PW-5) recorded under Section 162(1) of the Cr.P.C. 17. Since in the present case, conviction has been imposed on the appellant solely on the basis of 161 statements of Fullpati Bai (PW-2) and Dharmjeet (PW-5), in this regard, the provisions contained under Section 162(2) of the Cr.PC are relevant, which read thus : 162. Statements to police not to be signed: Use of statements in evidence.- (1) xxx xxx xxx xxx xxx xxx (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation : An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission 8 occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 18. In the matter of Hazari Lal Vs. State (Delhi Administration) 1 , it has been held by the Hon’ble Supreme Court that the statement under Section 161 of Cr.P.C. made by the witness during the course of investigation cannot be used as substantive piece of evidence and the same will not be taken into consideration while taking evidence. The following was observed in para 8 : “8. The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being 1 (1980) 2 SCC 390 9 proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in Section 3 of the Evidence Act which is: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists. We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.” 19. Reverting back to the facts of the present case, in light of the afore-stated judgment, the trial Court could not have convicted the appellant on the basis of statements of Fullpati Bai (PW-2) and Dharmjeet (PW-5) recorded under Section 161 of the Cr.P.C. 20. Furthermore, the trial Court has also relied upon the memorandum given by the appellant and consequent seizure. Admittedly, pursuant to the memorandum statement of the appellant, a wooden log was seized vide Ex.P/11, which was sent to the FSL for examination, however, the 10 report of FSL is not available on record. Moreover, the witnesses to the memorandum – Jindar (PW-3) and Dharmjeet (PW-5) have also not supported the memorandum and seizure at all. In the absence of the FSL Report and for the fact that the witnesses to the memorandum and seizure have also not supported the case of the prosecution, it would be unsafe to connect the appellant with the crime in question.
Decision
21. In view of the foregoing discussion, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 302 of the IPC and Sections 4 & 5 of the Act, 2005 are set aside and he is acquitted of the said charges by extending him the benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C. 22. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Shyna