1 2025:CGHC:12567-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 543 of 2019  Hari Nirmalkar S-o Late Shri Lachhan Nirmalkar, Aged About 21 Years, R-o Village Parsada, P.S. Khurd, District - Dhamtari Chhattisgarh. ... Appellant versus  State Of Chhattisgarh Through The Station House Officer, Police Station City Kotwali, District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent For Appellant : Mr. P.K. Patel, Advocate For Respondent : Ms. M. Asha, P.L. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Sachin Singh Rajput (Judgment On Board) 17.03.2025 Per Rajani Dubey, J 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 11.12.2018 passed 2 by learned 4th Additional Sessions Judge, Raipur, District Raipur (C.G.), in S.T. No.05-2018 whereby and whereunder appellant Hari Nirmalkar has been held guilty for commission of offence and sentenced as described below :- CONVICTION SENTENCE Under Section 302 IPC R.I. for life with fine of Rs.1,000-- and in default of payment to further undergo R.I. for 6 months. Under Section 27 of the Arms Act R.I. for three years with fine of Rs.1,000-- and in default of payment to further undergo R.I. for 06 months. 2. The prosecution story, leading to conviction of the appellant is that the accused-appellant and deceased Hemant Lohar were working together in the ice shop of complainant Mohd. Aasif Memon and both used to stay at night in the room constructed above the ice shop. On 11.09.2017 at around 11.30 PM, complainant Mohd. Aasif Memon left for house leaving the appellant and deceased in the shop and on second day i.e. 12.09.2017 at about 7.00 AM, when he came to his shop, he saw that the shop was locked from outside. When the complainant broke the lock of shop and entered inside, he saw that body of deceased Hemant Lohar lying in the room in bloodbath condition having mark of hitting with sharp edged weapon on head, neck, face and chest. On the information of complainant Mohd. Aasif, Crime 3 No. 294-17 was registered and the matter was taken up for investigation. Spot mat was prepared under Ex.P-7, merg intimation was recorded under Ex.P-5, notice was issue to panch witnesses under Ex.P-1, inquest on the body of deceased was prepared under Ex.P-2 and dead body was sent for postmortem examination to Ambedkar Hospital, Raipur under Ex.P-11, where Dr. S.K. Bagh (PW-8) conducted postmortem examination on the body of deceased and gave his report under Ex.P-14 opining the cause of death to be multiple stab wounds and cut throax & mode of death was hemorrhage and shock. During investigation, accused-appellant was arrested under Ex.P- 25, his memorandum statement was recorded under Ex.P- 19, and at his instance, articles were seized from the spot at under Ex.P-21. Clothes wore by the accused-appellant were seized under Ex.P-22. Underwear of the deceased was seized under Ex.P-24. Seized articles were sent for its chemical examination to FSL, Raipur under Ex.P-27 and a report from FSL was obtained under Ex.P-29, according to which, presence of human blood was confirmed on underwear, soil, bed sheet, knife, club, jeans and T-shirt. 3. After completing usual investigation, charge sheet was filed against the accused-appellant under Section 302 of IPC and charges were framed against the accused-appellant under 4 Section 302 IPC and Section 27 of the Arms Act to which the accused-appellant abjured his guilt and pleaded for trial. 4. So as to hold the accused-appellant guilty, the prosecution has examined as many as 12 witnesses. Statement of the accused-appellant was also recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused-appellant as mentioned in para 1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that there is no eye-witness account to the occurrence and the conviction of the appellant is based on circumstantial evidence but none of the circumstances from which the inference of guilt of appellant can be drawn has been proved beyond reasonable doubt and, therefore, there can be no inference that it was the appellant who committed the murder. Learned counsel further submits that there is no direct evidence against the accused-appellant to connect him with the crime in question. The motive has not been proved by the prosecution. There are material contradiction and omissions in the statement of the witnesses but the learned 5 trial Court ignoring the contradictions and omission in the statement of the prosecution witnesses, convicted the accused-appellant, which is not sustainable under the law. The prosecution has utterly failed to prove its case beyond all reasonable doubt. Therefore, the accused-appellant may be acquitted giving benefit of doubt. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Vinod Kumar Vs. State (Govt. of NCT of Delhi) [Judgment dated 13.02.2025 in Criminal Appeal No.2482-2014]. 7. On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the accused- appellant and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. It is apparent from the record of the learned trial Court that charges under Sections 302 of IPC and 27 of Arms Act were framed against the appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Sections 302 of IPC and 27 of Arms Act & sentenced him as described in para 01 of this judgment. 6 10. According to the prosecution case, appellant and deceased Hemant Lohar were working in ice shop of complainant Mohd. Aasif Memon situated at Shastri Bazar, Raipur and both used to stay at night in the room above the shop. The appellant also admitted in his statement recorded under Section 313 of Cr.P.C. in question Nos. 7 and 9 that they both used to work in same shop, but denied this fact in question No.10 that they both used to stay at night in the room above the shop and stated that they used to live separately. 11. Mohd. Aasif Memon (PW-3) is the owner of shop in which both the appellant and the deceased used to work together. He has stated in his examination-in-chief that the appellant and deceased Hemant used to stay together in the room above his shop. Both used to visit his house. Sometimes they used to go to their homes as well. He has also stated that he does not remember the date of incident. On the date of incident, he closed his shop at 9.00 PM and went home, at the relevant time, the appellant and deceased were in the room above the shop and on next morning, when he came to the shop, he saw that his shop was closed/locked. He has also stated that earlier the appellant and deceased used to open the shop in the morning but on that day the shop was closed. This witness has also stated that thereafter he 7 opened the shop and at the same time, the police had also arrived but appellant Hari Nirmal was not present there. The police personnel present there told him that a boy has died in the room above his shop. Thereafter, he went upstairs with the police and saw that Hemant Lohar (deceased) was lying dead. Deceased Hemant had sustained injuries on his neck and head and in one or two other places. Thereafter, the police took the body of Hemant for postmortem examination. The prosecution declared him hostile and cross-examined him. He has admitted this suggestion of prosecution in para 5 that on 12.09.2017 at around 7.00 AM, he had gone to Shashtri Bazar for opening his shop but his shop was locked. He has denied that he broke the lock of the shop fearing something untoward and went inside and the room above the shop. This witness himself stated that before he could go, the police personnel had come and he went to the room with them. 12. Mohd. Riyaz (PW-1), Mohd. Rahim Memon (PW-2) and Rajju Sahu (PW-4) are the witnesses whose shops are situated in Shastri market near the place of occurrence. They have also stated that the appellant and deceased both used to work in the shop of Mohd. Aasif Memon (PW-3). PW-3 and PW-4 both have stated that the appellant and deceased Hemant used to work together in the shop and 8 used to stay in the room above the shop of PW-3. That apart, PW-4 has also stated that appellant and deceased Hemant used to work with him in the shop of PW-3 and on the date of incident, both the appellant and deceased has stayed in night in the shop of PW-3 and on next morning, when he came to the shop, he came to know from the people assembled there that Hemant has died. 13. Mohd. Ilyas (PW-11) and Mohd. Nafiz (PW-12) are the witnesses to memorandum (Ex.P-19) and consequent seizure (Ex.P-21 to P-24), but both the witnesses while denying the proceeding of memorandum and seizure, admitted their signature on memorandum (Ex.P-19) on ‘C to C’ part, on seizure (Ex.P-20, P-21, P-22) on ‘C to C’ part, Ex.P-23 and P-24 on ‘B to B’ part & arrest memo Ex.P-25 on ‘C to C’ part. The prosecution declared these witnesses hostile and cross-examined them but they denied all suggestions of prosecution. 14. Trinath Tripathi (PW/10) is the Investigating Officer. He has stated that on the complaint of Mohd. Aasif Memon (PW-3) he recorded the FIR (Ex.P-6). He has also recorded memorandum statement (Ex.P-19) of the appellant and at his instance, he recovered club and knife used in the commission of crime from Motibagh Garden behind the Kiran Ice Depot under Ex.P-21, clothes, jeans and green 9 colour T-shirt wore by the appellant at the time of incident under Ex.P-22, plain soil, bloodstained soil and bloodstained bed sheet under Ex.P/23, sealed underwear of the deceased given by the Autopsy Surgeon under Ex.P/24. He has also stated that the seized articles were sent to its chemical examination to FSL Raipur under Ex.P-27 and a report from FSL Raipur was obtained under Ex.P-29, according to which, presence of human blood was confirmed on Article ‘A’ - underwear, Article ‘B’ - soil, Article ‘D’ - bed sheet, Article ‘E’ - knife, Article ‘F’ - club, Article ‘G’ - jeans and Article ‘H’ – T-shirt. 15. Dr. S.K. Bagh (PW-8) is the autopsy surgeon who conducted postmortem examination on the body of deceased and gave his report under Ex.P-14 noticing following injuries :- (i) Incised wound/cut throat at upper part of neck transversely 15 cm long x 4 cm broad anterior 2/3rd part of neck (trachea, esophagus, vessels) completely transected through and through with sharp cut. (ii) 07 multiple stab wounds on thorax, abdomen, (4 cm long x 3 mm broad). Clear cut margin. (iii) Incised wound of 2.5 cm to 4.5 cm long x .5 cm on right parietal temporal region, 5 in number with various sized shaped. 10 (iv) Rail pattern bruise of 8 x 2.5 cm on right arm and left scapular region, caused by hard and blunt object. 16. The autopsy surgeon has stated that injury No.1 and 2 caused by hard and blunt/sharp pointed object, which were sufficient to cause death in ordinary course of nature. The autopsy surgeon opined the cause of death of deceased to be multiple stab wounds and cut of thorax and the mode of death was hemorrhage and shock. 17. It is the submission of learned counsel for the appellant that independent witnesses (PW-11 and PW-12) of memorandum and seizure have turned hostile and the prosecution has utterly failed to prove its case beyond reasonable doubt, but it is apparent from the statement of Mohd Aasif Memon (PW-3) and Rajju Sahu (PW-4) that both the appellant and the deceased were living together in the room above the shop of PW-3 and it was suggested by the defence in cross-examination that both the appellant and the deceased used to stay happily and were not quarreling and this fact was not rebutted in their cross-examination that both the appellant and the deceased were residing together & PW-3 and PW-4 had seen them together before the occurrence of incident and when it was asked to the appellant in his 313 Cr.P.C. statement that they both (appellant and deceased) had stayed in the shop at night 11 and in the morning the dead body of deceased Hemant was found, the appellant only stated ‘xyr gS’. Further a question was asked regarding seizure of clothes, knife and club at his instance, the appellant only stated ‘xyr gS’. 18. Close scrutiny of the evidence makes it clear that the prosecution has successfully proved the fact that on the fateful night of incident, the appellant and deceased had stayed together in the room above the shop and on next morning the dead body of deceased was found lying in the room. Except the appellant and deceased, the entry of third person in the entire case has not come, as such, the appellant is under obligation to offer plausible explanation as to when he parted the company of deceased. The learned trial also minutely appreciated oral and documentary evidence and recorded its finding that it is the appellant and the only appellant who caused injuries to the deceased by club and knife and he succumbed to those injuries. The prosecution has proved this fact that deceased Hemant died due to multiple injuries caused by the appellant. 19. It is the submission of learned counsel for the appellant that as per the memorandum statement of appellant, some quarrel took place between them in which the appellant, all of a sudden, assaulted the deceased, therefore, the act of 12 the appellant does not come within the ambit of Section 302 of IPC and at best it falls within the ambit of Section 304 Part-II of IPC. 20. To sum up this issue, we have carefully gone through the evidence of autopsy surgeon PW-8 and postmortem report (Ex.P-14), according to which, the deceased had sustained 07 stab wounds on thorax and abdomen in the size of 4 cm long x 3 mm broad, 05 incised wound on right parietal temporal region in the size of 2.5 cm to 4.5 cm long x .5 cm and injuries were caused by hard, blunt and sharp pointed object, and according to the injury No.1, throat at upper part of neck transversely 15 cm long x 4 cm broad anterior 2/3rd part of neck (trachea, esophagus, vessels) completely transected through and through with sharp cut, which were sufficient to cause death in ordinary course of nature. Thus, the aforesaid injuries sustained by the deceased makes it clear that the appellant was not only having intention but also knowledge that by his act the deceased must die, as such, the act of the appellant does not come under any Exception to Section 300 of IPC and the appellant is held guilty for commission of offence under Section 302 of IPC. 21. The learned trial also minutely appreciated oral and documentary evidence and has rightly convicted the appellant under Sections 302 of IPC and 27 of Arms Act. We 13 do not find any illegality or infirmity in the impugned judgment of conviction and order of sentence warranting any interference by this Court. The learned trial Court was fully justified in convicting the appellant. 22. In the result, the appeal is dismissed. 23. The Lower Court records along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE