2025:CGHC:4171-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1292 of 2021 Mahendra Singh S/o Kanhaiya Lal Bakshi Aged About 55 Years R/o Nakapara Tongpal Police Station Tongpal District Sukma Chhattisgarh., District : Sukuma, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Tongpal District Sukma Chhattisgarh., District : Sukuma, Chhattisgarh ...Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Basant Dewangan, Advocate For Respondent/State : Shri Malay Jain, Panel Lawyer --------------------------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ravindra Kumar Agrawal, J. 23.01.2025 1. Though the matter is listed for consideration on IA-1 of 2021, application for suspension of sentence and grant of bail, with the consent of the parties, matter has been heard finally. 2. The appellant/accused has filed the instant appeal under Section 374(2) of the CrPC, being aggrieved by the judgment of conviction and order of sentence dated 25.09.2021 passed by the learned Sessions Judge, South Bastar, Dantewada, CG, in Session Case- 357 of 2017, whereby the appellant has been convicted for commission of offence Cra 1292 of 2021 2 punishable under Section 302 of the IPC, and sentenced to undergo RI for life and to pay fine of Rs.500/-, in default of payment of fine, additional RI for three months. 3. Brief Facts in the present case are that the incident was occurred on 02.04.1999 and charge-sheet has been filed against two accused persons namely, Anturam and Mahendra Singh before the learned Judicial Magistrate First Class, Sukma, on 30.06.1999, showing the present appellant- Mahendra Singh absconding. The case was committed to the Sessions Court for its trial. At that time, trial of Anturam was conducted and after completion of trial, co-accused Anturam, s/o Hardeep has been acquitted by the learned trial court vide its judgment dated 18.04.2001 passed in Sessions case No. 243 of 1999. 4. Subsequently, present appellant was arrested on 11.09.2017, and he has been tried in the aforesaid Sessions trial for commission of murder of one Ram Prasad which was occurred on 02.04.1999, by registering new Sessions case No.357 of 2017. Old Sessions Case No.243 of 1999 was decided on 18.04.2001 by the learned 4th Additional Sessions Judge, Bastar at Jagdalpur. 5. Brief Facts of the case are that on 01.04.1999, prosecution witnesses, namely, Ayutu Ram, Ayati, Dhansingh, Balmati, Sondayi, Aasi, Balsingh, Hira Singh Dhurva, and others had gone to enjoy mela at Village- Tahakwada from village-Tongpal. After enjoying the whole night in the mela, on the next day at about 6.30am, when they were returning Cra 1292 of 2021 3 to their village near Thurupdang, they saw the present appellant sitting on the chest of the deceased-Ram Prasad, and assaulting him by pressing his neck. At that time, Ram Prasad was pooled with blood which was coming out from his head and nose. Anturam, the co-accused was also standing there, and when they asked them to leave the deceased he threatened them to go away from there. Anturam was hurling the appellant for assaulting the deceased. After assaulting the deceased, appellant- Mahendra Singh dragged him, and thrown him in a pit. Witness-Ayaturam (PW1) has informed the ex-sarpanch of the village- Ramu Ram Nag about the incident. 6. The incident was reported to the Police by Manjari Bai PW7, and on her report, FIR Ex.P4 was registered at the Police Station-Tongpal against unknown persons for commission of offence under Section 302 of the IPC. Merg intimation Ex.P5 was also recorded by the Police on the instance of Manjari Bai. The inquest Ex.P6 was prepared by the Police in presence of witnesses and dead-body of the deceased was sent for its post-mortem to the Mini PHC, Tongpal, Bastar. PW8 Dr.L.L.Dhankar conducted the post-mortem of the dead body of the deceased and found the following injuries: 01) Incised wound- over the temporal region of the scalp, left side with clear cut and well defined edges, underlying bone are fractured 1 ½” X ½” X 1 ½” in size Cra 1292 of 2021 4 02) Contusion- Over the scalp, parietal region right side, 3” X 3” size 03) Contusion- Over the scalp, frontal region right side, 3” X 3” size 04) Abrasion- Over the middle of the forehead, three in number each ¼” X ¼” in size 05) Incised wound- Over the pre-auricular region, left side 06) Abrasion- Over the neck left side 1” X ½” X ¼” in size 07) Abrasion- Over the chest upper ⅓” right side, below the right clavide, lower ⅓”, 1” X ½” in size, obliquely placed ¼” X ½” in size. 08) Abrasion- Abrasion over the left shoulder, posterior or aspect 1 ½” X 1” 09) Scratch – Over the sternum of the chest, placed longitudinally, 3” X ¼” 10) Abrasion - Over the right scapula 2” X 1 ½” in size 11) Abrasion- Over the right elbow posterior aspect ½” X ½” in size. 12) Abrasion- Below the left knee anterior aspect ½” X ½” in size Cra 1292 of 2021 5 7. On internal examination, Doctor has noticed fracture of left temporal bone of skull and opined that cause of death was due to brain hemorrhage, owing to severe head injury, and mode of death is homicidal. Post-mortem report is Ex.P7. Spot map Ex.P1 was prepared by the Police, and Ex.P3 was prepared by the Patwari, PW5. Blood stained soil and plain soil, as well as broken pieces of glass bottle were seized from the spot vide seizure memo Ex.P11. Seized articles were sent for chemical examination to the FSL, Raipur. Statement of the witnesses under Section 161 CrPC have been recorded, and after completion of usual investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Sukma for commission of offence under Section 302/34 of the IPC, showing the present appellant- Mahendra Singh absconding. 8. At the time when the charge-sheet was filed against co-accused Anturam the present appellant-Mahendra Singh was shown to be absconding and vide order dated 13.07.1999 he was declared absconder and permanent warrant of arrest was issued against him and the trial of the case against the co-accused- Anturam was proceeded. 9. In compliance of the permanent warrant of arrest issued against the present appellant-Mahendra Singh was arrested on 11.09.2017 and produced before the learned trial court for his trial. The learned trial court has framed charge against the appellant for the offence under section 302 / 34 vide order 14.03.2018. During the trial of the present appellant witness Gaagru (already examined as PW4) and Manjari Bai (already Cra 1292 of 2021 6 examined as PW7) have been examined again on 20.06.2018. Witness Dhan Singh (already examined as PW3) has been again examined on 21.06.2018, and Nathu Singh was examined again on 02.08.2018 as PW4. 10. Vide order dated 15.11.2018, it has been reported that witness Itu Rani, who earlier examined as PW1 has died. It is further reported that witness Ramu also died. On 17.01.2019, witness Balmati PW2 was examined again. On 19.01.2021, application under section 311 filed by the prosecution for including name of Dr.L.L.Dhankar in the witness list was allowed and summons have been issued to him for his evidence. On 04.09.2021, Dr.L.L.Dhankar has also been examined and on 17.09.2021 learned counsel for the accused has refused to re-examine the witness Shanti Bai who has already been examined as PW10. 11. Statement under Section 313 of the CrPC of the appellant Mahendra Singh has also been recorded in which he denied the material appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 12. After appreciation of oral as well as documentary evidence led by the prosecution the learned trial court has convicted Mahendra Singh for the offence, and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal by the appellant. 13. Learned counsel for the appellant would submit that prosecution has failed to prove the case beyond any reasonable doubt. There are Cra 1292 of 2021 7 material omissions and contradictions in evidence of prosecution witnesses, and they are inconsistent in their evidence. No weapon of offence has been seized from the appellant. On the basis of such inconsistent evidences, conviction of the appellant cannot be made, and he is entitled for “benefit of doubt”. The appellant is not named in the FIR. No motive has been proved by the prosecution to do the offence. Co-accused Anturam has been acquitted on the same set of evidences, but the appellant has been convicted, which is erroneous, and the evidence of witnesses is not sufficient to hold the appellant guilty for the offence. Therefore, the impugned judgment of conviction is erroneous, and the same is liable to be set aside. 14. Per contra, learned counsel for the State opposes the above submissions of learned counsel for the appellant, and would submit that the case of the prosecution is based on the evidence of prosecution witnesses PW-1, PW2, PW3, and PW6. These witnesses have clearly saw the appellant assaulting the deceased, and identified him. But for minor omissions, and contradictions, evidence of prosecution witnesses are fully reliable, even if Anturam has been acquitted by the trial Court, present appellant cannot be benefited by it, because, allegations against Anturam and the allegations against the appellant are quite different. Main allegation of assault is upon the present appellant. He would further submit that there are number of injuries, which have been found on the body of the deceased, which itself show the manner in which the deceased was being assaulted brutally. There is sufficient evidence Cra 1292 of 2021 8 against the appellant that he committed murder of the deceased, on the fateful day, for which he is rightly been convicted and sentenced by the learned trial Court, and there is no merit in his appeal and the same is liable to be dismissed. 15. We have heard learned counsel for the parties, and perused the record of the case. 16. The first and foremost issue for consideration is to determine as to that nature of death of deceased- Ram Prasad whether it was homicidal death or not. Learned trial Court after considering the evidence of witnesses, Aayatu (PW1), Balmati (PW2), Dhan Singh (PW3) and Ramu Ram (PW9), and also from the evidence of Shanti Bai (PW10), who saw the injuries on the body of the deceased, evidence of PW9, who is the witness of inquest Ex.P6, who also saw the injuries on body of the deceased, and also from the evidence of Dr LL Dhankar, PW8, who conducted the post-mortem of the dead-body of the deceased, held that the deceased died due to homicidal death. As per evidence of the doctor, number of injuries have been found on the body of deceased, including fracture of left temporal bone of skull and opined that the cause of death was due to brain hemorrhage, owing to severe head injury, and mode of death is homicidal. From evidence of the doctor, and other witnesses, nothing could be extracted by the defense that death of the deceased was not due to homicidal, but was for some other reason. Consideration of learned trial Court with respect to homicidal death of the deceased is based on proper appreciation of evidence, and we also in Cra 1292 of 2021 9 agreement with the finding of learned trial Court that the deceased died due to homicidal death. 17. So far as involvement of appellant in the offence in question is concerned, prosecution case is based on the eye-witnesses. PW2 Balmati has stated in her evidence that at the time when they were returning after enjoying Mela for the whole night, and when they reached near Thurupdang, they saw that present appellant was assaulting a person by hand and co-accused Anturam was standing there, having danda in his hand. After seeing the assault made by the appellant, due to fear, they went away from the spot. In cross-examination, she remained firm in saying that she had seen the incident, appellant assaulting the deceased. She further stated in her cross-examination that co-accused Anturam asked them to go away from there. 18. PW3 Dhansingh has stated in his evidence that when he along with other villagers were returning from Mela, after enjoying whole night, in the morning at about 7 am, when they reached near Thurupdang, they saw that appellant was assaulting a person by a glass bottle. He was assaulting on his chest, and dragging him. Anturam was exhorting the present appellant by saying “mar mar”. After assaulting the person, appellant dragged him, and thrown him in a pit. Thereafter, they fled away from the place. During cross-examination, he stated that he did not see the actual incident, and narrated whatever he came into knowledge about the Cra 1292 of 2021 10 incident from others. When this witness was examined on 21.06.2018, he was declared hostile, and not supported the prosecution case. 19. PW1 Gaagru stated in his evidence when he was earlier examined that appellant has come to his house and asked to serve rice water. At that time, clothes of appellant were stained with blood. But when he was again examined on 20.06.2018, he was declared hostile, and not supported the prosecution case. 20. PW4 Nathu Singh has also declared hostile, and not supported the case of prosecution. 21. PW7 Manjari Bai has stated in her evidence when she was earlier examined that she saw the dead-body and she witnessed the inquest Ex.P6. When she was again examined on 20.06.2018, she turned hostile, and not supported the case of prosecution. 22. Aayatu, earlier examined as PW1 has reported to be dead, and he could not be re-examined by the prosecution in case of present appellant. Yet, his earlier evidence is available in the case, in which he clearly stated that on the date of incident, when they were returning after enjoying the Mela for the whole night, and when they reached near Thurupdang, they saw that present appellant and co-accused were assaulting a person, who was resident of Kumharpara, Jagdalpur. Appellant has assaulted him by a glass bottle on his face, he threw dust in his mouth, even he caused teeth bite on his neck and pressed it subsequently. Co-accused was exhorting the appellant to assault the Cra 1292 of 2021 11 deceased. He asked the co-accused that he is the village Kotwar, and in his presence, appellant was assaulting a person, and he should have stopped him, and at that time, co-accused threatened him, and then they went away from there. Appellant dragged the deceased towards shrubs, and again assaulted him by a piece of brick, and threw him in a pit. Thereafter, they went away from the spot. In his cross-examination, he remained firm by saying that appellant has assaulted the deceased. Evidence of Ayatu, who earlier examined as PW1, is supported by the evidence of PW2, Balmati, who is also an eye-witness to the incident. Though the other witnesses have turned hostile when they were recalled for giving evidence with respect to present appellant, but from the evidence of PW2 Balmati, which is supported by the evidence of PW1, learned trial Court has rightly convicted the appellant for the alleged offence of commission of murder of deceased- Ram Prasad. 23. Although ‘motive’ could not have been brought by the prosecution for commission of murder, but in the case, when the conviction of the appellant is based on the eyewitness account, absence of motive loses its significance. In view of the fact that motive is state of mind, and it is meeting between two persons either in the mind of the victim or in the mind of accused. When the offence has been proved by the eyewitness, the absence of motive loses its significance, though it plays an important role in a case where case of prosecution is based on circumstantial evidence. Cra 1292 of 2021 12 24. After considering the overall evidence available on record, and also from perusal of impugned judgment passed by the learned trial Court, we do not find any sufficient ground to interfere with the finding of conviction and sentence recorded by the learned trial Court. Therefore, appeal filed by the appellant-Mahendra Singh fails, and it is hereby dismissed. He shall undergo the entire jail sentence awarded to him by the learned trial Court. 25. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 26. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma