1 CRA No. 1770 of 2019 2025:CGHC:7019-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1770 of 2019 (Ari sing out of judgment dated 21.10.2019 passed in Sessions Trial No.73/2018 by the Sessions Judge, Kondagaon, Chhattisgarh. )  Ratiram Markaam S/o Late Somaruram Markaam, aged about 34 years, R/o Village Badgai Gudrapara, Police Station, Urandabeda, District Kondagaon Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station, Urandabeda, District Kondagaon Chhattisgarh. ... Respondent For Appellant :- Mr. Rishi Rahul Soni, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For State-Respondent :- Mr. Ashutosh Shukla, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (07.02.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused is to the legality, validity and correctness of the judgment ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.12 17:01:28 +0530 2 CRA No. 1770 of 2019 dated 21.10.2019 passed by the Sessions Judge, Kondagaon, Chhattisgarh, in Sessions Trial No. 73/2018 by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 302 of the IPC Imprisonment for life with fine of ₹ 25,000/-; in default of payment of fine amount to undergo additional rigorous imprisonment for six months; Under Section 449 of ther IPC Rigorous imprisonment for 10 years with fine of 5,000/-; in default of ₹ payment of fine amount to undergo additional rigorous imprisonment for one month; Under Section 352 of the IPC Rigorous imprisonment for 3 months with fine of ₹ 5,00/-; in default of payment of fine amount to undergo additional rigorous imprisonment for three days; All the senteces are directed to run concurrently. Prosecution story:- 2. On 12.07.2018 at about 2:00 pm, at village Badgai, Gudrapara, Police Station Urandabeda, District Kondagaon, Chhattisgarh, the appellant committed house trespass and entered into the house of Chaman Singh and assaulted him with the spade by which he suffered grievous injuries and died. 3 CRA No. 1770 of 2019 3. The said incident was reported by Mahroo Ram (PW-3), father of the deceased, to the police that on the date of offence i.e. 12.07.2018 in the early morning he had gone to the field and his wife Laccho Bai (PW-4) and his daughter- in-law Anita (PW-5), wife of the deceased, was working in the courtyard and his son (deceased) after having lunch was sleeping in the kitchen along with his children. At about 2:00 pm when Anita (PW-5) entered into the house, she heard the voice of children and went towards the kitchen and saw the appellant assaulting her husband with spade and thereafter, the appellant also chased her (PW-5) as she shouted after seeing the incident and on being heard the voice of Anita (PW-5), Laccho Bai (PW-4) came near the house and saw the appellant while chasing PW-5 and also Rakesh (not examined), Ramesh (not examined) & Dashrot Markaam (PW-8) saw the appellant while chasing Anita (PW-5) and when Laccho Bai (PW-4) entered into the kitchen she saw the dead body of her son (deceased), pursuant to which merg intimation and FIR were registered vide Exs.P/11 & P/12, respectively. Spot map was prepared vide Ex.P/24. Inquest proceedings (Ex.P/14) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/27) proved by 4 CRA No. 1770 of 2019 Dr. Shailendra Kumar (PW-13) cause of death was traumatic brain injury and traumatic excessive haemorrhage and homicidal in nature. Pursunat to memorandum statement of the appellant (Ex.P/1) weapon of offence i.e. spade was seized vide Ex.P/3. Other articles were also seized. Except weapon of offence i.e. spade other articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/30) on the clothes of the deceased human blood of group “B” was found. FSL report (Ex.P/27) with regard to weapon of offence i.e. spade has not been brought on record for the reason best known to the prosecution. 4. After due investigation, appellant was charge-sheeted 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. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 31 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any documents. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the 5 CRA No. 1770 of 2019 circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question as the prosecution has failed to bring home the offence beyond reasonable doubt. He would also submit that Anita (PW-5) is the res gestae witness as she has not seen the incident which is also corroborated from the statement of Ramsai Maravi (PW-10) and Sop Singh (PW-12). However, though her (PW-5) statement would be admissible as relevant fact under Section 6 of the Indian Evidence Act, 1872 (for short the ‘IEA’), but that cannot be made the sole basis for conviction in absence of any corroborative piece of evindence in light of the decision rendered by the Supreme 6 CRA No. 1770 of 2019 Court in the matter of Sukhar v. State of Uttar Pradesh 1 . He would further submit that though recovery of spade has been made at the instance of the appellant, but it would be of no use to the prosecution in view of the decision rendered by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 2 as FSL report with regard to spade has not been brought on record to prove whether said seized spade was stained with human blood or blood. As such, the impugned judgment be set aside and the appellant be acquitted on the basis of benefit of doubt. 8. On the other hand, Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doub and, therefore, the trial Court has rightly convicted the appellant for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. 1 (1999) 9 SCC 507 2 (2019) 7 SCC 781 7 CRA No. 1770 of 2019 Discussion & Analysis :- 10. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/27) proved by Dr. Shailendra Kumar (PW-13), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 11. Now, the question for consideration would be whether the appellants have assaulted the deceased? 12. The trial Court has proceeded to base the conviction of the appellant on the basis of statement of Anita (PW-5), wife of the appellant, and also on the fact that pursuant to memorandum statement of the appellant weapon of offence was seized. 13. As per the statement of Anita (PW-5), wife of the deceased, she had seen the appellant on the spot/kitchen armed with the bloodstained spade and also the appellant chased her to kill. However, as per the statement of Ramsai Maravi (PW-10) & Sop Singh (PW-12), PW-5, at the most, is the res 8 CRA No. 1770 of 2019 gestae witness and even otherwise, the trial Court has itself recorded a finding in paragraph No.20 of its judgment that Anita (PW-5) had not seen the appellant while assaulting her husband (deceased) and has admitted that the said witness PW-5 is a res gestae witness which has also not been challenged by the prosecution. Thus, the finding that Anita (PW-5) is the res gestae witness becomes final. Though in view of the decisions of the Supreme Court rendered in the matters of Badruddin Rukonddim Karpude and others v. State of Maharashtra 3 and Sukhar (supra), statement of PW-5 at the most being an admissible evidence and relevant fact under Section 6 of the IEA, but no conviction can be recorded on that basis unless it is corroborated by direct or circumstantial evidence. 14. At this stage, it would be apt to notice the principle enshrined under Section 6 of the Evidence Act. The said provision is reproduced hereunder for ready reference:- “6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.” 3 AIR 1981 SC 1223 9 CRA No. 1770 of 2019 15. In the matter of Sukhar (supra), their Lordships of the Supreme Court, while considering Section 6 of the Evidence Act, have held that for conviction on the basis of admissible evidence under Section 6 of the Evidence Act, it must be corroborated either from oral evidence or from any other circumstances, and observed in paragraphs 10 & 11 as under:- “10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant. 11. The next question that arises for consideration is whether even if the statement becomes admissible, can the statement be held to be so reliable that a conviction under Section 307 can be based thereupon. PW 2 in the cross-examination candidly admitted that Sukhar, the present appellant and he are inimical to each other since long before. It was also elicited in the cross-examination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet none of them has been examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. The witness also stated in the cross-examination that Nakkal was naming the accused as his assailant in front of all those people who had gathered but it is not understood as to why the prosecution has chosen not to examine any one of them but to examine only PW 2 who was admittedly inimically disposed towards the accused/appellant. In this view of the matter, the evidence of PW 2 cannot be held to be of such an 10 CRA No. 1770 of 2019 unimpeachable character on whose testimony alone the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on account of what has been elicited in his cross-examination, his evidence requires corroboration before being accepted. Admittedly there is not an iota of corroboration either from any oral evidence or from any other circumstances. In this view of the matter, we have no hesitation to come to the conclusion that the conviction of the appellant on the unreliable and shaky evidence of PW 2 without any corroboration, cannot be sustained. We accordingly set aside the conviction and sentence of appellant and acquit him of the charges levelled against him. The accused who is in jail should be released forthwith. The appeal is allowed accordingly.” 16. Now, the question would be whether in light of Badruddin Rukonddim Karpude (supra) and Sukhar (supra), the prosecution has been able to support the testimony of res gestae witness by any corroborative piece of evidence. 17. Though in respect of corroboration, the memorandum statement of the appellant has been brought on record pursuant to which a spade is said to have been seized from the appellant. However, the trial Court has itself recorded a finding in paragraph No.20 of its judgment that the said seized weapon i.e. spade was not subjected to chemichal analysis to prove that the said spade was stained with human blood or blood. Therefore, in absence of FSL report, the recovery of spade would not be helpful for the 11 CRA No. 1770 of 2019 prosecution in this case inasmuch as there is no evidence to show that the said weapon was stained with blood or human blood, as held by the Supreme Court in the matter of Balwan Singh (supra). As such, the recovery of alleged weapon of offence i.e. spade, in the instant case, cannot be held to be a corroborative piece of evidence to support the statement of res gestae witness Anita (PW-5). Conclusion:- 18. In view of the discussion and analysis made herein above, it is quite established that recovery of bloodstained spade is of no use to the prosecution in view of the decision rendered by the Supreme Court in the matter of Balwan Singh (supra) as FSL report with regard to spade has not been brought on record to prove whether said seized spade was stained with human blood or blood and furthermore, even if Anita (PW-1) is held to be the witness who has seen the appellant on the spot armed with spade, but in absence of corroboration she could only be considered as a res gestae witness and as held in Badruddin Rukonddim Karpude (supra) and Sukhar (supra) and the conviction of the appellant cannot be maintained on the basis of statement of res gestae witness Anita (PW-5) in absence of corroboration either from oral evidence or from 12 CRA No. 1770 of 2019 circumstantial evidence and in the present case the prosecution has failed to bring the corroborative piece of evidence. As such, the testimony of Anita (PW-5) cannot be relied upon unless there is any other corroborative piece of evidence available on record, which is not there in the present case. 19. Accordingly, we set-aside the conviction and sentence of the appellant for offences under Sections 302, 352 and 449 of the IPC. The appellant stands acquitted of the said charges on the basis of principles of benefit of doubt. He is stated to be in jail since 01.08.2018. We direct him to be set at liberty forthwith, if his detention is not required in any other offence. 20. As a consequence, this criminal appeal is allowed. 21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit