1 CRA No. 1967 of 2019 2025:CGHC:4649-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1967 of 2019 (Ari sing out of judgment dated 28.11.2019 passed in Sessions Trial No.34/2017 by the 5 th Additional Sessions Judge, Ambikapur, District Surguja, Chhattisgarh. ) 1. Jainath @ Chalgaliya Pando S/o Ghuru Pando, aged about 37 years, R/o Village Badedmali Mahua Bhawana, Thana Darima, District Sarguja, Chhattisgarh. 2. Rajkumar Ekka S/o Dharam Say Ekka, aged about 33 years, R/o Village Badedmali Mahua Bhawana, Thana Darima, District Sarguja, Chhattisgarh. ... Appellants versus  State of Chhattisgarh through Police Station Darima, District Sarguja, Chhattisgarh. ... Respondent For Appellant No.1 :- Mr. A.N. Pandey, Advocate. For Appellants :- Mr. Arjun Lal Singroul, Advocate/Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee. For Respondent :- Mr. Vivek Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board (27.01.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.04 16:26:13 +0530 2 CRA No. 1967 of 2019 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants-accused persons namely Jainath @ Chalgaliya Pando (A-1) and Rajkumar Ekka (A-2), friend of A-1, is to the legality, validity and correctness of the judgment dated 28.11.2019 passed by the 5th Additional Sessions Judge, Ambikapur, District Surguja, Chhattisgarh, in Sessions Trial No. 34/2017 by which the two appellants herein have been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 1,000/- each; in default of payment of fine amount ₹ to undergo additional rigorous imprisonment for six months for committing murder of Chunmuniya Bai (deceased). Prosecution story:- 2. On the date of incident i.e., 10.02.2017, A-2 Rajkumar after consuming liquor was roaming around in the village, but when he did not reach home, his wife Chunmuniya Bai (deceased) along with his son Nirmal Ekka (PW-14) started making search of him. While searching, she met with A-1 Jainath, who was also roaming around under the influence of liquor, and asked him whereabouts of her husband. A-1 3 CRA No. 1967 of 2019 Jainath then replied that A-2 Rajkumar is roaming around in the village after consuming the liquor. Thereafter, A-1 went along with Chunmuniya Bai and her son (PW-14) in search of A-2 towards the field of Mangal Pando (PW-4), nephew of the deceased. During search, A-1 and the deceased sat under the mahua tree and consumed liquor, where a dispute arose between A-1 and the deceased regarding consumptiion of liquor. Therafter, A-1 asked the deceased to come with him towards the forest, which she refused and on account of which also a quarrel took place between them and then A-1 assaulted the deceased with wooden stick. Seeing that Nirmal (PW-14), son of A-2 and the deceased, went to call his father (A-2) who after coming to the spot tried to take her home, who was lying there, but when she did not respond, out of anger, A-2 assaulted her by which she suffered grievous injuries and thereafter he took her to his home where in the night she died. The said incident was reported by Vishwnath (PW-1), realtive of the appelant (A-2) and the deceased, pursuant to which unnumbered merg intimation and numbered merg intimation were registered vide Exs.P/1 & P/28, respectively. Dehati nalsi was registered vide Ex.P/2. FIR was registered vide Ex.P/29. Spot map was prepared vide Ex.P/7. Inquest proceedings (Ex.P/17) were conducted and 4 CRA No. 1967 of 2019 the dead body of the deceased was subjected to postmortem. As per postmortem report (Ex.P/22) proved by Dr. Janeshwar Singh (PW-11), mode of death was shock due to head injury & multiple contusion over the right and left lungs leading to cardio-respiratory arrest and homicidal in nature. Pursuant to memorandum statement of A-1 (Ex.P/8), wooden stick and his t-shirt were seized vide Ex.P/11, and pursuant to memorandum statement of A-2 (Ex.P/9), wooden stick and his t-shirt were seized vide Ex.P/10. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/32) on the wooden stick (article C) and t-shirt (article D), which were seized pursuant to memorandum statement of A-1, blood was found; on the wooden stick (article E), which was seized pursuant to memorandum statement of A-2, blood was found; on the t-shirt of A-2 (article F), which was seized pursuant to his memorandum, and on the clothes of the deceased human blood was found. 3. After due investigation, appellants herein were charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance 5 CRA No. 1967 of 2019 with law. The appellants / accused persons abjured their guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 20 witnesses and exhibited 36 documents, whereas, defence, in support of its case, has not examined any witness, however exhibited 1 document. The statements of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. A.N. Pandey, learned counsel for A-1, would submit that the trial Court is absolutely unjustified in convicting 6 CRA No. 1967 of 2019 the apellant for the offence in question as the eye witnesses Manaro Bai (PW-3), sister of the deceased, Mangal (PW-4), nephew of the deceased, have not named A-1, therefore, A- 1 is entitled for acquittal on the basis of benefit of dout. 7. Mr. A.L. Singroul, learned counsel for A-2, would submit that on the basis of statements of eye witnesses Manaro Bai (PW-3) & Mangal (PW-4) and further on the basis of medical evidence, Rajkumar Ekka (A-2), at the best, may be convicted for offence under Section 304 Part II as Dr. Janeshwar Singh (PW-11) who medically examined the deceased has nowhere state the injuries caused over the body of the deceased were sufficient to cause death and even otherwise, as per the statements of the eye witness the appellant assualted the deceased in anger and in drunken state, therefore, it is a fit case where conviction of the appellant (A-2) for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC and he may be sentenced to the period already undergone by him as he is jail since 12.02.2017. Thus, appeal of A-2 deserves to be allowed in full or in part. 8. Per contra, Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that 7 CRA No. 1967 of 2019 prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that eye witnesses PW-3 & PW-4 have clealry supported the case of the prosecution and further pursuant to memorandum staement of the appellants wooden sticks and their clothes were seized on which in FSL report blood and human blood were found. As such, the 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. 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/22) proved by Dr. Janeshwar Singh (PW-11), 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. 8 CRA No. 1967 of 2019 11. Now, the question for consideration would be whether the appellants have assaulted the deceased? 12. The case of the prosecution is based on the testimony of the eye witnesses Manaro Bai (PW-3) & Mangal (PW-4) and also on the fact that pursuant to memorandum statement of A-1 wooden stick and t-shirt were seized on which in FSL report blood was found and further pursuant to memorandum statement of A-2 wooden stick and t-shirt were seized on which in FSL report blood and human blood, respectively, were found. 13. Now, we will consider the case of both the appellants one by one to verify whether they have rightly been convicted for offence under Section 302 of the IPC or not? Case of Jainath @ Chalgaliya Pando (A-1) 14. In order to convict the A-1, the trial Court has relied upon the statements of eye witnesses Manaro Bai (PW-3) and Mangal (PW-4). However a careful perusal of the statement of Manaro Bai (PW-3) would show that she has only implicated A-2 Rajkumar Ekka by stating that she had seen the A-2 assaulting Chunmuniya Bai (deceased). As such, her statement cannot be relied upon to say that A-1 has also caused the injuries to Chunmuniya Bai (deceased). 9 CRA No. 1967 of 2019 Similarly, Mangal (PW-4) in his statement recorded under Section 161 of the CrPC (Ex.D/1) has implicated the two appellants herein by stating that they have casused the death of Chunmuniya Bai with wooden stick. However, in the statement before the Court he (PW-4) has only stated that it is A-2 Rajkumar who has caused the injuries with wooden stick to his wife Chunmuniya Bai (deceased) by which she suffered grievous injuries and died. As such, the PW-4 has also not implicated the A-1 in crime in question as in his Court’s statement he has no where stated that A-1 has caused the injuries to Chunmuniya Bai. 15. Further, pursuant to memorandum statement of A-1 wooden stick and t-shirt were seized on which as per FSL report only blood was found. However, mere recovery of blood stained articles are of no use to the prosecution in view of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 1 , as it is well settled law that the sole circumstance of recovery of blood stained weapon cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances. As such, in view of the above, it would be unsafe to base the conviction of the appellant that too for offence under Section 302 of the IPC without corroboration. 1 2024 SCC OnLine SC 67 10 CRA No. 1967 of 2019 Accordingly, the appeal to the extent of Jainath @ Chalgaliya Pando (A-1) is allowed. He is acquitted of the offence under Section 302 of the IPC on the basis of principle of benefit of doubt. Case of Rajkumar Ekka (A-2):- 16. Considering the testimony of eye witnesses Manaro Bai (PW-3) and Mangal (PW-4) in which they have clearly implicated A-2 in crime in question by stating that they had seen the appellant (A-2) assaulting the deceased with wooden stick. Further, pursuant to memorandum statement (Ex.P/9) of A-2 , wooden stick and his t-shirt were seized vide Ex.P/10 on which in FSL report (Ex.P/32) blood and human blood, respectively, were found. As such, the finding recorded by the trial Court that it is the appellant (A-2) who caused the injuries over the body of his wife (deceased) is correct finding of fact which is neither perverse nor contrary to the record and we hereby affirm the aforesaid finding of the trial Court. 17. Now, the question that would arise for consider is whether the conviction of Rajkumar Ekka (A-2) for offence under Section 302 of IPC is justified or whether his conviction can be altered to Section 304 Part-II of IPC, as contended by learned counsel for the appellant? 11 CRA No. 1967 of 2019 18. Admittedly, on the date of offence, after consuming liqour Chunmuniya Bai was lying in the open place and the appellant (A-2) tried to take her home, but when she did respond, out of anger A-2 assaulted her (deceased) with wooden stick by which she suffered grievous injuries and died. Considering the medical evidence proved by Dr. Janeshwar Singh (PW-11) deceased had suffered contusions over both of her lungs leading to cardio- respiratory arrest. Furthermore, pursuant to memorandum statement of A-2 Rajkumar Ekka, wooden stick and t-shirt were seized on which in FSL report (Ex.P/32) blood and human blood, respectively, were found However, considering the situs and nature of injury and in absence of evidence elicited from Dr. Janeshwar Singh (PW-11), who conducted the postmortem, he did not say that the injuries which were caused by the appellant over the body of the deceased were sufficient in ordinary course of nature to cause death, we are of the considered view that it is a fit case where the conviction of Rajkumar Ekka (A-2) under Section 302 of the IPC should be converted / altered under Section 304 Part-II of the IPC.[See :- Nankaunoo v. State of Uttar Pradesh2]. 2 (2016) 3 SCC 317 12 CRA No. 1967 of 2019 Conclusion:- 19. In view of the above discussion and analyis of evidence available on record, we conclude that:- (i) The appeal of the appellant Jainath @ Chalgaliya Pando (A-1) is allowed and he is acquitted of the offence under Section 302 of the IPC on the basis of principles of benefit of doubt. Accordingly, he be released from jail forthwith, if not required in any other matter. (ii) The appeal of the appellant Rajkumar Ekka (A-2) is partly allowed and his conviction for offence under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside and he is convicted for offence punishable under Section 304 Part-II of IPC and is sentenced to the period already undergone by him as he is in jail since 12.02.2017 i.e. more than 7 years and 11 months. However, the fine amount including the default sentence imposed by the learned trial Court shall remain intact. Accordingly, he be also released from jail forthwith, if not required in any other matter. 20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the 13 CRA No. 1967 of 2019 copy of this judgment be sent to the concerned Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ankit