Laxman Singh Korva vs State Of Chhattisgarh

Sanjay K. Agrawal, J

These are two Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CrPC’). Since common question of law and fact is involved in both these appeals, they have been clubbed together, heard together and are being disposed of by this common Judgment.

Cr.A. No.770/2017 preferred by the main accused Laxman Korva is directed against the Judgment & Order dated 28.2.2017 passed by Sessions Judge, Korba, District Korba (in short ‘Trial Court’) in Sessions Trial No.27/2016 by which he was convicted for the offences punishable under Sections 460 & 302 of the Indian Penal Code, 1860 (in short ‘IPC’) and sentenced in the following manner:-

Conviction

Sentence

Under Section 460 of IPC

Rigorous Imprisonment for 10 years with fine of Rs.1000/- and in default of payment of fine, to suffer additional One years' Rigorous Imprisonment.

Under Section 302 of IPC

Imprisonment for Life with fine of Rs.2000/- and in default of payment of fine amount, to undergo additional Two years' Rigorous Imprisonment.

With a direction to run both sentences concurrently.

Cr.A No.1229/2019 has been filed by one of the co-accused Mangal Singh @ Chakmudwa, who was absconding after the incident and was apprehended at a later stage and, therefore, he was tried separately in accordance with law and finally by Judgment & Order dated 28.6.2019 passed by the Trial Court in the same Sessions Trial No.27/2016, he also stands convicted and sentenced as under:-

Conviction

Sentence

Under Section 302 read with Section 34 of IPC.

Imprisonment for Life with fine of Rs.2000/- and in default of payment of fine amount, to undergo additional Three years' Rigorous Imprisonment.

Factual matrix of the case, in brief:

On 1.12.2015, at about 8:00 pm, in Village Dudhitangar, the two Appellants herein along with the other absconding co-accused Anjali, in furtherance of their common intention, are said to have trespassed into the house of Phoolsai and the Appellant Laxman Korwa caused death of Phoolsai by arrows fired with the bow that he was having.

According to the prosecution case, on the date and time of the incident, the Appellant Laxman Korva along with the Appellant Mangal Singh and absconding co-accused Anjali, in a drunken state, trespassed into the house of the deceased Phoolsai and were abusing him. At that time, the Appellant Laxman Korwa was having bow & arrows with him, the Appellant Mangal Singh, father-in-law of the Appellant Laxman Korva, was armed with tangia (axe) and the absconding co-accused Anjali, wife of the Appellant Laxman Korva, was carrying lathi with her. PW-3 Bagalin Bai, wife of Phoolsai, was also stated to be in the house along with her children. It is the case of the prosecution that when Phoolsai asked the accused persons not to abuse, the Appellant Laxman Korva fired an arrow from his bow on the neck of Phoolsai and when Phoolsai was trying to pull out the arrow from his neck and went inside his room to save himself, the Appellant Laxman Korva fired another arrow on the back of Phoolsai who then fell down inside the room and subsequently succumbed to the injuries sustained. Appellant Laxman Korva thereafter is said to have entered into the room and forcefully pulled out an arrow from the back of Phoolsai and thereafter absconded from the spot along with the other two co-accused persons.

On the next day of incident, i.e., on 2.1.2015, at about 4:20 pm, the matter was reported by PW-3 Bagalin Bai (PW-3) to the Investigating Officer Santosh Kumar Pathak (PW-7), who was on patrolling duty in the village at that time. On her report, Dehati Merg Intimation and Dehati Nalishi were recorded vide Exhibits P-6 & P-5 respectively. Inquest Panchnama was prepared vide Exhibit P-8 and the dead-body of deceased Phoolsai was subjected to post-mortem which was conducted by Dr. Ashok Shakya (PW-6) vide Exhibit P-12 in which cause of death of the deceased was opined to be hemorrhagic shock due to penetrating injuries on left lung with hemothorax and the death was homicidal in nature. Sketch Map of the occurrence site was prepared vide Exhibit P-19 and Nazri Naksha was prepared by Patwari vide Exhibit P-1. From the place of incident, blood soaked and plain soil were seized vide Exhibit P-9; vide Exhibit P-10, a pointed part of the broken arrow and a broken part of the arrow were seized and vide Exhibit P-11, a bloodstained broken part of the arrow stuck in the fist of the right hand of the deceased Phoolsai was also seized. Subsequently, vide Exhibits P-27 & P-28, FIR was registered against the three accused persons.

Memorandum statement of the Appellant Laxman Korva was recorded vide Exhibit P-2 pursuant to which, a bow made from bamboo stick and an arrow fitted with pointed iron arrowhead were recovered vide Exhibit P-3. The seized articles were subjected to chemical examination at Forensic Science Laboratory, Raipur. In the FSL report received vide Exhibit P-35, human blood was found on the blood soaked soil ('A'), arrow ('C'), broken piece of arrow ('D'), broken piece of arrow ('D2') seized from the spot. Similarly, human blood was found on the bow ('E') and arrow ('F') seized from the Appellant Laxman Korva and also on the T-shirt ('G'), lungi ('H') and underwear ('I') of the deceased Phoolsai. On the broken piece of arrows ('D') & ('D2') seized from the spot, 'O' blood-group was found. After completion of the investigation, final report along with charge-sheet was filed before the concerned Magistrate Court from where the matter, being triable by the Sessions Court, committed to the Trial Court for trial and disposal in accordance with law.

Initially, after declaring the other two co-accused persons absconding, only the Appellant Laxman Korva was charge-sheeted for the offence punishable under Sections 460 & 302 of IPC and tried before the Trial Court where in order to bring home the offence, the prosecution examined eight witnesses being PW-1 Ku. Prerna Singh, PW-2 Pawan Singh Kanwar, PW-3 Bagalin Bai, PW-4 Nanki Korwa, PW-5 Charan Singh Korva, PW-6 Dr. Ashok Shakya, PW-7 Santosh Kumar Pathak and PW-8 Raghuraj Prasad Sahu and exhibited 36 documents from Exhibits P-1 to P-36. The accused Appellant Laxman Korva was examined under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited. Photographs of the dead-body of deceased Phoolsai and the place of incident have been brought on record as Articles 'A' to 'T'.

After conclusion of the trial in the case of the Appellant Laxman Korva, the Trial Court, by impugned Judgment & Order dated 28.2.2017, on appreciation of the evidence, both oral and documentary available on record, convicted the Appellant Laxman Korva for the offences under Sections 460 & 302 of IPC and sentenced him in the manner as shown at the table given in paragraph-2 of this Judgment. Assailing his conviction and sentence awarded thereunder, the Appellant Laxman Korva has filed Cr.A. No.770/2017.

Subsequently, one of the absconding accused persons i.e., the Appellant Mangal Singh, was arrested on 11.10.2018 and also was tried by the Trial Court in the same sessons trial on the charge under Section 302 read with Section 34 of IPC where in addition to the afore-mentioned eight prosecution witness, two more witnesses were examined as PW-9 Sukwaro Bai and PW-10 Ramprasad and the statement of Sukwaro Bai was exhibited as P-37. The accused Mangal Singh was also examined under Section 313 of CrPC in which he also denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited by him also. After completion of the trial, the Trial Court by impugned Judgment & Order dated 28.6.2019, found the Appellant Mangal Singh guilty of the offence punishable under Section 302 read with Section 34 of IPC and accordingly convicting him for the said offence, sentenced him for Life Imprisonment and fine of Rs.2000/- with default stipulation, against which he has filed Cr.A. No.1229/2019.

Submissions of learned Counsels for parties:

Mr. Dharmesh Shrivastava, learned Counsel appearing for Appellant Laxman Korva, would submit that the Trial Court is absolutely unjustified in convicting the Appellant Laxman Korva as there is no evidence against him. The prosecution case is solely based on the evidence of two alleged eye-witnesses, PW-3 Bagalin Bai, wife of the deceased and PW-4 Nanki Korva, minor daughter of the deceased, and their testimony cannot be relied upon being related and interested witnesses, in absence of corroboration. He would further submit that the alleged recovery of bow & arrow from the possession of the Appellant Laxman Korva would be of no use to the prosecution in absence of corroboration. Apart from that, there was a delay in lodging of the FIR. In that view of the matter, the appeal of the Appellant Laxman Korva deserves to be allowed and he is entitled for acquittal of the offences charged with on the basis of benefit of doubt.

Mr. Akhilesh Dalpati, learned Counsel appearing for Appellant Mangal Singh, would submit that so far as the Appellant Mangal Singh is concerned, the prosecution has not been able to bring home the offence beyond reasonable doubt and in the instant case in fact there is no witness who has seen the Appellant Mangal Singh committing any overt-act and he has falsely been implicated in the crime in question. The Trial Court as such is absolutely unjustified in convicting the Appellant Mangal Singh for the offence punishable under Section 302 read with Section 34 of IPC which deserves to be set-aside, acquitting him of the said charge.

Mr. Ashish Shukla, learned Additional Advocate General, per contra, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the two eye-witnesses, PW-3 Bagalin Bai and PW-4 Nanki Korva are reliable witnesses and their testimonies cannot be put to doubt and, in view of their testimonies, conviction of the two Appellants herein does not require intervention and their appeals are liable to be dismissed accordingly.

Discussion and Analysis:

We have heard learned Counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

The first and foremost question as to whether the death of deceased Phoolsai was homicidal in nature, the Trial Court has answered the said question in affirmative relying upon the statment of Dr. Ashok Shakya (PW-6) who has conducted post-mortem of the deceased Phoolsai and proved the post-mortem examination (Exhibit P-12) in which cause of death of the deceased has been opined to be hemorrhagic shock due to penetrating injuries on left lung with hemothorax and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to record. We, therefore, affirm the said finding of the Trial Court holding that the death of deceased Phoolsai was homicidal in nature.

Appeal of Appellant Laxman Korva @ Cr.A.770/2017:

The Trial Court has convicted the Appellant Laxman Korva mainly on the basis of the testimonies of two witnesses i.e., PW-3 Bagalin Bai and PW-4 Nanki Korva, who are wife and minor daughter of deceased Phoolsai respectively and have been projected by the prosecution as eye-witnesses to the incident.

PW-3 Bagalin Bai, in her deposition, has stated that at the time of incident she was cooking food and her husband Phoolsai was in the verandah of their house and at that time the Appellant Laxman Korva came and fired two arrows on the neck and back of her husband who died on the spot and that she did not know the reason as to why the Appellant Laxman Korva assaulted her husband with bow & arrow. However, in her cross-examination, she has stated that from the place where she used to cook food, the main entrance of the house was not visible. She has further stated that she cannot tell who had come to her house when she was cooking food and admitted that when she came to the verandah, at that time her husband was lying on the ground and he was already died. She has also stated that she could not tell any of her neighbours about the incident as there was no one in her house and therefore she did not leave her house at that point of time.

PW-4 Nanki Korva, who is minor daughter of deceased Phoolsai, aged 14 years, has stated that the Appellant Laxman Korva in a drunken state came outside their house and called out her father threatening to set their house on fire and on which her father came to the verandah and at that time she along with her brothers & sisters was studying in the verandah. Thereafter, the Appellant Laxman Korva entered into their house threatening to her father and she and her brothers & sisters went inside their room. When her father was keeping a watch on the Appellant Laxman Korva, he was assaulted by the Appellant by means of bow and arrows. She has clearly stated that there was darkness at the place from where the Appellant Laxman Korva was allegedly assaulting her father and her father was in the verandah which was lighted by an electric bulb. She has further stated that when the Appellant Laxman Korva was assaulting her father, she was watching the incident hiding in the verandah. According to her statement, during the incident, apart of the Appellant Laxman Korva, the absconding co-accused Anjali and the Appellant Mangal Singh were also present and they all fled away after the incident.

During her cross-examination, PW-4 Nanki Korva has specifically stated that she used to study at the verandah near the courtyard of her house and from the place at which she does her studies, the people outside were not visible because of darkness out there and that at the time of incident she was studying exactly at the same place. Further, she has also admitted of not informing the incident to any person in her neighbourhood.

Now, we shall proceed to analyse the testimony of these two material eye-witnesses to the incident, i.e., PW-3 Bagalin Bai and PW-4 Nanki Korva. From careful perusal of the statement of PW-3 Bagalin Bai, it is reflected that from the place where she was cooking food, the main entrance of the house was not visible. She has clearly stated that at the time of incident she was cooking food and she did not know who had come to her house and that after the incident when she came to the verandah she found her husband lying there dead. Thus, from the testimony of PW-3 Bagalin Bai, it is quite explicit that she has not seen the Appellant Laxman Korva to have assaulted her husband with bow and arrows. Therefore, her statement is inconclusive as to the assault caused allegedly by the Appellant Laxman Korva on the deceased.

As regards the testimony of PW-4 Nanki Korwa, who is minor daughter of the deceased, aged 14 years, though she has stated that hiding in the verandah she had witnessed the Appellant Laxman Korva assaulting her father by bow & arrows but from her statement itself it is revealed that the place from where the Appellant Laxman Korva is said to have allegedly assaulted the deceased, it was quite dark there and in the statement made by PW-4 Nanki Korva in her cross-examination, she herself has admitted that she used to study in the verandah of her house and from that place, the people outside were not visible because of darkness and that at the time of incident she was studying in the verandah. The incident in the instant case had occurred at around 8:00 pm on 1.12.2015. As such, in view of the testimony of PW-4 Nanki Korva also it is difficult to reach to the conclusion that it was in fact the Appellant Laxman Korva who has caused death of deceased Phoolsai.

Apart from the above, PW-5 Charan Singh Korva, brother of deceased Phoolsai, has not witnessed the incident and he is only a hearsay witness. His testimony therefore is not credit-worthy. Furthermore, PW-2 Pawan Singh Kanwar, one of the memorandum and seizure witnesses, has turned hostile and not supported the case of the prosecution at all. Similarly, PW-8 Raghuraj Prasad Sahu, the other memorandum and seizure witness, has also turned hostile and not supported the case of the prosecution partially, denying the recording of memorandum statement of the Appellant Laxman Korva before him, although he has admitted that the Appellant Laxman Korva had given a bow & arrow to the police from her house. However, in his cross-examination, he has accepted the fact that such bow & arrow are usually found in the tribal houses.

In addition, there is a delay in lodging of the report of the incident. The incident is said to have taken place at about 8:00 pm on 1.12.2015 but the matter was reported by PW-3 Bagalin Bai on the next day, i.e., on 2.1.2015, at about 4:20 pm, that too when the Investigating Officer Santosh Kumar Pathak (PW-7) was on his patrolling duty in the village, who thereafter registered Dehati Merg Intimation and Dehati Nalishi vide Exhibits P-6 & P-5 respectively. No plausible reason has been explained by PW-3 Bagalin Bai for the delayed reporting of the incident. Even, as per her statement, she did not inform the incident to her neighbours as there was no one in her house. Likewise, PW-4 Nanki Korva has also admitted of not informing the incident to any person. When there is a delay in lodging of the FIR, in absence of proper explanation, possibility of embellishments in the prosecution story and opportunity for deliberation and guess work cannot be ruled out. Not only that, the motive of the offence is also not established, as PW-3 Bagalin Bai herself has stated that she did not know the reason as to why the Appellant Laxman Korva allegedly assaulted her husband with bow & arrow.

The next incriminating circumstance which the Trial Court has found proved is that pursuant to the memorandum statement of the Appellant Laxman Korva, a bow & arrow was recovered and in the FSL report (Exhibit P-35), human blood was found on the said bow (‘E’) and arrow (‘F’). However, even if in the FSL report, human blood has been found on the said articles but they would be of no use to the prosecution. Only on the basis of recovery of bloodstained weapon, no conviction can be based, in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 2024 SCC OnLine SC 67.

In light of the discussion made herein above, we are of the considered opinion that the prosecution has not been able to convincingly prove as to who has in fact caused assault on the deceased Phoolsai and as such the offence in question cannot be said to be found proved beyond reasonable doubt so far as the Appellant Laxman Korva is concerned. We therefore are of the considered view that this is a fit case where the Appellant Laxman Korva is entitled to the benefit of doubt to be acquitted of the offences punishable under Sections 460 & 302 of IPC and it is accordingly held so.

Appeal of Appellant Mangal Singh @ Cr.A. No.1229/2019:

The Appellant Mangal Singh @ Chakmudwa stands convicted by the Trial Court for the offence punishable under Section 302 read with Section 34 of IPC. He was absconding after the incident and was arrested only on 11.10.2018 and thereafter was tried by the Trial Court in a full fledged trial in the same sessons trial where in addition to the afore-mentioned eight prosecution witness examined in the appeal of the Appellant Laxman Korva, two more witnesses, PW-9 Sukwaro Bai and PW-10 Ramprasad, both wife and husband respectively, have been examined by the prosecution.

The only allegation against the Appellant Mangal Singh, as per the prosecution, is that he had also accompanied the Appellant Laxman Korva at the time incident when the deceased Phoolsai was assaulted. However, as already held in the preceding paragraph, while considering the appeal of the Appellant Laxman Korva, the testimony of PW-3 Bagalin Bai has been found inconclusive in regard to the fact as to who has caused the assault on the deceased Phoolsai and from her testimony it has not been proved that she has even seen the Appellant Laxman Korva at the time of incident let alone the Apepllant Mangal Singh. Similarly, though PW-4 Nanki Korva has stated to have seen the Appellant Mangal Singh armed with tangia (axe) at the time of offence but as per her own statement made in her cross-examination, from the verandah of her house, the people outside were not visible because of darkness. Apart from that no overt-act is said to have been attributed on the part of the Appellant Mangal Singh in the commission of the alleged offence. Therefore, the presence of the Appellant Mangal Singh at the time of offence also cannot be said to be proved conclusively.

Insofar as PW-9 Sukwaro Bai and her husband PW-10 Ramprasad is concerned, both of them have turned hostile and not supported the case of the prosecution. From the testimony of both these witnesses it would manifest that they have not seen the incident and they had come to know about the incident the next day. From their cross-examination also it is apparent that on the date of offence, in the evening, on account of darkness, they could not see as to who was making hue and cry in front of their house and who was carrying which weapon with them.

Thus, for the foregoing discussion, we are of the considered opinion that the prosecution has failed to bring home the offence beyond reasonable doubt so far as the Appellant Mangal Singh is concerned and as such his conviction under Section 302 read with Section 34 of IPC deserves to be and is hereby set-aside and he is acquitted of the said charge on benefit of doubt.

Conclusion:

In conclusion,

(1) Cr.A. No.770/2017 filed by Appellant Laxman Korva is allowed. His conviction and sentence for the offences punishable under Section 460 & 302 of IPC are set-aside and he is acquitted of the said charges extending him the benefit of doubt. He is reported to be in jail since 5.12.2015, therefore, he be released from jail forthwith, if his detention is not required in connection with any other offence.

(2) Cr.A. No.1229/2019 preferred by the Appellant Mangal Singh @ Chakmudwa also stands allowed. His conviction and sentence for the offence punishable under Section 302 read with Section 34 of IPC are set-aside and he is acquitted of the said charge. He is reported to be in jail since 10.11.2018, therefore, he also be released from jail forthwith, if not required in any other offence.

We make it clear that none of the observations made in this Judgment shall have any bearing on the merits of the case of the absconding co-accused Anjali.

Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.