Balwan Singh vs The State Of Chhattisgarh

Balwan Singh …Appellant

Versus

The State of Chhattisgarh and Anr. …Respondent

WITH

CRIMINAL APPEAL NO. 1197 of 2016

Latel Ram & Anr. …Appellants

Versus

State of Chhattisgarh …Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.08.06 16:40:16 IST Reason:

These appeals arise out of the judgment dated 10.02.2015

of the High Court of Chhattisgarh at Bilaspur in Criminal Appeal

1 No. 178 of 2011 and Criminal Appeal No. 179 of 2011 confirming

the judgment and order of conviction dated 20.01.2011 passed

by the Additional Sessions Judge, Fast Track Court, Pendra

Road, District Bilaspur in S.T. No. 57 of 2010 convicting the

appellants and other accused for offences punishable under

Sections 148 and 302/149 of the Indian Penal Code (for short,

‘IPC’) and sentencing them accordingly.

2. The case of the prosecution is that on account of previous

enmity with Pitambar Singh (since deceased), the Accused No. 1 –

Balwan Singh (appellant in Criminal Appeal No. 727 of 2015), on

22nd January, 2007, at evening time, was talking with the other

accused regarding preparation to kill Pitambar Singh. Their

conversation was heard by Sunderlal Rathore @ Sunder Singh

Rathore (PW­11) and Shatrughan Singh (PW­12), who were

passing through the same place. Further, it was the case of the

prosecution that all the accused, armed with deadly weapons,

went towards the field of one Bhagwat Seth and committed the

murder of Pitambar Singh. PW­9 and PW­16, who were near the

scene of the occurrence, rushed to the spot after hearing the cries

of the injured, and saw all the accused assaulting the deceased

2 with lathis and tabbal (an agriculture implement made up of

iron). It is stated by PW­9 and PW­16 that the tabbal was held by

the Accused No. 4, namely, Ashok Singh. The injured died

instantaneously and the accused fled away.

The dead body was seen by one Drupad Singh (PW­1) at 7

o’clock the next morning, who in turn informed Nar Singh Rajput

(PW­17), the informant. Thereafter, Drupad Singh and Nar Singh

Rajput together went to the place where the dead body was lying,

and saw that Pitambar Singh was murdered. The deceased was

the uncle of the informant.

3. The Trial Court as well as the First Appellate Court,

believing the testimonies of PW­9 and PW­16 who were the eye

witnesses of the incident, and the testimonies of PW­11 and PW­

12 who deposed about the conspiracy to commit the murder of

the deceased, convicted the accused for the offences punishable

under Sections 148 and 302/149 IPC. It is pertinent to state that

although charge was also framed under Section 120­B IPC, the

accused were acquitted in respect of the said offence.

4. Shri Sanjay Hegde, learned senior counsel appearing for the

appellant Balwan Singh, and Shri Rajeev Kumar Bansal, learned

3 counsel appearing for appellants Latel Ram and Santu @

Santram, drew the attention of the Court to the relevant portions

of the depositions of the important witnesses, and submitted that

the prosecution had planted the eye witnesses, namely, PW­9

and PW­16 for the purpose of prosecuting the accused, though

these witnesses were not present near the scene of occurrence.

They contended that the statements of these alleged eye

witnesses were recorded about eight days after the incident in

question, though they were very much present in the village or

though the police knew that these witnesses were the alleged eye

witnesses of the incident. According to the learned counsel for

the appellants, the evidence of PW­11 and PW­12 is also vague,

cryptic, and unreliable inasmuch as the courts below have

acquitted the accused for the offence under Section 120­B IPC.

5. Per contra, the learned counsel appearing for the State

argued in support of the judgments of the courts below.

6. We find from the records that though the incident took

place on 22nd January, 2007, the statements of the alleged eye

witnesses, namely, PW­9 and PW­16, were recorded after eight

days of the incident. The prosecution has tried to explain the

4 delay in recording the statement of the eye witnesses by

contending that they were scared of the accused, particularly

Balwan Singh who was the village Sarpanch (Panchayat

Chairman); the accused Balwan Singh was stated to be powerful

and influential; only after some of the accused were arrested,

these witnesses came to the village and gave their statements to

the police during the course of investigation; till such time, the

eye witnesses PW­9 and PW­16 did not come to the village at all

and were staying in different villages in their relatives’ houses.

We are conscious of the fact that mere delay in recording of

the statement of the eye witness by the investigating officer

cannot ipso facto raise suspicion in the mind of the Court about

the veracity of the prosecution case, more particularly, about the

veracity of the eye witnesses. In the normal course, this Court

would have accepted the explanation offered by the witnesses or

the prosecution for not recording the statements at an earlier

point in time, but the facts in this case are different inasmuch as

it is admitted by the prosecution witnesses, more particularly by

the investigating officer, that PW­9 was very much present in the

village. PW­2 and the investigating officer, during the course of

5 the investigation, had seen PW­9, being the Patel (Patwari) of the

village. PW­2 had admitted in the cross­examination that he had

seen PW­9 at the place of the incident when the police had come

to the village after the registration of the First Information Report.

PW­2 is none else but the younger brother of PW­9, and they

were residing separately in one house. Thus, the evidence of PW­

2 cannot be disbelieved insofar as it relates to the presence of

PW­9 in the village, and on the spot when the police had started

investigation. Furthermore, the investigating officer also testified

that immediately after reaching the village Semaria, where the

incident took place, he had called the Patel (PW­9). He

categorically admitted that he called PW­9 to the place of the

occurrence and that he (PW­9) was present during the course of

the investigation. PW­9, being the Patel of the village, could not

have kept the fact about the incident or about the complicity of

the accused from the investigating officer at the first instance,

had he really been an eye witness to the incident. The

investigating officer had proceeded to depose that, on his own, he

had recorded the statement of PW­9 on 30.01.2007, which means

that PW­9 had not informed the investigating officer that he was

an eye witness to the incident. The investigating officer, on his

6 own accord, had recorded the statement of PW­9. It is thus clear

that the investigating officer knew very well, on the first day itself,

that PW­9 was an eye witness. There was no reason as to why the

investigating officer did not record the statement of the so­called

eye witness at the earliest point of time, more particularly when,

at that point in time, the investigating officer did not have any

clue about the murderers.

PW­9 and PW­16 are close friends, and on the date of the

incident, had gone together to see Panthi dance in the village

during night, and at that point in time, both of them heard the

cries of the deceased and rushed to the spot and saw the accused

committing the murder of the deceased. It is also the evidence of

PW­9 and PW­16 that the accused saw these witnesses at the

time of the occurrence of the murder inasmuch as these

witnesses told all the accused not to beat/assault the deceased.

On hearing such utterance of these witnesses, the accused

allegedly tried to chase them, but they fled away from the scene.

If this were true, then PW­9, who was present at the spot during

the course of the investigation on the first day itself, would not

have left the police uninformed about the presence of PW­16 also.

7 It is also relevant to note that PW­16 is from a different village,

namely, Kusumkonda, which is stated to be 75 K.M. away from

the place of incident, and on the date of the incident he had come

to the village Semaria where the incident had taken place. The

place of work of PW­16 is Takatpur, which is stated to be 70 K.M.

away from Semaria village. It is curious to note that PW­9 and

PW­16 met on the date of incident after a gap of about 15 years,

and thereafter went to watch the dance performance. In our

considered opinion, the story, as put forth by the prosecution,

that PW­9 did not tell the investigating officer about the presence

of PW­16, is not believable. According to PW­16, he came to the

village Semaria after eight days, i.e. after the arrest of a few

accused, and gave the statement to the police.

7. As per the case of the prosecution, Balwan Singh is a

powerful and influential person and the eye witnesses were

scared of him. It is relevant to note that even at the time of the

recording of the statements of PW­9 and PW­16 after eight days

of the incident, Balwan Singh was not arrested. He was arrested

after about two months from the recording of the statements of

these witnesses. It is relevant to note that these witnesses were

8 not scared of other accused who were arrested. Be that as it may,

we find that the whole story of the prosecution about the

presence of PW­9 and PW­16 on the spot at the time of incident

appears to be artificial and concocted.

8. The prosecution also relies upon the evidence relating to

recovery of sticks and tabbal which were bloodstained. Such

evidence may not be helpful to the prosecution in this case

inasmuch as there is no evidence to show that these articles were

stained with human blood, and more particularly with blood of

the same blood group as that of the deceased. As per the

Forensic Science Laboratory Report, the blood stains were

disintegrated, and their origin could not be determined.

In Sattatiya v. State of Maharashtra, (2008) 3 SCC 210,

one of the crucial factors that had led this Court to reverse the

conviction was that the bloodstains on the items seized in the

recovery could not be linked with the blood of the deceased. This

factor was treated as a serious lacuna in the case of the

prosecution.

Similarly, in Shantabai and Ors. v. State of

Maharashtra, (2008) 16 SCC 354, the bloodstains on some of

9 the clothes seized from the accused in recovery belonged to a

different blood group from that of the blood group of bloodstains

found on the clothes of the deceased and on the sample of soil,

axe, stones etc. which were taken from the spot by the

investigating officer. As a result of this mismatch, it was held that

this circumstance was not proved against the accused.

It is also important to note the following observations made

by a Constitution Bench of this Court in Raghav Prapanna

Tripathi & Ors. v. State of U.P., AIR (1963) SC 74:

“21. In this connection, reference may also be made to circumstances 9 and 10, relating to the recovery of the bloodstained earth from the house. The bloodstained earth has not been proved to be stained with human blood. Again, we are of opinion that it would be far­fetched to conclude from the mere presence of bloodstained earth that earth was stained with human blood and that the human blood was of Kamla and Madhusudhan. These circumstances have, therefore, no evidentiary value.” (Emphasis supplied)

Therefore, the five­judge bench had ruled that in that case

the prosecution needed to prove that the bloodstains found on

the earth or the weapons were of a human origin and were of the

same blood group as that of the deceased.

10 9. We are also conscious of the fact that, at times, it may be

very difficult for the serologist to detect the origin of the blood

due to the disintegration of the serum, or insufficiency of blood­

stains, or haematological changes etc. In such situations, the

Court, using its judicious mind, may deny the benefit of doubt to

the accused, depending on the facts and circumstances of each

case, if other evidence of the prosecution is credible and if

reasonable doubt does not arise in the mind of the Court about

the investigation.

Thus, in the case of R. Shaji v. State of Kerala, (2013) 14

SCC 266, this Court had observed:

“31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by

11 the accused, the matching or non­matching of blood group(s) loses significance.”

Similar observations were made by this Court in the case of

Gura Singh v. State of Rajasthan, (2001) 2 SCC 205, wherein

it was observed that it was not possible to accept the submission

made on behalf of the accused that in the absence of the report

regarding the origin of the blood, the accused could not have

been convicted, inasmuch as it was only because of the lapse of

time that blood could not be classified successfully.

In the case of Jagroop Singh v. State of Punjab, (2012)

11 SCC 768, this Court had ruled that as the recovery was made

pursuant to a disclosure statement made by the accused, and the

serological report had found that the blood was of human origin,

the non­determination of the blood group had lost its

significance.

In the case of State of Rajasthan v. Teja Ram and

Others, (1999) 3 SCC 507, the Court had observed that the

failure of the serologist to detect the origin of the blood, due to

disintegration of the serum, did not mean that the blood stuck on

the weapon could not have been human blood at all. In this

12 context, it was noted that it could not be said that in all cases

where there was a failure in detecting the origin of blood, the

circumstance arising from recovery of the weapon would stand

relegated to disutility. It was thus observed that unless the doubt

was of a reasonable dimension which a judicially conscientious

mind entertained with some objectivity, no benefit could be

claimed by the accused.

10. However, we cannot lose sight of the fact that the accused

would be in a disadvantageous position in case if the

aforementioned dictum laid down by this Court in the cases of

R. Shaji (supra), Gura Singh (supra), Jagroop Singh (supra)

and Teja Ram (supra) relating to the blood­stains is applied in

each and every case. Non­confirmation of blood­group or origin of

the blood may assume importance in cases where the accused

pleads a defence or alleges mala fides on the part of the

prosecution, or accuses the prosecution of fabricating the

evidence to wrongly implicate him in the commission of the

crime.

13

11. In the case of John Pandian v. State Represented by

Inspector of Police, Tamil Nadu, (2010) 14 SCC 129, this

Court, on facts, observed that the evidence of recovery of

weapons was credible. The Forensic Science Report (FSL) report

had disclosed that the blood was of human origin. The Court

proceeded to conclude that since the evidence of recovery of

weapon was proved to the satisfaction of the Court, it was

sufficient that the prosecution had proved that the bloodstains

were of human origin, even though the blood group could not be

ascertained.

12. The cases discussed above highlight the burden that the

prosecution would ordinarily have to discharge, depending on the

other facts and circumstances of the case, for the evidence

relating to recovery to be considered against the accused. At the

same time, as mentioned above, we are conscious of the fact that

it may not always be possible to inextricably link the bloodstains

on the items seized in recovery to the blood of the deceased, due

to the possibility of disintegration of bloodstains on account of

the time­lapse in carrying out the recovery. For this reason, in

Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127, where

14 one of us (Mohan M. Shantanagoudar J.) had the occasion to

author the judgment, this Court, relying on Teja Ram (supra),

had held that the failure to determine the blood group of the

bloodstains collected from the scene of offence would not prove

fatal to the case of the prosecution. In Prabhu Dayal case

(supra), although the FSL report could not determine the blood

group of the bloodstains on account of disintegration, the report

clearly disclosed that the bloodstains were of human origin, and

the chain of circumstantial evidence was completed by the

testimonies of the other witnesses as well as the reports

submitted by the Ballistic Expert and the Forensic Science

Laboratory regarding the weapon used to commit murder.

13. From the aforementioned discussion, we can summarise

that if the recovery of bloodstained articles is proved beyond

reasonable doubt by the prosecution, and if the investigation was

not found to be tainted, then it may be sufficient if the

prosecution shows that the blood found on the articles is of

human origin though, even though the blood group is not proved

because of disintegration of blood. The Court will have to come to

the conclusion based on the facts and circumstances of each 15 case, and there cannot be any fixed formula that the prosecution

has to prove, or need not prove, that the blood groups match.

14. In the instant case, then, we could have placed some

reliance on the recovery, had the prosecution at least proved that

the blood was of human origin. As observed supra, while

discussing the evidence of PWs 9 and 16, the prosecution has

tried to concoct the case from stage to stage. Hence, in the

absence of positive material indicating that the stained blood was

of human origin and of the same blood group as that of the

accused, it would be difficult for the Court to rely upon the

aspect of recovery of the weapons and tabbal, and such recovery

does not help the case of the prosecution.

15. What remains is the evidence of PW­11 and PW­12, who

have deposed about the preparation of conspiracy of the accused

to commit the murder of the deceased. As mentioned earlier, all

the accused were acquitted for the offence of conspiracy, which

means that there are concurrent findings of both the courts

below that the prosecution has failed to prove the aspect of

conspiracy of the accused to commit the murder of the deceased.

16 Once the conspiracy to commit the murder of the deceased is

absent, there is no material on record to show as to why the

accused had gathered in the house of Balwan Singh.

16. In view of the above material which is shaky, suspicion

arises in the mind of the Court about the genesis of the case of

the prosecution. In our considered opinion, the Trial Court and

the High Court were not justified in relying upon the evidence of

the eye witnesses as well as of PW­11 and PW­12. Similarly, their

reliance on the aspect of recovery was also not justified, for the

reasons mentioned earlier.

Accordingly, the appeals are allowed. The impugned

judgments of the Trial Court and the High Court are set aside.

The appellants are directed to be released forthwith, if not

required in any other case.

We find that the appellants in these appeals are Accused 1,

Accused 2 and Accused 7. Other accused in S.T. No. 57 of 2010

have not preferred an appeal. Since in respect of the appellants

herein we find that the prosecution has not proved the charges

beyond reasonable doubt, the benefit of this judgment should

also enure to the other accused who were convicted in S.T. No.

17 57 of 2010. Accordingly, the other accused in S.T. No. 57 of

2010, who have not preferred appeals before this Court, shall

also be released forthwith, if not required in any other case.

……………..…………………………..J. (N.V. RAMANA)

…………………………………………..J. (MOHAN M. SHANTANAGOUDAR)

…….………..…………………………J. (AJAY RASTOGI)

NEW DELHI AUGUST 06, 2019

18