^ H16H COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Mr. Sunil Kumar Sinha & Hon'ble Mr. Radhe Shvam Sharma. JJ. Criminal Appeal No. 502/1995 Appellants 1. 2. 3. 4. Vs. Respondent Duddheshwar son of Sibbo Mahkul, aged about 20 years, Niranjan son of Sibbo Mahkul, aged about 45 years; Siddheshwar son of Sibbo Mahkul aged 35 years, Dhanumay son of Sibbo Mahkul, aged 25 years, All residents of village Barangjor, P.S. Kankeri,. Distt. Raigarh, M.P. (Now state of Chhattisgarh State of M.P. (Now State of Chhattisgarh) Present: (Criminal Appeal under Section 374 Cr.P.C.) Ms. Sharmiia Singhai and Shri Sanjay Agrawal, Advocates for the appellants. Shri Ashish Shukla, Govt. Advocate forthe Stete. ORAL JUDGMENT (24.08.2011) The followina iudament ofthe Courtvwis oassed bv Sunil Kumar Sinha, J. This appeal is directed against the judgment dated 31st January, 1995 passed in Session Trial No.54/94 by the Additional Session Judge, Jashpurnagar. By the impugned judgment, the appellants have been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- .,.^1"^. ,^7T-,^. i yy^wK^ ^^ ,y 0 ^y"^/ ^ ^ Criminal Appeal No.502/1995 The four appellants are real brothers. They are sons of Sibbo Mahkul. Deceased Bitulram and Sibbo were members of the same family. They had partitioned their properties long back. The disputed land, admeasuring 14 dedmals was in exclusive possession of Bitulram and his son Ratanram. In the year 1993, the appellants had forcibly cultivated the \ said land. A case was also pending in the Court of Tahsildar. On 11 .10.93, the appellants and some other villagers came to the house of the deceased persons, i.e. Bitulram and Ratanram and decided that paddy crop standing on the disputed land would be jointly harvested by them and they will make partition of the crop. Thereafter, the appellants and both the deceased persons, i.e. Bitulram and Ratanram, along with one Bodhram went towards the field for harvesting the crop. Allegations are that in the way, the appellants attacked over the deceased persons by tangia and caused multiple serious injuries to them. The deceased persons succumbed to the injuries sustained by them. According to the prosecution, the Incident was witnessed by Madwa (PW-5), Madhoram (PW-7), Javel Xaxa (PW-9) and Anil (PW-16). When the deceased persons did not return to the house in the aftemoon, Tobha Bai (PW-6 - wife of deceased Ratanram) went to the field and saw that both the deceased persons were lying dead. They had received multiple injuries. Tobha Bai (PW-6) lodged First Information Report (Ex-P/17). She had mentioned the names of the appetlants in the First Informgtion Report and the allegations were made that the appellants had taken the deceased persons with them and they must have assaulted them. On the basis of said report, investigating officer reached to the place of occurrence, gave notice to the Panc/ias and prepared inquests (Ex-P/1 & P/2) on the dead bodies of the deceased persons. Dead bodies of the @ Criminal Appeal No.502/1995 deceased persons were sent for post mortem to Govt. Hospital, Kunkuri, where post mortem examinations were conducted by Dr. J.S. Sahu (PW-12). He found multiple incised wounds on the dead bodies of the deceased persons and opined that the causes of death were excessive bleeding due to multiple grievous injuries sustained by them and the death were homicidal in nature. Post mortem reports are Ex-P/21 & P/22. In further investigation, the appellants were taken into custody, their memorandum statements under Section 27 of the Evidence Act, were recorded and tangias were seized at the instances of the appellants. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur, but no report ofthe said laboratory could be filed. 3. All the cited eyewitnesses i.e. Madwa (PW-5), Madhoram (PW-7), Javel Xaxa (PW-9) and Anil (PW-16)turned hostile and they did not support the case of the prosecution. Learned Sessions Judge, however, relying on the testimonies of Pitrus Tigga (PW-11) and Somari Bai (PW-10), who claimed to be the eyewitnesses during the course of trial, convicted and sentenced the appellants as aforementioned. 4. Ms. Sharmila Singhai, leamed counsel appearing for the appellants has argued that all the cited eyewitness turned hostile; even after lengthy cross-examination, they did not support the case of the prosecution; Pitrus (PW-11) and Somari Bai (PW-10) were not the eye witnesses, according to the prosecution; they deposed during the trial as eyewitnesses for the first time and the learned Sessions Judge erred in relying on their testimonies; therefore, conviction based on their testimonies deserves to be set aside. 4 Criminal Appeal No.502/1995 5. On the other hand, Shri Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the sessions Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the sessions Court. 7. Admittedty, case of the prosecution was based on the eye witnesses' account of Madwa (PW-5), Madhoram (PW-7), Javel Xaxa (PW-9) and Anil (PW-16). These witnesses have not supported the case of the prosecution as all of them turned hostile. Even after lengthy cross-examination by the Public Prosecutor, referring to their case diary statements (Ex-P/16, Ex- P/18, Ex-P/20 and Ex-P/32), nothing material could be elicited from their evidence so as to connect the appellants to the crime in question. The learned Sessions Judge has also recorded the finding vide para 15 of the judgment that these witnesses are not reliable witnesses and they have not supported the case of the prosecution. 8. The learned Sessions Judge has relied on the testjmony of Pitrus (R/V-11). We find that the case diary statement (Ex-D/4) of Piturs (PW-10) was recorded on 16.10.93, whereas, the incident took place on 11.10.93. In the case diary statement (Ex-D/4), Pitrus (PW-11) never stated about the fact that he had witnessed the incident. Therefore. the above fact, which he deposed before the Court for the first time, was an omission in 161 statement, which was recorded after five days of the incident. The above omsssion Was a material omission and the same was fatal to the prosecution. We are of the view that on account of the said omission in 161 statement of Pitrus (PW-11), his entire evidence should have been .-;^"": Criminal Appeal No.502/1995 discarded by the sessions Judge and the learned Sessions Judge fell in error in relying on the testimony of Pitrus (PW-11). 9 Somari Bai (PW-10) is wife of deceased Bitualram and mother of deceased Ratanram. She also deposed as an eyewjtness before the Court. Her 161 statement (Ex-D/3) was recorded on 11.10.93. In the said statement, she never stated that she had seen the inddent as an eyewitness. On the contrary, she deposed that she was told by her daughter-in-law that the appellants have committed murder of Bitulram and Ratanram. Tobha Bai (PW-6) is daughter-jn-law of Somari Bai (PW-10). She has lodged the First Information Report (Ex.P/17). In the First Information Report, though she mentioned the names ofthe appellants, she did not mention that in fact she saw the jncident, She has simply mentioned that when she went towards the field, she saw that her husband Ratanram and father-in-law Bitulram were lying dead in the field and they had sustained muitiple serious injuries. Therefore, it is clear that Tobha Bai (PW-6) was not an eyewitness and she only saw the dead bodies of the deceased persons. In appreciation, we find that in the above facts and circumslances of the case, the evidence of Somari Bai (PW-10) was of no use to the prosecution, as her evidence was hearsay evidence and the statement recorded by her under Section 161 of Cr.P.C. was on the basis of information given to her by her daughter-in-law Tobha Bai (PW-6), who was also not an eyewitness to the incident. 10. On due appreciation ofthe entire evidence available on record, we are of the view that the learned Session Judge fell into error in holding the appellants guilty ofthe offence punishable under Section 302 ofthe IPC for Criminal Appeal No.502/1995 commission of murder of the two deceased persons namely Bitulram and Ratanram. 11. For the foregoing reasons, the appeal is allowed. Conviction and sentence awarded to the appellants under Section 302 ofthe IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge |<e