s^!^!^*%y@^^i^ .( ' ' '•j!l^A. .!;?:,"a" ^t 3' i'. ^•iSSk- S 1 1 'fa .. J' '••^-ffi<'?' y^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'bte Shri Dhirendra B/lishra, & Hon'ble Shri Rangnath Chandrakar, JJ, Ap'pellant Respondent CriminalAlipeat No. 1042of20Q?l Pradhan and others Vs. State of Chhattisgarh JUDGMENT FOR CONSIDERAT1QN SdA R.N. Chandrakar Judge Hon'bleShri DhirendranflistLraLJI. (3_T^ Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON 2-0-7-2010 Sd/- 'M.lshs'ffl Judge § !T!? 1 ! ! r 1? u-,,,.:i,# HIGH COURT OF CHHARTTISGARH AT BILASPUR Coram:- Appellants (in jail) Respondent Hon'ble Shri Justice DJilrendralVlishra & Hon'bte Shri Justice R.N. Chandrakar Criminal Appeal No. 1042 of 2003 1) Pradhan alias Shiv Kumar Kanwar, son of Ganpat aged about 27 years. 2)- Ganpat son of Ghoor Sai, aged about 50 years. 'l. 3) Buje adas Dudh Nath, aged about 26 years, son'of Shri Shiv Mangal. All are resident of village Gangarampur, Police Station Jainagar, Distt. Surguja, Chhattisgarh. Versus State of Chhattisgarh through Police Station Jainagar, Distt. Surguja (Chhattisgarh) (Appeal under Section 374 (2) ofthe Code of Criminal Procedure) Present: Shri V.C. Qttalwar.counsel for the appellant. Shri Sandeep Yadav, Dy. Govt. Advocate for the State. JUDGMENT (Delivered on thisS^Jay ofJuly, 2010) PerRananath. Chandrakar, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 12-9-2003 passed by First Additional Sessions Judge, Surajpur, District Surguja, in Sessions Trial No. 9 of 2003, whereby the appellants have been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment and to pay fine ...j~:'^-^:SU ^S::;I:::?;^'^^'^-s^' Sri|a;SKiiM%iW89 of Rs.500/-, in default of payment of fine to undergo further R.l. for two months. Appellant No.1 Pradhan has been further convicted under Section 323 of the IPC and sentenced to undergo S.l.forsix months. 2. On perusal of the order sheet dated 4-4-2007, it is clear that appellant No.1 Pradhan died on 28-8-2003 during pendency of this - appeal. Therefore, so far as appellant No.1 is concerned, the appeal <:i stands abated. 3. The case of the prosecution, in brief, is that on the date of incident i.e., on 29-10-2002 , Jagdev Singh hired a tractor for transporting his paddy crops from the field and engaged Tinnu Singh, Kallu Das and Shivkumar Das as labourers. After transporting the paddy crops, Jagdev Singh offered them to take night meals in his house. At about 9.30 p.m. when Jagdev Singh, Tinu Singh, Kallu Das and Shivkumar Das were taking meals, the accused persons Pradhan and others came near the house of Jagdev Singh where Motor-cycle of Tinnu Singh was standing and started abusing Jagdev Singh saying that he had broughtsome 'Gundas'. On this, Jagdev Singh replied that they were not 'Gundas' but were !abourers engaged for transporting his paddy crops. Thereafter, all the accused persons ieft the spot. After taking meals, Jagdev Singh being 'Asthmatic' felt some trouble in breathing and asked Tinnu Singh to take him to Latori for administering injection. On this, when Tinu Singh and Shivkumar Das were taking Jagdev Singh to Latori, the accused persons Pradhan, Ganpat and Buje Singh restrained them on the way near 'Bans Bakhar' of Shaniram and assaulted Jagdev Singh K»»^sss along with Tinuand Shivkumar with lathis and clubs. On hearing the outcry, Smt. Vinita Singh (PW/1), daughter of Jagdev Singh rushed to the spot and saw the incident. At that time, Tinu Singh and Shivkumar fled away and the accused persons were assaulting her father Jagdev Singh. .She tried to intervene but she was also assaulted. After assaulting Jagdev Singh, the accused persons fted • away from the scene of occyrrence. Thereafter, the villagers ,,( Chandrajit, Suresh, Rajendra, Ani[and others also reached thespot and Jagdev Singh was brought to his house, he sustained multiple injuries on his head and other parts of the body. He was being managed to take to the hospital but in the meanwhile he died. 4. Smt. Vinita Singh (PW/1 ) lodged the report (Ex.P/1 ) of the incident in Police Station, Jainagar, on 30-10-2002 at 3.00 a.m. After registering the crime, police proceeded to the scene of occurrence and prepared inquest (Ex-P/8) on the person of the deceased in presence ofthe witnesses, spot map (Ex.P/4), seized blood smeared and plain earth (Ex.P/13) and one TVS Motor-cycle from the spot (Ex.P/17). Thereafter, the statements of witnesses were recorded and weapons of offence were seized (Ex.P/14, P/15, P/16) on the basis of memorandum given by accused Ganpat (Ex.P/11) Pradhan (Ex.P/10) and Buje (Ex.P/12) respectively. The injured persons Vinita Singh (PW/1), Tinu Singh (PW/2), Kallu Das @ Kamal Das (PW/3) and Shivkumar Das (PW/4) were sent to Government hospital for medieal examinationsvide ExP/20, P/21, and P/22& P/23 respectively. The dead body of the deceased was sent for autopsy (Ex.P/19) to Government Hospital, Vishrampur.Where Dr. SSHSsSS'S K.K. Tamrakar (PW/12) conducted post-mortem and gave his report (Ex-P/28) in which he opined that cause of death was shock due to injuries sustained by the deceased on the vital parts of the body. Wearing apparels of the deceased containing blue-black shirt and cream coloured full-pant were sealed and handed over to police which was seized vide Ex.P/9. 5. After completing the investigation, charge sheet was filed against the <i. ,1 accused/appellants in the Cqurt of Additional Chief Judicial Magistrate, Surajpur, who in turn Gommitted the ease to the Court of Additional Sessions Judge, Surajpur for trial, The trial Court framed charges under Sections 341, 325/34, 323/34 and 302/34 of the Indian Penal Code against the appellants who abjured their guilt. 6. Prosecution, in order to bring home the guilt against the appellants examined 14 witnesses in all. Thereafter the statements of the accused/appellantswere recorded under Section 313 ofthe Code of Criminal Procedure, in which they denied the circumstances appearing against them and pleaded innocence and false implication. 7. The trial Court after hearing counsel for fhe respecfive parties convicted and sentenced the appellants as mentioned in paragraph oneofthejudgment. 8. Homicidal death of deceased JagdevSingh is not indispute. Even otherwise, from the evidence of eyewitness Smt. Vinita Singh (PW/1),Who has deposed that the appellants assaulted the deceased by lathis and clubs, and further from the evidence of Dr. K.K. Tamrakar (PW/12),who has found the following injuries on the i ] lli -:i T-— 't 9"fm—swss<aa person of the deceased and opined that the death was caused due injuries sustained by the deceased and the same was homicidal in nature, homicidal death of Jagdev Singh is established. 1 NJ URI ES 1) Mouth open, teeth clenched, tongue inside. 2) Oval L.W. present on right forehead size 3 cm x 2 1/2cm x scalp depth. Bone exposed, blood present riddish colour. 't 3) Contusion witM L.W. over left side of forehead 8x4 x3'cm and 2 x % x 1Acms. Reddish in colour blood present on cutting blood present. 4) 3 abrasions over right upper lip ofsize 1x % cm each, reddish in colour and on cutting blood present. 5) Abrasions over both legs of size right 1 x % x cm, and left % x 1A cm. Reddishcolour, on cutting blood present. 9. Shri V.C. Ottalwar, learned counsel for the appellantssubmits that the incident took place on 29-10-2002 at about 9.45 p.m., in the dark night, thus, it was very difficult for eye-witness Vinita Singh (PW/1) to identify that who assaulted her father Jagdev Singh. He further submits that most of the witnesses have turned hostile and do not support the prosecution story. There are some contradictions and omissions in the First Information Report (Ex.P/1) and the diary statement (Ex.P/3) of the eye-witness Smt. Vanita (PW/1). The memorandum of accused persons and seizure of weapon of offence are also not proved as the witnesses thereof turned hostile. 10.0n the other hand, ShriSandeep Yadav, Deputy Government Advocate, appearing on behalf of the State supported the impugned judgment. 18 i! ^^.i.^ 11.We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 12. Conviction of the appellant is based on the sole testimony of eye- witness Smt. Vinita Singh (PW/1)supported by medical evidence of Dr. K.K. Tamrakar (PW/12) and the other witnesses of the incident namely Tinnu Singh (PW/2), Kallu @ Kamal Das (PW/3) & Shiv Kumar Das (PW/4) have turned hostile. 13. Smt. Vinita Singh (PW/1) depo'sed that at about 9.30 p.m. while her s. father was taking meals, the accused persons came to her house and started abusing saying that her father had brought some Gundas. At that time, Tinnu, Kallu and Shiv were present in her house. On this, her father replied that they were not Gundas but labourers engaged for doing works. Thereafter, the accused persons assaulted her father with lathis and clubs in front of her house. After assaulting, the accused persons fled away from the spot, Thereafter, her father Jagdev was taken on motor-cycle by Tinnu and Shiv. As soon as her father left the house.she heard the outcry and hearing the same she came out of the house and saw that the motor-cycle was lying there, Shiv was running away, Tinnu had fled away andall the three accused persons were assaulting her father with clubs, Kalari and Kodi. She further stated that Pradhan (appellant No.1) assaulted her father on his head with 'Kalari'. The accused persons also chased Shiv for assaulting him. When she went to intervene, aecused Pradhan on her head and back also assaulted her. Thereafter, Anil, Rajendra and others came on the spot and the accused persons fled away from there. Her father ESB! iUn-tl* I? ;{t ps s t sustained injuries and became unconscious who was brought to the house and some arrangements were being made to take him to the hospital, but in the meantime her father died. She proved her report (Ex.P/1), morgue intimation (Ex.P/2) and diary statement (Ex.P/3) as also spot map (Ex.P/4). Thiswitness was cross-examined at length in which she denied all most all the suggestions given by the defence. She specifically denied the suggestion that when she •'t; reached the spot the incident was over and stated that the accused persons were assaulting her father and she was assaulted. She also denied that there was no electric bulb on the spot. She further denied the suggestion that no assault was made with her father while he was taken for administering injection. She further denied in her cross-examination that there was darkness on the spot at the time of incident and she could not identify the accused persons as the incident took place in the night. She specifically stated that the accused Pradhan assaulted her father on his head. Thus, the evidence of this witness cannot be held untrustworthy. So far as the discrepancies in her statements as pointed out by learned counsel for the appellant are concerned, they are of no significance because the witness remainedconsistent during entire cross examination, that apart she also injured in the same transaction which is duly corroborated by the medical evidence. 14-Tinnu @ Jagat Narayan (PW/2), Kallu @ Kamaldas (PW/3)and Shiv Kumardas (PW/4) turned hostile and did not support the prosecution story in its entirety. Tinnu (PW/2) stated that while they were taking meals in the house of deceased Jagdev, somebody re&t 1.-S K(i! ttei-B... 1 "'ailSa 1 ,,"r":""i8 1 .. ';fe,,.,J'J' l^^^^f^^^ ^s'^"^^'^ss:^^ ^1^!:^ 'i^Eit^t^i8. i.;!;j-sgi|i;f£^it^gijgs came there and started abusing Jagdev who was not known to him but he was told by Smt. Vinita Singh (PW/1) that the person was Pradhan. Thereafter, whenthey were taking Jagdev to Doctor on his motor-cycle some persons came on the way and started assaulting Jagdevon his head. In the leading questions put to him, he admitted in paras 9 and 10 that at the time when they were taking meals in the night at 8 - 9 O'clock, Pradhan and his nephew Buje <1. Kanwar, the neighbours of Jagdev came near the house of Jagdev where his TVS motor-cycle wasstanding and started abusing. On this, Jagdev came out of the house who was also abused by accused Pradhan and Buje Kanwar. In para 12 and 13 though he denied to identify the accused persons, admitted that somebody restrained them on the way and committed marpit with them. He further admitted that during the assault he also sustained injuries on his hands, legs, eyesand nose for which he was sent to hospital for treatment. In para 21, he specifically denied that he could not explain as to how he sustained injuries. Kallu @ Kamaldas (PW/3) denied the entire case of prosecution but admitted that at the time when he was taking meals in the house of Jagdev along with Tinnu and Shiv, he heard that somebody wasabusing outside the house of Jagdev. On the next day in themorning, he came to know about the death of Jagdev. ShivKumar Das (PW/4) also corroborated the fact that they went to work in the house of Jagdev and took their dinner there. Thereafter, while they were taking Jagdev for administering injection on the motor cycle of Tinnu, 7 - 8 persons came and assaulted and he fled away from the spot. In the leading questions » ia •nini"""5''" put to him, he admitted that because of assault, Jagdev died. He also admitted that at the time when they were taking dinner, some loud noise was heard outside the house of Jagdev. In para 7 he admitted that he stated out the Police that when they were taking Jagdev on motor cycle, they were assaulted with lathis and clubs near 'Bans Bakhar' beside the house of Chandrajit. He also admitted that in the meanwhile, Jagdev out-cried for help but he ti fled away from the spot. 15. On re-appraisal of the evidence of the aforesaid hostile witnesses, it is very clear that there was some altercation between the deceased and the accused persons soon before the incident and thereafter.the deceased while going to Latori on the motor-cycle of Tinnu, he was stopped on the way and assaulted by some persons. Admittedly, Tinnu, Kallu and Shiv Kumar sustained injuries on the same transaction which is admitted by Tinnu and denied by Kallu and Shiv Kumar. So far as the fact that they also injured in the same incident is concerned, it is corroborated by medical evidence (Ex.P/30, P/31, P/32, P/33 and P/34) whereby they were medically examined and advised for x-ray by Dr. K.K. Tamrakar (PW/12). Thus, the possibility cannot be ignored thatall the aforesaid three witnesses were turned hostile dueto fear or threatening as they were residents of the other village and the entire case of prosecution and the evidence of eye-witness Smt. Vinita Singh (PW/1), daughter of the deceased cannot be thrown out. 16. Rajendra Prasad Jaiswal (PW/6), Chandrajit (PW/8) and Anil Kumar (PW/10) are the witnesses who reached the spot on hearing the w^'""^ ^••^, ^ "^ ipi'i.,^"».:l ^S.'^g.--'^ {j \^^/ ••^&stssfgyyy' 10 lllte^s?,..!,,-,..., |^!-:;-:?E;^;--^l;s:^^? outcry, found the deceased Jagdev onthe spot and brought him to the house where they found multiple injuries over the body of the deceased. Rajendra Prasaid Jaiswal (PW/6) deposed that in the morning he came to knpw that Jagdev was killed by Ganpat, Pradhan and Buje. Thus, from the above evidence also, the circumstance that Jagdev was assaulted just after the altercation took place between him and the accysed persons in his house, is 'i. ..( established. 17. Shriram Rajwade (PW/9) and Anil Kumar (PW/10) the witnesses of the memorandum and seizure turned hostile but admitted their signatures on memorandum (Ex. P/1 0, P/11 and P/1 2) and seizure memos (Ex.P/13 to P/17). On perusal of their depositions, it appears that both of them are educated persons and they admitted that generally they did not sign any paper without going through the same. Anil Kumar (PW/10) denied thesuggestion that he was made to sign the papers by Police and stated that the memorandum was prepared and read over to him thereafter he put his signature on the same. Thus, inview of the above, thememorandum and seizure cannot be totally ignored and held that the same are not established. Apart from this, the memorandum and seizure are esfablished by the evidence of Investigating Officer M.S. Chouhan (PW/11). 18. On careful scrutiny ofthe entire evidence, it is established that soon before the assaylt made to the deceased - Jagdev, there was some altereation between the accused persons and the deceased near his . house which was witnessed by Smt. Vinita Singh (PW/1) and 11 Ei'!;!ift!a i!saiS thereafter when the deceased was going to Latori along with Tinnu and Shiv Kumar, on the way near Bans Bakhar, he was assaulted by the accused persons along <vith Tinu, and Shivkumar and on hearing the outcry made by the deeeased when Smt. Vinita Singh reached the spot to intervene, she was also assaulted. It is pertinent to mention here that though the other witnesses'of the incident namely Tinnu and Shiv Kumar turned hostile, they have supported the prosecution story to the extent that there was some altercatio^i between the deceased and accused ,,( persons just before the incident and they were assaulted by some persons on the way while they were taking Jagdev to Latori which clearly indicates that the assault was made by none other than accused persons. So far as the intention and motive is concerned, the circumstances appearing in the case clearly indicate that the deceased Jagdev was assaulted because of the altercation took place between the parties soon before the incident for which all the accused persons made common intentionand in furtherance of the same they assaulted the deceased. Thus, there was motive and intention on the part of the accused persons to assault the deceased and cause his death and the accused/appellants cannot be entitled to acquittal only relying upon the evidence of hostile witnesses, ignoring the clinching evidence of eye-witness Smt. Vinita Singh (PW/1) and also the injuries susfained by her and the hostile witnesses which is duly corroborated by medical evidence. 19. On the basis of aforesaid discussion, we are of the opinion that the prosecution has proved the involvement of the appellants in the crime in question beyond reasonable doubt and the trial Court has not committed any illegality or infirmity in passing the impugned judgment. • ,. 20. In the result, the appeal fails and the same is dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Ka"j [^j-•••:•.