8iiB—adaSg<BfiB ^BXWBlSSIBKiffi?' /:?S'^'?i''^:ftfi:tt£iIBSXJ3tttfBff ig<StSS'' .S£9'K'3SS-3 aei HISH COURT OF CHHATTIS6ARH AT BII-ASPUR HI6H COURT W CHHATTIS6ARH AT BILASPW DIVISION BENCH: HON. MR. L.C. BHAOOO A HON. MR. DHIRENDRA lAISWiA. JJ IMINAL APPEAL N0.289 OF 2003 CRKUNAL ARPEAL N0.333 OF 2003 JV06MENT FOR CONSI&BtATtON Dhirendra ?<•' Judge HON'BLE MR. L.C. BHA&OO. J Sd/- L.C. Bhaduo Judge POST FOR JU&6MENT ON 12 APML. 2007 Sd/- DhirendraMi Judge ..t^.az.'i.&' APPELLANT Abdid Faheem. Vs RESPON&ENT Thc State of ChhatHsgarh. APPELLANT Radtwy Shyam. Vs RESPONbENT State of Chhattisgarh. Page 1 of 16 laiai HI6H COL»TOF CHHATTIS6ARH AT BILASPUR DIVISION BENCH: HON. MR. L.C. BHA&OO & HQN. AAR. &HIRENDRA MISHRA. JJ CRIMINAL APPEAL N0.289 W 2003 APPELb^NT Vs RESPONDENT Abdul Faheem, son cf Shri Mohamcd Saleem, aged about 23 years. student. resident of Fareed Ncgar, Imam Bada ChowlfE. BWIai, DisW. (Chhartugarh). Thc State of ChhatMsgarh. CMMINAL APPEAL N0.333 OF 2003 APPELLANT Vs RESPONDENT ftadhey Shyam, son of Ram Vachan. agsd about 29 years. Occupation- Auto Mistry. resident of Rathika Istagar. Quartw No.44/2. Police Station St^ela, Bhilai Distt'. Durg (C.® State af CWiatl'isgarh. thnugh District Magistrate, Ourg. District t3wy (C.fi.) Pr^sent: Mr. N.K. Mehtn, Advocate for appetlant m Cr. A. No.289/03. Mrs. Indira Tripathi, Advocate for appellant in Cr. A. Nk).333/03. Mr. Ashish Shukh, Additional Public Prosecutor for the State. JUDfiMENT (Deliwred <m )% .4.20071 Per Dhirwidra Mishn*. J: Criminal Appeal No.289/2003 & Criminal Appeal No.333/03 are being decided by this common judgment as both these appeals are arising out of the judgment dated 11.2.2003 passed by teamed 7* Additional Sessions Judge (Fast Track Court), t>urg in S.T. Nb.378/99 whereby leamed Acklitional Sessions Judge after Page2ofl6 hotdin9 the oppellants 9uilty for causmg honticidal decrth of deceased Rajesh Choudhary, for causing simple hurt by riiarp edged weapon to Amar 6upta and also for possessyq weopons of prohibited size i.e. Siipti & Da9ger for illegol object, convicted them under Sections. 302/34 & 324/34 of the Indidn Penal Code ond Section 28/27 of the Arms Act ond sentenced each of them to undergo RJ. for life and to poy a fine of Rs.1,000/-, in default of •<). payment of fine to furthfer under9o SJ. for six months; RJL. for two years end to poy a fihe of fts.500/-, in default of payment of fine to fur-ther undergo SJ. for one month & fcl. for -three yeors and to pay a fine of Rs.SOO/-, in default of payment of fine to furt+ier undergo SJ. for one mon-th respectivety. All the sentenees were directed to run concurrentty. Case of the prosecution, in brtef, is •that on 2.10.1999 at about 22.35 hrs Amar Sup'ta (PW-1) lod9ed a report in the Polk»Station Bhibi Nogar, bistrict Durg mentk)nin9 -therein that on 17.9.1999 at about 9.00 p.m. on a terroce beside his house two boys of other locality were talking with a girl of his street. He <uid Rajesh Choudhary objected wAiereupon both •the boys wentaNiay. Toelcy, at about 8.45 p.m. while they were standing in front of Street No.37, Block No.5 and talking, those two boys along with ano'ther boy came there on a black colour Hero Honda motorcycle. The other boy was sitting on -the Hero-Honda while those •hwo boys came near RajeA, both were holding knives in their hands and -they started assauh'ing Rajedi on his chest cmd storooch. When he tried to intervene, the chrk complexion boy inflicted knife injury on his -Ihwjh, trfieraipon, he ran towards kitchen 9ou"den to pick-up the wooden rafter. In the meanwhite, they started running. However, the mother of Rajesh cau^ht hold of a boy, but that boy ron away teaving hfs ^iirt. They fied on tiie motorcycle. Rajesh hos sustained in^iries .over his chest and stomach. He thoroughly recognaes the three. He and Rajesh were taken to Sector-9, Q.SP. Hospital, Bhikii for ~T'i Page 3 of 16 treatment by ftamnarayon Verma, Pramod & Ashok, brother of Rajedi. However, Ra.je^i died whife he was aclmitt-ed m I.C.U. wird. The incident was witnessed by the neighbourers. Aterg intimation (Ex.P-20) wos'given by &r. Jeevan Lal Se-thle on 2.10.199 at about 22.05 hrs. 3. After re9isterin9 ,the FJ.R. (6x.P-l) undcr Crime No.448/99 for commission of offence under Sections 324/34 & 302/34 of IPC, ^f. the police proceeded for tKe scene of occurrence. 3>K|uest (Ex.P-6) over the dead body of deceased wws pr^xired in the preaence of wi-hiesses after notice (fW-5) to -rtiem. The medico-legal examination report (Ex.P-8) of deceased ftajesh was obtuined vide EX.P-SA. bead body of deceased was sent for postmortem to Sovemment Hospital, Ourg, where t>r. S.A. iandge 0>W-4) conductecl the postmortem and submitted his report vide 6x^-11. Blood s-hiined full pant of injured Amar Supta Q'W-1) was taten into possession under Ex.P-2. Spot map of ExP-4 was pr«paredby the Inveati9otin9 Officer. Bed-head tietet of ExP-10 and Admission & bischarge Ticket of Ex-P-lZA of the deceoaed were •haken into possession victe aeizure memo Ex.P-12. X-ray reporl' of Ex.P-128 of deceased Rajesh was dlso taken into possession. On the memorandum (Ex.P-18) of accused Radheshyam weapon of offence, Supti was taken into possession vide Ex.P-14 and on the memorandum (Ex.P-15) of accused Abdul Fohim, blood stained cbgger was taken into possession under ExP-6. Btood stoAied rfiirt & pant were tnken into possession from awused Radhe Radheshyam vide Ex.P-19. 8bod stained and plam soil was taiten into posassion from the spot vkle Ex.P-21. Shirt', baniyan A slippers of the accuseel left at the ptace of incident were taken snto possession vide Ex.P-22. Articles seiasd during investigation i^. Supti, &ogger, btooct stained ctothes of dec^aaed estc were sent for diemical examination to the porensic Science Laborotory, Page 4 of 16 Raipur vide Ex.P-28 from where report' ExP-23B was received. The above artictes were further sent to Ihe Serologist vide 6x.P-23C. 4. Atedico-legal exaniination of injured Amar Supta was obtained from the hoq>ital vide Ex.P-25. Supti seized from accused ftndhediyam was sent to the doctor for examination, who vide ExJ>-26A opined that Injury No.1 present over the body of complcunant may be produced by the above w^apon. Appeltont Abdul Fahim was sent for examination to -the ©ovemm^ntHospitul, Durg on 4.10.1999 where Or. A.K. Mishra has examined him and gave hia report' of 6xP-27A, After arrestihg -the accused persons, -the Executive Mt^istrate Shri S.R. AAandavi (PW-10) conducted the test identification parade on 5.11.1999 vide Ex.P-3. 5. After completing investigation, charge dieet wws fited against the aceused/appelfemts ond other co-accused persons namely Rajesh Singh A Ashish Kundu iri •the Court of Judicial Magistnrte First Class, burg who in turn committed the <aise to -the Cwirt of Sessions Judge, Ourg and the same was received on trunsfer for triat by teamed Additionat Sessions Judge, who framed eharges under Sections 302/34 & 307/34 of the IPC and Seetion 25/27 of the Arms Act against the accused persons. The accused persons abjured their guilt. The prosecutton in order to establidi the charges against the accused persons e?wmined 17 w'rtnesses in all. Statements of accused persons were recorded under Section 313 of the Cr.P.C. in which -they denied Ihe circumstances oppearir^ against them in the prosecution case and stated that they have been fatsely implicated ond they were ahown to the witnesses in •the potice station. Accused Abdul Fohim has also stsrted that he was b«it»i_bythe potice, his head was smariied on wall and thereby he sustained mjuries described ii'i Ex.P-27. Accused Radheshyam also pleaded innocence and false implication. The accused persons owmined one Lakhan Verma as their defence m. w. Pays 5 of 16 witness. After hearing leamed counsel for the respective part-ies, teamed Additional Sessions Judge convicted accused Radheshyam A Abdul Fohim ond sentenced them as described above. However, he acquitt-ed accused ftajesh & Ashish Idmeki of all the charges. 6. Homicidal dea-th of deceased Rajesh Choudhary is not in diaptste. Even otherwise from perusal of •t+ie statement of eyewi-tne^es namely Amar Supta yW-l)'/ Knushalya Bai 0'W-5), Sunita Kumari (PW-7) and Dr. S.S. AAukhojwdhya (PW-3), who examined the deceased when he wos alive and gawe his examinntion report of Ex.P-8 as also the statement <rf Dr. S.A. Mandge (PW-4), who has conducted postmortem over dead body of deceased toijesh, found the injuries describedt herein below and opined that the oeaise of death is shock as a result of injuries sustained by the deceased on his lungs, it is established that 1+ie death of Rajerii was homieidal in nature. The following injuries were present over -the body of the deceased;- a. One stab wound 4 x 2.5 cm on the right side border of manubrkan stemai on account of which 2 rib was fradured and one incised wound m the si3»of 2x1 cm below hsngs. Cwity full of blood. Right lun9 shrunten. b. One incised wound 3cm betow -the nipple in •the size of 1 x .5cm deep upto rib. c. One inci^»lwound bebw Injury No.2 in -the size of 5x5><2 cm. d. One incised luound in the size of 10x3 cm tiwisversely placed below the left nipple. e. One stub or punc'hire wound l3cm below the left nipple tintraieil auxiliary tine 3x2xdeep in pleural awity undemeath king incised wound m the size of 1x5 cm. Pteural cavrty full of bfood. f. One incised wound on left iliac in the size of 3x2x8 cm. g. One Iticerated wound on the teft parietd region in •the dze of 2.5x.5x2 cm. h. One hcerated woind on -Hie left parietal region in the size of 4xlxdeep upto bone. i. One liner abrusion on the left elbow h the size of 3 cm. Page 6 of 16 7. The conviction of the appellants is based on the statement of eyewitnesses Amar ©uptaPW-I), Kaushalyu Bai (PW-^) & &inita Kumari (PW-7) and furlher on the statement of Ashok (PW-2), who have stated in their dep'osition •that they saw •the nccused persons assaulting •the deceased <md that the nbove witnesses identified the accused persons in Ihe test identification panrie conducted by the Executive Magistrate Shri S.R. Mandon'i yw-10) ^i -.1. 8. The trial court convicted the oppeltents by recordmg tbe findin9S as under:- I. Injured eyewitness Amar Supta, who hos lod9ed the FXR., had seen •the accused persons first ttme on 17.9.1999, thereafter on the dart-e of incident cnd he has identified the accused persons in •the court during evidence. In the FJ.ft. he had also given description of two accused persons. n. The version of Amar found corroborated from the statement of &harm<nwti pW-6), who has stated •that on the eve of Sunedi festival she had seen appelbnt Radheshyam & Abdul in the house of her friend and on that occasion there was some verbal altercation between the appellants and deceased Rajesh & injured Amar. She has also identified the oppeltants vn the court'. DJ. Kaushalya Bai (PW-4) had also seen twe accused persons assoultir^ her son with the knife, blood was oozing from the injurfes and Ameu" had thrown the bicycle on acaised persons. Her statement has been corroborated by her daiqhter Sunita Kumou-i (PW-7), who hos stnted that when her brother Rajesh went to save Amar, the boys left Amar and start'ed ossaultin9 Rajesh wfth knife, atthat time Amar had thrown his bicycte on •tiiem. Her mother & ftajesh aaight 1 iairfSiaH-./? ^u^.UiLfflsfc.i^^ Page 7 of 16 hold a boy from his collar whereupon he left his diirt & slippers onrf fled away by motor cycte. IV. Neeraj 0>W-14), an independent wilness, has also corroboruted the statement of above witnesses in material particukxrs. V. Weapons of offence i.e. Supti & &og9er were recovered on the basis of informatwn given by -the appelkmts and •Hiis fact has been fis-hxbtidied by witness Jitandra, who has accepted his signatures over •the document ond aiso by the Sub Inspector Shri K.L. Tondon (PW-15), who recorded the memorondum ond effected seizure. VI. Test Identification Porode has been held to be doubtftjl on •the ground thot the same wws conducted betatedly ond possibility of -the wilnesses howtng <m opportunity to see the accused persons in between ceawwt be ruled out. VTE. The prosecution has failed to adduee tnurtworthy and reliable evidence e^ainst -the ocajsed namely Ashish & teyesh ond accordingly, they have been acquM^ed. The prosecution h<is furt+ter fuited to establish •that injury sustained by Amar Supta was of such a nalure whieh coutd cause his death m the ordinary course, as injury sustained by Amar was simple in nuture as per evktence of Or. Rajeshwar Ram (PW-17). VTEI. ©upti & t)a99er of prohibited si2e were seized from appettonts Radheshyam & Abckil Fahim ond as sueh •they have committed offence under Section 25 r/w 27 ef -the Arms Act. 9. Learned counsel for the appetlonts vehemently wgued that conviction of -the cppellonts is based on -rtie test identification ^ Paf/E: 8 of 16 10. parade, as alteged eyswitnesges have idaitified the appellcnts in presence of •the Executive AAagistrate Shri S.R. wdw'i (PW-10), who conducted the test identification parode. Referring to the statements of Ashok l&imar (PW-2), Koushalya Bcu ff>W-5) & Sunita Kumari (PW-7) it has. been au^ued that from the statements of •t+iese w'rtnesses it is evident "that •the abova wi'hiesses had, 'n fact, seen the appelhnts in the police statlon as atso in the court ckwing remand proceedings. "Te$f identification parade was conducted after more thon one mon-th fl>om the date of thelr arrest ond there is no explonation for this dekiy, Iherefore, ktentificatien in •the alfe9ed test identification parade looses its significcnce. It was further a^ued that the F.I.R. wos todged on 2.10.1999 ort- about 22.35 hrs by injured eyewitness Amar Supta (PW-1) ond another eyewitness namety Ashok Kumar (PW-2), who uws present at the time of lod9ing of FIR, has admitted that he knew accused RadheAynm & Abdut by •their names since before, howwver he did not disclose their names while giving statement to the police and there is no explanation as to why names of the accuatd persons are missin9 from Ihe FIR or statement of this witness. He further argued that so called eyewitnesses are close relatives and friends of the deceased ond there are material onomalies n their verstons about the incident. Even otherwise •there are material improvement, contradictions & emissions in •ttieir statementa ond the court below was not Justified in basing the conviction of the appellants on their testimonies. Placing relionce on Caetano Piedad« F«mandes and aiwthu* Vs. Unton Territory af 6ea, Oaman & Diu reported in AIR 1977 SUPREME COURT 13S; SwsMppa Vainanappa Madar Shanlurapa Ravanappa Ka'ddi Vs. The State of Myson reported in AIR 1979 SUPREME COURT 1831; Wakil Sh«h aid othws Veraus State of Bihar reported m AIR 1981 SUPREME COURT 1392; Hcri Nath and another Vs. State of U.P. reported in AIR 1988 Page9 of16 SUPRErtE COURT 345; State «rfAndhro Prwtesh Vs. Dr. M.V. Ramano Reddy and others reported in AW, 1991 SUPWEWE COURT 1938; Tahlr Mohammnd «md atten Vs. State cf Madhya Prodesh reported in AIR 1993 SUPREME COURT 931; Rajesh Gw'md Jogea^ia Vs. State of Makarashtra reported in ATR 2000 SUPREME COURT 160 A Chittu alias Hemant A Others Vs State of M.P. ( Now C.6.) reported in 2<X» P) C.6.L.J. 67, it has bieen.'drgued that undisputedly Ihe cppellants were arrested on 4.10.1999 wid test identificatwn parade was conducted on 5.11.1999 i.e. almost one month after the ineident cnd •there is no explanation for Ihis detay in conducting •the test identification parade. Moreover, wi-tnesses had an opportunity of seeing the appetlants during remand proceedmgs as also m the police station and therefore, test identificatton pcu'ade looses its significance. 11. Fiirther relyin9 upon the jud9ments reported h AIR 1997 SC 454 between Owindw Vs. Statc cf Hdryana A AIR 1997 SUPREME COURT 1526 between Rehmat Vs. State af Haryana. it is argued -that deceased was admitted in the hoqiital by his brolher Ashok Kumar (PW-2) ond he was examined by the doctor, however, in -the injury report as also in the F.I.R. naines of •the assailants are missing, though PW-2 Ashok Kumar has categorically stated that he recognized the appellants tince before by their names. In the aforesaid circumstonces, false implication of the appelkmts subsequently connot be ruled out and -the <ypeltants deserve to be extended benefit of doubt. 12. We have heard teamed counsel for the part-ies and perused the record as also 'rtie impu9ned ^idgment. 13. Leamed counsel for the appellant extensively referred ^idgments pf Hon'ble Apex Court referred in Paragraph 9 ond argued considerina the foct that test identification oarade was canducted ^ Page 10ofl6 after almost a month of the incident and the witnesses had the opportunity to see theOccused persons in -the police station as also in the court dur'mg remand proceedings, therefore, evidentiary value of test identificatwn parade stands eroded ond its creditability is lost. 14. So far as the argumaits advunced by leamed counset for 1+ie appeltants with re^aect to',"the credibility of test identif'ication parade is concemed, as alreddty pointed out in 1he foregoing paragraphs that leamed Additional Sessions Judge after considering the inconsistencies present in the test identification purade and atso considering the deloy and possibitfty of the witnesses havmg seen the (wcused persons durirq remand proeeedings or in the police station has held the test identification parade doubtful and the conviction is not based on the test identification parade. Moreover, it is sett-fed law that identification of accused in test identification parcde does not constitute substantive evidence and identificntion 'vn court constitutes substontive evidenca. Test Identification Parades are conducted as a rule of ccution. If the account given by the wfe. witness in the court' is otherwise reliabte ahd he identifies the accused in the court during trial in appropriate cases conviction can be based on the testimonyof such eyewitnesses. 15. Injured Amar Supta (PW-2) has been examined as eyewitness ^f the prosecution on whose testimony leamed Additional Sesdons Judge tias hewily relied upon. We propose to examine the testimony of this witness 'm detail. This wllness has \wlqsd the FER of Ex.P-1 .and narture of information 9iven by this wi-hiess has already been-detdled in Panqraph 2. This wi-htess in his depodtion before the trial court- has stuck to hls version given in •Nie FIR. He .has deposed that on the date of incident he ond his friend Rajesh uvere standing in their street, at •that time three beys aane t,here Pagc 11 of 16 on motorcyck whom he did not know by names but he knew them by faces and he identified oppellonts ftadhediyam & Abdul Faheem during evidence as ttie persons who came on •the motoreycle. He has furt+ier stated that 1wo of them alighted from motoreycle and started assaultmg Rajesh. He pointed towards Radieshyam A Faheem and stated that bo-th of -them did 'maar-peef whereupon he intervened. Pointin9 towards Radheshyam he has stated that this accused dealt a'knifjss bbw on his thigh, whereupon he ron towards Boadi to search Oandg, by the time he retumed alt the three boys had left and crowd had gathered. Rajedi vms fymg on earth, his mo-ther and sister were holding him, at that time Raju, Bhaiya elder brother of Rajesh came and they took him and Rajesh to Sector-9 Hospital by scooter. Rajesh was admitted in ICU Ward where he died during treatment. Thereafter, he went along with Raju Bhaiya to •the Potice Station Kotwali <md lodged the report. 1-te has further stated that he identified oppellants Radheshyom & Abdul Faheem in jail during test identification parade. He has further stated that on 17.9.1999 at the time of Snnedi festival he and Rajesh were watching picture at the place of Sanesh idol. Rajesh saw that someone is stendin9 on his terroce; bo-th of them went to the terruce and saw that Radhediaym & Faheem are talkin9 with a girl. Rajesh recognizes that gir\ to be of his street, whereupon this witness asked them whe'ther this was the only place to talk to a girl ond they reprimanded the two boys. Two occused persons gwe number of knife blows to Rajedi omd it was difficult to see qs to on which part of body they were assaulting. Rajesh sustained injuries over both of his thi9hs, chest & stomadi. In the cross examinatibn, he has sluck to his examination-in-chief •Hiat he did not recognize the boys as also the girl wi">h whom they were talking by names at the time of fianesh festival. He has categoricat stated in Para 25 of Ihis statement •that he saw the boys coniin9 by motorcycle, he immediately recognized that -they wiere -the same Page 12 of 16 ^u boys whom he had seen on his terrace talking with a 9irl. He has further stated that white assault was on, mo-ther, sister & bro'ther of ftnjesh namely Raju Bhaiya and one neighbour and his son Neeraj had reached there. In the FIR also he had 9iven the description of two assailants by mentioning that amongst the two boys one was dark and other was of urfiitish complexion. This witness has been cross-examined at length, however, the defence has not been able to elicit anything which.-f mates his testimony unreligble or untrustworthy. • :' 16. Ashok Kumar (PW-2) is -the bro-ther of deceased and he hos stated that when he tenmt that his brother has been assaulted, he ron towards there ond saw that his brother & mother had caught hold of accused Radheshyam, but on seeing him Radhediyam fled from there orfter leaving his shirt- & slippers. Thereafter he admitted his brother in Sector-9 Ho^iital where he died at about 9.25 p.m. and after that he retumed to his home. Amw has also sustained injury in the incidenf and he was also trearted in the hospital. Thereafter he went along with Amw to the police station to todge the report. He has further stated in the cross-examhwtion that he knew the oppelhnts since before, even then he did not discbse their names while giving statement to the police. However, the court- below after referring the statement of this witness at length has not based •the convict-ion on the testimony of this witness. 17. Leamed counsel for the appettont has referred to the deposition of Ashok Kumar Q>W-2) at tength and argued that if the statement of this witness is to be believed, -then the absence ef names of the accused persons in the FIR as also in the AU-C report makes the case of the prosecution suq>icious. Pkcing relianoe in the matters of &evinder Vs. State of Haryona & Rehmat Vs. State of Haryana (aipra) it is argued that in the first information report' Ihe ncunes -// &^t Page 13 of 16 of accused persons arenot mentioned, though m •the medico tegat report- of -the victim, he is diown to be conscious cmd his bro'ther Ashok, who brought him to the casualty, knew -the accused persons. In -the circumstances, the F.I.R. itself becomes doubtful and the accused persons are-entitled to benefit of doubt. The AALC rqiort of Ex.P-8 of deceased Rajesh Choudhary describes that patient was conscious, disoriented, grasping for breath, pulse wus fed>le, B.P. was 40 mm H9 ^rstotic, heart beating was fast and his condition was very serious. In Para 12 of cross-examination, &r. Sabsachi Mul<[hopadhya (PW-3) hos stated that the potient was not abte to reply, he was muttering and on -the basis of information given by Ashok, his bro'ther, he has menttoned that he was attacked by someone. 18. So far us •the improvement made by Ashok Kumar (PW-2) is concemed, we are unabte to except this argument as -rtiis witness is the brother of deceased Rajedi and in fact, had been overenthusiostic in the success of the trittl fflid -therefore, he has improved upon his diary statement of Ex.D-2. However, hck of credibility of •this witness will not affect the credibil'rty of other wi-friesses particuhrly Amar Kumar Supta (PW-2), wh®is -the kdger of FIR ond also sustained injury in the same incident. 19. Koushatya Bai (PW-5), who is mottier of deceosed, is ano-ther important eyewitness whose presence hos been odimtted by eyewitness Amar on the pktce of mcident. This wilness has stated that on 2.10.1999 at about 8-9 p.m. she retumed from the temple and was sittmg near the