r— HIGH COURT OF CHHATT1SGARH AT BILASPUR APPELLANTS: (InJail) RESPONDENT: APPELLANT: (InJail) RESPONDENT: Criminal Appeal No.236 of 2004 Ganesh Yadav and others Versus State of Chhattisgarh, Through Police Hirri (C.G.) AND Criminal Appeal No.374 of 2004 Lalitram Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR,J csj^^eji— (7 ^ Sd/'- JUDGE 5t) -7-2010 Sd/- R.N. Chandrakar Judge POST FOR JUDGMENT ON^I JULY, 2010 Sd/- Dhirendra Mishra Judge .^^'^^^. / & "I i. ^ ^ \. w'^^ •%^, £ HIGH COURT OF CHHATTISGARH ATBILASPUR CriminallADpeal No.236 of2004 APPELLANTS: (InJail) 1. Ganesh Yadav, S/o Makhan Lal Yadav, aged about 25 years, 2. Mahesh, S/o Makhan Lal Yadav, aged about 25 years 3. Virendra S/o Ramadhar Yadav, aged about25 years, 4. Laxmi Prasad, S/o Makhan Lal Yadav, aged about 30 years 5. Makhan, S/o Nanki Ram Yadav, aged about 65 years 6. Rajesh, S/o Makhan Lal Yadav, aged about 28 years, All residents of Village Bahtarai, P.S. Hirri, District Bilaspur(CG) Versus RESPONDENT: State of Chhattisgarh, Through Police Hirri (C.G.) AND CriminalADDeal No.374 of 2004 APPELLANT: (In Jail) Lalitram, aged 22 years, son of Umedram Yadao, resident of Village Bahtarai, P.S. Hirri, Tahsil Takhatpur, District Bilaspur (CG) Versus RESPONDENT: State of Chhattisgarh, Through P.S. Hirri, District Bilaspur, (C.G.) Present: Shri Matin Siddique, counsel for appellants No.1 to 4 & 6 in Cr.A. No.236/2004. Miss Sharmila Singhai, counsel for appellant No.5 in Cr.A. No.236/2004. : Shri Vimlesh Bajpayee, counsel for the appellant in Cr.A. No.374/2004. Shri Sandeep Yadav, Deputy Govt. Advocate for the State. DivisionBench: Mon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. ^-'m^. &,.0.; ^s^'' JUDGMENT (Delivered on^LJuly, 2010) The following judgment of the Court was delivered by Dhirendra Mishra, J. 1. The aforesaid criminal appeals are being disposed of by this common judgment as these appeals are directed against the judgment of conviction and order of :sentence dated 28-1-2004 passed in S.T. No.60/2003 whereby learhed 4th Additional Sessions Judge, Bilaspur has convicted the appellants under Section 302 read with Section 149 for committing murders of Chhedi and Bhujbal, under Section 307 read with Section 149 of the IPC for attempting on life of Mitau and underSection 148 ofthe IPC and sentenced each ofthem to undergo imprisonment for tife & to pay fine of Rs.1,000/-; to undergo R.l. for 10 years & to pay fine of Rs.1,000/- andto undergo R.l. for 3 years & to pay fine of Rs.1,000/- respectively. In defaultof payment of fine, additional Rl for 6 morjths for each default has been imposed. Substantive sentences have been directed to run concurrentty. 2. Briefly stated, case of the prosecution, as projected in the impugned judgment, is that on 8-10-2002 at about 12 noon complainant Milauram (PW-1) had taken his cattle for grazing near 'Naya Talab' of village Bahtarai. His brother Chhedi Yadav and Bhujbal and others namely Ravi, Sharad, Makhan Yadav were also grazing their animals near 'Naya Talab', at that time, appellants Rajesh Yadav, Laxmi Yadav, Ganesh Yadav, Mahesh Yadav, Lalit Yadav, Virendra Yadav armed with two clubs each reached there. Rajesh was holding axe. Makhan also reached there. They encircled the complainant and his brothers. Appellant Laxmi exhorted them, thereafter all of them started assaulting. They all assaulted Bhujbal and Chhedi, as a result both of them fell on ground whereas Lalit and Virendra assaulted the complainant, gs a result he sustained injuries on his right hand, head and back. He cried for help and to save his life.he ran away and hid under the tree. The incident was witnessed by Sharad, Ravi and Amrika Bai. Later on Bhujbal and Chhedi died. The appellants assaulted them on account of old enmity. 'iv^ •-•' @ 3. Report of the incident was lodged by Milauram on the same day in the evening at about 6.30 which was recorded as Dehati Nalishi of Ex.- P/31 and crime was registered. 4. After completing usual investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions Judge and the same was received on transfer for trial by learned Additional Sessions Judge. 5. Learned trial Court framed charges under Sections 148, 149, 302 and 307 ofthe IPC. The appellants abjured their guilt. 6. The prosecution examined 17 witnesses in all. Thereafter statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in the prosecutioni case and pleaded innocence and false implication. The appellants alsoexamined Rajesh Bajpayee in their defence. 7. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in paragraph-1 of the judgment. ! 8. Learned counset for the appellants have not disputed homicidal death of Chhedi and Bhujbal. ; 9. The trial Court, relying upon the evidence of Dr. A.K. Shukla (PW-5) who conducted postmortem over the persons of the deceased namely, Bhujbal & Chhedi and submitted reports of Ex.-P/1 & P/2, held that both the personsdied homicidal death. 10.0n close scrutiny of the evidence of eyewitnesses namely, complainant Milauram, Samaylal & Smt. Amrika Bai, who claimed to be eyewitness to the incident and who had deposed that the deceased persons were assaulted by lathi and further from the evidence of Dr. A.K. Shukla (PW-5) who found injuries over the bodiesof the deceased persons as described in para-10 to 14 of the impugned judgment & who opined ;that Bhujbal & Chhedi died as a result of coma or unconsciousness due to head injury, homicidal death of the deceased persons is established. g) ll.Learned counsel for the appellants vehemently argued that the prosecution has failed to prove as to who lodged first information report. The evidence of complainant Milauram is contradictory. Milauram lodged Dehati Nalishi at about 6.30 pm whereas this witness has deposed in para-9 that his wife Yashoda Bai lodged report by telephone in the Police Statjon at 4 pm and PW-2 Samaylalclaims that he lodged Dehati Nalishi in the village. PW-12 Amrika Bai has deposed that somebody jfrom the village went to lodge the report, however, the police reached in the village only on next day. On the contrary, Investigating Officer N.P. Mishra (PW-17) has deposed that on receiving information on wireless, he proceeded for the village and recorded Dehati Nalishi on the same day. From the above contradictory evidence ofwitnesses, first information report of Ex-P/31 becomes doubtful. It was also argued that as many as 22-23 important independent witnesses were present at the time of incident. Ravi and Sharad, whose names find place in the first information report, have not beenexamined and no reason has been assigned for their non- examination. The proseoution examined family members and highly interested witnesses in sypport of the prosecution case and the trial Court ought to have drawn adverse inference for non-examination of independent witnesses. Amrika Bai (PW-12) claims to have witnessed the incident from the distance of 300-400 feet, she is one eyed lady and it was highly improbable for her to witness the incident from such a long distance and identify the assailants. The witnesses who claimed to have witnessed the incident did not see each other at the time of the incident. PW-2 Samaylal has deposed that he did not see Milau on the spot. The complainant claims to have hid under Parsa tree, but none of the maps prepared by the SHO and Patwari shows theexistence of any Parsa tree on the spot and thus their version is doubtful. Even PW-12 has admitted in hercross-examination that there is no tree on the spot and she does not speak about the presence of Milau on the spot. Thus, presence of injured eyewitness Milauram is doubtful. Conviction of the appellants under Section 307 read with Section 149 of the IPC for assaulting Milauram is without any /)^. evidence, as Milau has deposed that he was assaulted by Virendra and Lalit by lathi. Even injuries sustained by Milau and proved by Dr. I.S. Bhatia (PW-9) were caused by sharp edged weapon. The prosecution did not prove that Milau sustained any boney injury. Thus, conviction of the appellants under Section 307/149 of the IPC for attempting on life of Milau is without any evidence. Thus, looking to inconsistent and contradictory evidence of alleged eyewitnesses, the trial Court was not justified in basing conviction of the appellants on their evidence and benefit of doubtought to have been extended to the appellants. 12.0n the other hand, learned counsel for the State supported the impugned judgment. 13. We have heard learned counselfor the parties. We have perused the record as also the impugned judgment. 14. Learned counsel for the appellants relying upon numerous judgments of the Supreme Court argued that under Section 154 Cr.P.C. on receiving information of commission of cognizable crime, a duty is cast upon the police officer to ireduce the same into writing duly signed by the person giving information and thereafter to depute an officer to commence investigation with respect to crime reported to him. 15. Learned counsel for the appellants have questioned the authenticity of first information reportonjthe ground that apart from Milau, Samaylal (PW-2) has also deposed that he had lodged Dehati Nalishi/Dehati merg before the police in the village. That apart, Amrika Bai has deposed that someone went to Police Station to lodge report on the same day, however, nature of information given by the villagers in the police station has been suppressed. 16 We have carefully gone through the cited judgments. The importance of first information report underlined in the cited judgments is well settled and the same does not need any reiteration. 17.1n the instant case, PW-1 is an injured eyewitness. He has categorically deposed that he lodged Dehati Nalishi of Ex.-P/31 in the village on the basis of which first information report was recorded. On ff-^se^.^^ ^y^ 1 It^. 1 ^^^&. I '^S.J/ ^^y ^ ^ -^l:-). the basis of information ofl Samaylal, Dehati merg of Ex.-P/33 and Ex.- P/32 with respect to death of Chhedi and Bhujbal has been recorded at 19.00 hours on 8-10-2002 in village Bahtarai. The injured witness on whose information Dehati Nalishi of Ex.-P/31 was recorded was referred to the doctor for medical examination and from perusal of his MLC report (Ex.-P/S) duly proved by Dr. Bhatia (PW-9),we findthat he was examined on the date of the incident itself at about 10.10 pm. Therefore, the case of the prosecution cannot be doubted on the ground that there is inconsistent version about the date, time and person who lodged first information report. 18-From the evidence of N.P. Mishra (10) (PW-17) also, we find that he learned about the incident on receiving wireless message on 8-10- 2002 from Superintendent of Police and he immediately proceeded for the spot and commenced| investigation. Therefore, argument that on the basis of evidence ofjAmrika Bai that report was lodged by the villagers in the police station and the same hasbeen suppressed cannot be accepted. 19.1t was also argued that Milauram is not a reliable witness as his version that after being assaulted, he ran away and hidunder the tree to save his life is belied from the spot maps prepared by Halka Patwari and the 10 wherein there is no mention of any existence of tree on the place of incident. The yersion of Samaylal and Milauram is also unreliable as bothof them in their deposition have stated that they did not see each other at the time of incident which is highly improbable and which creates doubt about veracity of their version. 20. So far as the defence of the appellants regarding non-mention of tree on the spot in the map islconcerned, the same has been elaborately considered in detail in the impugned judgment by the trial Court. The trial Court, after elaborately examining evidence of this witness and his injury report proved by Dr. Bhatia (PW-9), has held that the version of this witness is duly corroborated from the evidence of Dr. Bhatia as he has found corresponding injuries over the person of Milauram, as also from the evidence of other eyewitnesses namely, Samaylal and Amrika Bai. The finding has been arrived at after marshalling the ^•"'"^ \•^ v^^'^^'^-... ' ':I 1 "»..,..-•:''•' ^1'" r" entire oral evidence and after due appreciation and we do not see any reason to interfere with the above finding. 2l.So far as the argumentj that the trial Court has convicted all the accused persons under Section 307 read with Section 149ofthe IPC though injured himself has attributed the assaulton him by Virendra and Lalit is concerned, the trial Court, after elaborately dealingwith the evidence of eyewitnesses to the incident, has held that all the accused . persons formed an unlawful assembly with a common object of committing offence and reached on the place of incident at 12 noon with lethal weapons like lathi and axe and took active part in offence as member of unlawful assembly. The above finding is based on proper appreciation of evidence available on record and the same does not call for interference. 22. It is settled law that testimony of an injured witness has to be given importance. The trial Court has analyzed the testimony of injured eyewitness in great detail. His evidence is duly corroborated from the promptly lodged Dehati Nalishi of Ex.-P/31 by him as also from his medjco legal examinationj report. His version is further corroborated from the evidence of other witnesses namely, Samaylal, AmrikaBai and Gorelal (PW-4),son ofcomplainant Milauram, who saw the appellants returning after committing offence and who also chased him. 23. From the evidence available on record, we also find that there was on going dispute between complainant party and the accused persons and several criminal cases are pending in the Court. The trial Court has rejected the plea of alibi of the appellants, who examined Rajesh Bajpayee in their defence to establish that appellants Ganesh and Mahesh were not present at the place of the incident. After dealing with the evidence of defence witness, the trial Court has rejected the plea of alibi on the ground that the place of incident is at a distance of 10-12 km from Bajpayee tower. The witness has to go out in connection with his construction work and, therefore, it was possible for the accused persons t6 go to the place of incident, commit offence and return back, as the distance between the two places can be traveledwithin 10-12 minutes. 7€!'n ^' ;':^..x,.' v,. ^ 24.The finding of the trial Court is based on proper appreeiation of evidence available on record and the prosecution has proved involvement of the appellants in the crimein question by cogent evidence of eyewitnesses. 25. On the basis of aforesaid|discussion, we are of the opinion that there is no illegality or infirmity jn the judgment of the trial Court warranting interference of this Court. 1 26. In the result, the appeals being devoid of any substance deserve to be dismissed and they are hereby dismissed. Appellant Makhan is on bail. His bail bonds are cancelled and he is directed to surrender before the trial Court forthwith to serve the sentence imposed upon him. Sd/- DhirendraMishra Judge Barve Sd/- R.N. Chandrakar Judge