''^•1.? HIGHCOURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. CnminaLApBeal , 1544 of 1994 Kumar Nand Paikra & another (dead) Vs. . State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^L^r2^ Sd/- ChiefJustice ^ /0~4?2011 Post for Judgment :J> /04/2011 SM|" 11 i! Bi.i,,.. 'N, ^ .,-"'• 1 Sd/- Sunil Kumar Sinha Judge ^'t^'^-.' •^"f1 J../ ~;^^v HIGH COURT OFCHHATTISGARH. BILASPUR CORAhfl: Hon'ble ShriRaieev Gupta. C.J, ^ Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1544of 1994 APPELLANTS RESPONDENT 1 Kumar Nand Paikra, son of Maniya Sai Paikra, aged 35 years, resident of Khajur Bahar, Distt. Raigarh, M.P. (Now District Jashpur, C.G.) 2 Jagatpal, son of Munshu Singh Kanbar, aged 18 years, resident of Lukhi, Police Station Jashpurnagar, Distt. Raigarh, M.P. (Now District Jashpur, C.G.) (Dead- Name deleted vide order dated 9.2.2011) Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through the Station House Officer, Police Station Kunkuri (Criminal Appeal under Section 374 (2) of The Code ofCriminal Procedure) Appearance: Ms. Sharmila Singhai, Advocate for theappellants. Mr. Vinod Deshmukh, Dy. Govt. Advocate and Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (5" .04.2011) Follb^^ing judgment of the Court was delivered by Sunil Kumar Sinha, J. ^ (1) This appeal is directed against the judgment dated 30 of November, 1994 passed in Sessions Trial No. 109/94 by the Adcjitipnal Sessions Judge, Jashpurnagar. By the impugned Criminal Appeal No. 1544 of 1994 judgment, the appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment forlife. (2) Appellant No. 2 Jagatpal died during the pendency of the appellant on 19.8.2005. His name was deleted from the memo of appeal by order dated 9.2.201 1 and the appeal filed on behalf of appellant No.2 stood abated. '^ (3) The facts, briefly stated, are as under:- The case of the prosecution is that on 12.12.93 at about 1.30 p.m., deceased Akbar Sai, Ramdeo (PW-2) and August Shyam Sai (PW-5) were going on their bicycles to police station Kunkuri. The allegations are that the 2 appellants met them on the way. They stopped the deeeased and assaulted him by dauli (a sharp edged weapon). Akbar Sai fell down. He received multiple injuries. Ramdeo (PW-2) went to the village and called thevillagers. The matter was report to police station Kunkuri by Anand Sai (PW-3 - son of the deceased) and the First InformationReport (Ex.-P/6) was registered. The police party reached to the place of occurrence. They saw that the deceased was alive. They immediately took the deceased to the hospital. The deceased was admitted in the hospital. He ^was treated in the hospital. He died during the course of his treatment at about 1.00 a.m. on 13.12.93. The bed-head-ticket of the.dgceased is Ex.-P/15. After his death panchnama (Ex.- . <P/4)wasprepared. Th^dead body of the deceased was sent for post-mortem. -The post-mortem examination was conducted by Dr. S. Toppo (PW-6). hle found 6 incised wounds on the dead bodyof the deceased. Many of them were on the vital parts like skull and neck. The first incised Ee'if- IIII iis;il -i:-^iai« • li ! -,] M) Criminal Appeal No. 1544 of 1994 wound of the size 9 cm x 1 cmx 2 cm was on the right occipital region. There was fracture of occipital bone beneath the said injury. There was another incised wound on the occipital region having fracture of occipital bone beneath it. The incised wound of5 cm x 1 cm x2 cm on the parietal region was also haVing corresponding fracture of parietal bone. The other incised wound on the occipital region of the size of 4-5 cmx 1 cmx2 cm had another fracture on the occipital bone. The Autopsy Surgeon opined that the cause of death was excessive haemorrhage and above injuries to the deceased. The death was homicidal in nature. The post- mortem report is Ex.-P/11. Accused- Kumar Nand was named in the F.1.R. Jagatpal was not named in the F.1.R. Therefore, a test identification parade (T.I.P.) was eondycted on 15 December, 1993. In the T.1.P., Jagatpal was identified by the 2 eye-witnesses. The proceedings ofT.I.P. are Ex.-P/5. In further investigation, Kumar Nand was taken into custody and his memorandum statement u/s 27 of the Evidence Act (Ex.-P/7) was recorded and dauli and other articles were seized at his instance vide seizure memo Ex.- P/8. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Jashpuj?hagar, who in turn committed the matter to the concemed Sessions ,.Court, from where, it was received on transfer by the Additional Sessions Judge,Jashpurnagar, who conducted the trial and convicted & sentenced the appellsnts as aforementioned. ^^"J^^ Criminal Appeal No. 1544 of 1994 (4) The conviction of the appellants is based on the eye-witness account of Ramdeo (PW-2) and August Shyam Sai (PW-5). (5) Ms. Sharmila Singhai,.learned counsel appearing on behalf of appellant No.1, argued thgt the 2 eye-witnesses are not reliable; they have falsely implicated the accused persons on account of previous animosity; earlier the crime was registered on the name of Ramdeo (PW-2); later on his name was scored out from the F.1. R. and name of appellant No.1 was inserted which is manipulation in the F.1.R.; deceased was firstly admitted in hloly Cross Hospital, where it was disclosed that he was attacked by a group of mask- man, whereas the admission was made in presence of the police and the eye-witnesses after lodging of F.1.R.; there are other discrepancies also; therefore the conviction of the appellants was notjustified. (6) On the other hand, Mr. Vinod Deshmukh & Mr. J.A. Lohani, learned Dy. Govt. Advocate & Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard learned counsel for the parties at tength and •^ . ''-» have also perused the records of the sessions case. (8) Ramdeo (PW-2) deposed that on the fateful day, he was accompanying the deceased when the deceased was going to '•^ '^^^^W"!^' ^ CriminaiA^peaLN^ l544_oL1^94 potice station Kunkuri. August Shyam Sai (PW-5) also accompanied them. They were stopped in the forest by accused persons. Accused- Jagatpal was armed with dauli and accused- Kumar Nand was armed with a pistol. Deceased- Akbar Sai was assaulted by dauli by accused- Jagatpal.Accused Kumar Nand also assaulted deceased by dauli. He returned to the village and narrated the story to Anand Sai (PW-3) who lodged the report. Thereafter, the police party came with a jeep and tookthe deceased to the hospital, where he died after some treatment. Ramdeo (PW-2) admitted in the cross-examination that relations between Akbar Sai (deceased) and Kumar Nand (A-1) were inimtcal. He also admitted that one of the assailants had covered himself with a chadar and he could not identify him. The assailant who had covered himself by chadar had assaulted the deceased by dauli. He also admitted that he did not tell the names ofthe appellants to the police as the assailants ofthe deceased. Police had taken his 3-4 statements. First statement was taken on the date of the incident; second statement was taken 3 days after the incident and third statement was taken after 5-6days of"the incident. We find that his one statement(Ex.-D/1) only, has been filed by the police along with charge-sheet. He also admitted that aecused No.2- Jagatp^l, whom he identified in T.1. Parade, was arrested in the village b6fore him then only he said that hewas one of the assailants. ^i^^1"'^"^.': ';:v:f:1?3 1 ^ Criminal Appeal No. 1544 of 1994 (9) August Shyam Sai (PW-5) also deposedin similarfashion. He also admitted that his statements were recorded at four times. Two times by the Investigation Officer, one time in the village and other in the police station. We find that his only one diary statement (Ex.- D/2) has been filed by the police. There are many contradictions in the evidence of August Shyam Sai (PW-5). He further admitted that when Jagatpal (A-2) was arrested by the police, he had seen him in the village and had said that he was one ofthe assailants. (10) In appreciation, we find that just after the incident Anand Sai (PW-3 - son of the deceased) was duly briefed by the eye- witnesses. He lodged the F.1.R. and thereafter the police party came with a jeep at the place of occurrence and took the deceased to the hloly Cross Hospital. In bed-head-ticket (Ex.-P/15), in the column of history, it has been mentioned as "Being attacked by a group of masked men about 1 Vi hour ago." Admittedly the F.1.R. was lodged prior to the admission in the hospital. The police personnels and family members of the deceased had admitted him in the hospital. If the name of one of the assailants was known to the police, as it was mentioned in the F.1. R. whichwas recorded prior to the admission of the decea^e^ to the hospital, they would not have disclosed as •'•-» above befpre the hospital authorities that the deceased was attacked by unknown masked men. This creates a doubt on the prosecutioncase as also on the testimoniesof the 2 eye-witnesses, who.claimed to have briefed the son ofthe deceased priorto lodging iS ^sssy's^ systf x~\ ^ Criminal AppealJ^o.A544 oM 994 Bi the F.1.R. Apart from the above, it also creates suspicion on T.1. Parade. If the assailants were masked men, it was difficult for the eye-witnesses to identify them. The eye-witnesses have also admitted that one of the assailants who was later on identified as Jagatpal (A-2) had covered himself by chadar. In the above facts and circumstances, identification o,f accused- Jagatpal (A-2) becomes suspicious and it also becomes suspicious that Kumar Nand Paikra (A-1) was the other person who participated in assault of the deceased. (11) F.I.R. (Ex.-P/6) is in prescribed format (Form No.1). Column 7 of the format relates to the name and description of the accused.In this column names of Ramdeo (PW-2) and August Shyam Sai (PW- 5) were mentioned as the accused persons. Later on.it was scored off with a small signature and nameof 'Kumar Nand' (A-1) and 'another person' has been mentioned. Ramdeo (PW-2) and August Shyam Sai (PW-5) are the 2 eye-witnesses. There is no column in the format for entry of the names of the eye-witnesses. J.P. Singh (PW-8) is the Investigation Officer. He is also scribe of the F.1.R. (Ex.-P/6). He has admitted that he had scored off the names of the 2 eye-witnesses from the column of the accused persons. He gave ;'*» explanation that, in fact, he has written the names of Ramdeo (PW- 2) and AugustShyam Sai (PW-5) as witnesses, but by mistake he mentioned their names in the column where the names of the .acGUsed persons are to be written. The above explanation appears ^: '^ is^ B"l ^' i^ i^".- II K CriminalApDeal No. 1544of1994 to be false as we have already said that there is nocolumn in the format for writing the namesofthe witnesses. hlad there been any column in the format for writing the names of the witnesses, then only the above explanation would have been accepted. This further creates a doubt regarding involvement of the appellants in crime in question and it also creates doubt on the conduct ofthe prosecution. In view of the above, the evidence of the 2 eye-witnesses was highly suspicious; they were npt reliable; and the conviction based on their testimonies cannot be sustained. (12) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded by impugned judgment are set- aside. Appellant No.1- Kumar Nand Paikra, who is alive, is acquitted ofthe charges framed against him. He ison bail. His bail bonds are cancelled and surety stands discharged. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge vatti 1 ! IStt!•I Bli^ Bl e@ai ^is^iy''!^a~r":