^ •^ ® HIGH COURT OF CHHATTISGARH AT BU.ASPUR Criminal Appeal No. 1269/2003 Ramkeshra @ Rameshwar Vs. The State of Chhattisgarh Criminal Appeal No. 1333/2003 Devnarayan and 4 others Vs. State of Chhattisgarh Criminal Appeal No. 97/2004 Guddu @ Remsevak Vs. State of Chhattisgarh And Criminal Appeal No. 317/2004 Dunmun @ Shiv Kumar Vs. State of C.G. JUDGMENT FOR CONSIDERATIQN Sd/- T.P. Sharma Judge Hon'ble Shri Justice L.C. Bhadoo Sd/- L.C. Bhadoo Judge Post for Judgment on 2 £ June,2008 Sd/- T.P.Sharma Judge T-.--:-••>"•• APPELLANT (In Custody) HIGH COURT OF CHHATTISGARH AT BILASPUR Cnmmal Appeal No. 1269/2003 Ramkeshra @ Rameshwar s/o Late Ratan Yadav, age 60 years, Caste-Yadav (Ahir) r/o viilage Barbaspur, P.S. Pratappur, Distt. Surguja, C.G. RESPONDENT Versus The State of Chhattisgarh, through P.S. Pratappur, District Surguja, C.G. Present: Shri A.K. Prasad, Advocate for the appellant. Shri D.K. Gwalre, Additional Public Prosecutor for the State. APPELLANTS (tn custody) RESPONDENT APPELLANT (In custody) RESPONDENT Criminal Appeal No. 1333/2003 1. Devnarayan, S/o Somal yadav Aged about 25 years 2. Badna @ Ram Badan S/o Ishwar Yadav Aged about 22 years 3. Tula @ Tuhwa S/o Ramjeet yadav Aged about 60 years 4. Shiv Kumar @ Pukar S/o Tutaram Yadav Aged about 21 years 5. Ramdhani @ Ram S/o Somaru yadav Agedabout18years All accused persons by caste yadav Resident of ^llage Barbaspur, P.8.- Pratappur, Dist-Sarguja (C.G.) Versus State of Chhattisgarh Criminal Appeal No. 97/2004 Guddu @ Ramsevak, S/o Prasad Yadav, Aged about 19 years Casto-yadav, Resident of village Barbaspur, P.S. Pratappur, Dist-Sarguja (C.G.) Versus 'State of Chhattisgarh Present: Shri G.S. Ahluwaila, Advocate forthe appellants. Shri D.K. Gwalre, Additional Pub.licProsecutor forthe State. AND ^ APPELLANT (In Custody) RESPONDENT Criminal Appeal No. 317/2004 Dunmun d Shiv Kumar S/o. Dhannu Yadav (Ahir) aged-20 yrs. R/o. Barbas Pur, P.S. PratapPurDistt-Sarguja.C.G. Versus State of C.G. Present: Shri Abhay Tiwari, Advocat^for the appellant. Shri D.K. Gwalre, Additional Public Prosecutor for the State. (Appeals under Section 374 ofthe Code ofCriminal Procedure) Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. T.P. Sharma. JJ. JUDGMENT (Deiivered on 2 6' jtine, 2008) The followina judament of the Court was deKvered bv T.P. Sharma, J. Criminal Appeal Nos.1269/2003 filed by Ramkeshra @ Rameshwar, 1333/2003 filed by Devnarayan & 4 others, 97/2004 filed by Guddu @ Ramsevak and 317/2004 filed by Dunmun @ Shiv Kumar are arising out of the judgment of conviction dated 18.11.2003 & order of sentence dated 19.11.2003 passed by the 6th Additional Sessions Judge (F.T.C.), Surajpur in Sessions Trial No.273/2001, therefore, same are being disposed of by this common judgment. 2. The aforesaid criminal appeals are directed agahist the judgment of conviction dated 18.11.2003 & tirder of sentence dated 19.1 1.2003 passed by the 6th Add'rtional Sessions Judge (F.T.C.), Surajpur Jn Sessions Trtal No.273/2001 whereby and whereunder learned Additional Sessions Judge after hoteling tiw appeltants, namely Ramkeshra @ Rameshwar, Devnarayan, Badna @ Ram Badan, Tula @ Tulwa, Ramdhani @ Ram, Shiv Kumar @ Pukar. Guddu @ Ramsevak and Dunmun @ Shiv Kumar guilty for commjssion of offence under Sections 147 and 302 read with Section 149 of the Indian Penal Code (for short &<the I.P.C/), sentenced each of the accused to undergo R.l. for one year and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for four months under Section 147 ofthe I.P.C. and to undergo imprfeonment for life under Section 302 read with Section 149ofthe I.P.C.. 3. Case of the prosecution, in brief, is that the appeliants are residents of village Barbaspur, Police Station-Pratappur. They were having inimical terms with ^ss^y M.^:'"' ^B?S€ ^''.il^Wv^'-ft^a^ 4 Kannilal Jaiswal on the ground of grazing of the crop of Kannilal Jaiswal (since deceased) who was resident of adjoining village Markadand, Police Station- Rajpur. On the fatefut day (9.5.2001) at about 3.30 p.m. deceased Kannilal Jaiswal was going to his village Markanand from Pratappur by motorcyde along with his daughters, namely, Ku. Sangeeta Jaiswal and Sunrta Jaiswal. When they reached near Kukrahi canal Barbaspur turning they were obstructed by putting the tree pn the road. Deceased Kannilal Jaiswal and his daughters got down from motorcycle, the appellants were hidden near the place of incident armedwith stick and axe. Appellant Devnarayan came with stick and assaulted the deceas^l. Rest of the accused persons also came near Kannilal Jaiswal and attacked him< Appeltant Guddu @ Ramsevak repeatedly assaulted on the head of ttie deceased by axe. Rest of the accused persons assaulted by stick. Deceased Kannii^l Jaiswal fell down and becames unconscious; the body was thrown by the appeltants in a pit. PW-1 Ku. Sangeeta Jaiswat witnesjsed the incident. Her sister Ku. Sunita went to village Barbaspur and informed the villagers aboutthe incident. PW-3 Jeevdhan and other person immediately reached to the spot. Kannilal Jaiswal was taken in a car, but he died in the course of travelling near Makhanpur. 4. Merg intimation (Ex.P/2) was recorded by S.H.O., P.S. Pratappur, which was lodged by PW-1 Ku. Sangeeta Jaiswal, based on that, First Information Report (Ex.P/1) was registered. Investigating Officer left for the scene of occurrence and after giving notice (Ex.P/3). prepared inquest (Ex.P/4) on the body of Kannilat Jaiswat. Body of Kannilal Jaiswal was sent for autopsy to Government Hospital, Pratappur under Ex.P/30. Autopsy was conducted by Dr. Narayan Singh Paikra (PW-8) vide Ex.P/31 "A" and found following injuries:- • Incised woundover the left side of middle parietal region having dimension of8 x 1x .5 cm. • Two incised wounds over right middle parietal region up to frontal region having dimension of8 x 2 x05 cm, • Muttiple fractures of both forearms over lying scene of forearm was reediest to blackish in colour. • One stab wound on the parietal aspect of left wrist having dimension of 3 x 1 x 1 cm. • One stab wound over back of the teft elbow having dimension of 3 x 1 x 1 cm. • One stab wound over internal aspect of left leg having dimension of2 x2 x .5cm. • Fracture of lower of femur bone of the both teg myltiple reediest to btackish spot over both the nee left scapular ; region and belowteft inter scapular region. 5. Doctor opined that the caiuse of death was shock due to severe injUry leading to cardio respiratory arrest and death was homicidal in nature. Plain soil, blood stained soil, plain leaf and blood stained leaf, optic cover, one piece of shoe of the deceased and damaged watch were seized from the spot vide Ex.P/35. Spot map was prepared vide Ex.P/36. Blood stained clothes of Ku. Sangeeta Jaiswal (PW-1) were seized vide Ex.P/2-A. Sealed packet of hair of deceased Kannilal Jaiswal and his clothes were seized vide Ex.P/5. 6. The appettants were taken into custody. Disclosures of facts made by the appetlants were recorded by the investigating officer. On the basis of disctosure statement (Ex.P/6) of appellant Shivkumar, axe was recovered at his instance vide Ex.P/7. On the basis of disctosure^statement (Ex.P/8) of appollant Dunmun @ Shiv Kumar, stick was recovered at his instance vide Ex.P/9. On the basis of disclosure statement (Ex.P/10) of appellant Guddu @ Ramsevak, lathi was recovered at His instance vide Ex.P/11. On the basis of disclosure statement (Ex.P/12) of Ram @ Ramdhani, ctub was recovered ait his instance vide Ex.P/13; On the basis bf disctosure statement (Ex.P/14) of TMIa @ Tulwa, axe was recovered at his instance vide Ex.P/15. On the basis of disclosure statement (Ex.P/16) of Badna @ Ram Badan, stick was recovered at his instance vide Ex.P/17. On the basis of disctosure statement (Ex.P/18) of Ramkeshara @ Ramkeshwar. club was recovered at his instance vide Ex.P/19. On the basts of disdosure statement (Ex.P/20) of Devnarayan @ Shomasu Yadav, Geda (wooden piece like heavy club) was recovered at his instance vide Ex.P/21. Seized articles were sent for examinatioh to Dr. Narayan Singh Paikra (PW-8) vide Ex.P/31. After examjnation of the said artictes it was opined that injury over the body of the deceased may be inflected by the aforesaid artictes. Statements of the witnesses were recorded under Sectioh 161 ofthe Code ofCriminal Procedure, 1973. 7. Motorcycie and papers were seized vide Ex.P/34. Seized ctothes, stick/tathi (Geda) and.axe were sent for chemical examination vide Ex.P/37. Presence of blood on the stick seized from the appellant Ramdhani @ Ram, axe seized from the accused Badna @ Ram Badan, axe seized from the accused Tula @ Tulwa was confirmed vide Ex.P/36. One letter found in the pocket of deceased Kannilal Jaiswal written in the.name of Chief Minister was seized vide Ex.P/41. Finally, the appellants were arrested vide arrest memo Exs.P/22 to P/29. .^^'^h^f^-i^ :;;^1^;. .®i.. ^^ :^- •^8- 1 8. After completion of investigation; charge sheet was fited in the Court of Judicial Magistrate, First Class, Surajpur who in tum committed the case to the Court of Sessions Judge, Ambikapur from where Sixth Additional Sessions Judge (F.T.C.), Surajpur received the same on transfer for trial. 9. In order to estabtish the charge against the accused/appeliants the prosecution has examined as many as 14 witnesses. Statement of Court witness namely, Chandradutt Sharma was atso recorded. Statements of the accused/ appettants were recorded under Section 313 ofthe Cr.P.C., in which theydenied the materiat appearing against them. They stated that they are innocent and have been falsely implicated in the crime in question. In their support, the defence has examinedasmanyas3-witnesses. , 10. Learned Sixth Additional Sessions Judge after hearing counsel for the respective parties, convicted and sentenced the accused/appellants as aforementioned. 11. We have heard Shri A.K. Prasad, Shri G.S. Ahluwalia & Shri Abhay Tiv^iri. counsel for the appeltants and Shri D.K. Gwatre, Additional Public Prosecutor for the State/respondent. 12. Homicidat death of deceased Kanniial Jaiswal is not disputed by learned counsel appearing on behalf ofi^he appellants. Moreover, Dr. Narayan Singh Paikra has stated that on 10.5.2001 he had conducted postmortem on the body of Kanniial Jaiswal and found injuries as aforementioned. Cause of death was shock due to severe injury as a result of excessive hemorrhage and cardio respirato^y arrest and death was homicidal m nature. PW-1 Ku. Sangeeta Jaiswal, PW-3 Jeevdhan Prasad, PW-7 Bharat Jaiswal had also suppoUed the fact that Kannihit Jaiswal was badty injured and he died. By the above ocular and medical evidence, it is established that the cause of death was homicidal in nature. 13. In order to connect the appellants in the crime in question, the prosecution has placed reliance:- • On the evidence of eyewitness PW-1 Ku. Sangeeta Jaiswal • Oral dying declaration of the deceased before PW-3 Jeevdhan Prasad • Circumstances of recovery of weapons of offence at the instance of the appellants/accused persons. 14. Learned counset for the appeilants argued that case of the prosecution rests on the evidence of PW-1 Ku. Sangeeta Jaiswal to whom the prosecution has examined as eyewitness, but on close scrutiny of the prosecution evidence it becomes ctear that she is not eyewitness but she is planted as eyewitness by the prosecution with a view to foist a false case against the accused persons. It is •^••^- •^M^ .M evident from the record that at the^time of the alleged inddent she was not with deceased Kannilal Jaiswal, but her-sister Ku. Sunita was with deceased Kannilal Jaiswal. The prosecution has deliberately not examined Ku. Sunita Jaiswal. Evidence of Ku. Sangeeta Jaiswal is not natural. Her presence at the scene of occurrence is doubtful. Even she has not stated as to what weapon the appellants were holding at the time of the incident. Her father was badly injured. Even then she did not provide water to her father to save him. Merg intimatjon (Ex.P/2) was recorded at her instance in which she has specifically mentioned the word ttcpcr t^FfW 9 5.2001" which creates doubtabout the time and date of making this report. Although the requisition form for coiiducting postmortem does not legally required mentioning the names of the assailants^ but it is in routine that if the names of assaitants are known then it must find place in the requisition of postmortem, but the same does not appear in the requisition. Names of 6 appellants, namely, Devnarayan Yadav, Tula @ Tuhwa, Thunmun Yadav, Guddu @ Ramsevak, Badna Yadav and Ramkeshra were mentioned in the F.I.R. and also in merg intimation (Ex.P/2), but along with the above 6 appellants, name of Rama @ Ramdhani andr Shiv Kumar Yadav were recorded ih inquest (Ex.P/4). It shows that even at the time of sending the dead body for postmortem, assailants were not known, therefore, names of assailants were not recorded in the postmortem requisition (Ex.P/30) on 10.5.2001. F.I.R. (Ex.P/1), merg intimation (Ex.P/2) and inquest (Ex.P/4) were antedated, wherein the names of the assailants were recorded after thought and for this reasons the prosecution has not complied with the provisions of Section 157 of the Code and has not sent a copy of F.I.R. to the Magistrate. 15. The evidence of PW-3 Jeevdhan and PW-7 Bharat Jaiswal, who were alleged to have been present with deceased Kannilal Jaiswal before his death in a car are self contradjctory, in relation to the orat dying dectaration of Kannilal Jaiswal evidence of the witnesses does not inspire confidence. the same is not trustworthy and sufficient for conviction of the appellants. 16. Learned counsel for the appellants atso argued that although ,the prosecution is not required to examine all the witnesses but they are required to examine material witnesses. Non-disciosure of the names of the accused at the eartiest opportunity is fatal to the prosecution. ••\;,'^^:^^^W*'ii^tW^»'<in^^^^^^'f^y«s>^^ •4^ 17. Learned counsel for the appellants have placed reliance on the following cases: State of Punjab v.Pritam Singh and others1 and Bir Singh and others v. State of Uttar Pradesh , wherein the Apex Court has held that prosecution is not obliged to examine each and every witness but prosecution is not entitled to withhold any witnesses where eviderice of witnesses produced by it suffers from infirmities and is not reliable unless properly corroborated and fafsus in uno falsus in omnibus is applicable in criminal cases. Statement of interested witnesses must be corroborated by independent witnesses before they can be relied upon. 18, Learned counsel for the appetlante also argued that if a witness held untruthfut with regard to the co-accused he loses his status of an absolutely reliable witness. Testimony of solitary witness requires close scrutiny. 19. Learned counsel for the appellants further placed reliance on the case of Karunakaran v. State of Tamil Nadu3, wherein the Apex Court held that if testimony of witness standing discredrted by the F.1 .R. lodged by him at the earliest opportunity then he is not absolutely reliable witness. 20. Learned counsel for the appeilants atso argued that star witness of the prosecution namely Ku. Sangeeta Jaiswat has changed her stand from time to time. She was not in a position to say as to what weapons the appellants were hotding at the time of incident and even how many persons were armed with club and how many were armed with axe. 21. Learned counsel for the appellants further placed reliance on the case of State of Punjab v. Sucha Singh and others4, wherein the Apex Court has held thatchange in stand of a witness makes his statement unreliable and suspicion cannot take the place of proof of guilt 22. Leamed counsel for the appellants further placed reliance on the case of Anil Phukan v. State of Assam5, wherein the Apex Court has held that in case of relative witness there may be possibility that they may also implicate some innocent person along with the real assailant cannot be ruled out. Para 4 of the u said judgment reads as under: "4.......... Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reiiabie and trustworthy. In the normai course of events. a close relation would be ^he last person to spare the real assaiiant of his uncie andiimpiicate a false person. However. '(1977)4SCC56 '(1977)4SCC420 3(1976)1 SCC434 4(2003)3SCC153 5(1993)3SCC282 •^y- the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appeilant in the crime.......,....." 23. Learned counset for the appellants also argued that testimony of eyewitness is inconsistent with medicat evidence and her conduct also found to be unnatural, therefore, evictence of Ku.lSangeeta Jaiswal (R/V-1) is not trustworthy and reliable. 24. Leamed counsel for the appellants further placed reiiance on the cases of State of Rajasthan v. Magni Ram8,;and Raj Pal &Anr. v. State of Haryana7, wherein the Apex Court has hetd that^testimony of eyewitnesses inconsistent with medicat evidence and their conduct also found to be unnatural throws reasonable doubt on prosecution case. 25. On the other hand, tearned counsel for the State/respondent placed reliance on the case of Radha Mohan Singh @ Lal Sahb^ & Ors. v. State of U.P. with Kaushal Kishore Singh & Anr. v. State of U.P.8 wherein the Apex Court has hetd that mentioning the names of the accused or weapons in inquest report is not necessary and statement of hostile witnesses cannot be rejected in toto. ? s--- 26. The prosecution has examined R/V-1 Ku. Sangeeta Jaiswal as eyewitness. She is the daughter of deceased Kannilal Jaiswal i.e. close relative of the deceased. Evidence of close relatives is not discarded only on the ground of their relatidnship. Law is well settled in this regard that close relatives are the last persons to leave real culprit and to jncriminate innocent persons, but they are interested in conviction, therefore, close scrutiny of their evidence is required, particutarly vvhen there is no other evidence to support the version of related wrtness. 27. In Namdeo v. State of Maharashtra8, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect Interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close '(2001) 9 SCC 589 72007 CRI. L.J. 2926 82006 AIR SCW 421 "2007 AIRSCW 1835 ^wSwe^t^^ ^fl^^. ^w^.^^^effw'^^'^^ ^..rt^^;.?^?^6^-*^'^^^^^^ ^^ relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholty trustworthy, conviction can be based on the 'sole' testimony of suchwitness. Close retationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The Apex Court also referred to the decisions rendered in the matter of Harbans Kaur and another v. State of Haryana10, in which, it was held that there is no proposition in law that reiatives are to be treated as untruthfut witnesses. On thecontrary, reason has to be shown when a plea of partiatity is raised to show that the witnesses had reason to shield the actuat culprit and falsely implicate the aecused. 28. In this background, we have to scrutinize the evidence of PW-1 Ku. Sangeeta Jaiswat with care and circumspection. She has stated that before the incident she atong with her elder sister Ku. Sunita was going with her father from Pratappur to her village Markadand by Yamaha motorcycle. Whenthey reached near Kukrahi canal they saw that the road was obstructed. Kannilal Jaiswal stopped the motorcycle, at thattime. appellant Devnarayan came with stick and attacked on the head of Kannital Jaiswal. as a result he fell down. She and her sister requested the appellants not to assault their father, then appellants Devnarayan and Phukar saic) that they will assault them also, then Sunita ran away towards viltage to inform the villagers. Sangeeta hid herself behind the shrub. The appellants assautted her father with club & axe, they dragged her father and thtew him in a pit. After sometime, PW-3 Jeevdhan and Baba @ Anil, Ajay and Virendra came to the scene of occurrence where she was weeping. Jeevdhan Yadav sent two persons for bringing Maruti car from Markadand. Thereafter Kannilal Jaiswal was taken in a car. At that time, Kannilal Jaiswal disclosed that he has been assaulted at the instance of Anandram. On the way to Pratappur her father succumbed to the injuries. She had lodged F.t.R. (Ex.P/1) and merg intimation (Ex.P/2). Her ctothes were seized yide Ex.P/2-A. t ' ''" 29. PW-3 Jeevdhan Prasad has stated that daughter of the deceased Ku. Sunita came to his house. At that time she was weeping and said that Yadavas are beating her father near Kukrahi canal. Then he along with Anil @ Baba, Ajay and Virendra rushed towards the place of the incident where he saw Ku. Sangeeta Jaiswal was weeping. They took out Kannilal Jaiswal from the pit. Ajay and Anil went to village Markadand by motorcycle for bringing Maruti car and Virendra went -<. '°2005 AIRSCW 2074 T 10 ^?. s::- ffi^ to canal for fetching water. At that time Sarpanch Shobhnath came to the place of occurrence. Jeevdhan asked Kannilal Jaiswal that who had assaulted him then he told that Devnarayan, Tularam, RamReshra, Badna, Guddu, Thunmun, Rama and Pukar assaulted him. At that time Ajay and Anil brought a car and sent him by car and he went to his house. 30. PW-7 Bharat Jaiswal has staNd that Ku. Sunita was weeping and shouting before his house that her father had been beaten by Yadavas. At that time some ^ persons were going towards Kukrahi canal where Kannilal Jaiswal was assaulted. He also went towards the place of the incident along with Vijay Chairwa. Ajay was coming from the place of the incident by motorcycle and told him to go with him then he went with Ajay for bringing car for Kannilal Jaiswal. He reached on the spot by car atong with daughter and wife of the deceased. He saw Kannilal Jaiswal who was tying inbadly injured condition. Kannilal Jaiswal was taken to hospital for his treatment by car along with his wife Sushila and daughters namely Ku. Sangeeta and Sunita. Kannilal Jaiswal died on the way to Pratappur where they were taking him for treatment. Kanniiat Jaiswal was crying due to pain and he was not in a position to tatk. ^ 31. PW-13 Anand Ram, Sub tnspector, has stated that he has recorded merg intimation (Ex.P/2) and FIR (Ex.P/1). He has supported the entire case of the prosecution and supported the documents i.e. Exs.P/1, P/2 and P/37. fc 32. Name of only 6 assailants excluding theappellants Shivkumar @ Pukar and Ramdhani @ Ram have been mentioned in the F.I.R. (Ex.P/1) and merg intimation (Ex.P/2) but names of Shivkumar and Ramdhani appear in inquest report (Ex.P/4), < prepared on 10.5.2001. On that day, statement under Section 161 of the Code of Ku. Sangeeta Jaiswal, who alone has been examined as eyewitness, was not recorded. In her previous statement i.e. F.I.R. (Ex.P/1) and merg intimation (Ex.P/2), names of these two appellants do not find place. There is no other material to show that after recording F.I.R. and merg intimation, how the Investigating Officer came to know regarding involvement of two other accused persons namely, Shiv Kumar and Ramdhantwhose names were mentioned in the inquest Ex.P/4 for the first time on 10-5-2001 as assailants. 33. According to F.1.R. deceased Kannilal Jaiswal, his daughters Ku. Sunita and Ku. Sangeete were going to Markadand from Pratappur but according to merg intimation, Kannilal Jaiswal and Ku. Sangeeta only two persons were going to Markadand leaving Ku. Sunita Jaiswal at Pratappur. Both the documents were recorded at the instance of PW-1 Ki|. Sangeeta Jaiswal. But in para-8 of her ^^.^.^ ^^^^•^WK^ 'm ^^^^'m^^^^f ^^^^^^ 11 evidence, she has not supported the version of merg intimation (Ex.P/2). According to para-10