H HIGH COURT OF CHHATTISGARH BILASPUR Criminal Aggeal No.470 l 2006 APPELLANT (In Jail) Mam'ram s/o Mangdu Kalar, aged 37 years, R/o Village Ganjcnar, Kasturi Para, RS. Sukma, District South Bastar, Dantewada Chhattisgarh VERsus RESPONDENT State of Chhatu'sgarh Thmugh Police Station Sukma, District South Basfar Dantewada Chhattisgarh CRIMINAL APPEAL U(S 374 [2i OF THE CODE OF CRIMINAL PROCUDERE Appearance: Ms. Soiia Khan, counsel for the appellant. Shn' S.R.J. Jaiswal, Panel Lawyer for the State. Division Bench:- Hon’ble Shri T.P. Sharma & M Hon’ble Shri R.L.Jhanwar JJ ORAL JUDGMENT (1 1.2.20 1 1) Per T.P.Sha1ma, J. Challenge in this appeal 1's to the judgment of conviction and order of sentence dated 29.3.2006, passed by the Sessions Judge South Bastar, Dantewada (6G) in s.T.No.61/2oo4; criminal case, convicted the appellant under Sections 302 emd 201 of the IPC and sentenced for life imprisonment; and RJ. for 3 years respectively. @ 2. The conviction is impugned on the ground that without them being ally iota of evidence sufficient for conviction of the appellant, the learned Sessions Judge has convicted and sentenced the appellant as aforesaid mentioned and thereby committed illegality. 3. As per case of prosecution, on fateful intervening nigh of 21.12004 and 22.1.2004 Mangal (since deceased) was coming to his village along with Vasudeo (PW—2) fro Kacheli and when they reached near the forest, this appellant came and caused atal injury upon the head of Mangal and chopped his head an f d after leaving the chopped body, appellant concealed the ead of the deceased‘ When ngal did not reach house, his son and other persons of the village made search, finally copped body of Mang was found in e field. His son Niluram (PW-1) went to Police Station and lodged FIR vide Ex. P/ 2 and merg vide Ex. P/ 1 on 23.1.2004. The Investigating Odicer left for th scen o occurrence and after summoning witnesses vide x. , inquest over the dead body of the deceased was prepared \ride Ex. P] 12 Panchayat was convened by the villaers, where Vasudeo PW—2) intimated that te appellant has killed Mangal and concealed is head. Accuse was taken into custod. He made disclosure statement of axe and head of Mngal vide EX. P/ 17. He took Police and other persons of the village near one ditch from Where he took out the head of Mgal hidden in the ditch; same was recovered at the instance of the appellant vide Ex. P/ 18. Axe and blood stained clothes of the accused were seized vide EX. P/ 15. Blood stained soil was recovered from the spot vide Ex. P] 14. Chopped body of the deceased was identified as body of Mangal vide Ex. Pf 13. Spot Map was prepared vide Ex. P] 20. Dead body ‘ 'of the deceased was sent for autopsy to P.H.C. Chhindgarh vidc EX. P/ 22, where Dr. RK. Nachankar (PW—3) conducted autopsy t m h Ma h al th e e f E P/3 . g ( h h d y a an vidé Ex. P/6 and found following injuries OV6r chopped body of tho deceased : i. Swelling ovcr the abdomen of 15 x 12 cm. 11 swelling over both wrist of 15 x 12 cm. 111 Hoad of the body was chopped He also examined the chopped head and found one incised wound of7 X 4 cm v1c§e EXP/7. Sealed clothes of the deceased were seized vide EX. P/21. Seized articies were sent for chemical examination vide Ex. P/ 23. Statements of the witnesses were recorded under Section 161 of the (iode of Criminal Procedure, 1973 (in short the Code). 4. After completion of investigation, charge sheet was died before the Judicial Magistrate First Class, Sukma, who in tum, committed the case to the Court of Sessions, Dantewada, who conducted the trial. 5. in order to prove the guilt of the accused/appellant, prosecution examined as many as 8 witnesses. Accused was examined under Section 313 of the Code, in which, he denied the circumstances appearing against him, innocence and false implication in cn'me in question was claimed. 6. After affording opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7‘ We have heard Ms. Sofia Khan, learned counsel for the appellant and Shri S.R.J. Jaiswal, learned Panel Lawyer for the State, peruSed the judgment impugned and record of the uial Court. 8. Learned counsel for the appellant vehemently argued that this is a case of blind murder and alleged PW’2 Vasudevwas alone accompanying the deceased, has not seen the incident; at dark night it was not possible for him to see the incidcnt and conduct of this witness, who has not nanated the incident to anybody on the same day or second day is unnatural. His act appears to be the act of accomplishment. FIR has been lodged on 3rd day against unknown person vide Ex. P/ 2, in which, it has been mentioned that on account of convening Panchayat, delay has been caused in lodging FIR. As‘per evidence of PW~1— Niluram, Vasudev has narrated the incident before Panchayat, but n of the accused does not nnd place in the FIR, which has been lodged after convening the Panchayat, makes the evidence of PWI—Niluram and PW2- Vasudeo unreliable. PW—2- Vasudeo and PW~6— Hadma Ram haye not supported the factum of memorandum and seizure. Evidence adduced on behalf of the prosecution is not sunicient for drawing any dehnite conclusion that only the appellant has committed the otfence and except him nobody has committed the aforesaid offence. Suspicion however, grave cannot take place of legal evidence. In these circumstances, appellant is entitled for benefit of doubt and is enh'tled for acquittal. 9. On the other hand, learned counsel for the State opposed these arguments and submitted that conviction of the appellant is substantially based on the basis of recovery of head of the deceased. On the basis of discoveiy'statement of appellant and evidence of eye witness PW—2 Vasudeo, which is'well corroborated by the evidence of PW—l Niluram and discovery statement; same is sufhcit for . drawing definite conclusion that only the appellant has committed the oh‘cnce and except him nobody has committed the aforesaid oh‘ence. ame en 10. in order to apprsciate the axguments advanced on behalf of the parties, wc havc examined th€ evidamx adduced on behalf of the prosecuu'on. 11. In the present case, homicidal death as a result of fatal substantially disputed on behalf of the appellant, on the other (PW-3) and Autopsy repoxt Ex. P/6 and P/7 and death was of the deceased has not been injury i.e. chopping of head evidence of Dr. R.K. Nachankar hand, it is established by the homicidal in nature. l2. As regards complicity of the accused! appellant in crime in question is concerned, as per evidence of PW-2 Vasudeo, he was coming with the deceasede Mangal from village Kacheli to his v‘ e and while they were passing through the forest, the appellant came, he was holding axe and he caused repeated injury over the neck of Mangal and chopped his head. Body of Mangal fell down then he took the cut head of Mangal. The appellant also threatened him that he may also kill him. On second day, he narrated the incident to the son of the deceased and other persons of the village. 13. Defence has cross examined this witness at length but in cross examination, he has denied the suggestion that he has not seen the incident or he has not narrated the incident to other persons. He admitted that he was under fear; therefore, he has not narrated the incident at night or same day. He has admitted the fact that at the time of incident there was dark night and in has deposed that after knowing the fact that chopped body of his FIR Ex. P[2 and Merg EXP] 1. He has also deposed that the appellant has informed the incident to him on 3rd day. He has PWvl ‘Niluram son of the deceased the forest, there Were shrubs. went to Police Station and lodged father is lying in the field, he T admitted the aforesaid things and facts. In para 4 of his cross examination he has denied the suggestion that Vasudeo has not informed the incident to him. Defmitely, in FIR EX. P/ 2 cause of death has been shown. In the Panchayat nothing has been asked looking to convening of Panchayat to PW—l Niluram by the defence. EXP] 2 merg and FIR EX. P/ l also revealed that on 3rd day he has lodged the report. Panchayat was conVened and Vasudeo has narrated that the appellant has chopped the head of father of Niluram. In absence of any suggestion, it is dimcult to hold whether firstly, the Panchayat was convened or Vasudeo has naITated the incident first. PW—6 Hadma Ram has deposed in para l of his evidence that before him appellant has made disclosure statement of chopping of head by him and the same has been recovexed at the instance of the appellant vide EXP] 17’ and Ex. P/ 18, however, in cross examination he has denied the aforesaid facts, but the fact remained that he has signed the documents Ex. P/ 17 and Ex. P] l8. As per his cross examination, the papers were not written and blank paper was signed by him. There was no propriety to sign the blank paper by this wimess. Evidence of this witness revealed that he has concealed the proof. In these cimumstanoes, only evidence of PW—8 Alok Datta, Sub Inspector relating to disclosure statement of recovery of chopped head remains for consideration, who has deposed in para 4 that appellant has made disclosure statement of chopping of head, which was recorded as Ex. P/ l7, thereafter, he went with the appellant where head was hidden. The appellanttook out the head and produced then he seized. Defence has cross examined this witness at length and in cross examination he has denied the suggestion that he has recorded both the documents at Police Station and he has not visited the place from where head was recovered. PW-8 Alok Datta is a Police Ofhcer and as argued by the defence that Police omcers am intemsted in outcome of the case, therefore, their evidence is not safe to rely or not safe for drawing definite conclusion. Defmitely, Police omcers are also the witnesses and their evidence cannot be discarded only on the ground that they are interested in outcome of the case. 14. While dealing with the question of evidentiaiy value of police witnesses, the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashttal has held that. Witnesses being police ofhcers does not by itself create a doubt about their creditworthiness if non examinan'on of Panch witnesses is explained satisfactorily Relevant portion reads as under: “indeed all the five prosecution Witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police ofhcials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it sun‘ers fmm some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police. officials do not suEer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 police odicials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross- examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is 1 AIR 1996 SCW 2943 straightforward, c011sistent and specific. It inspims con&ience and learned comsel for the appellant has not been able to point out any Serious, let alone fatal, infirmity in their evidence. ln our opinion, the factum of search and seizure of the countty made revolver &om the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two Panch witnesses, which is supported by the report EX. 24 tiled by PW—4 P‘I. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution Witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuh‘ng agency to serve them, they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the u'me of search and their whereabouts could.‘ not be traced despite diligent eEort made in that behalf. We, therefore, do not iind any reason to. doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority because of the non examination of the Panch witnesses we fmd that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy.” 15. In the prssent case, evidence of Alok Datta (PW-8) is well corroborated by the evidence of Niluram (PW-1) and Vasudeo- (PW—2). As regards opportunity to see the incident at night is concerned, as per evidence of Vasudeo (PW-2), he was coming from village Kacheli to his village between 8 to 9 pm at night and while he was passing through the forest along with Mangal, this appellant came and assaulted the deceased and chopped his head. This fact is not disputed and is sudicient for drawing an inference that Vasudeo (PW-2) was able to see and walk in the dark in the forest. If a person is in a position to see and walk inside the forest then definitely, he can see the incident took place before him. As per his evidence, he has not only seen the incident, but the appellant also threatened him. Evidence of Niluram (PW- 1), Vasudeo (PW-2) and Alok Datta (PW-8) inspires confidence and trustworthy and are safe for drawing an inference that present appellant has chopped the head of deceased- Mangal and hide the head with a View to conceal the evidence of criminal case. After appreciating the evidence available on record, the learned Sessions Judge has rightly convicted and sentenced the appellant as aforesaid mentioned. liable to be dismissed and it is hereby dismissed. 7/. Sdl— Sd/- ! T. P. Sharma R.L. Jhanwa‘F , Judge] i 5 sunita 16. On close scrutiny of the evidence, we do not find and illegality or infirmity in the conviction and sentence of the appellant. Consequently, the appeal being devoid of merits is / Judge w”. ‘