'? !np..-;..;. ;.*-l';;!>iM...4f? "fc; '«•; :^t''~':''' •a>»""- CFOOOOOS4378 .siiyS ^"s:%"^i .^-.•.^ If-'lnil UIUU UUUK'l' Uf' •JUL»I(-;ATL)TtKA'l' .JAsAl^X'.UKSM.i-, CriminalAppeaiNo. S^'S r~l% f2MQ (in Jail) ^y^^r yW''/^ ^ v<?'' .>' /' >..'"" /' ' 'l- ' Vijay S/o Shri Mahadeo Aged about 22 . years,R/o Tarkiiial-TurenarP.S. Nagaroa- District Bastar (M.P.) 2.^ V^m.uKumarS/oSfariShivram agedabout /VL '' 'll.--i / ^. - ..'.''_ : _ -. '• ~ ./.^^ 25 y.ears, R/o Tarkinai - Turenar P.S. ^Vy^^ ' Naearnar District Bastar (M.P..) U/S 302 of the.India" Psna! Code 1860- U/S 307 ofthe Indian Penai Code 1860 Kusdeo S/o Shri Sadliuram Aged aboui 22 vears K/o Tarkiiial - Tureaar P.S. Na.garnsr District Bastar; fM.5.) State ofM.P. T&rough P.S. NaganrarDistrict Baslar (M.P.). R. 1. foriife'lmpnsonment And fine RS- 500/- in aefauit R. I. forone vear . R. I. fer 7 vea.rs Imorisonmeat And fia.e RS. 5'00''- in default R. I. for l year :>); -Ji i2lfifth££odaof_&iauaa!:ProcedMre187 HIQH COURT OF CHHATTISGARH AT BILASPUR CriminalApoeal No. 2578 of 2000 Appellants Vijay aad two ofhers Versus Respondeat State of M.P.(now State of Chhattisgarh) ?3Sg i"! DIVI8IOH BBMCH : Honlale Mr. Justice DMrendra BUshra, aad Hoa'bte Mr. Jiistice Satish K. Agniliotri, JJ Shri Y. C. Shanna, Advocate for the appeUants. Shri Sudliir Bajpayee, Panel lawyer for the State. ORAL JUDGMBHT (ll July,2006) The foUowmg otder ofthc Court is deUvcred by Dhlrendra Mishra, J. 1. The appeBants have preferred this appeal imder Section 374(2) ofthe Code ofCriminal Procedure as they have been convfcted by the leamed Secoud Additunal Sessions Judge, Baster, Jagdalpur vide judgment dated 30.8.2000 passed ia Scssions Trial No. 409/99, under Section 302 and SectiDn 307 of fhe Indian Penal Code for cazising death of Madhursan aad for atterapting to murder his brofher Dharaai Singh aad sentenced each offhe appcBants to undeigo iinprisoiunent for life under Sectfon 302 and to pay fiiie of Rs. 500/-, m default one yeafs additional r^orous imprisonment and imder Section 307 r^orous uuprisonment for 7 ycars and to pay finc of Rs. 500/-, in default rigorous impnsoiuaent for one year. Bofh the sentences are to nui concurrenffy. 2. The case ofthe prosecution as reveals froia the dehati nalisi (Ex.P/3) is that on 31.12.1998 when the deceased was going .r!T^I4"':i;'7:'K :°'"^KSSt^s^sa^iff^si'sssaisssEty^:-:,'- •7S^SSS^^^SK^^^ !fl ^B "6 .t^ ^ on duty from his hoine aad when he reached near viBage some fight was going on ia the cock-iuarket. He also went there and saw fhat bis elder brofher DIiarain Singh was l^uig injurcd as he was assaulted by spme unknown person. Then he reached there, the same person who was puttir^ on coat assaulted him also by kiufe on his stomach and thereby caused grievous injiuy. His brofher has sustaiaed two grievons mjurics over ff- his elbow. Ater the incideht both the brothera werc takea to fhe hospital at Jagdalpur by the fainUy members and were admitted thereat. The offencc uader section 307 was registered agamst uiiknown persQns. 3. The injured Dhanna Singh was sent to tbe hospital for examiaation vide.Ex.P/4 where Dr. Oovind Smgh (P.W.13) examined him and gave his report (Bx P/17). The complainaat f Madhzuam died on fhe fonowing day on 1.1.1999 atabout 7.20 a-in. On his death thc mtiination (EX.P/ 19) was given by the police constable whrch was rccorded into tfae meig- intuaation (Ex. C/2). After conductiug fhe uiqucst (Ex P/5) over the person of the deceased Madhuram his body was sent for autopsy to Maharani Hospital where vide Ex.P/6 Dr. Govind Singh conducted the postmortem and submitted his report Ex. P/15. Artlcles of tbe deccased in a packet were taken in to the possession vide Ex.P/7. After the death the F.I.R. was registered vide Bx.P/ 11 at police Station Nagar Nar. Site map was prepared by the Investigating Officer vide Ex.P/12. On the memorandiun-(Ex.P/1) fhe stateinent ofthe accuscd Venu Kiunar was iiecorded on 15.3.1999. On the memoraudiun statement ofVijay Mahra (EX.P/ 13) fhe weapon (;'. \ -&. J.il of offence i.e. Kati (knife) was taken into possessjon vide Ex.P/14 on 19.3.1999. The seized kxufe was sent for exaDunation to Dr. Goviud Siagh, who subinitted his report Ex.P/18 and did not give any opinion whether fbe mjury over fhe person could t)e caused by weapon in question. However, he suggested that the tenifc be aent for furfher chemical exaDiination to the laboratory. •t,- The clothing of the deceased and the knife seized fiom fhe accuscd Vijay were sent for chemical examination to forensic science laboratoiy, Raipur vide Ex.P/21, The report of the F.S.L. is Ex.P/22 in which blood has been found on the clothing of the deceascd aad the knife was not found blood stained. After completing the uivestigstion fhc chai^e-sheet under Section 302 and 307 read wifh Section 34 oftfae I.P.C. r, was filed in fhe Court of Judicial Magisteate, Ja^lalpur against Vijay , Venu Kuinar and Kusdeo, and the same was committed by the kamed Chief Judlcial Magistrate to the Court of Additional Sessk>ns Judge, who in tum, afler receivtng the case on transfer, fiamed chatges iiader Section 302 and 307 of the I.P.C. The chaiges were separately fiamed against fhe appeBants, who abjured fheir guflt. The prosecution ia orier to prove fhc charges esmmmed 16 witnesses in aB. Thereafter fhe statemeats of accused under sectioa 313 of the Cr.P.C. were recorded, who denying aay of the circumstauces against fhem of the prosecution case, pleaded innocence and • false implication. The accused/appellants have examined onc witness in defeo.ee. •?TI^^-;^S"--iA.l^^^.'^-u^"^*>]U^B(U*<^HtU^ K SinpiBgai aoRBiafB[dx3 oa si aiaip pua sqtnotn MS jo asdB( B isya pspiiooai SBM ssaiqiA snp jo ^namatB^G AeTp aTp. -fBff^ pauaAB si 1.1 psiuaouoo si qSaig nireqa jo iiOTnai.Bts aip SB x^ og "ao p3i[3j aq vsa ppzoo aouapiAS aq^ 'Tioii.Btimrexa-ssao pue jaiqa ui nopBHiiiiKxa aip ui aoaapiAS aip jo AoTiBdaosip aq^ o). 8ap(ooi ptre s^nsma^Bts &Bip aq^ 01 siiOTssimo ^eusfBax aiB aiaqt ^Btp si.iinqns jaipjig 3H 'vnoo sq^ Kt nopBimirexa siq 8aunp Sfao jBqpnuaA SpvaBsi s^uenaddB scft jo auo pagitaapi aq pue auiBd ^Cq snos-iad pasnooe 3ip ^paapi o^ ajqB ^.oa SBA aq paiuaoaoo si i •y&'j jo ^uamajB^s aip SB j^ os ^eip s^imqns s^iiBiiadfc aip Jcg lasanoo •pavjsa^ •S3SS3I4U& 3.&3 aq o^ saAiasmaip p3iiiB{o 3ABq oqA 'pasBaoap aip jo jaqi.^ 'iOBinuTrei^ e-^-d pue pBdip[eq t'M'd 'ssaiqiA 3& painfin » 3cp. 'qSiiig mBreqa Z'A'd J° SEi.asniayBtS arp codn siUB{[3ddB atp jo vfxyxAVLoo psseq seq Vinoo JBVC^ aqj, 'paqsiiqBtsa SBA air4Btt~m iBpioimoq aq o^.qiteap ptre aSBqj.tomsq leiua^tii 3AISS33X3 O^ STOMO 3(30qs SB q(B3p jo asn'BO atp paindo paB ^ioafqo dreqs puB pieq iq pasneo anqBa ui laaiJomaiire si Amfai •a(ipsa(tti nems ni tiro '% x %i taatitajnsBaui Anta pasiou^ -.••^o[3qpsquosap SB saunfai •^ punoj seq aq qoiqM 111 si/d"xa 1-iodai siq panimqns seq poB iBEinqpBM jo Xpoq peap aip -OAO ^edoi.nB aip pa^onpnoo peq oqA 'gi "M'djo liuauiaiBls atpjo lestuad uo asAg 'a^ndsip ui ^ou Sf TBBinqpBi^ pasBSoap aip jo q^Bap lepioTmoq sqj, •3AoqB paaoEtaain SB ^fjncQ {Bt4 aq). Aq saoaatnas pire ps^ouuioo uaaq 3A®qsi.Tre[{3ddB atp siiiBQaddB ai^ -ioj issmioo paa.reai pire .latnoastMj oiiqnd p3TUBS| SauBaq -tagv l»i S'li^'a 9. 10. delay and even fhe poUce ofBcer who recordcd thc diaiy statement has not stated about iaordinate delay. Apart flnin tius it is argued that the dying declaration of this witaess was recorded by fhe Executive Magistrate vide Ex.C/1 and if the stetement fhat he has given in the Court is compared to the statement he has given before the Executive Magistrate are taken iato consideration, it would be evident that there is ^' .- . . - .- . material discrepancy iu bofh the statements and this witness is not a witness of truth. Even otherwise, this witness has made a laaterial improvement fmm. bis diaiy statement as is evident in the cross examination. Simllarly Mannurara (PW 3), father of the deceased has given wavering account of fhe incident in the cross-examination and the examinatiDn in cUef and he was declared hostUe and permitted to cross examine and in fhe cioss-exaiiunation he <Iias made aUegation against fhe appeUants but subsequently on being cross-examined by the defeuce he has a%saa inade altogefhcr contradictoiy stateinent and in the l^ht of the above discrepancies of all the three alleged eye witnesses, the evidence does not inspire confidence aad the Court bclow was not justified in basing fhe convictioii on the testimony offhese eyewitnesses. On the ofher hand learaed counsel for the State supports the convKtion. We have perused the record of the tdal Court and the impugned judgment. The (»nvk:tion<rf the appeBants is based on the stetements of P.W.l Lakhpati, P.W.2 Dharam Sin^i and P.W.3 ManuuTam, who have becn cited as eyewitncsses to the incident. The other evidence available on record is ^; nieinoranduin of the accused Vijay and in pursuancc of (h.c said memoraaduin the recoveiy of fhe blood staiaed knife. However, fium fhe report ofthe P.S.L. we find fhat the weapon ofofifence i.e. knife seized, blood stains were not found on thc said weapon of ofifence axid therefore fhe memprandzun and recovery piu-suaat to the laemoranduin is of no help to the prosccution. 11. P.W.2 Dharam Singh is an;injured eyewitness ofthe mcident. His dyiiig declaratfon was alao recorded by the Bxecutive Magistrate on fhe foBowing day and tate diaiy statement Ex.D/2 was recoided on 9.6. 1999 and fhe ofiBcer recording fhe diary statement has not been <xamiaed, This witness has stated ia tds deposition that fhe accused persons had iu fact came to the market with a plaa to kfll him. They assaulted him by club in the cock-tnarket. He r eived one iajuiy on leg and two mjuries on back. Kusdeo assaulted hita by club, after he fell on ground, Kusdeo and Vijay caught him and Venudhar pouaced over him and in fhat position two blows on his chest by Kati(knife) were given. When he tried to mflfct fhnd blow, he recewed iujuiy near nose. He statcd, in the mieanwhile Madhuram came aad on arrival of Madhunani, Kusdeo aad Vanu caught him and Vijay assaulted Madliuram by knife over his stoinach. He has farther stated, behmd him his father Mannuram also came and he saw accused assaulting and fix>m there he aad his brother wcre takcnto Maharani Hospital T by 407 vehicle. Hc furfher stated that he waa admittcd in the hospital fiiom 31.12.1998 to 25.1.1999 and his brofher succzunb to the injuries in the hospital at about 4-5 aia on l't cg^' 12. Januaiy, 1999. Ifwe go fhrough the cioss-examination offhis witness we find that some uisigniffcant omissions and contradictions so far as assault by the appeUants to him are coucemed. Lookiag to the fact fhat the statenient of thls witucss is duly corroborated by fhe statement of P.W. 13 Dr. Govind Singh, who has examiued Tiim after the iacident ou 31.12.1998 itself and who Tias found fhe injuries described below, ia his report and Ex. P/18, assault by the appcBants to injured Dharam. Singh is estabUshed. (1) Inciscd injuiy right side offhe chest 5 c.in. beside fhe right uipple mediatly measureiaent 2 c.ia. x Va c.ni. cavity deep bleedjng+ (2) Incised injtuy on ttie right side of fhe. chest 2 c.m. beside the nippte. LateraUy ineasiireinent 1 x Va c.m. x V4 c.in. (3) Incised mjiuy on right nostril. Laterafly measurement l xV^ x % c.in. However, ia fhe stateinent of tfus witness that after arrival of Madhurani, the accused Veuu and Kusdeo caught and Vijay dealt a btow on his stomach is concemed, in ha diaiy statement we find fhat this fact of 'Venu and Kusdeo caught hiTn' is inissiag. In the end of paragraph 6 of his deposition this witness has stated fhat at that tiine there was a crowd when Madhuraia caiae to save him and it is correct to say fhat someone Iroiu the crowd assaulted my brother wifh Kati (knife). Ifwe consider this statemeut ofthe witness ia totality, we find fhat fhis witness is not iu fact an cyewitness of the assault by Vijay to the deceased Madhuram and to that extent the stateiaent of fhis witness does not inspire confidence. It is II 13. 14. not safe to hold the appellant guflty for causing deafh of his brotber. Apart fix>m this we also find that P.W. l Lakhpati has stated in his exaiuination in cluef fhat three boys assaulted Madhuiam, he will identify if brought before him aad he pointed towards the accused Venu as oue of fhose persons, who had assaiilted Madhurain and this witness also giveu contradictoiy account of the incalent. He has also been cross-examined in detailed and we fhat uumber of omissions and contradictions are there in his deposition. The statemeat of P.W.3 is fuU of dtecrepaucies. In the exanunatton in. chief he has totaUy resiled froin his diaiy statenient and he has been declared hostile. In fhe cross-exanunation this wito.ess has stated that Vijay dealt krufe blow on Madhiuam. However, in the cross-examiaation this witness tes further stated that it is correct to say that there was a b^ crowd where fhe cock-fight was going on and he was in the pan shop and he has not seen fhe quarrel. On the basis of fhe aforementioned evidence we are of fhe consalered opuuon that the findiag of the Court below boViing the appellants guilty of causiag death of deceased Madhuram and convictmg aad sentencing liim uader Section 302 of the I.P.C. caiuiot be sustained. Accordingfy, the judgnient is set-aside to that extent However, so far as fhe fmding of the Court below, holding fhe appenants guilty under section 307 of fhe I.P.C. for assaultmg Dharam Siagh wifh intention to cause his death is estabUshed and the judgment of conviction ilalfiiii 1 ] lll 1;1' It Thakur 15, 16. and sentence passed by the trial Court to that extent is mauitamed. In the residt, fhe appeal is parQy allowed. The conviction and sentence of the appeUants under Sectmn 302 of the I.P.C. is set-aside aad the appeUants are acquitted offbe above charge. However, the conviction and sentence under Section 307 ofthe I.P.C. is mauitained. The appeBant No. 1 Vijay sifid appeflant No.3 are on bail, Their bafl. bonds are canceUed. They be teken into custody for undei^omg the reinairung part of the sentence awarded for cominission ofthe oflfence under Secti.on.307 ofthc I.P.C. Sd/- DHIRENDRA MISHRA Judge Sd/- ' Satish K. Agnihotri Judge