z^. ^ CF0000059736 C.n0 ^^|» ^ ^^ <S.T.HO.^^^ .J~<:^ No.^^. Nange. AWEAL PmaN&NRR Nanie Rcsident ^-^PJT^y^f^fi^^, ^^ Age ^c^ SentencedloJrF^^^W^ ?ff^ ^[/7^^^ Under Sectiori SC»^,^4 8fTo^ ^o by^^STT^^s?^ ^.^^r^y ^W^^ It is explained to the prisQner that if he states or wishes to be represented by a legal practitioner the Appellate Court willnot proceed with the base for seven daysunle^the legal praclitioQer appears If the legal practitioner does not >ear within seven days he may be beard at all if legal practitioner the court prcceed at once with the case and wiU notbe abUged to give a bearing to ^^i^al practitioner who should 4ppear« 1. Date ofapplication forcopy of Judgement :- 2. Date of which copy receive^ :- -^t/^/ 3< Date on which appeal sent :- 4o Whether the prisoner wished to be represented or not :- No. &^/^ _Name 'm£^fM^Q Yes / No. Continued in '^f^y Jail ^^?CT^ \ No. ^6/^^^^ Dated ^fS^ irded to theCHIEF JUDICIAL MAGISTRATE^^ te^ther with a copy of Judgement or order pass transmis&ion to the proper Applleate Court Superintei Dale ofrcceipt in C. J. M. Office.^/ Date of receipt of record to accompany. Memo of Appeal of the Appellate Court. No. »2-4>_, :: , , dated_^o^^2^ Forwa.dedtotiie -^^_S- '^^^^- -:v- -^@SlGS^3 ithe case for favour of t./Sub-Jail. ^vi-^m e.riMSiit^Ta""!! £>ateof receipi m Ap^ligat^ Court. -^- ^»<^..^^®^^ ^ limiiiNmiim^ HI&H COURT OF JUDICATURE AT BILA5PUR (CHHATTCSeARH) (OIVISION BENCH) Criininal Appeal No.2576 of 1998 Madkami ©angi - Versus - State of Chhat+i^arh Criwinal Appeal No.2577 of 1998 AAadkQml Hunga aJias Benda - Vfir^u^ - State of ChhattisgQrh Criminal Appeal No.2578 of 1998 MadkGmi Hidma - Ver^ud - State of Chhattisgarh ANb Critninal Appeal No.2579 of 1998 Madkami Deva - Versus - State of ChhattiS9Grh JU&6MENT FOR CONSIDERATCON HON3LETHECHIEPJU5TICE Sd/- JUD^E 10.9.2004 Sd/- Chief Justice POST FOR JUbSMENT ON 14T" SEPTEMBBl. 2004 Sd/- L.C. Bhadoo -ludge HIGH COURT OP JUDICATURE AT BILASPUR. CHHATTISGARH (DIVISIONBBNCHI CORAM:- HON'BLB MR. A.S.V. MOORTHY, C.J. AND HON*BLE MR. L.C. BHADOO, J. Crlmlnal Appeal No.2576 of 1998 Madkami Gangi - Versus - State of Chhattisgarh Crimiaal Appeal No.2577 of 1998 Madkami Hunga alias Benda - Vcraus - State of Chhattisgarh Looeal No.2578 of 1998 Madkami Hidma - Versus - State of Chhattisgarh AND Cyimiaal Aopeal No.2579 of 1998 Madkami Deva - Versus - State of Chhattisgarh Pjesent: - Mr. R.K. Jain, Advocate: Mr. D.R. Sharma, Advocate: Mis8 Sofia Khan, Advocate; Mr. Ashish Shukla, Govt. Advocafe: For the appellants in Criminal Appeal Nos.2576/1998 and 2578/1998. For the appellant In Cr.A.No.2577/ 1998. For the appellant in Cr.A.No.2579/ 1998. For the State/respondent. JUDGMBNT (DeUvered on 14th September, 2004) The, foUowia.^ iudRiaent offhe Courtwas deMvered by L.C. Bhadoo, J: - Page 2 of7 1. Crimmal Appeal No.2576/1998 filed by Madkami Gangi, Crimmal Appeal No.2577/1998 filed by Madkami Hunga ollas Benda, Cilmmal Appcal No.2578/1998 ffled by Madkaini Hidma, aad Criminal Appeal No.2579/1998 filed by Madkaoii Deva are arismg out of fhe saaie judgment dated 21.7.1998 passed m Sessions Trial No.29/1998 and relating to fhe same uicident, fhercfore, fhey are beiag disposed ofby fhis coriiraon judginent. 2. The accused/appeUaiits have preferred ftiese criminal appeals under Section 374 (2) of fhe Code of Cru3iin.al Procedure being aggrieved by thc judgnicnt of conviction aad sentencc dated 21.7.1998 passed by fhe 2nd Additional Sessions Judge, Jagdalpur, in. Sessions TrialNo,29/1998, whereby the leamed Additioual Sessions Judge after holdiag tlie accused/appeUaiits giulty under Section 302 read with Sectiou 34 of the I.P.C., sentenced each of fhein to undcrgo iBiprisoninent for life aiid pay a fuie ofRs, l^OOO/-, m default ofpayment offme to farther undergo R.I, for one yeai\ 3. The factual scenario offhe prosecutiou case is fhat on 4.10.1997 at about 2,05 p,ici. Muchaki Bzidra gave rn.org io.tiniation to Police Station: Kukanar to the effect fhat on 3.10.1997 (Friday) when he reached to his house at VHlage: Taagar Rash from Rajamunda, he saw fhat Hadma was not at residence, therefore, he enquired about his whereabouts aiid on enquiry he was uiformed by Hidxna & Aayta tiiat at about 5 p.ni. Hadraa has bccn inurdcrcd by accuscd Dcva, Benda, Joga alias Dallam, Gao.gi & Hidma by assaulting wifh. axe & Lathi in connection with lacid dispute. There are mjuries at 6-7 places on tb.e body of Hadnia, which are caused by axe, and lot of blood has conie out fronx the iajiireis, which is spread over the earth. On reccivuig fhis intiination (Ex. P-2), F.I.R, (Ex,P-1) was registered by Sub Inspector Anurag Paadey, tliereafter, he took up the mvestigation, The Investigatmg Officer took mto possession tiie weapon ofoffence (axe) vide seizure Bieino Ex. P-3 on beiag produced by acczised Madkaini Deva. He also took iato possession one axe and onc knife vide Ex.P-4 on bcing produccd by accuscd Madkami Hunga @ Benda, The body of Madkanii Hadisia was seut for post- mortem to Additional Primary Healfh Centre, Indjepal, where Dr. S.S. Tekam, Assistant Surgeon, conducted tiie post-morteiu on the 1 PageS of7 <-v body of Msidkaioi Hadnia., SLiid he found as naaiiy as nine incised wouuds on tlie neck, chest & backside of the body, He opiaed tliat thc cause ofdcath was due to hcmorrhagic and shock on account of excessive bleeding due to cuttmg ofjugular veia. He furtber opiiied tliat flie deatli was homicidal m nature. The recovercd weapons of offence were also sent to the Assistaiit Surgeou for his opiaion aad vide Exs,P-6, P-7 & P-8, he gave his opiaion fhat the iajuries in qziestion which were present on body of Madkami Hadma could bc caused by these weapons, Paiichnama of tiic body (Ex. P-9) was prcpared m presence of fh.e witaesses aiid siaiple. as weU as blood steiiied soil were takeu in.to possession by the 1.0. froni fhe place of occurrence, 4. After completion of the mvestigation, charge sheet was filed agaiast fhe above four accused persons io. the Court ofJudicial Magistrate, First Class^ Siikiaa^ who ia tiun coniBiitted the casc to tlie Se^sions Judge, Jagdalpur, from. wherc the leaiiied Additional Sessions Judge received fh.e case on tranisfer, The leamed Additional Sessions Jiidge after heariag the PubUc Pi'osecutor aiicl counse.1 for fhe accused aad perusal ofthe record was ofthe opinion fhat prmia facic offcnce under Section 302 rcad wifh Section 34 of fhe I,P,C, was made out agaiast each of the accused persous, Accordmgly, he frained the charge ond read over to the accused persons, they denied the. charge aad claiBied to be toried. 5. In order to prove the charge agaiast the accused persons, tlie prosecutioii exammed sbc witoa.esses, On tlie other haiid, the statenients of the accused persons were recorded under Section 313 of the Cr.P.C. iii which tliey denied fhe evidence ofthe proseczition aad stated fhat they ai'c innoccnt aiid havc bccn falscly iiiipUcatcd in tfae crime. The leamed Additional Sessions Judge after heariiig tiie Additional Public Prosecutor and fhe counsel for the accused persons beUevuig the prosecution evidence convicted aiid sentenced the accused persons in fhe aforesaid manner. 6. We have heaixl leanied counsel for tlie accused/appellaats aad learaed Goveniment Advocate for the State/ respondent. @ Page4of7 7. As far as fhe questlon of fhe nature of deafh of Madkaim HadBia beiiig considered as homicidal, fhe sarne is not ia dispute. In this conncction, PW-4 Dr. S.S. Tckain, who conductcd the post laortcni on the body of Madkami Hadma, has been exaaimed by the prosecution, he has stated fhat as maiiy as nme mcised wouiids were found on fhe body of fhe deceased aad fhese incised wounds were on the forehead, chest & neck, the clavicle bone was found fractiired, fhe wiadpipe was foiuid ciit aiid fhc jugular vcin was also found cut. AU fhe iajuries were aati-morteni i& nature and cause of death was shock as a result of excessive bleedmg. The nature of deafh was honiicidal, Post-niorteBi report is Ex,P-5, Therefore, ia view of tlie above evidence of tlie doctor, tlie nature of deatli of Madkami Hadina.was hoiaicidal, 8. Now, coniing to the iiivolveiiient of the accused persons in coiaBiittuig tlie niurdcr of Madkaxni Hadiaa, fhe lcamed Additional Sessions Judge has convicted all the accused/appellants relying on the evidence of PW-1 Muchaki Budra, PW-2 Madkami Hidma & PW- 3 Madkami Aayta. On close scratmy of the evidence of PW-1 MuchaJki Budra, it is clear fhat he was not an eyewitaess to the iacident, In his cxaDiination-ia-chief as PW-1 he has tricd to prove tihiat he had witaessed the crime aud he saw the accused persous assaulting fhe deceased, whereupon he lodged the report (Ex. P-1) and m.erg uitmiation (Ex. P-2). In fhe cross-examiaation he has stated th.at it is uicorrect to say that he is giviiig false evidence aad he had not witjacsscd tlie iacident On bcuig confronted with his PoMce statemeut (Ex. D-1), he has stated that 'A' to 'A' portiou ofthe Police statement (Ex. D-1) was not given by him, how fhe PoUce wrote fhis he does not know. Similarly, he has stated tliat the pordou of nierg in.tiination (Ex. P-2) froia tfA^ to W was also not given by hini, In his statenient beforc tlic Police (Bx, D-1) tliis witness had stated that day before the mciclent (Friday) he went to Village: Rajamunda, came on Saturday mommg aad saw fhat Madkaoii Hadina was not at his residence, on enquin^ Hidnia & Aayta., fhe son of fhe deceased, iaformed him fhat when fhey were graziag bxUlocks tliey saw tliat Dcva aad others assaiilted Hadma, Same tliuig was mfoniied by lum whUe giviag the merg mtimatiou (Ex< P-2) aad F,I,R, (Ex. P-1) to the PoUce. In these statements he had not said ttiat m Page5of7 fact he witnessed fh.e crtme, whereas before the Court he exaggerated aad inade improvenients to fhe effect tliat he had witoGiessed the crmie, Thereforc, his cvidencc is not torustworthy and does not inspire confidence, hence, no credibility can be attached to tlie evidence oftliis witaess. 9. Now comiag to fhe evldence of PW-2 Madkami Hidma, ftiis witaess has been declared hostile. In para 1 of his evidence he has stated that accused Deva committed tiie niiirder of Madkami Hadiaa, at fhat tbiie he was at his residence, aad fhe dispzite took place bctwcen tlic dcccased 6& Dcva ia tlie house of Dcva which is at a distance of 100 xneters from his residence. In para 2, he has stated fh.at he knows Madkaou Lio.ge, on tlie date of mcident he went to the house of Madkami Liage aad at that place Aayta, son of flie deceased, caiue aad infonned thera about fhe iacident. lu the last para, he has stated that he had not scen tlic acciised persons assaultmg tlie deceased, thercfore, his evidence is ofno value. 10.Nowr, coraixig to the evidence of PW-3 Madkaxai Aayta, son. of fhe deceased, hc is a m.inor and at the tiiae of givuig evidence bcfore the Court he was aged about 8 years, In order to test his abHity to give evidence and to understand the Court proceedmgs, lookmg to his tender age aiid his rural backgrouud, the leamed Additional Sessions Judge put certaio. questions to 1^im fhrough which fhe lcaracd Additional Sessions Judgc rcached to thc conclusion fhat hc was not fit to administer titie oafh fhat is whv his evidence was recorded without admmistenng oafh, As far as tlie value and reliabillty, which caii be attached to fhe evidence ofa chUd witaess, as has been held by fhe Hon^ble Apex Court ia fhe inatter of Psuachhl and others v. State of U.P. reportcd in 1998 CRI.L.J. 4044, "evidence of a child witness must be evaluated more carefiiUy and with greater cu'cum.spection because a chUd is susceptible to be swayed by what ofhers teU them. aad tih.us a child witoaess is aa easy prey to ttitoilag?\ This witn.ess ui his exajiiiaation-ui-chief ia para 1 has stated fhat thc accuscd persons had niurdcrcd his fafhcr, hc was grazing bullocks at the residence of Budra aiid at that time, the accused persous assaulted his father with axe. He further stated th.at when he was goiag to see his fafh.er, fhe accused persons were Page6 of7 J.-. v7 assaulting his fafher, he rsifi away frojoi there aiid reached tlie house and tliereaft.er, he went towards tlie buUocks aad informed Biidra & Liage. In his cross-exaiaJiiatlon, he has stated fhat fhe house of Deva where Uie mcident took place is 200-300 meters away from tiie house of Budi-a, where he was gi'azing bullocks, there is a kitchen garden of 6 ft, on four sides of the house of Deva^ aad at that time, Muchaki Budra came aad iaformed hira that Deva has inurdered his fafher. On rcceiviag this infonnation, whea he went to see his faftier, fhen he saw that his fatlier was lymg on the ground, no otlier pei'son was present there and ui the last liiie, he has categoricaUy stated that he had not seen aiiybody assaulting his fafher. Therefore, the evidence of tliis chUd witaess does not iaspire confidence and based only on this evidcnce, fhe accuscd persons cannot be held guilty for committiiig the murder of his father Madkami Hadma, because ia cross-exammation, he has stated tih.at Budra iafomied him. about fhe raurder of his fafher, fhen he weut to see his fatlier, whereas fhe xnerg uitimation was given by Budra on thc ncxt day of fhe incidcnt aiid ia thc sam.c it was nicntioned that on fhe date of tiie mcident, Budra was not present m the vUlage, he has gone to ViUage: Rajaaiunda. In tlie circumstaaces, giviag iafonxiation by Budra to fhis witaess on fhe saoie day of the iacident does not adse. In the last line of his evidence fhis witoess himself has stated that hc has not seen aaybody assaultmg his father. Perusal of his evidence shows Chat tih.ere is no consistencv in his evidence rafher his evidence is wavermg. In such cu'ciimstaace, no credibility caii be attached to the evidence of this witaaess and it is not safe to hold fhe accused persons guUty of tlie raurder of Hadraa. Moreovcr, fhis witoaess has statcd that he was graziag buUocks m tfae kitchen garden of Budra which was 300-400 meters away froni tlie House of Madkaaii Deva and the iacident took place ia fhe house of Deva, fherefore, there was no occasion for this witaess to see fhe iacident. As such, based on tlie evidence of this witaess fhe accuscd persons cannot bc held guilty for coinmitting tlie murder of his fatiier Madkami Hadma and tliere is no otiier ocular evideuce. 1 l.As far as the recover}7 of axe and knife from accused Deva & Gangi is conceraed, ao Serologisfs/P.S.L. report is produced by the Page. 7 of7 prosecution ia order to prove fhat fhese weapons were stained wifh huniaa blood aad that too with fh-e blood gi-oup of fhe deceased, Therefore, ftiere is no evidence ocular or circuixistaatial, which connects the accused persons with the murder of Madkadi Hadnia, As such, we are of Uie coasidered view that the findmg of the leamed Additioual Sessions Judge regardiag fh.e conviction aiid sentence of the accused/appeUaiits caanot be siistaiaed for fhe rcasons nieutioned above as the saxae. is based on no legal or cogent and reUable evidence. Virtuallv there is no evidence at all which coniiects tlie acoused pereons witli tlie miirder of Madkami Hadma. 12.In fbe result, all fhe appeals ofthe appeUaats succeed an.d (he same are allowed, Their coiivictiou aad senteuce uiider Section 302 read with Section 34 ofthe I.P.C. are set aside and tiiey are acquitted of the above charge. The appeUants are directed to be released fortliwitli, if not rcquired ia aiiy otlier ca^c, Sd/- Chief Justice Sd/-- L.C, Bhadoo Judge Soni^