in I HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR RIMINAL APPEAL N0.14 OF 1996 CR!MINAL APPEAL N915 OF 1996 And CRlMiNAL APPEAL NO.16 QF 1996 JUDGMENT FOR CONSIDERATION » J Sdl- L.C. Bhadoo Judge Lo%e}2004 HON’BLE THE CHIEF JUSTICE Sdl- Chief Justice / [09/2004 & P03? for pronouncement of Judgment: /[4.@&.September 2004 Sdl— L.C.BHADOO Juge d / 51M 409/2004 C HIGH COURT OF JUDICATURE CHHATTISGARH BILASPUR (Dunsuon Bench) r j CORAM HON BLE SHRI A S VENKATACHALA MOORTHY, Cd ‘ & HON’BLE sHRI L.C. BHADOO, J. CRIMWAL APPEAL No.1d OF 1$9S (1) Dudmchappe SIG Hunga Munya Aged about 35 years Cultivator (2) Dirdo Lakhma Sio Bod‘da Muriya Aged about 25 years, Cultivatcr Both R/o ViHage: Chhuragatta: Police Station Kukanar: § District: Bastar. Versus State of MP. (now Chhattisgarh) CRIMINAL APPEAL N0.15 OF 199$ r1) Dudhichappe S/o Hunga Muriya Aged about 35 years, Cultivator (2) Dirdo Lakhma Slo Bodda Muriya Aged about 25 years; Cuitivator Both R/o vriiage: Chhuragatta, Police Station Kukanar, District: Bastar Versus State of MP. (now Chhattisgarb) And CRlMlNAL APPEAL No.16 of 1993 (1) Dudhiohappe S/o Hunga Muriya Aged about 35 years, Cultivator (2) Dirdo Lakhma Slo Bodda Muriya ‘ ‘ r~~ «\Aged about 2o years Cultrvator Both R/o Village; Chhuragat-ta, Police Station Kukanarl District: Bastar Versus State of MP. (now Chhatisgarh) WM / L) Present Shn R K Jam Advacate forthe accused/appenant Shrl Ravmdra Agrawal Panel Lawyer for the State/resbondent JuDGMENT ‘ {Delivered on [éMof $eptember, 2004) Tihe foilowing Judgment of the Court was delivered by LC. Bhadoo, J: Since Cnmmal appeal No 14 of 1996 Crlmmal Appeal No 15 of 1996 and Criminal Appeal N016 of 1996 flled by accused/appellants Dudhlchappe and Dlrdo Lakhma are ansmg out of the same judgment and relate to the same meldent, therefore, they are being disposed of by this common judgment. .7; (2) The accueed/appellants have preferred these appeals being aggrleved by the judgment of conviction and sentence dated 08/11/1995 passed by the learned Third Additional Sessrons Judge Bastar at Jagdalpur in Sessrons Trial Nos.221 of 1990, 222 of 1990 and 223 of 1990 by which the learned Additional Sessions Judge after holding acousedfappellant Dudhi Chappe guilty of the offence under Section 302 of the lndian Penal Code for committing the murders of Sukka Deva and Dudhi Muda and holding accused/appellant Dirdo Lakhma guilty of the offence under Section 302 read With Section 34 of the Penal Code for committing the murders of the above said persons sentenced each of them in each case to undergo imprisonment for life However, it was directed that these sentences shall run concurrently. (3) Factual scenario of the prosecutionéase is as follows: On 30/09/1 989 Sona Singh resident of village Chhuragatta lodged a report (EX.PI1) at Police Station Kukanar at about 2.00 PM. with the allegation that on previous evening at about 6.00 PM. he was at his residence, at that time accused/appellant Dudhi Chappe came to his residence and disclosed that he along With Dirdo Lakhma have committed the murders of Sukka Deva and Dudhi Muda by attackiag them With axe and Lathi On enquiry he further i disclosed that as per revenue records, their agricultural land is in the name of his uncle Sukka (since deceased). When they demanded their share from Sukka he said that he would not give their share and further said that he would oust them from the Village Accused Sukka came neai the house of accused Chappe Muriya With the axe and assaulted him With it on his hand On this he srfatched the axe from Sukka, assaulted Sukka with the same axe on his neck, \ on? account of which he feH down on the ground. At that time, ‘éccused Dirdo Uakhma also assaulted him with Lathi as a result of which Sukka died on the s'pot. On seeing this incident his son Deva came with the Lathi. He along with l Di‘rdo Lakhma also assaulted him with the axe and Lathi thereby committed his minder. Seeing this the other son of Sukka namely Muda also came, on this they also assaulted him with the‘same axe and Lathi thereby committed his murder. The dead bodies are lying on the spot. On receiving this information he called village Kotwar Sukuldhar and other villagers namely Laxman, Meharu, ‘x Sampat Singh and others in their presence again enquired from accused Dudhiohappe and Dirdo Lakhma. On enquiry they further repeated the same thing that they had committed the murders of three persons. Thereafter he along with Laxman and village Kotwar Sukuldhar went to the scene of occurrence and saw that all three bodies were lying near the house of accused Chappe Muriya. The bodies were drenched with blood. The villagers collected there. Sona Singh enquired from the villagers as to who witnessed the incident. On this Chula and Boddi said that they had witnessed the incident. They atso corroborated extra judicial confession made by accused Chappe Muriya and stated that they saw accused Chappe Muriya attacking the deceased persons with axe and accused Lakhma attacking with the Lathi. On receiving this report, SHO, Police Station Kukanar namely JR. Dhruv registered the first information report Ex.Pl1, Ex.P1’1A and Ex;P/1 B separately for each of the murder. He took up the investigation and reached the scene of occurrence and gave notice (EXP/2) to the Panchas and prepared the Panchanamas Ex.Pl3, Ex,Pl3A and EXP/38 of the dead bodies of Sukka, Deva and Mudg, respectively and took into possession simple soil and blood stained soil from the scene of occurrence vide Exs.P/4, P/4A and P/4B. On 01/10/1 989 while in police custody accused Dudhichappe Muriya gave information (EXP/5) under Section 27 of the Evidence Act and in pursuance of that he got recovered the axe — weapon of offence from his house under EXP/7. Accused Lakhma gave information (EXP/6) and in; pursuanceg'oj that he got recovered the Lathi — another weapon of offence from his garden vide ExiPI8. The blood stained Baniyans of accused Dudhichappe and Dirdo Lakhma were taken into possession vide ExsPlQ & PMO, respectively. MS. Netam, Patwari of the village, prepared the site plan of the scene of occurrence Cinder EXP/11. The dead bodies of the deceased persOns namely Sukka, Deva and Muda were sent for post mortem 6 , examination to Primary Health Centre, Tongpal. On 30—9-1999, P.W.13 Dri Govind Singh conducted the autopsy on the dead bodies ofEthe deceased persons and prepared the postmortem reports Ex.P/29-A, Exs.P/29-B & Ex.PI29-C of deceased Sukka, Muda and Deva, respectively. in the opinion of this Doctor the death of the deceased persons was due to shock and massive haemorrhage and the deaths were homicidai‘ in nature. The bioodstained articies were shown to Doctor Goyind Singh and he gave his report. But the said articles were not sent for chemical examination or to Serologist. V " (4} After completion of the investigation charge-sheets were filed in the Court of Judicial Magistrate First Class Jagdalpur against the accused /appellants who in turn committed the cases to the Court of learned Sessions a Judge, Jagdalpu}. fromwhere the learned 3rd Additional Sessions Judge, Jagdalpur received the cases on transfer and since all the three murders were committed at the same time and at the same place, therefore, he decided to conduct the trial of all the three cases together. (5) After hearing the learned Public Prosecutor and counsel for the accused persons, the learned Additional Sessions Judge reached the conclusion that prima facie the offence under Section 302 of the l.P.C. was made out against accused/appellant Dudhi Chappe and the offence under Section 302 read with Section 34 of the l.P.C. was made out against accused/appellant Lakhma. Therefore, he framed the charges ln all the three Sessions trials, read over and explained to the accused persons. However, the accused persons denied the charges and claimed to be trted. (6) The prosecution in order to prove the charges against th accused/appellants examined in all nineteen witnesses at the trial. On the other hand, the statements of the accused/appellants were recorded under Section 313 of the Code of Criminal procedure. Each of the accused stated that the evidence of the prosecution witnesses are incorrect or they do not know anything. ln the last, theyt'llave stated that they are innocent and have been falsely implicated in the crime on account of animosity. (7) Learned Sessions Judge after hearing the arguments of the Additional Public Prosecutor and counsel for the accused persons and after placing reliance on the testimonies of PW-1 Sona Singh and PW-17 Dudhi e @ U: l t t Bhtme Wife of deceased Sukka and also relying the Circumstantial evudence bout the recovery of weapons of offences conwcted and sentenced the accused/appellants m all the three sesstons cases and sentenced each of them ln the manner mentioned above. However, the sentences were ordered t run concurrently. (8) We have heard Shri R K Jain learned counsel appearing for the mused/appellants and Shn Ravmdra Agrawal Panel Lawyer appearmg for the State/respondent and perused the judgment and records of the trral Court l " ‘ : (9) As far as the nature of the deaths of deceased sukka Deva and lV‘luda being homrcrdal Is concerned rt rs not rn dispute Apart from that PW-13 ‘r Govmd Smgh who conducted the autopsy on the dead bodres of the deceased persons has stated that on 3O 9 1989 he was posted as ASSIstant Surgeon at Publrc Health Centre Tongpal On that day, on the reqursrtlon of Polrce Statron Kukanar he conducted the autopsy on the dead bodies of Sukka .35 Deva and Muda On the body of Sukka he found 11 rmurres on varrous parts of the body marnly on the forehead neck and cheek Out of these 11 Injurres 8 rmurres were rncrsed wounds and 3 were lacerated wounds The Injurres were caused by sharp edged weapon and Sukka dred on account of the shock and g excesswe haemorrhage The nature of the death was homICIdai He further stated that on the body of Muda he found 4 mcrsed wounds on the head and neck The left parletal bone was fractured m the area of 5x1/2 cm and the occrprtal bone was also fractured The rnjurres were ante mortem In nature ‘ caused by sharp and blunt object The death was hon'fcmlal In nature The 1i cause of death of Muda was shock and haemorrhage He has further stated that on the same day he conducted the autopsy on the body of Deva and he notrced 3 mcrsed wounds on the head and neck 0n drssectron he found that right parietal bone was fractured In the area of 6x1x1I2 cm The Injuries were ante mortem m nature caused by sharp and hard object The cause of death was shock and haemorrhage Thrs Witness was not cross examined on any baccount Therefore there was no reason for the trial Court to drsbelreve the l evrdence of this wrtness The testimony of Dr 'Govmd Srngh stands coriroborated by eyevwtness P W 17 Dudhr Bhlme wrfe of deceased Sukka and mother of deceased Deva who had wrtnessed the crrme Therefore m vrew of thelabove medrcal and ocular evtdence It stands proved that the death of three deceased persons namely Sukka, Deva and Muda were homicidal m nature. @ (10) Now coming to the question of involvement of the accus’ed pérsons in committing the murder of three persons is conceyned, the Addi. Sessions Judge has'piaced reiiance on the ocular and the circumstantial elvidence Le. the extra judicial confession made by the accused persons before P.ljll\l.1 Sona Singh and P.Wt17 Dudhi Bhime witnessed the crime. However, the learned trial Judge held that the evidence of P‘W. 18 Dudhi Mase, wife of deceased Muda, was not worth reliance as she has given evidence in an 4‘, exaggerated manner as she took the names of other persons that they had also assaulted the deceased perscns. We have scanned the evidence on record. 2" V As far astthe extra judicial confession made by the accused persons is concerned P.W. 1 Sona Singh has supported the case of the prosecution. The other witnesses have turned hostile as most of the witnesses are closely related to the accused and the deceased persons P.W. 1 Sona Singh has stated that at about 6.00 p.m. on the relevant date when he was at his residence accused Chappe Muriya came to hisrihcuse and said that he along with Lakhma assaulted Sukka, Deva and Muda with axe and Lathi and all three have died. He further stated that the dead bodies of the three deceased persons are lying in front of his house. He further disclosed that on account of some. land dispute he assaulted the deceased persons. On hearing this, he went to the scene of occurrence along with Village Kotwar Sukuldhar, Laxman and other villagers and saw all the three bodies were lying in front 'of the house of the accused Chappe Muriya. The injuries were present on the head and neck of three deceased persons. in presence of the witnesses the accused persons confessed that they had committed the murder of Sukka, Deva and Muda. Thereafter he went to the police station and lodged thg reports Exs.PI1 & P/2. ln the cross-examination this witness has stated that the whole agriculture land was in the name of Sukka in which the share of the father of accused Dudhi Chappe was also there. The larger field was being cultivated by Sukka and the small field was being cultivated by accused Chappe Muriya. Deceased Sukka refused to give share to the accused and on account of that some dispute was going on betweenethem. ,Ag'fanchayat Was also convened to settle that dispute. ln the cross-examination this witness was turned hostile, as he had not supported the report to some extent. In para—14 he"has stated that accused ’ Chappe Muriya came to his house and said that he along with accused Lakhma have committed the murder of Sukka, Deva and Muda. Accused Lakhma also made‘confession before him that he has also committed the murder of Sukka, a ” Deva and Muda. This witness has further stated that only accused Chappe Mu‘riya ’came tc his house. in order to place reiiance on the'aextra judicial confession made by the accused persons the test for placing reliance is that the extia ludicial confession must be voluntary and the same Is true Now coming to the pornt as to whether the confession was made voluntarily and true the defence counsel was not able to bring anything on the record in the cross- examination showmg that the extra judiCial confession which was made before this Witness was not voluntary, as this Witness has categorically stated that at the relevant time accused Chappe Muriya came and disclosed Whatever stated by accused Chappe Muriya to him was found correct when the village Kotwar and others reached to the scene of occurrence. Accused Chappe Muriyasfurther disclosed to him that they have committednthe heinous crime because Sukka was not giving their share of agricultural land and this fact has not been disputed by the defence counsel that there was some dispute regarding the partition of Iandubetween the deceased-and the family of the accused All the three bodies were found in front of the house of accused Chappe Muriya and the fact of disclosure that accused Chappe alongwith accused Lakhma assaulted the deceased persons with the axe and Lathi were also found to be correct for the reason that the injuries‘sustained by the deceased on head and neck and most of them were incised and lacerated wounds. For the above reason whatever confession was made by the accused before this witness stands corroborated by the factual situation and circumstantial evidence and for accused Lakhma also this witness stated that he also confessed before him. in the cross-examination nothing has come on record that this witness had any reason to speak fai§e against the accused persons to implicate them in such a heinous crime.' Even though in cross- examination this witness was declared hostile on account of the fact that some portion of the report lodged by him was not corroborated by him. As per settled law even the evidence of a hostile witness can be believed and reliance can be placed on the evidence of such witness which supports the prosecution case. Quring the course of argument learned counsel for the accused persons was not able demonstrate any short coming in the above evidence or was not able to point out any circumstance by which the evidence 6f this witness is not worth inspiring confidence. The evidence of this witness regarding the extra judicial donfession stands supported by the fact that the dead bodies were found in front of the house of accused Chappe Muriya for which no explanation has been offered by the accused persons that if they are innocent then how these bodies were lying in front of their house and why they had no'qt reported the matter to the police 'and other viliagers that who assaulted the deceased persons and how those bodies were lying in front of their house. Therefore, this conduct of the accused persons also supports the case of the prosecution. Further this witness has also stated that accused Chappe Muriya gave the Information (Ex P/5) to the police In his presence about the axe and the same was got recovered at hrs instance from his house vrde Ex P/7 He has further stated‘that accused Lakhma also gave informatron (Ex P/6) regarding the Lathi ‘o — another weapon of offence to the police and in pursuance of that he got recovered the Lathi from his house vide Ex.P!8. The blood stained Baniyans of these accused persons were also taken into possession by the investigating officer under ExsP/Q 8. P/10. 'lt is true that these articles were not sent for chemical or serological examination. The said articles were examined by Dr, Gojvind Singh and the blood was found on these articles, to some extent the recovery of these articles and the examination by the Doctor lends support the correctness of the extra judicial confession made by the accused persons before this witness. ~ c\ (1'!) Now coming to the ocular evidence} even though all other witnesses have turned hostile, as they are the relatives of the accused. P.W.17 Dudhi Bhime, wife of deceased Sukka and mother of deceased Deva and Muda, has stated that at the time of the incident she was at the residence. The deceased persons were also at the house Her husband went outside as he was informed that he was calied in the Panchayat and as soon as he went out of the house accused Chappe Muriya and three other persons namely Nanda Hunga and Masa assaulted him. When Deva said that how his father has been assaulted, thereafter Muda also came out of the house, they were atso assaulted by these persons with axe and Lathi. She has further stated that when she tried to intervene Nanda and accused Chappe also assaulted her. Accused Lakhma also assaulted the deceased persons and all the three ”deceased persons died on account of the injuries sustained by them It is true that this Witness has made an improvement in her evrdence before the Court that apart from Chappe and Lakhma, Nanda, Hunga and Masa also assaulted the deceased persons. Therefore, learned counsel appearing for the accused personsargued that as apart from these two accused persons, this witness also @D sugjgested the name cf the other persons, as such no reliance can be placed on her‘testimony. As far as presence of this witness on the scene of 8ocurrenoe is concerned, the same cénnot be doubted as the occurrence took piace in the evjening at about 6.00 p.m. and that too near the house of the deceased persons and the accused. She being the wife of deceased Sukka and mother of deceased Deva and Muda, her evidence is required to be scrutinized with a tittie bit care for the reason that she is reiated to the deceased persons but Whatever she has stated stands corroborated by the other circumstantial evrde‘nce Viz the injuries which were received by the deceased persons their bodies were found in front of the house of the accused persons and also the fact that the relations between the accused and the deceased were strained on account‘ of some land dispute and the accused persons had- not explained that how the dead bodies of the deceased persons were found in front of their house and the extra judicial confession was made by the accused persons before P.W.1, therefore, on account of these factors the evidence of this witness cannot be discarded and it cannot be held to be untrustworthy or unreliable. lt is true that this witness has named three more persons. As far as the name of Hunga is concerned, he is the father of the accused Chappe Muriya and other persons are also related. Therefore, their presence on the scene of occurrence cannot be doubted. They might not have taken part in the occurrence and that is why they were not made accused. Therefore, taking the name of three more persons by this witness apart from the accused persons cannot be made the basis for disbelieving the evidence of this witness for the reasons mentioned above. (12) Learned counsel appearing for the accused/appellants contended that P.W.t7 has stated that the accused persons also assaulted her. But there is no medical evidence which goes to show that she received any injury. We do not find any substance in this argument for the reason that accused Chappe assaulted with Danda (club). She further stated that she wasnot assaulted with the axe when she was intervening to save her husband she was also assaulted icx' 5 by the accused persons. She has not'stated anywhere that she received any grievous injury or blood came out of the injury. She was assaulted with the club and if there was no visible injury on her body and she was not medically examined that does not mean that she was not present on the scene of occurrence. As far as the evidence of P.W.18 Dudhi Mase, wife of deceased A 10 Mudé is concerned, the evidence of this witness has been disbelieved by the trial 1Court for the reason that in the Court evidence she had mgade certain impkovements and gave evidence in an exaggerated manner. We have perufsed the evidenee of this witness and we are of the opinion that the triai Court has rightly held that she was not eye witness to the incident. But she i reached the spot after hearing about the incident. (1 3) in view of the above discussion and the evidence of extra judiciai confession made before P.W.1 Sona Singh, the Ocular evidence of P.W.17 Dudhi‘Bhime and the recovery of the weapons of offence, all these factors proved the involvement of the accused persons in committing the murders of Sukka, Deva and Muda. Therefore, we do not find any reason to interfere with the finding of the learned trial Court as the same is based on reliable and cogent evidence. {M} ln the result, we do not find any substance in these appeals. The same are iiable to dismissed and they are hereby dismissed. N r” V ' //ii/i/, Sdl- L.C. Bhadoo ‘ Sdl- ChlefJusuce/ Judge 5rajesh*