Page 1 of14 ^} H!GH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. MR. L.C. BHADOO & HON. MR. DHIRENDRA MISHRA. JJ. CR!MINAL APPEAL N0.573 OF 2001 APPELLANTS [Accused in Jail] Vs RESPONDENT 1. Lakshmi NarayanMishra, S/o Byash Mishra, aged 20 years, Occupation Betel Shop. 2. Sanjay Kumar Panday, S/o Brajnath Pandey, aged 20 years, Occupation Betel Shop. Both residents of Saraipali, Mohalla Mahafpara, P.S. & Tahsil Mahalpara, District Mahasamund. The State of Chhattisgarh, through the District Magistrate, Mahasamund. APPELLANT CRIMINAL APPEAL N0.772 OF 2001 Sheshnath Tiwari, S/o Shri Brij Bihari Tiwari, aged 30 years, R/o Saraipali, Mahalpara, P.S. & Tah. Mahalpara, District Mahasamund. Vs RESPONDENT The State of Chhattisgarh, through the Station House Officer, P.S. Saraipa!i, Mahasamund. Present: Mr. S.R.J. Jaiswa!, Advocate for appellants in Cr. A. No.573/01 . Miss Nirupama Bajpai, Advocate for appellant in Cr. A. No.772/01 . Mr. Sudhir Bajpayee, Dy. Govt. Advocate for the State in both the appeals. JUDGMENT (Delivered on -?9 .7.2007) Per Dhirendra Mishra, J; Criminal Appeal No.573/2001 & Criminal Appeal No.722/01 are being decided by this common judgment, as both these appeais are arising out of the judgment dated 28.6.2001 passed by learned 1 Additional Sessions Judge, Mahasamund in Sessions Trial No. 146/2000 whereby learned Additional Sessions. Judge convicted the appeSlants under Sections 148 & 302/149 for causing death of Vidhyawati, under Section 302/149 of IPC for causing death of Vindhyachal Mishra and also under Section 323/149 of the 'PC for causing injuries to Pawan Mishra and sentenced each of the accused person to undergo R.l. for one yea!'; imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R,l. for two years, imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo Paee. 2 of 14 R.!. for two years & R.l. for one year respectively. It has been further directed that all the sentences shall run concurrently. Case of the prosecution, in brief, is that on 7.2.2000 around 20.00 hrs in the night when Vindhyachal Mishra (since deceased) was sitting in the kiosk after taking betel, accused Ramanand & Laxminaryan @ Chunchun came from bus stand side and picked-up quarrei with Vindhyacha! in relation to some o!d animosity. However, all tha three went to their respective houses. When at about 9.00 p.m. accused Ramanand, Sheshnath, Shashibhusan, Laxminarayan & Sanjay wsre preparing for cooking fish in their tenanted house, at that time Vindhyachal came io. their house and challenged them, whereupon accused Ramanand holding flat iron plate (patta) and other four holding Danda together attaOod Vindhyachal and caused him grievous injuries. Vindhyacha! shouted for rescue, on which his wife Vidhyawati (since deceased) came to rescue him, hov/ever, accused persons assauited her ateo and caused her grievous injuries. Their sons namely VSshnu & Pawan also reached th^| whereupon Pawan was a!so assaulted. Vindhyachal & Vidhyawati 'A'ere taken to the hospital in unconscious condition and they died in the Medical College Hospital, Raipur. Report of the incident was received on telephone at 21 .15 hrs, which was recorded in the Roznamchasanha at Sr. No.308 dated 7.2.2000 (Ex.P-27) and constables v/ere sent to the place of incident. Vishnu (PW-6) also gave information at about 21.25 hrs, which was also recorded in the Roznamchasanha at Sr. No.309 vide Ex. P-28. Offence was registered under Sections 147, 1 48, 307 & 323 of IPC vide Dehati Nalishi of Ex.P-6 on the information ofVishnu (PW-6) at 22.15 hrs on 7.2.2000. Vidhya ^f was sent for medical examination to the Communitv Heslth Cent^e. Saraipali where Dr. B.A. Koshariya (PW-1S) examined her and gave the 'njury report of Ex.P-23. Vindhyacha! was also sent for medical examination to the Community Hsalth Csntre where Dr. B.A. Koshariya examined him and gave his report of Ex.P-24. On the basis of information received from Constable Ali Mohammed that Vidhyawati died at about 5.50 a.m. on 8.2.2000 and Vindhyachal died at 2.00 p.m. in the afternoon on 9.2.2000 the merg intimation of Ex.P-21 was recorded. On the basis of information of constable Prakash Chandra at 22.40 hrs FIR (Ex.P-20) was recorded. Inquest over the bodies of decsased persons were prepared in the presence of the witnesses after due notice to them vide Ex.P-7 & P-9. Their bodies were sent for autopsy to Medical Co'Iege Hospita!, Raipur v/here Dr. U'haas Unnade (PW-10) 'v. Page 3 of 14 y 6. conducted postmortem and submitted his report of Ex.P-17 & P.18 respectively. Injured Pawan Kumar was also sent for medica! examination to Community Health Centre, Saraipali where Dr. R.S. Pate' (PW-11) examined him and gave the injury rsport o* Ex.P-19. Accused Sheshnath was also sent for medical examinatjon to Community Health Centre, Saraipali where Dr. R.S. Patel examinedliim and gave his rep©rt of Ex.P-20. Biood stained and piain soil was taken into possession from the ptace of occurrence under Ex.P-1. Spot map of Ex.P-5 was got prepared by Halka Patwarl Shri R.K. Akhade. The Invest'gating Officer a!so prepared the site p!an (Ex.P-31) of the piace o* incident. Sealed pactets containing blood stained clothing of both the deceased persons received from the hospital were taken into possession vide Ex.P-1 1. OR the memorandum of appeliant Laxminarayan @ Chunchun of Ex.P-12, one club was taken info possession vide Ex.P-13 and heavy flat plate (patta) of any vehicte was taken into possession vide Ex.P-14. One iathi was taken into possession from accused Sanjay vide Ex.P-15, another tathi vyas taken into possession on being produced by aceused Sheshnath vide Ex.P-16. Weapons ofoffence i.e. lathi & iron plate were sent to the doctor of Government Hospital, Saraipali for his report whether the weapons contained blood stained and whether injuries sustained by Vindhyachal & Vidhyawati could be caused by the above weapons vide Ex.P-26A and the report of the doctor is Ex.P-26, Seized articles i.e. weapons of offence, plain soil & blood stained soi! and wearing apparels of the deceased persons were sent for chemica! examination to the Forensic Science Laboratory, Raipur vide Ex.P-32 and the report of FSL is Ex.P-33. After comptetion of investigation charge sheet was Tiied in the Court of Additional Chief Judicia! Magistrate, Mahasamund showing accused Ramnarayan Tiwari & Shashibhusan absconding, who in turn committed the case to the Court of Sessions Judge, Raipur and the learned Additional Sessions Judge has received the same on transfer for trial. The prosecutibn in order to establish the charges against the accused persons examined 18 witnesses in all. Statements of accused persons were recorded under Section 313 ofthe C'.P.C. in which they denied the circumstances appearing against them in the prosecution case and stated that they are innocent and have besn falseiy implicated in the crime. Learned trial court after hearing the counsel for the parties, convscted and sentenced the appeilants, as mentioned above. ? Page 4 of 15 8. Homicida! deaths of Vindhyachal & Vidhyawati are not in dispute. Even otherwise from the statement of Dr. UHhas Unnade (PW-10), who has conducted the postmortem over the persons of Vindhyacha! & Vidyawati and has found the injuries on their persons described herein below, and who has further opined that deceased Vidhyav/ati died homicidal death as a resu!t of complication due to head injuries, whereas, Vindhyachal died as a result of complication due to head injuries and the'same is homicida! h{ VA»AA»fy in nature. From ths evidence of eyewitnesses PW-6 Vmohy & P^V-7 Pawan who have seen the appellants assau'ting the deceased persons, the homicidal death of Vidhyawati & Vindhyachal is estsblished. Injuries over the person ofdeceased Vidhyawati;- Rigor mortis was present in !egs and arms. Postmortem staining was present on the back of the body. Both the eyes vi/ere closed. Cornea hazy, both hands smudge wjth blood (dry). • A stitched surgical wound in saggital plane present on left side of skull in the size of 7.5 c.m., wound present 5 cm above mid of left eyebrow. Underneath surrounding skin shows contusion. Fracture present in carnial plane on left temporal region jn the size of 7cm. Fracture present on left side and middie cranial fossa. * A contusion on the back of vault of skull in an area of 3" diameter. • Multjple abrasion present on dorsum of right e!bow and the size varying from 1cm diameter to 05 cm irregular. • Left eye contused, jniuries over the person of deceased Vindhvachai;- • Surgical stitched wound on the right suprasternal margin in the size of 8cm transverse. • Surgical stitched wound on right frontal region. * Surgica! stitched wound from midpoint between both suprasternal margin. • Rail pattern bruise present as anterior aspect of chest, blind end situated on right side and at upper level situated 8cm below suprasterna! notch and lateral to midline lowered (open end situated 7cm left lateral to midline. Size 21x1.5cm. » Rail pattern bruise with' upper open end present on xiphi sternum and rest on left side of abdomen, lower blind end situated 5 cm below xiphi sternum and 6cm left lateral to midline. Size 7cm x 2 cm. • Rai! pattern bruise present on teft lateral aspect of abdomen with upper open end is on the tine of ilace crest 9 cm above and lower btind end situated 4 cm to ilace crest. Size 9.5cm x 0.2cm. , » Abrasion present on anterio.r aspect of abdomen on left size 8 cm below xiphi sternum & 4 cm teft lateral to midline. Size 3x0.5cm fransverse irregular. - -— .^-—r—t--•;-'-: --to" ^!te Pape 5 of 15 * Abrasion present on chest !eft lateral aspect 9cm below ant. Axilliary fold size 9cm x1cm transverse irregular. • Abrasion present on exterior aspect of left forearm in midline starting from elbow in the size of 7x1 cm vertica! irregular. » Abrasion present on extenor aspect of 'ieft Torearm 8 cm beiow the elbow in midline in the size of 3x0.5cm transverse irregular. • Multiple abrasion present on anterior aspect of both knees. • Rail pattern bruise present on back side situated 22cm l^elow cervical vertebra. * Abrasion present on left side of back situated 32cm below cervica! vertebra and 12 cm left lateral midline. Siz®2.5cm diameter in-egular Learned counsel for the appellants submitted that the appellants have been convicted in the aforesaid offence with the aid of Section 149 of the IPC. The appellants have also been convicted under Section 1 48 of the IPC for rioting with deadly weapon. However, from perusal of the prosecution case itself it would be evident that deceased Vindhyacha! was the aggrsssor, who went to the house of accused persons and challenged them and as such quarrel was initiated by him. The place of incident is near the tenanted house of the accused persons and there is no evidence available on record that the appellants have formed an uniav/ful assembly with a common object to cause homicidal deaths of Vindhyacha! & Vidhyawati and in the absence of evidence offormation of un!av/ful assembly by the accused persons they could not be held guiity for any criminal liability. Refemng to the statements of Vishnu (PW-6), son of deceased persons, it has been argued that it is evident that firstly oral altercation took place in the betel shop between Vindhyachal & accused persons, thereafter Vindhyachal's wife Vidhyawati went to house of the accused persons and after sometime Vindhyachal also reached there and they. were followed by their sons namely Pawan & Vishnu. Similar is the statement of injured witness Pawan (PW-7) who has stated in Para 3 that his father came home, he had some talk with his mother and .thereafter his mother went to the spot first, she was followed by his father and after hearing the commotion he along with his brother went to the spot and there they saw the ihcident. Witness Vishnu (PW-6) has stated that he saw the accused persons assaulting his Tather & mother. He has further stated that Shashibhusan was holding patta, whereas others were holding rod & lathi. Shashibushan assaulted her mother on her stomach & head. He a'.so assauited his father over his forehead by that pafta. Omnibus allegations have been made by this witness against the appellants and'no specific blow has been attributed to them. This -^s r~"" Pa^e 6 of 15 10. 11 witness has contradicted his diary statement of Ex.D-1 on the mater'a! facts that Ramanand assaulted with iron plate. Similarty Pawan Mishra (PW-7) has also stated that Shashibhusan was assauiting his father by iron plate, his father was lying on the ground and rest of the accused persons was assaulting her mother by lathi. This witness has aiso contradicted his diary statement of Ex.D-2 in which he has stated that Ramanand Tiwan' was hoiding iron plate in his hand and he has assaulted by that iron plate. There was a long drawn enmity betiiveerf'Ramanand Tiwari and deceased Vindhyachal. Except these two highly interested witnesses other witnesses have not supported the prosecution case and they have turned hostile. It was further argued that Visnhu has given information in the police station at about 21.25 hrs, which was recorded in Sanha (Ex.P-28), to the effect that Shashibushan and others are beating his father, but the names of the appel'ants have not been mentioned. tn the inquest report of deceased persons, which has been prepared in presence of Vishnu (PW-6) on 9.2.2000, accused Sanjay & Laxminarayan have not been mentioned by names and the same also does not bear the crime number. Similarly, the requisition for postmortem also does not mention the names of appellant Sanjay & Laxminarayan. Further there is no evidence available on record to show that copy of FIR (Ex.P-20) was forwarded to the concerned Magistrate and the Investigating Officer (PW- 18) Shri P.S. Thakur has admitted in Para 23 of his deposition that no document showing the fact that the copy of FIR was sent to the Magisfrate has been produced. Dehati Nalishi (Ex.-P-S) is a suspicious document as from perusal of this document it would be evident that the signature of informant was taken on a blank paper and subsequently document was prspared. On the other hand, learned Deputy Government Advocate for the State supported the judgment ofthe trial court. The conviction of the appeliant is based on the evidence of Vishnu (PW- 6) & Pawan (PW-7), who are the sons of deceased persons and they have been examined as ey.ewitnesses. PW-1 Suresh Kumar Kushwaha, PW-2 Loknath Sahu, PW-3 Ganpati & PW-4 Sadananad were also cited as eyewitnesses of the incident however, they have not supported the case of the prosecution and they have turned hostile. They have been cross-examined by the prosecution after declaring them hostile. Version of PW-1 Suresh Kumar Kushwaha, PW-2 Loknath Sahu, & FW-4 Sadananad in their diary statement of Ex.P-2, Ex.P-3 & Ex.P-4 respectively was that at the time of incident at about 9.00 p.m. they saw the deceased Vindhyachal in front of the house of Shashibhusan in Page 7 of 15 inebriated condition, he was abusing Shashibushan @ Mona and also beating the roof of his house. Vindhyachal and Shashibusan were engaged in physical scuffle, whereupon Ramanand came out with an iron piate and assautted Vindhyacha). Vidhyawati and her chiidren came there to support them. However, Vidhyawati was also assaulted by Ramanand and other accused persons. They have resiled from their statements and the prosecution has not been able to elicit any incriminating evidence against the appellants in their cross-examination. 12. Vishnu Verma (PW-6), who is the son of the deceased persons, has stated that accused persons who are his materna! uncles were abusing his father on She square. His father narrated this to his mother Vidhyawati after returning home, his mother went to the quarter of accused person, which is situated in Mah-alpara, whereupon the accused persons assaulted his mother. His father also reached there and he was a'so assaulted by them. He along with his brother Pawan went there and saw the accused persons assaulting his father and mothsr. The accused persons also chased him, whereupon he fled from there and reached the police station. Shashibushan was holding flat iron plate (patta), whereas, others were hofding danda and rod. Shashibushan assaulted his mother over her stomach and head by the patta. He had also assaulted his father over his forehead by the same weapon. Other accused persons have beaten them by club. Persons from the neighbourhood gathered, however, he does not know their names. He had narrated the whole incident in the police station and the police accompanied him to the spot including one Journalist namely Rajeev. When they returned the accused persons had already fled after assauffing his parents. Report was recorded in the hospital as his parents were taken to the hospita!. His parents were unconscious. He took his parents to Raipur and admitted them in the hospital. However, his mother died at 4.00 a.m., whereas, his father died at about 2.00 p.m. in the afternoon. This witness has also proved the Dehati Nalishj (EX.P-6), inquest report of Ex.P-7 & Ex.P-8 and seizure memo of Ex.P-11 . [n the cross examination he has stated that the bete] Kiosk is 100 yard away from his house, he did not hear the accused persons abusing h1s father. He has admMed that the house of Suresh (FW-1) where the accused Chunchun & Shahsibushan reside as tenant is some 150 yards away from his home. However, he has denied knowing Rishikesh Patel. Place of incident is at some 20-25 feet from the house of Suresh (PW-1). He has denied that he mentioned in his case diary.of Ex.P-1 that the incident occurred before the house of "Rishikesh Patef. He has stated that he reached the poiice station within 1 'A to 2 ,-^> L^- + Page 8 of 15 minutes of the incident and informed the police. However, the potice did not take his signature and all his signatures were obtained in the hospital. In Para 8 he has stated that Laxminarayan was holding clublike weapon, Sanjay was holding bamboo rafter, whereas, Shashibushan was holding flat iron bar of truck and Ramanand was holding club. He has denied having told the police that Ramandand assaulted by iron plate of Ex.D-1. In Para 25 he has further denied that he had assaulted Sheshnath ^y club and his mother & brother Pawan had bitten him. 13. PW/-7 Pawan Mishra has stated that at the time of incident he was 'm his home and he was giving fodder to his cow. !t was night. He along with his brother went to the p!ace of incjdent and saw his mother & father !ying there. He saw from a distan.ee of 25-30 feet Shashibushan assaulting his father by Tlat iron plate, at that time his father was lying on the ground. Remaining accused persons were assaulting him by club. His mother fel ovsr his father, she was a!so assau!ted by the accused persons. Shashibushan caught ho!d of hand of his brother and exhorted others to "kill him also", whereupon his brother somehow managed to escape and returned home and proceeded for police station in a bicycle. Hs also proceeded to po!ice station by another bicycle, He instructed his younger brother to remain in the home. He stayed in the police station, his younger brother was also ca!led in the police station and he was also made to sleep there. The police proceeded to the spot with his elder brother. Before this incident his father had returned and talked to his mother, however, he does not know about the conversation. His mother went to the spot first. He does not know why she went there. His father followed her, after hearing commotion he along with his brother went behind them. The incident occurred in front of the house of Suresh. In the cross examination this witness has also stated that the house of Suresh is at a distance of 150 meter from his house. His father had already fallen on the ground and Shashibushan was assaulting him, whereupon his mother fell on his father, however, he cannot say whether she was also assaylted by the plate or not. However, she had also sustained injuries. In para 9 he has denied the portion "Ramanand Tiwari assaulted wlth iron plate" of Ex.D-2 and stated that Shashibushan assaulted with plate and he does not know as to how this fact is missing in his diarystatement of Ex.D-2. He has further denied that in his diary . - statement of Ex.D-2 he had mentioned that the incident occurred before • the house of "Rishikesh Patel". 14. Learned cot.insel for ths appellants vehemently argued that Dehati Nalishi (Ex.P-6) & FIR (Ex.P-20) are fabricated documents. Names of the. ^93 ,<f •• •T°° Page 9 of15 N I»l; appellants were not mentioned by Vishnu (PW-6) who reached to the police station and informed about the incident immediately at about 9.25 hrs vide Ex.P-2S. 15. VA/e propose to examine the genuineness and authenticity of Dehati Nalishi of Ex.P-6 and F.1.R. of Ex.P-20 in the light of arguments advanced by learned counsel for the appellants. After careful examination of the documents avai!ab!e on record we found following anomalies and inconsistencies which have not been explained by the prosecution during trial. a) Vishnu (PW-6) complainant after narrating the details of incident in para 2 of hls deposition has stated that accused persons also chased him, whereupon he ran away and reached the police station. In para 4 he has stated that he narrated the who!e incident to the police whereupon the police came to the spot with him and one journalist. By the time they returned the accused persons already fled after assaulting his parents. The police have recorded the information given by Vishnu at 21.25 hrs in the Sanha of Ex.P- 28, however, information is to the effect that Sha.shlbushan and others are assaulting his father. Thus, from the document of Ex.P- 28 it is evident that this witness did not given any information about the assault by the appefiants as also assault on his mother. b) From ciose scrutiny of Ex.P-6 partjcularly the signature of complainant Vishnu we observed that the concluding part particularly ths last but one line of the report has bsen so written that it appears that the same has been written aftnr document was akeady signed by the complainant. Therefore, we find force in the arguments of learned counse! for the appellants that Dehati Nalishi was written subsequently after obtaining the signature of the complainant over the blank paper. c) Apart from above, inquest report was prepared on 9.2.2000 in the presence of Vishnu (PW-6) and after interrogation of Vishnu (FW- 6). However, 'm the inquest report of both the deceased persons name ofSheshnath Tiwari, Ramanand, Shashibushan, his brother- in-tew and others are mentioned. From perusal of these two documents we infer that by the time these documents were prepared the name of other tv/o accused persons nameiy Laxminarayan & Sanjay were not avaiiable to the Inyestlgating Ofice'r. These documents also do not contain the crlme number Page 10 of 15 16. though as per the case of the prosecution crime was already registered on 7.2.2000 teelfvide Ex.P-20. d) !n the requisition for postmortem report also, which is prepared on 9.2.2000 at about 14.15 hrs, it mention the name of complainant Vishnu (PW-6) as the person who has accompanied the dead body, the name of assai'ants is mentioned as Sheshnath Tiwari, Ramanand Tiwari, Shashibuhsan & associates and names of accused Sanjay & Laxminarayan are missing. e) !n the FIR of Ex.P-20, which has been recorded on the basis of information given by constable Prakash Chandra, it is mentioned that today on 7.2.2000 at about 9.00 p.m. Shashibushan, Ramanand Tiwari and others have assaulted and iniured Vindhyachal and his wife Vidhyawati. Receiving this information he a'ong with Head Constable Nos.31 & 35 gone to the spot, taken the injured persons to the hospital, he brought the Dehati Nalishi for the purpose of registration of offence. From perusal of this document also though in the Column No.7 the name of a!l