HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRI R.N. CHANDRAKAR. JJ Criminal Appeal No. 244 of 2005 and other connected criminal appeals JUDGMENT FOR CONSIDERATION Sd/- JUD^E tfc.9.2010 HON'BLE SHRI R.N. CHANDRAKAR. J °> ^y^- -^ Sd/- R.N. Chandrakar Judge POST FOR JUDGMENT ON /7 SEPTEMBER. 2010 Sd/- Dhirendra Mishra Judge Appellant (In Jail) Raju @ Devendra Choubey Versus Respondent State of Chhattisgarh HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRI R.N. CHANDRAKAR, JJ Criminal Appeal No. 244 of 2005 Criminal Appeal No. 295 of 2005 CriminalADpeal No. 171 of 2005 and Criminal Appeal No. 206 of 2005 t-W. Appellant (In Jail) Raju @ Devendra Choubey, aged about 29 years, S/o Shri Rajendra Kumar Choubey, R/o Simga, Near Bus Stand, District Raipur (Chhattisgarh) Versus Respondent State of Chhattisgarh, through Station House Incharge, Police Station Bametara, DistrictDurg Appellant Binu @ Chandra Prakash, aged 22 years, S/o Parmanand Tiwari, R/o Kota Colony, Raipur, CG (In Jail) Versus Respondents 1. State of Chhattisgarh, through PS Bemetara, Dist. Durg (CG) 2. Smt. Shashi Tripathi, aged 38 years, W/o Sharda Prasad Tripathi, R/o Village Jewara, PS Bemetara, Dist. Durg (CG) 3. Mahesh, aged 21 years, S/o Sukhiram Dhritlahre, R/o Kota Colony, Raipur, CG. 4. Raju @ Devendra Choube, aged 29 years, S/o Rajendra Kumar Choube, r/o near Bus Stand at village Simga, Dist. Raipur (CG) Appellant (In Jail) Mahesh S/o Sukhiram Dhartlahre, aged about 21 years, R/o Kota Colony, Raipur, District Raipur Versus Respondent The State of Chhattisgarh Appellant (In Jail) Smt. Shashi Tripathi, wife of Sharda Prasad Tripathi, aged about 38 years, Resident of Village Jewra, Tahsil and Police Station Bemetara, District Durg (CG) Versus Respondent State of Chhattisgarh, through the Police Station Bemetara, District Durg (CG) %.\ Present Mr. Arun Kochar, counsel forthe appellant in Cr.A.No.244/05. Mr. Bhishma Kinger, counsel forthe appellant in Cr.A.No.294/05. Mr. J.A. Lohani and Mr. Suryakant Mishra, counsel for the appellant in Cr.A.No.171/05. Ms. Pushpa Dwivedi, counsel forthe appellant in Cr.A.No.206/05. Mr. Arun Sao, Govt. Advocate for the State. JUDGMENT (Delivered on \^f September, 2010) Per Dhirendra Mishra, J The above criminal appeals are being disposed of by this common judgment as they are directed against the judgment of conviction and order of sentence dated 29th January, 2005 passed in S.T.No.44/04, whereby learned Additional Sessions Judge, Bemetara, Distt. Durg has convicted the appellants under Sections 302/34 and 120B ofthe IPC and sentenced each of them to undergo life imprisonment, fine of Rs.1000/- and fine of Rs.1000/- respectively, and in default of payment of fine to undergo additional Rl of three months. 02. Case of the prosecution, in brief, is that appellant Shashi Tripathi is step mother-in-law of deceased Bhavna Tripathi whereas complainant Dr. Sharda Prasad Tripathi is husband of Shashi Tripathi. Jitendra Kumar - son of the complainant and husband of the deceased - is also a private doctor and practices at Village - Than Khamaria and resides there. His marriage with Bhavna Tripathi was solemnized in July, 2003. Shashi Tripathi used to be ^annoyed with Bhavna Tripathi on account of some domestic dispute. She engaged other appellants on contract for murdering Bhavna. She conspired with them and planned her murder and in execution thereof, she was murdered on 25.11.2003 at about 18:30 hours in their house where she resided with Shashi Tripathi. 03. Report of the incident was lodged on 25.11.2003 at about 20:45 hours by Dr. Sharda Prasad Tripathi against two unknown persons. After registering t:^s^^ the crime, inquest over the dead body of Bhavna was prepared on 26.11.2003. Her dead body was sent for autopsy to Community Health Center, Bemetara, where Dr. Naresh Tiwari and Dr. M. Deodhar conducted. postmortem and gave their report of Ex.P/18. Station House Officer P. Santosh Rao prepared the spot map of Ex.P/5 on 26.11.2003. Spot map was also got prepared by the Halka Patwari vide Ex.P/6. Bloodstained shirt was taken into possession from Anil Sahu videEx.P/12; bloodstained wearing apparels of appellant Shashi Tripathi were taken into possession vide Ex.P/13; broken bangles, bloodstained cement mortar and plain cement mortar were taken into possession vide Ex.P/29 from the place of incident. Necklace with locket lying on the floor of the bedroom of Bhavna Tripathi, green pieces of bangles, butt of Bristol cigarette, silver ring and lock of hair were taken into possession vide Ex.P/30. Shashi Tripathi, Mahesh Dhritlahre and Binu @ Chandra Prakash Tripathi were arrested on 29.11.2003. On the memorandum (Ex.P/22) of Binu @ Chandra Prakash, bloodstained knife was taken into possession vide Ex.P/24. On the memorandum (Ex.P/23) of Raju @ Devendra Kumar Choubey, one Suzuki motorcycle used at the time of commission of crime was taken into possession vide Ex.P/27. Specimen hair of head of Shashi Tripathi, Binu and Raju were taken into possession vide Ex.P/25, P/26 & P/28 respectively. After arrest of Mahesh Dhritlahre and Binu, test identification was conducted by the Executive Magistrate Shri. S.R. Diwan in Sub Jail, Bemetara,on 13.12.2003 vide Ex.P/8. Test identification of Raju Choubey @ Devendra Choubey was conducted on 26.12.2003 in Sub Jail, Bemetara, by the Executive Magistrate vide Ex.P/16. Shashi Tripathi was sent for medical examination to Government Hospital, Bemetara, and her medico legal examination report is Ex.P/20. One sealed packet containing hair found in the grip of the deceased and another sealed packet containing bloodstained clothing of the deceased, received from the hospital, were taken into possession vide Ex.P/35. The seized articles: bloodstained and plain mortar i^ from the spot, bloodstained clothes of the deceased, hair found in the grip of the deceased, bloodstained wearing apparels of Shashi Tripathi, bloodstained shirt ofAnil Sahu, bloodstained knife seized from Binu Tiwari, sample of hair of Binu, Devendra and Shashi Tripathi were sent to Forensic Science Laboratory, Raipur for chemical examinatioh vide Ex.P/39 and report of the FSL is Ex.P/41. 04. After completinginvestigation, charge sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Bemetara, who, in turn, committed the case to the Court of Sessions Judge, Durg and the same was received on transfer for trial by the learned Additional Sessions Judge. 05. Learned trial Court framed charges under Sections 302/34 and 120B of the IPC. The accused persons abjured their guilt. The prosecution in order to establish charges against the accused persons examined 22 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of Cr.P.C., in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. However, they did not examineany witness in their defence. 06. Learned trial Court, after hearing counsel for the respective parties, convicted and senfenced the appellants as mentioned in para-1 of this judgment. 07. Homicidal death of Bhavna Tripathi is not in dispute. Even otherwise, from the evidence of Dr. M. Deodhar, who conducted postmortem and found the following injuries on the person of deceased and opined her cause of death as neurogenic and hemorrhagic shock as a result of punctured wound on liver and lung resulting in excessive haemorrhage and multiple incised wounds, homicidal death of Bhavna Tripathi is established. External Iniuries: (1) incised wound on left scapular region of size 3 cm x 1 cm, ^^^'•'y (2) incised wound on left scapular region of size 4cmx 1 1/^cm x 1 ^ cm; (3) one incised wound on left auxiliary region on the posterior auxiliary region of size 3cmx2 cm x 3 cm; (4) incised wound on lower costal region left of size 3 1/^cmx2 cmx 1 cm; (5) incised wound on lower costal region right side on right epigestic region of size 3 1/^cm x3 cm with punctured wound; (6) incised wound over right costal region of size 3cmx2 cm x 1 cm; (7) incised wound on right supra mammary region near middle of size 4 cmx1 cmx 1 1/2 cm; (8) incised wound on right supra mammary region lateral aspect of size 3cmx 1 ^cmx 1 ^ cm; (9) incised wound on radial aspect of left forearm near wrist joint of size 2 7i cm x 1/^cm x 1A cm; (10) incised wound on forearm left hand radial side dorsal aspect on lower 2/3rd region; (11) incised wound on left forearm middle 1/3rd region, radial side and posterior aspect of size 2 ^ cm x 1 1/2cmx 1 cm; (12) incised wound on left hand dorsal aspect on 2nd and 3rd metacarpal region of size 2 1/^cmx 1/^cm x 1 Vz cm; (13) incised wound on ulna region of left hand on lower 1/3rd region of size 1 cm x1/2cmx 1 cm; and (14) incised wound over left side of neck, on anterior triangle of size 2 cm x^cm x 1 1/^ cm. Internal injuries: Brain membrane pale; lungs, trachea pale, punctured wound on right and left lungs of size 2 cm x 1 cm, 2 Vz and 1 cm x 3 cm; lobe was cut and there was 3 cm punctured wound. Incised wound was also present on the right lobe of size 3cmx 1/3 cmx 3 1/2 cm. Liver, kidney and spleen were pale. The deceased was carrying fetus of two months. Findings ofthe trial Court. 08. Rejecting the arguments of the defence that PW-21 Anil Kumar was a tutored witness as he remained in custody of the potice for a considerable 'SSNB8 period after the incident as well as at the time when his evidence was recorded in the Court, it has been held thus: (i) Anil Kumar is an eyewitness of the incident, he has been subjected to detailed cross-examination, there is no ground available on record to doubt the reliability of his evidence, he has stuck to his version in the examination- in-chief and there is nothing in his evidence to dub him as a tutored witness. (ii) His evidence has been recorded within 6-7 months of the incident and he has correctly identified the accused persons in the dock by touching them and also identified the accused persons in the test identification parade during investigation in Sub Jai, Bemetara. His version is further corroborated from the evidence of Naib Tehsildar S.R. Diwan and Additional Tehsildar Smt. Laxmi Thakur, who are government gazetted officers and who conducted Tl parade. These officers have no animus against the accused persons. (iii) The incident occurred in the house of Shashi Tripathi in her presence; she raised the sound of TV when Anil Kumar asked about her on hearing the noise of Bhavna Tripathi and did not call for help even after hearing the shouts of Bhavna Tripathi and raised alarm only after the accused persons fled from there and did not receive any injuries on her person and her hair was found in the grip of Bhavna Tripathi. Submission ofthe appellants: 09. Learned counsel for the appellants, refemng to the evidence available on record, argued that Anil Kumar remained in custody of police for a period of 20-25 days after the incident and police managed the entire requirement of this witness in this period. At the time of recording of his evidence also,he came to the Court in company of the police constable, who served him summons of the Court at Allahabad. In these circumstances, the trial Court was not justified in placing implicit reliance on the evidence of this witness as possibility of tutoring of the child witness cannot be ruled out. The trial Court has accepted the evidence of this witness in its entirety without considering the anomalies and improbabilities pointed out in his cross-examination, ignoring the submission of the defence that this witness has deposed under pressure of the police. Referring to the judgment of the Hon'ble Supreme Court in the matters of Bhagwan Singh Vs. State of MP reported in (2003) 3 SCC 21 and in the matter of Bhag Singh Vs. State of Haryana reported in 1979 Cr.LJ. NOC 100(Punjab & Haryana), it was argued that while accepting the evidence of a child witness, the Court should be careful and rule out the possibility oftutoring as he is an easy prey for tutoring and the Court should insist for adequate corroboration from other evidence to his testimony. It is highly improbable and unnatural that the perpetrator of a heinous crime would have left an eyewitness alive to depose against them. 10. PW-21 claims to have identified Devehdra Choubey and Chandra Prakash in jail whereas other witness Kartikram (PW-6) has denied the identification parade. Anil Kumar also did not tell anything about murder to Dr. Tripathi when he was asked by him. He was interrogated.several times by the police during investigation. This witness has deposed that when Bhavna Tripathi shouted for help, no neighbour arrived on the scene. Since he was also living in the police station, there is every possibility that he must have seen the accused persons, who were also lodged there. The witnesses of memorandum and seizure of knife from appellant Binu @ Chandra Prakash have also not been relied upon by the trial Court. PW-13 Rajendra Chhabra and PW-14 Gopal Sharma did not support the prosecution case. Claim of the child witness that he witnessed the appellant assaulting the deceased with knife is at variance with the evidence of Dr. Tripathi, who has deposed that Anil Sahu told him crying that two boys had come and after they saw him, they -^ fled on the motorcycle. The above fact is also mentioned in the FIR. Conduct of Anil Kumar is unnatural as he did not raise alarm and did not narrate the story to his employer or neighbours. 11. On the other hand, learned counsel for the State supported the impugned judgment. 12. We have heard learned counsel for the parties and perused the record as also the impugned judgment. 13. Conviction of the appellants is mainly based on the evidence of Anil Kumar(PW-21). 14. PW-1 Dr. Sharda Prasad Tripathi is husband of appellant Shashi Tripathi and father-in-law of deceased Bhavna Tripathi. He has deposed that when he returned home after closing his clinic at about 7 pm, he found that his servant Anil was weeping. Anil apprised him that two boys had come and they fled on motorcycle on seeing him. When he went inside, he found Bhavna and Shashi lying on the courtyard. Bhavna was dead whereas Shashi was unconscious. There were numerous injuries, including incised wounds, on the person of Bhavna whereas no injury was seen on the person of Shashi Tripathi. He has proved the First Information Report of Ex.P/1 lodged by him, inquest report of Ex.P/3, spot map of Ex.P/5 prepared by the police and the spot map of Ex.P/6 prepared by the Halka Patwari. He has also deposed that he did not ask Shashi Tripathi about the incident till the date of her examination in the Gourt as police did not allow him to meet her. Jitendra Tripathi - husband of Bhavna Tripathi - is step son of Shashi Tripathi. At the time of incident, only Shashi and Bhavna were present in his house. Shashi and Bhavna had normal relationship and their relationship was not strained. He has also deposed that Shashi Tripathi had tried to create hindrance in the marriage of Jitendra Tripathi as she wanted that marriage of her daughter ^^^^^w Abhilasha and Jitendra should be held together. However, he married Jitendra with Bhavna and did not accept the advice of Shashi Tripathi. He did not observe any adverse reaction from Shashi Tripathi on account of this. In the cross-examination, he has deposed that by the time he reached home, darkness had already set in. Anil used to go to the field to work. On the date of incident also, Anil had gone to work and returned 10 to 15 minutes before him. He has also admitted that Anil remained in police custody for 10- 15'days. 15. From the evidence of the above witness, it is clear that Anil was working as a servant in his house and worked in the field also. He was the first person, who reached the spot. When this witness reached home, he found Anil on verandah and he was weeping. Anil told him that two persons fled on motorcycle on seeing him. The above fact is alsomentioned in the First Information Report of Ex.P/1 . 16. PW-2 Gosha @ Mohd. Shamshad Siddiqui has not supported the prosecutipn case. In the cross-examination, he has denied his diary statement of Ex.P/7 that he had seen appellants Raju and Binu Tiwari on the date of incident in company of the third boy, who were proceedings towards Bemetara on the motorcycle of Raju Choubey. He deposed that he recognizes only Devendra Choubey, who resides in Simga and works in the bus stand. 17. PW-3 Jitendra Tripathi is husband of the deceased and step-son of appellant Shashi Tripathi. He has also deposed that relationship between Shashi and Bhavna was normal. Behaviour of his step-mother towards him was all right. Except some minor domestic skirmishes, relationship between Bhavna and Shashi Tripathi was normal and Bhavna Tripathi was happily residing in his house. Though once Bhavna Tripathi had expressed her grievance to him with Shashi Tripathi regarding preparation offood. 1 BM 10 18. PW-4 Manharan is a witness of the proceedings of test identification held on 13th December, 2003 by S.R. Diwan, Executive Magistrate. However, he has denied that the test identification parade was held in his presence, though he has admitted his signature in the memo of Ex.P/8. 19. PW-5 Shivkumar Rajput and PW-6 Amit Kumar Dubey have also not supported the prosecution case. They have denied their diary statements, though they have admitted that they recognized Raju @ Devendra. 20. PW-8 Kartikram is also a witness of test identification memorandum of Ex.P/8. He has deposed that he does not recognize the other three accused persons, except appellant Shashi Tripathi. He was called for identifying the accused persons in Sub Jail, Bemetara. However, he did not recognize any of the accused persons, though he has signed the T.1. memorandum of Ex.P/8 and put his signature on being asked by the SHO. In the cross-examination, he has admitted that he told the police that three persons had come on motorcycle but he could not identify them. He has denied his diary statement of Ex.P/15 to this effect. He has further stated that Naib Tehsildar Diwan had gone to jail and asked several persons to stand there. It is correct to say that he identified two persons by touching them, though he had not seen the persons, whom he identified, before, and at the time of identification SHO was present there. 21. PW-9 Hemdas is a witness of test identification memorandum of Ex.P/16. He has admitted his signature in the document of Ex.P/16. He has admitted that he went inside the Sub Jail with Additional Tehsildar Laxmi Thakur. However, after putting his signature, he came out ofjail. 22. PW-12 S.R. Diwan, Executive Magistrate, conducted test identification parade in Sub Jail, Bemetara on 13.12.2003 of Binu Tiwari and Mahesh Dhritlahrey. He has deposed that in the test identification parade, Kartikram 11 and Anil Kumar correctly identified both the accused persons. After T.1. parade, he had obtained signatures of both the accused persons. He had mixed up 14 other persons with the accused persons. This witness has also deposed that police personnel also went with him inside the jail, however, he does not know their names. 23. PW-13 Rajendra Kumar and PW-14 Gopal Sharma are witnesses of memorandum and seizure. However, they have also not supported the prosecution case. Similarly, Punauram (PW-15), who is a witness of T.l. proceedings, has also turned hostile and denied that any test identification parade was held in his presence, whereas Smt. Laxmi Thakur, Executive Magistrte, has proved the T.1. memorandum of Ex.P/15 prepared by her, in which Raju @ Devendra Choubey was identified byAnil. 24. PW-19 Ramlal Bisen is Halka Patwari. He has prepared and proved the spot map of Ex.P/6. Similarly, PW-20 Kapil Verma is a witness of memorandum and seizure from the accused persons. However, he has denied the contents of the documents and has been declared hostile. Though he has admitted his signature over the documents. 25. PW-21 Anil Kumar has deposed that he is resident of Singhbandha. Appellant Shashi Didi brought her to Village - Jevra from Village - Singhbandha and told him to live in Jevra. He knows only Shashi Didi by name, though he recognizes all the four accused persons. He met Shashi Didi at Bilaspur when she brought him to Jevra. While studying in Jevra school, he resided and dinned in the house of Shashi Didi. Doctor Sahab is her husband whereas Shivendra and Jitendra are her sons. Jitendra is her step- son. The name of wife of Jitendra is Bhavna. She also resided in Shashi Didi's house. Jitendra is a doctor and he resided and practised at Khamaria, whereas Bhavna resided at Jevra and Shivendra studied at Calcutta. He called Bhavna as Bhabhi. Shashi Didi and Bhavna sometime used to quarrel. 12 Bhavna was murdered. Devendra caught Bhavna and Chandra Prakash attacked her with knife 3-4 times, as a result, she fell down. The incident occurred in the courtyard. At that time, Shashi Didi was present in the passage. The fourth accused Mahesh was standing outside the house near motorcycle.In the T.V. room, some money was lying on the table and Chandra Prakash took the same. The money was kept on the table by Shashi Didi. The money was tied with rubber band. Chandra Prakash had threatened him not to disclose this. Thereafter, all the three accused persons fled from there. Shashi Didi took him upstairs to the terrace and asked him not to disclose this incident to anyone and tell that thieves came and they committed the crime. Thereafter, she started shouting. In the meanwhile, her husband returned from his clinic. After shouting, Shashi Didi laid on the courtyard near Bhavna Bhabhi. He was taken by the police to Sub Jail where he identjfied Devendra Choubey and Chandra Prakash. He also identified Mahesh in jail. 26. This witness has been cross-examined at great length by the defence. He has admitted that he received summons in Allahabad and he came from Allahabad with police constable and the same constable had accompanied him to the Court. However, he has denied that he has been tutored. He has also admitted that police personnel kept him for 20-25 days with them, they arranged for his meals, and they used to say that they will arrange for his studies. Thereafter, his father came and took him. He returned from field with Sukhram and doctor. He returned to the clinic with Sukhram and doctor and from clinic, he alone returned home with a calf. At that time, no one was accompanying him. He has deposed that he saw a boy standing outside and at that time, he heard the cries of Bhabhi coming from upstairs, whereupon he asked about the same from Didi, who asked him to sit quietly and raised the sound of TV. He has denied the suggestion that courtyard is not visible from the place where he was standing. He did not raise alarm as he was frightened. In para-29, he has denied that he returned home with doctor, and '^r^^^ 1i 13 stated that the doctor reached home after 15-20 minutes of his arrival. In para-31, he has deposed that the outer light of the house was not on, however, the lights inside the house and other rooms were on. In para-34, he has deposed that he did not disclose the entire incident to doctor. He has admitted that he was interrogated for 3-4 times by the police on different dates. He was taken to jail twice and on both the occasions, his signatures were obtained after identification. He has denied the presence of police personnel inside the jail at the time of identification and deposed that 15-20 persons were standing with the accused persons and all of them were putting on pants and shirts. In para-38, he has