47‘ $ HIGH COURT OF CHHATTISGARH BILASPUR \ ($ DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HO’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.815 of 2005 Rajendra Gandhi and four others — Versus — State of Chhattisgarh Criminal Appeal No.459 of 2006 Ram Kumar a» tr - Versus — State of Chhattisgarh AN D Criminal Appeal No.90? of 2010 Ramjan Beg - Versus — State of Chhattisgarh JUDGMENT FOR CONSIDERATION I Sd/— I 28-7-201“ 1 HON’BLE MR. JUSTICE R.N. CHANDRAKAR j W Sdl- R.N.Chandrakar Judge Post for pronouncement of iudqment on 28‘“ July,’ 2011 Sdl— T. P. Sharma Judge , $ W 1 N “ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.815 of 2005 1. Rajendra Gandhi, son of Ratilal Gandhi, aged 34 years, Resident of Kevramunda Ward, Jagdalpur, District Bastar (CG). 2. Haresh Kothari, son of Late Gangaram Kothari, aged 44 years, Resident of Rautp'ara, Jagdaipur, District Bastar (CG). 3. Arun Diwan, son of Dilbagrai Diwan, aged 35 years, Resident of Chandrabhawan, Patharaguda, Jagdaipur, District Bastar (CG). Hori Mandai, son of G.P. Mandal, aged 35 years, Resident of Gurunanak Chowk, Jagdaipur, District Bastar (CG). 5. Babli @ Sandeep Kundu, son of B.K. Kundu, aged 35 years, Resident of Nayapara, Jagdaipur, District Bastar (CG). (In the order of the Court below the father’s name has been wrongiy mentioned as C.K. Kundu) APPELLANTs: (In Jan) Versus State of Chhattisgarh RESPONDENT: Present: Mr. Pawan Kesharwani, counsel for appeilant No.1 Rajendra Gandhi. Mr. Surendra Singh, Senior Advocate with Mr. Goutam Khetrapai, Advocate for appellants No.2, 3 & 4 namely Haresh Kothari, Arun Diwan & Hori Mandal, respectively. Mr. B.D. Guru, counsel for appellant No.5 Babli @ Sandeep Kundu. Mr. D.K. Gwalre, Govt. Advocate with Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. 2 \Q W Criminal Appeal No.459 of 2006 APPELLANT: Ram Kumar S/o Gauri Shankar, 33 years '(In custody) R/o Hikmipara, Jagdalpur Distt. Bastar (C.G.) Versus State of Chhattisgarh through the District Magistrate Bastar, Jagdalpur RESPONDENT: AND Criminal Appeal No.90? of 2010 APPELLANT: (In Custody) Ramjan Beg, S/o Karamat Beg, 35 years, R/o Ganga Munda Ward, Jagdalpur, Distt. Bastar (C.G.) Versus RESPONDENT: State of Chhattisgarh, Through District 3 A Magistrate, Jagdaipur, Bastar (C.G.) {Criminal appeais under Section 374 (2) of the Code of Criminal Procedure‘ 1973} Present: Mr. Prafull Bharat, counsel for the appellants in Cr.A.Nos.459/2006 & 907/2010. Mr. D.K. Gwalre, Govt. Advocate with Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. \ JUDGMENT (28‘5 July, 201 1) The followinq iudqment of the Court was passed by T.P. Sharma, J: — 1. Cr.A.Nos.815/2005 & 907/2010 tiled on behalf of accused persohs/ appellants Rajendra Gandhi, Haresh Kothari, Arun Diwan, Hori Mandal, Babli @ Sandeep Kundu & Ramjan Beg against the judgment of conviction & order of sentence dated 29-9-2005 passed by the 3rd Additional Sessions Judge, Jagdalpur in Sessions Trial No.160/2001 and )Cr.A.No.459/2006 filed on behalf of absconding accused/appellant Ram Kumar against the judgment of conviction & order of sentence dated 6-5- 2006 passed by the 3rd Additional Sessions Judge, Jagdalpur in Sessions Trial No.160/2001 relating to commission of same offences, } are being disposed of by this common judgment. \¥§ 2. Vide judgment of conviction & order of sentence dated 29—9-2005, the 3m Additional Sessions Judge, Jagdaipur, in Sessions Trial No.160/2001, has convicted & sentenced the appellants in Cr.A.Nos.815/2005 & 907/2010 for commission of culpable homicide amounting to murder in furtherance of common object of the unlawful assembly formed by them who were armed with deadly weapons and for commission of the offence of kidnapping & extortion, under Sections 1.48, 302 read with Section 149, 329 read with Section 149, 348 & 364 of the IPC. Appellant Ram Kumar in Cr.A.No.459/2006 was absconding, subsequently he was arrested and after trial he was also convicted & sentenced under Sections 148, 302 read with Section 149, 329 read with Section 149, 348 & 364 of the IPC vide judgment dated 6-5—2006 passed by the 3rd Additional Sessions Judge, Jagdaipur, in Sessions Trial No.160/2001. All the appellants have been convicted and sentenced in the following manner for causing homicidal death amounting to murder of Vinod Gupta after kidnapping and extortion: - $ 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants and thereby committed ille’gality. 4. As per case of the prosecution, Vinod Gupta (since deceased) was working in the shop of appellant Haresh Kothari. As per case of the appellants and material collected on behalf of the prosecution, on account of suspicion of commission of theft of Rs.3 Iakhs from the Kothari Complex, the appellants kidnapped Vinod Gupta and to'ok him to the house of Kothari Seth situate at Rautpara, Jagdaipur where they >~~\ assaulted and caused injuries to Vinod Gupta by burning polythene & cigarette, thereby, they caused serious injuries to Vinod Gupta. Vinod Conviction Sentence Section 148 of the IPC RI for one year & fine of Rs.1,000/— each, in default additional Rl for three months. Section 302 ‘read with Section 149 of the IPC Imprisonment for life & fine of Rs.5,000/- each, in default additional RI for one year. Section 329 read with Section 149 of the IPC RI for seven years & tine of Rs.5,000/— each, in default additional Rl for one year. Section 348 of the IPC RI for one year & fine of Rs.1,000/- each, in default additional RI for three months. Section 364 of the IPC Rl for seven years & fine of Rs.5,000/— each, in default additional RI for one year. Gupta was confined by the appellants from 26-4-2000 till 28-4-2000. Thereafter, on 28-4-2000 at 11 p.m. appellant Haresh Kothari telephoned to Police Station Jagdalpur that Vinod Gupta has been confined in Parpa Dhaba for interrogation relating to theft of Rs.3 Iakhs from his shop. Police immediately rushed to Parpa Dhaba where Vinod Gupta was present in injured condition, on being asked, he told that appellant Rajendra Gandhi along with other persons has kidnapped him and has caused aforesaid injuries by burning polythene and other articles. Vinod Gupta was not in a position to talk, he was badly injured. Immediately he was taken to the police station and was sent for medical examination. Roznamcha No.1687 was recorded at 11 p.m. on 28-4-2000. Vinod Gupta was sent for medical examination on 28-4-2000 and he was exammed by Dr K Vlnay Kumar (PW 9) vrde ExP 14 and followrng injuries & symptoms were found - 1. Defused swelling over right hand and right leg with tenderness of 65 c.m. in found shape. 2. Abrasion over right hand in black colour of 9 c.m. x 5 c.m. 3. Two abrasions over right wrist of 1 1/2 c.m. x 1 c.m. and 1/2 c.m. x 1/2 c.m. in black colour. 4. Abrasion of 5 c.m. x 5 c.m. over upper side of hand in black colour. 5; Multiple abrasions over all fingers 6. Defused swelling over right hand of 65 c m in round shape haVing unbearable pain 7. Multiple abrasmns over left hand of 2 c.m. x 1/2 c.m. and 1/2 c.m. in black colour. 8. Defused abrasion of 29 c.m. x 7 c.m. in black colour on lower part of hand with unbearable pain. 9. Multiple abrasions over all fingers of left hand with discharge of water like substance. 10.Defused swelling over right eye, hairs of eyelids were burnt and colour was black. 1 1.Four abrasions over right side of face in the size of 1 c.m. to 2 c.m. and 1/2 c.m. 12.Four abrasions over right side of face in the size of 2 c.m. to 1 1/2 c.m. and 1 c.m. 13.Three abrasions over chin of 1 1/2 c.m. to 1 c.m. 14.MUltiple abrasions, twelve in number, over right thigh and leg in the size of2 c.m. to 1 c.m. x1 c.m. $ Q 44¢ l i @ 15.Multiple abrasions over Ieft thigh and lower part of foot, thirteen in number, in the size of1 c.m. to 1/2 c.m. x1 c.m. 16.Abrasion over left knee of 8 c.m. x 5 c.m. in biack colour. 17.Muitiple burn injuries, 12-15 in number, like water drops in the size of 1/2 c.m. in circular shape over back portion and stomach. 18.Superticial burn injuries over chest of 9 c.m. x 2 c.m., colour of skin was black and skin was peeling of. 19.Three superficial burn injuries of'1 c.m. x 1/2 c.m., skin was peeling of over chest. 20.Three abrasions over left side of waist in the size of 10 c.m. x 5 c.m. and 3 c.m. x 2 1/2 c.m‘ in black colour. 21 . Blood clot on front part of penis. g2,Abrasion over left buttock of 8 c.m. x 5 c.m. 23. Haifs offorehead were brunt. Injured Vinod Gupta was advised for x-ray of both hands and chest. He was admitted in‘the hospital for further treatment. During treatment, relatives of Vinod Gupta took him to Visakhapatnam for treatment where he died on 9-5-2000. Thereafter, on being asked by the police vide EXP-32, Dr. K. Vinay Kumar (PW-9) opined that the injuries found over the body of the injured may be sumcient to cause death. On 2—5-2000 at about 8 p.m. at Maharani Hospital, Jagdalpur during treatment of Vinod Gupta, he lodged dehati nalsi vide EXP-33. On the basis of- EXP-33, FIR Ex.P-34 was registered. Vinod Gupta also made dying declaration before his mother & wife namely Smt. Geeta Gupta (PW-12) & Smt. Anurada Gupta (PW-13), respectively. injured Vinod Gupta was admitted in Seven Hills Hospital, Visakhapatnam on 7-5—2000 and he died on 9-5-2000 during the course of treatment. Death of Vinod Gupta was intimated vide Ex.P—22. Merg was recorded vide Ex.P—21A at Police Station Bodhghat. After summoning the witnesses vide Ex.P-9, inquest ver the dead body of Vinod Gupta was prepared vide Ex.P-8. Dead body was sent for autopsy to Andhra Medical College, Visakhapatnam vide Ex.P-20. Dr. N.V.S.L. Narasimham (PW-11) conducted autopsy u vide Ex.P-19 and found following injuries & symptoms: - > Swelling around right eyes and eyelids. > Skin was peeled of. > Staining w visible. > Mark of stamp in was present on right thumb. k h o as 6 {9% > Burn injuries were found over neck. > Injuries were found on both shoulders, both hands, chest, back, abdomen, buttocks, knee and penis. > No burn injuries were found over arms. > Burn injuries are superficiai and 40%. Cause of death was burn injuries, infection, septic, toxic. and its compiications. During the course of investigation, accused persons were taken into custody. Accused/appellant Hori Mandal made discloser statement of stick vide Ex.P-1 and same was recovered at his instance vide Ex.P-2. Accused/appellant Haresh Kothari made discioser statement of nylon rope vide EXP-3 and same was recovered at his 'instance vide Ex.P-4. Accused/appeiiant Mirja Ramjan Beg made discTo'éer statement of electric wire, ploythene and wax candle vide Ex.P- 6. House of Ramjan was searched, but nothing was found, panchnama was prepared vide Ex.P-10. Accused/appellant Ram Kumar made discloser statement of Maruti van vide Ex.P-11 and same was recovered at the instance of accused/appellant Haresh Kothari vide Ex.P-12 along with papers of the vehicle. Papers of the vehicle were also seized vide Ex.P-13. Accused/appellant Babli @ Sandeep Kundu made discloser statement of pieces of stone (gitti) vide EXP—16. Spot map was prepared vide Exs.P—23 & P-24. The accused persons were arrested ide Exs.P-25 to P-31. 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was tiled before the Court of Chief Judicial Magistrate, Jagdalpur, who committed the case to the Court of Sessions, Jagdalpur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen witnesses. During the course of trial, accused/appellant Ram Kumar absconded. The case was bifurcated against other appellants except Ram Kumar. Subsequently, Ram Kumar yvas arrested, he was again tried and was convicted & sentenced as aforementioned vide judgment dated 6—5-2006. The accused persons . were examined under Section 313 of the CrPC in which they denied the l circumstances appearing against them, pleaded innocence and false implication in the crime in question. v @ 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted V& sentenced the appeilants as aforementioned vide the two judgments. 8. We have heard learned counsel for the parties, perused the judgments and record of the trial Court. é 9. Mr. Surendra Singh, Iearned Senior Advocate appearing on behalf of appeliants Haresh Kothari, Arun Diwan & Hori Mandal, submits that as per case of the prosecution, on account of recovery of money alleged to have been stolen by deceased Vinod Gupta, the appellants have extorted Vinod Gupta and tried to recover Rs.3 lakhs‘from him. During the course of such extortion, injuries were caused to Vinod Gupta which shows that the appellants have not committed culpable homicide V. amountingto murder of Vinod Gupta. The persons who committed the aforesaid offence may be liable for conviction and sentence under Sectiort 330 of the IPC. The doctor has not opined/the prosecution has not collected anykevidence to establish that the injuries caused to Vinod Gupta were sufficient for causing his death in ordinary course of nature. Inter alia, as per the doctor’s opinion, especially evidence of Dr. K. Vinay Kumar (PW—9) and Ex.P-15, on account of injuries found over‘the body of Vinod Gupta, death was probable. Mr. Surendra Singh further submits that as per case of the prosecution, Vinod Gupta was kidnapped on 26- 4-2000 and was extorted up to 28-4-2000, thereafter, appellant Haresh Kothari telephoned to Police Station Jagdalpur relating to kidnap of Vinod Gupta. The police ofticers immediately rushed to Parpa Dhaba where Vinod Gupta was connned, police officers brought him to the police station and ln-charge Police Station Bhalekar recorded roznamcha No.1687 on 28-4-2000 at 11 p.m. which clearly reveals that on being asked, Vinod Gupta (since deceased) made statement before Bhalekar that he was badly assaulted by Ramjan along with two other persons and was kidnapped & extorted since 26-4-2000 till 28-4-2000 on account of theft, and they have assaulted him by hands, crushed him by legs, burnt him by ploythene and wax candle over different parts of the body. Vinod ‘Gupta was shifted to the hospital for treatment. This shows thatthe aforesaid roznamcha was the hrst dying declaration of the deceased in which he has pointed only one accused Ramjan along with two other persons, but he has not named other persons. However, for the reasons best known to the prosecution, the prosecution has not proved the aforesaid roznamcha, though the prosecution was under obligation to produce and prove such roznamcha. This roznamcha was the urst dying declaration which reveals the commission of offence by one accused and other unidentmed persons whom Vinod Gupta has not identified Iater on till his death. Therefore, conviction and sentences imposed ‘upon the appellants, except appeiiant Ramjan, are not sustainable under the law. Mr. Surendra Singh also submits that dehati nalsi EXP-33 has been recorded on 2-5-2000 in which Vinod Gupta (since deceased) has mentioned the names ‘of six accused persons namely Ramjan Musalman, Arun, Hori Mandal, Gandhi, Kothari Seth & Babli @ Sandeep but has not named another accused Ram Kumar. After the alleged dehati nalsi Ex.P—33, allegedly recorded on 2-5-2000, the deceased died on g—5-2000, after lapse of seven days, but the police has not tried to record his‘dying declaration by the competent authority, even the police has not recorded his statement under Section 161 of the CrPC. 'The aforesaid dehati‘nalsi is a suspicious document and does not inspire confidence, it is not trustworthy and same cannot be relied upon for conviction of the appellants. Mr. Surendra Singh contends that Smt. Geeta Gupta (PW-12) — mother of Vinod Gupta & Smt. Anuradha Gupta (PW-13) — wife of Vinod Gupta have deposed in their evidence that Vinod Gupta has made dying declaration before them in which he has named all the appellants. Evidence of the aforesaid witnesses does not inspire confidence and is not trustworthy. Their statements under Section 161 of the CrPC as Exs.D-1 & D-3 have been recordedby the police on 2-5-2000 and supplementary statement of Smt. Anuradha Gupta (PW-13) as Ex.D-2 has been recorded on 18-5-2000. This shows that the police have recorded the aforesaid statements after registration of the alleged dehati nalsi. Mr. Surendra Singh further contends that roznamcha dated 28-4-2000, dehati nalsi Ex.P—.33 and statements of Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13) are self- contradictory and in absence of dying declaration recorded by competent authority, no reliance can be placed upon the aforesaid alleged dying declarations. Except the aforesaid dying declarations, the prosecution has not collected any material against the appellants'to prove their guilt. Mr. Surendra Singh also contends that in view of the aforesaid circumstances, conviction & sentences imposed upon the appellants are bad in law and are not sustainable under the law. £ 10.During the course of argument, Mr. Surendra Singh, learned Senior Advocate, produced one photocopy of roznamcha No.1687 dated 28-4- 2000 appears to be recorded at Police Station Jagdalpur 'which was taken on record. 11. Mr. Surendra Singh, Iearned Senior Advocate appearing on behalf of appeilants Haresh Kothari, Arun Diwan & Hori Mandal, placed reliance in the matter of Bhagawantibai v. State of M.P.1 in which by relying upon the dictum in the matters of Samedas v. State of M.P.2 and Lallusingh v. State of M.P.3, the Madhya Pradesh High Court (Indore Bench) has held that document tiled on behalf of the prosecution but not proved can be relied upon and used by the‘defence in their support. Mr. Surendra Singh further placed reliance in the matter of K. Ramachandra Reddy and’ another v. The Public Prosecutor" in which the Supreme Court has held that dying declaration can be accepted and may be basis of conviction if accepted as true and voluntary. Dying declaration being a statement not on oath having no opportunity of cross-examination for testing its truthfulness before’accepting it. The court must be satisfied that the deceased was in a nt state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisned that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. Mr. Surendra Singh also placed reliance in the matter of State of Assam v. Mafizuddin Ahmed5 in which the Supreme Court has held that dying declaration can be sole basis of conviction provided it is truthful. In para 13 the Supreme Court has observed as follows: - “13. The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. It is not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent on such a dying declaration.” 1 2002 or.L.R. (M.P.) 679 2 1969 JLJ SN 54 3 1996 MPLJ 452 4 (1976) 3 soc 61s 5 AIR 1983 sc 274 10 Mr. Surendra Singh relied upon the matter of State of Gujarat v. Khumansingh Karsan Singh and othersa in which the Supreme Court has held that inconsistency between two dying deciarations suggesting possibiiity of tutoring and faise invoivement due to strained relations with both accused, conviction cannot be based on such inconsistent dying deciarations. Mr. Surendra Singh further relied upon the matter of Sharda v. State of Rajasthan7 in which the Supreme Court has held that evidence reiating to dying declaration is based on legal maxim, “Nemo moriturus proesumitur mentirf', it implies that a man who is on death bed would not tell a lie to falsely implicate innocent person. The ~ Supreme Court has further held that conviction can be based on the dying declaration if same is found trustworthy, in case of more than one dyiq‘gf declarations the court is required to scrutinize minutely before relying upon them. 12.Mr. Surendra Singh also relied upon the matter of Ram Jattan and others v. State‘«of U.P.8 in which the Supreme Court has held that multiple injuries inflicted by twelve accused on non-vital parts, common intention to cause death absent, medical report not certifying injuries sufncient to cause death in ordinary course of nature, Clause first and third of Section 300 of the IPC not attracted, conviction would be under Section 304 Part-II read with Section 149 of the IPC and sentence of Rl for nve years was imposed. Mr. Surendra Singh placed reliance in the matter of Dalip Singh and others v. State of Haryanag in which the Supreme Court has held that in case of custodial death, in absence of intention of causing murder, accused sharing common intention to beat deceased violently, they must be attributed knowledge only that by inflicting injuries, they were likely to cause death, case falls under Section 304 Part-II of the IPC not under Section 304 Part-l of the IPC and sentence of RI for five years was found sufncient. Mr. Surendra Singh further placed reliance in the matter of Adu Ram v. Mukna and others” in which the Supreme Court has held that alteration of conviction from Section 302 to Section 304 Part-l of the IPC, number of vinjuries on deceased person not always determinative of offence, weapon used, part of body where injuries were inflicted and nature of “W 6 AIR 1994 sc 1641 / / / l 7 AIR 2010 sc 408 8AIR 1994 SC 1130 9 AIR 1993 sc 2302 1o AIR 2004 SC 5064 l / , ‘N @9 injuries are relevant factors, assaults made in course of quarrel, 34 injuries including several fractures on non-vital parts found over the body of the deceased, no grievance injury found over head and all injuries on head were simple in nature, conviction would be under Section 304 Part- i of the IPC and custodial sentence of six years would be sufficient. Mr. Surendra Singh also placed reliance in the matter of B.K. Channappa v. State of Karnataka“ in which the Supreme Court has held that as many as 18 injuries found on the dead body of the deceased including large crush injury or lacerated injuries on chin, right leg, left knee, left wrist, right shoulder, right forearm etc., as per evidence of doctor none of injuries was found on any of vital part of body, conviction would be under Section 304 Part-ll of the IPC. 13.By ‘adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Pawan Kesharwani, learned counsel appearing on behalf of appellant Rajen‘dra Gandhi, and Mr. B.D. Guru, learned counsel appearing on behalf of appellant Babli @ Sandeep Kundu, submit that the prosecution has not proved its case beyond all reasonable doubts and has not collected evidence against the appellants to show their involvement. ln absence of evidence, appellants Rajendra Gandhi & Babli @ Sandeep Kundu are entitled for acquittal. 14.By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Prafull Bharat, learned counsel appearing on behalf of appellants Ram Kumar & Ramjan Beg, submits that act of appellant Ramjan Beg does not travel beyond the scope of Section 330 of the IPC and evidence adduced on behalf of the prosecution is not sufficient for drawing definite conclusion that Ramjan Beg having no interest in extortion, has committed the offence. Mr. Prafull Bharat further submits that as far as the case of appellant Ram Kumar is concerned, the prosecution has collected the only material and evidence that Ram Kumar is driver of appellant Haresh Kothari, he was driving vMaruti van and on the basis of discloser statement of Maruti van vide Ex.P-11, Maruti van has been recovered from Kothari