w H1GH CQURTOF CHHATTISGARH AT BILASPUR Sinflle Bencji : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Cr. Appeal No. 242 of 2006 Appellant (in jail) Suresh versus Respondent State of Chhattisgarh JUDGIWENT Post for pronouncement ofjudgment 16-03-2009 Sd/- Dilip Raosaheb Deshmukh Judge ' m^ f\(f~f i\ <;. 'c~ HIGH COURT OF CHHATTISGARH AT BILASPUR Before : Hon'ble Shri Dilip Raosaheb Deshmukh, J CriminaLApBeaLNo^242 of 2006 APPELLANT ([nj'aiU RESPONDENT Suresh s&n of Kanshi Rao Umak,aged 35 years, resident of Kamalpur, Police Station Sirkheda, District Amarawati (Maharashtra), Present resident of Police Station Mosi Versus State of Chhattisgtarh, Through Police Station - Tumgaon, District Mahasamund (C.,G.) CRIIWINAL APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE CODE Present: Shri H. B. Agrawal, Senior Advocate with Ms. Rinki Tamrakar, counset for the appellant. Shri Sushil Chandra Dubey, Government Advocate for the State. JUDGMENT (Delivered on this (fc^ day of March, 2009) This criminal appeal is directed against the judgment dated 30.12.2005 delivered in Sessions Case No.142/2005 bythe 1st Addifiona! Sessions Judge, Mahasamund (C.G.) whereby while acquitting accused Vishal and Ranjit, the appellant -Suresh was convicted under Section 398 read with Section 34 and 307 of the I.P.C. and sentenced to rigorous imprisonment for 7 years on both counts and also to pay a fine of Rs.500/- under Section 398 read with Section 34 I.P.C. and Rs.1000/- under Section 307 I.P.C. and in default to undergo additional rigorous imprisonment for one month and two months respectively. ^ .^. \^ ::'.s^?'^ il .^•^ -^•s'3 ^'^S'T^?^ / i5?s 2. Prosecution case in brief is that on 12.09.2004 at about 1.00 a.M. Constable Komanlal Chandrakar P.W.1 along with sainik Manikram P.W.2 while on patrolling duty reached the back side of the Bilaspur- Raipur Kshetriya Gramina Bank, Patewa (henceforth 'the Bank'). Komanlal Chandrakar saw that two persons were holding sabbal and sitting near the wall of the Bank and three persons were hiding nearby. Constable Komanlal Chandrakar P.W.1 immediately raised alarm and tried to apprehend the persons sitting near the wall. The appellant attacked Constable Komahlal Chandrakar P.W.1 and assaulted him with thesab&a/onthe head. Bythistime, sa;n//f Manikram P.W.2 also reached there and made an effort to apprehend the appellant. The appellant dealt a blow with the sabbal on the head of sainik Manikram. Theother person sitting with the appellant near the wall of the Bank and those hiding in the field fled. Both Constable Komanlal and Sainik Manikram had a fight with the appellant and finally succeeded in apprehending the appellant. On hearing their shouts, Punitram P.W.3, Babla P.W.14 and Gunit Sahu also arrived there and saw Constable Komanlal Chandrakar and sa/n/'fc Manikram holding the appellant. Constable Komanlal Chandrakar and the witnesses saw that one gas-cutter, gas cylinder and other equipment were kept at some distance from the Bank. The appellant was brought to the Police Chowki, Tumgaon and F.1.R. Ex.P.1 was lodged by the Constable Komanlal Chandrakar. The appellant divulged his name as Ram Prasad. 3. Constable Komanlal Chandrakar and sainik Manikram were sent for medical examination on 12.09.2004 at 3.00 p.m. to Primary Health Center, Tumgaon. Dr. L.R. Chandrakar P.W.12 found a lacerated wound 2x1x1 ^ cm. on right side offorehead and another lacerated wound 1x1x1 cm. on left frontal position of scalp on Komanlal Chandrakar P.W.1 and one lacerated wound 3x1x1 cm. on right frontal position of scalp of sainik Manikram and opined that the injuries found on Komanlal Chandrakar and Manikram were simple in nature and could have been caused within 24 hours by hard and blunt object. The weapon of offence i.e. sabbal was not sent for examination to Doctor L.R. Chandrakgr at any time during investigation. The appellant was also not sent for medical examination during investigation. 4. The F.1.R. Ex.P.1 was sent to Police Chowki, Tumgaon where offence under Section 398 and 307 I.P.C. was registered vide Ex.P.9 at 12.09.2004. Investigation divulged that name of the appellant was Suresh and not Ram Prasad. A panchnama Ex.P.10 was prepared on 14.09.2004 to that effect at Police Chowki Tumgaon. Memorandum of appellant Suresh was recorded on 14.09.2004 at 10.00 A.M. vide Ex.P.5. However, the instruments for committing dacoity which were found in the field near the Bank had already been seized on 12.09.2004 vide Ex.PA. The sabbal and the sandal of the co-accused who had fled were also seized from the spot vide Ex.P.3 on 12.09.2004. On 15.09.2004, a white old Armada Car No.MH 12 9955 and some documents pertaining to the registration and tax were seized vide Ex.P.6 on 15.09.2004 in village Dilippur, P.S. Kandhai, District Pratapgarh in Uttar Pradesh. Co-accused Vishal and Ranjit were arrested on 7.11.2004 by Sub-lnspector Maya Sharma, in- charge of Police Station Tumgaon, District Mahasamund. No test identification was conducted for accused Vishal and Ranjit. After .li!rt""~~»> ">tt completion of investigation the appellant along with Vishal and Ranjit was prosecuted. 5. The appellant abjured the guilt, pleaded innocerice and led no evidence. The prosecution examined as many as 22 witnesses. The learned trial Judge acquitted co-accused Vishal gnd Ranjit of the charges while convicting the appellant under Section 398/34 and 307 of the I.P.C. and sentencing him as mentioned in paragraph 1. 6. Shri H.B.Agrawal, learned Senior Advocate appearing on behalf of the appellant argued that the appellant had been falsely implicated. He urged that the prosecution had failed to prove involvement of 5 or more persons in the attempt to commit a dacoity. In view of the acquittal of co- accused Vishal and Ranjit, the conviction of the appellant - Suresh under Section 398 with the aid of Section 34 of the I.P.C. was bad in law. It was further argued that injuries sustained by Constable Komanlal Chandrkar and sainik Manikram were simple in nature. It was also argued that F.1.R. Ex.P.1 revealed that the appellant was not hiding inside the Bank but was sitting near the wall of the Bank. No incriminating articles were seized from the appellant. The memorandum Ex.P.5 of the appellant was of no avail because the incriminating articles alleged to have been hidden in the nearby field had already been seized on 12.09.2004. There is nothing on record to draw an inference that while being apprehended, the appellant had any intention to cause the death of Constable Komanlal Chandrakar and sainik Manikram. Learned Senior Counsel also argued in the alternative that in any case the offence, if any, committed by the appellant would not travel beyond Section 324 of the I.P.C. The appellant was in jail ^ for almost 3 years and 3 months and the sentence awarded by the learned trial Judge should be reduced to the sentence already undergone by the appellant while modifying the conviction of the appellant under Section 398 read with Section 34 and 307 ofthe I.P.C. to Section 324 ofthe I.P.C. 7. On the other hand, Shri Sushil Chandra Dubey, tearned Government Advocate argued in support ofthe impugned judgment. 8. Having considered rival submissions, 1 have perused the record. Constable Komanlal Chandrakar P.W.1 and sainik Manikram P.W.2 and witnesses Punitram P.W.3 and Babla @ Daulal P.W.14 are the only witnesses examined by the prosecution relating to the incident that had occurred on the night of 12.09.2004. In the F.I.R. Ex.P.1 lodged by Constable Komanlal Chandrakar at police outpost Patewa, Police Station Tumgaon, it was stated that he had seen two persons hiding near the wall of the Bank. Map Ex.P.2 shows that the place marked by red cannot be a hiding place for anybody because it is the outer edge of the open verandah of the Bank. No explanation was offered by the Constable Komanlal in paragraph 9 of his testimony for not mentioning in the F.1.R. Ex.P.1 that the appellant was hiding inside the room of the Bank. 9. According to Constable Komanlal Chandrakar, he was patrolling with sainik Manikram on the night of 12.09.2004 at village Patewa. Neither in the F.1.R. Ex.P.1 nor in examination-in-chief did he disclose that they were patrolling on the motorcycle driven by sainik Manikram. This fact was elicited only in his cross-examination paragraph 12 where he stated that it was only on his alarm that sainik Manikram rushed towards him on the motorcycle. In view of the testimony of Constable Komanlal f f^ 'ltllB-'*' . "'»«.<•».---'' (S Chandrakar that immediately on his throwing light, the appellant came towards him and attacked him by a sabbal, the testimony of sainik Manikram that he had seen two persons emerging from inside the Bank and the appellant attacking Constable Komanlal Chandrakar becomes unworthy of credit. 10. Punitram P.W.3 and Babla @ Daulal P.W.14 are the two witnesses examined by the prosecution to lend support to the testimony of Constable Komanlal Chandrakar P.W.1 and sainik Manikram P.W.2. The testimony of Punitram P.W.3 that he saw the appellant assaulting Constable Komanlal and sainik Manikram by a sabbal is rendered false by the testimony of Babla @ Daulal P.W.14 that on reaching he had seen that the Constable Komanlal Chandrakar and the sainik Manikram had overpowered the appellant by pressing him to the ground and witness Punitram reached the spot after him. Thus, neither Babla @ Daulal P.W.14 nor Punitram P.W.3 witnessed the appellant striking either Constable Komanlal Chandrakar or sainik Manikram by a sabbal. Testimony of Punitram P.W. 3 and Babla @ Daulal P.W.14 further shows that at that point oftime the appellant did not hold a sabbal in his hand. 11. It appears that the prosecution has suppressed the genesis of the crime. It is difficult to believe that Constable Komanlal Chandrakar and sainik Manikram on being assaulted by a sabbal by the appellant would have spared him and would not have thoroughly beaten the appellant. 1 am of the considered opinion that in that case the appellant would have sustained more injuries than them. Constable Komanlal Chandrakar admitted in paragraph 8 of his testimony that immediately after the ^, !»' occurrence, they took the appellant to a private Doctor Yogesh Lodhi for treatment since the appellant had injury on his thumb. If this was true, why this was not mentioned in the F.1.R. or why Dr. Yogesh Lodhi was not examined as a witness. It is equally surprising why the appellant was not sent for medical examination by the police when the appellant would certainly have had many injuries on his person because a person who beats up two policemen cannot escape receiving more injuries on his person after being overpowered by the policemen. Therefore, the omission to get the appellant medically examined on 12.09.2004 or at any point of time thereafter during police remand creates a strong dent in the prosecution story. 12. If the sabbal by which the appellant is alleged to have attacked Constable Komanlal Chandrakar and sainik Manikram was snatched from his hand, why the sabbalwas not taken to the police station and seized at the time of lodging the F.1.R.? The fact that the appellant who had injuries on his person was first taken to a private Doctor Yogesh Lodhi and thereafter to the police station while leaving the sabbal on the spot creates yet another dent in the reliability of the prosecution story. Head Constable Gyan Singh P.W.7 stated in paragraph 4 that he did not send the appellant Suresh for medical examination because he did notsustain any injury. This testimony of Head Constable Gyan Singh P.W.7 is rendered palpably false in view of the admission of Constable Komanlal Chandrakar. It is also beyond comprehension why Constable Komanlal Chandrakar and sainik Manikram, who had a motorcycle, were not sent for medical examination immediately after the incident. The admission by Dr. L.R. Chandrakar P.W.12 in paragraph 3 unfolds that Constabte Komanlal It. i/ sbi ider ^ o es --s. ^ "liuil' Chandrakar and sainik Manikram were sent for medical examination to P.H.C. Tumgaon 14 hours after the incident, which in the light of the above suspicious circumstances also creates a deeper dent in the prosecution story. 13. The spot map Ex.P.2 was prepared by Gajendra Prasad Sahu, Patwari, P.W.13 two months after the date of occurrence, yet the field from where the gas cylinder, gas cutter and other articles were seized do not find mention in it. 14. It is also pertinent to note that the testimony of Punitram P.W.3 and Babla @ Daulal P.W.14 does not show that any person other than the appellant was either present at the place of occurrence or had fled therefrom. This further renders the prosecution story that another person was hiding with the appellant in the Bank and had escaped while three others hiding in the field had fled, extremely doubtful. 15. No incriminating article was seized from the appellant. It is not in dispute that even the sabbal alleged to have been used by the appellant for causing injury to Constable Komanlal and sainik Manikram was seized from the place of occurrence at about 8.00 A.M. next morning. Both Punitram P.W.3 witness of seizure of sabbal and Babla @ Daulal P.W.14 do not depose about the seizure of sabbal from the spot. Babla @ Daulal has clearly stated in paragraph 2 that no seizure was affected in his presence. He deposed that after he saw that Constable Komanlal and sainik Manikram had overpowered the appellant lying on the ground, a sabbal was seen at the spot. For want of any independent corroboration by Punitram regarding seizure of the sabbal from the spot, it becomes "•IBt-iiiir*3 extremely doubtful that while fleeing from the Bank, the appellant had assaulted Constable Komanlal Chandrakar and sainik Manikram by the sabbal. 16. If the appellant had a sabbal and while fleeing had assaulted Constable Komanlal Chandrakar twice on the head, Constable Komanlal Chandrakar would have fainted. It is beyond comprehension why the sabbal alleged to have been seized from the spot was not even sent for medical examination and opinion to Dr. L.R.Chandrakar P.W.12. The testimony of Punitram that he saw the appellant holding the sabbal but did not see the appellant assaulting Constable Komanlal Chandrakar and sainik Manikram also creates a strong suspicion as to the manner in which Constable Komanlal Chandrakar and sainik Manikram had sustained injuries on the head. Constable Komanlal Chandrakar admitted in paragraph 13 that his dress was soaked in blood but the same was not seized. This has also not been explained bythe prosecution. 17. The suspicion further deepens because Constable Komanlal Chandrakar admitted that he along with sainik Manikram had first gone for treatment to Dr. Yogesh Lodhi. Sainik Manikram has in paragraph 9 suppressed this fact that he had got himself examined from a private doctor in Patewa before lodging the F.1.R. while admitting that Constable Komanlal Chandrakar did get himself examined from a private doctor in Patewa before lodging the F.1.R. Testimony of Manikram P.W.2 that there was no injury on the appellant is also rendered palpably false. 18. Injuries found on Constable Komanlal Chandrakar and sainik Manikram were simple injuries caused by hard and blunt object. Dr. / li nt •^* ^&n. ,^ ^/ ''^-s....^?'^ 10 ~^:: .l> -t.. L.R.Chandrakar P.W.12 opined in paragraph 4 that the injuries sustained by Constable Komanlal Chandrakar and sainik Manikram could be caused due to fall. Even in the F.1.R. it was stated by Constable Komanlal Chandrakar that for quite some time there was 'vidiMt;*' between them and the appellant and at that time the appellant did not hold the sabbal. Had the appellant struck blows with the sabbal on the foreheads of Constable Komanlal Chandrakar and sainik Manikram, a grievous injury would have been caused. It is difficult to comprehend that the appellant who was allegedly trying to escape would assault Constable Komanlal Chandrakar and sainik Manikram with so little a force by a strong weapon like sabbal that they would receive only a simple injury on the head; 19. So far as the identify of the appellant is concerned, Constable Komanlal Chandrakar had deposed that the appellant had disclosed his name as Ram Prasad. No satisfactory evidence had been led by the prosecution to show how and when the investigating officer learnt that the name ofthe appellantwas Suresh and not Ram Prasad. 20. In paragraph 15 of the cross-examination of Constable Komanlal, the following defence was suggested by the appellant: "15- Tfg ^g^\ Tr?ra' t 'fct? siRW 'ii^y'Hii; ^fN w4 ^ f^; tci? c^ 4t^ 1TOT STT f^TTT ^ ^W^ fiFTT ^-'cTTE? c|^ •W aff I 'OS ~SFS^\ TT?IH t f^t? ^ TDsft ^ ift ^T^ wsr ^Rifte f^qr STT 1 T^ ^^V IT?RT t fe ?^ *41'<lTlri ^ cpRUT f?R lT;n- SIT gft? . '•s^ ftie iftfl SIT TraT an' i •zig' iTan t ^ -tiww^ TR ''T ^rTq aft? ?TT ?rtTr TI?TT ^ ^m ^^ ei^ ^ 1^ ^Nt ^T 'EraRT cr TINIft5 ^R ^T ycb'("| cRclTOT f | q? •cp^n' TT^]- •| ft> TraT c^ ^TH ^f 'ET ^llRlct) WT '?RIG[ TJt^ •^ ^- | T[? TT(^T ^ f^; ^T •$ftTT »h '(>,. 11 '?Rl6( ^ ^? ST ^ft 'edTV^ 3.00 cl^t ?PR? Tf ^RTT 'StN^ ^ qK ^dl^lMll C^ 'RP? ^ ^ 1 'alRP 'g? '•^ '?M6f 'e^ sR^ ;F[ SITET " 21. Head Constable Kapishwar Pushpkar P.W.6 who wrote the F.I.R. admitted in paragraph 3 that blood was oozing from the wounds of the appellant, Constable Komanlal Chandrakar and sainik Manikram at the time of lodging of the report. He further admitted that he had sent Komanlal Chandrakar for treatment to a private medical practitioner in Patewa but did not send a written requisition for medical examination. His testimony that sa/n/'k Manikram and the appellant were not sent for medical examination because they did not sustain more injuries is rendered false by the admission of Constable Komanlal Chandrakar that the appellant and sainik Manikram were also sent for medical examination to a medical practitioner in Patewa. Kapishwar Pushpkar further admitted in paragraph 4 that without receiving any medical report he had registered an offence under Section 307 of the I.P.C. Punitram P.W.3 has deposed in paragraph 2 that he along with Sunil and Babla @ Daulal P.W.14 had taken the appellant, Constable Komanlal Chandrakar and sainik Manikram to Dr. Yogesh Lodhi in Patewa who had given first aid to them. 22. Having discussed the evidence led by the prosecution, the following points emerge: A) The involvement of any other person with the appellant in the occurrence is rendered doubtful; B) No explanation is forthcoming as to why the appellant was not medically examined despite the fact that before lodging the F.1.R. he was taken to a private Doctor suggesting that the appellant had many injuries on his person; ——-— ®'}sriiSii 12 C) The sabbal was not seized from the appellant; D) No incriminating article was seized from the appellant; E) The omission in the F.1.R that the appellant was hiding inside the Bank renders the testimony of Komanlal Chandrakar doubtful; F) Independent witnesses Punitram P.W.3 and Babla @ Daulal P.W.14 did not witness the appellant assaulting either Constable Komanlal or sainik Manikram; - G) Injuries found on Constable Komanlal Chandrakar and sainik Manikram were simple injuries and could be caused by a fall. During the fight both Constable Komanlal Chandrakar and sa/n* Manikram had a fall during the 'ddi4d+' with the appellant. H) No explanation is forthcoming why the blood soaked dress of Constable Komanlal Chandrakar was not seized during investigation; I) No explanation is forthcoming why Dr. Yogesh Lodhi, a private practitioner, who had examined the appellant before lodging the F.I.R., was not examined by the prosecution; J) The testimony of investigating officer Head Constable Gyan Singh P.W.7 that there was no injury on the appellant creates a strong suspicion that the true genesis of the offence has been suppressed by the prosecution; and lastly K) The inordinate delay in medical examination of Constable Komanlal Chandrakar and sainik Manikram has also not been satisfactorily explained. L) Serious discrepancies exist in the prosecution evidence which renders the prosecution story of an attempted Bank dacoity and attempted assault on the lives of Constable Komanlal Chandrakar and sainik Manikram by the appellant extremely doubtful. fy 13 23. I am of the considered opinion that in view of the above, the prosecution story about the commission of the offence of attempted dacoity and an attempted assault on the lives of Constable Komanlal Chandrakar and sainik Manikram by the appellant is rendered extremely doubtful. The possibility that the prosecution. has not come with clean hands and suppressed the genesis of the crime cannot be denied. The appellant is, therefore, entitled to the benefit of doubt. 24. In the result, the appeal is allowed. The conviction of the appellant under Section 398 read with Section 34 and 307 ofthe I.P.C. is set aside. The appellant is acquitted of both the charges after giving him the benefit of doubt and shall be released from custody forthwith, if not required in any other case. I i Sd/- Dilip Raosaheb Deshmukh Judge Anjani