-^ iy HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.764 of 1991 arf APPELLANTS: (In Jail) RESPONDENT: Gangadhar Patel and another Versus The State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- DHffiENDRA ,MISHRA. Judge V-iu ti^.u rur HON'BLE SHRI JUSTICE MANINDRA IVIOHAN SHRIVASTAVA sa^lil ,5^!rf&-&<^ Sd/. Manindra Mohan Shrivastava Judge ^ POST FOR JUDGMENT ON 19 JANUARY,2010 Sd/- 0/01/2010 (\/ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.764 of 1991 APPELLANTS: (InJail) 1. 2. Gangadhar Patel, S/o Premlal Patel, Mahar, aged 29 years, Shyamlal Patel, S/o Kabjlal Patel, Mahar, aged 60 years, Both resident of Kamrod P.S. Mahasamund, District Raipur (M.P.) (nowC.G.) Versus RESPONDENT: The State of Madhya Pradesh (now Chhattisgarh) Present: Shri Awadh Tripathi, counsel for the appellants. Shri M.P.S. Bhatia, Deputy Govt.Advocate forthe State/resporident. J. Division Bench: Hon. SHri Dhirendra IVIishra & Hon. Shri IVIanindra IVIohan Shrivastava, JJ. .J U DGM ENT (Delivered on J^'January, 2010) The following judgment of the Court was delivered by Dhirendra IVIishra, 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 13 July, 1991 passed in Sessions Trial No.114/89 whereby learned Additional Sessions Judge, Mahasamund has convicted the appellants under Section 302 read with section 34 of the IPC and sentenced them to undergo life imprisonment for causing homjcidal death of Kanhaiya Lal. 2. Briefly stated, case of the prosecution is that Investigating Officer Ram Lal Chouhan, ASI (PW-19) on the basis of information given by Prem 1 T s M'. ''^.-•. ^>' Lal, father of deceased Kanhaiya Lal, registered missing'report on 13-12-1988 (Ex.-P/14). During enquiry of the missing report, he recorded memorandum (Ex.-P/1) of appellant Gangadhar on 14-12- 1988 and memorandum (Ex.-P/2) of Shyam Lal. On the basis of their disclosure statements, the dead body of deceased Kanhaiya Lal was recovered from a pit near culvert. Inquest over the person of the deceased was prepared vide Ex.-P/4 and morgue intimation of Ex.- P/15 & FIR (Ex.-P/16) were recorded on the spot. The de^d body of the deceased was sent for autopsy to the hospital, Mahasamund under Ex.-P/17. Blood stained clothes, 2 broken teeth, blood stained soil and plain soil were taken into possession from the place of incident vide Ex.-P/9. Bicycle, balance scale kept in a bag, a knife, a Chilam, dot pen ete. were taken into possession vide Ex.-P/6. On the basis of information of appellant Gangadhar, blood stained Gamcha and a bottle of liquor were recovered from the place at a distance of about 1 furlong from the dead body vide Ex.-P/5. On the basis of disclosure statement (Ex.-P/1) of Gangadhar, weapon of offence i.e. axe was taken into possession vide Ex.-P/7 from his house. Similarly, on the basis of disclosure statement (Ex.-P/2) of Shyam Lal, a. club and bicycle were taken into possession from his house vide Ex.-P/S. 3. A sealed packet containing blood stained clothes of the deceased received from Mahasamund hospital was taken into possession vide Ex.-P/13. All the seized articles were sent for chemical examination to the Forensic Science Laboratory vide Ex.-P/18. Dr. G. Govidani (PW- 23) conducted postmortem and gave his report of Ex.-P/23. Appellant Gangadhar was also sent for medical examination vide Ex.-P/27-A and ^v I'', his medico legal examination report is Ex.-P/27. Similarly, medico legal examination report of appellant Shyam Lal is Ex.-P/28. Articles seized during investigation including weapon of offence and wearing apparels of the appellants and the deceased were sent to the Doctor for his opinion vide Ex.-P/24-A and the report of the doctor is Ex.-P/24. 4. After completing investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Mahasamund, who, in turn, committed the case to the Court of Sessions Judge, Raipur from where learned Additional Sessions Judge, received the case on transfer for trial. 4, 5. Learned trial Court framed the charge against the appellants under Section 302 read with Section 34 and 201 ofthe IPC, who abjured their guilt. 6. The prosecution in order to establish the charge against the-appellants examined 30 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of the Cr.P.C.. The appellants denied the circumstances appearing against them in the ' ,1. prosecution case. In reply to question Nos.5, 6 and 9, appellant Gangadhar stated that father Prem Lal was residing with Kanhaiya Lal whereas his mother came to reside with him. He also stated that on his mother's refusal for cooking meal for Prem Lal, father Prem Lal started residing with him. Kanhaiya Lal was not maintaing his parents and his parents were residing with him. In reply to question No.10, he also stated that his father gave his share of land to Bhuwani on lease for cultivation. In reply to question No.19, he denied the circtimstances "% i, "%e n> and stated that he was in his home and was giving medicine to his ailing father. In reply to question Nos.60 and 61, the appellants stated that they were beaten by the police while they were in custody and they sustained injuries on Tuesday night. He also stated 'that in the night of Tuesday he was called by the police in village Kamrod and from there the police took him beating to the police station and kept him in the lockup. He has been falsely implicated. Appellant Shyam Lal also denied the circumstances appearing against him in the prosecution case in the same way and further stated that his son Hemlal died first and 45 days thereafter his daughter-in-law also died. He had lodged the report about their death, however, no aption was taken. He has been falsely implicated. They also examined Chatur (DW-1) and Pardesi (DW-2) in their defence. 7. Learned trial Court after hearing learned counsel for the respective parties, convicted and sentenced the appellants as mentioned in para- 1 ofthejudgment. 8. Homicidal death of deceased Kanhaiya Lal is not in dispute. Even othenwise, from the evidence of Dr. G. Govidani (PW-23), who conducted postmortem over the person of deceased Kanhaiya Lal and proved his postmori:em report of Ex.-P/23 wherein he found following injuries on his person and opined that Kanhaiya Lal died on account of shock due to head injury, injury to brain system also cardiorespiratory failure due to Injury No.1, it is established that the deceased died homicidal death. 1NJURIES fa. %> ^ '^ (i) Sharp incised wound of size 7" x 3" x soft tissues, trachea, blood vessels cut over throat of neck nerve right side below clavicle, (ii) Sharp cut wound of size 2" x 1"x %" right side chest 2" below injury No.(i), (iii) Sharp cut wound of size 2" x 1" x %" over front of right shoulder, (iv) Sharp cut wound of size 4" x 1/2" x Vi' over right parietal occipital bone, (v) Sharp cut wound of size 4" x Vt' x 1/2" over occipital bone. Front bone of the skull was found broken. Fracture of frontal bone. Brain membrane congested and all stained with dark colour blood. 9. Shri Awadh Tripathi, learned counsel for the appellants submitted that as per the prosecution case, the dead body of Kanhaiya Lal was discovered on the basis of disclosure statements (Ex.-P/1 & Ex.-P/2) of both the appellants from a pit near culvert, however, the trial Court has disbelieved the aforesaid prosecution story in para-42 of its judgment. However, the appellants have been convicted on the ground that the appellants had motive for commission of the crime. Appellant Gangadhar had dispute with his brother Kanhaiya Lal regarding wooden plank placed in the well whereas appellant Shyam Lal suspected that Kanhaiya Lal was instrumental in death of his lone son Hemlal. The above finding is farfetched and based on erroneous appreciation of evidence. The trial Court has also ignored the evidence of PW-14 Prem Lal, who has categorically stated that there was no quarrel between Gangadhar and the deceased. The trial Court has also observed that appellant Gangadhar nourished grudge against his brother Kanhaiya Lal, as he was not looking after his parents. 10. The trial Court has heavily relied upon the evidence of Brijlal (PW-28) who claims to be eyewitness to the incident, however, the trial Court has lost sight of the fact that the diary statement of this witness was recorded after 1 month and 19 days of the incident. There is no explanation for the above delay and there is complete variance in the evidence of this witness before the Court and his diary statement of Ex.-D/2. Conviction is also based on recovery of weapon of offence axe and club on the basis of disclosure statements of the appellants. However, memorandums and recoveries have not been proved by reliable evidence. Even otherwise, the aforesaid evidence is of no avail, as there is no evidence that weapons seized at the instance of the appellants were stained with human blood, that too of the same blood group of the deceased. The trial Court has also considered injuries present over the appellants vide Ex.-P/27 and Ex.-P/28 as an incriminating circumstance by wrongly rejecting the explanation of the appellants that they sustained aforesaid injuries, as they were brutally beaten by the police after arrest for extracting confessional statement. ^, 11. On the other hand, Shri M.P.S. Bhatia, learned Deputy Govt. Advocate for the State/respondent supported the impugned judgment. 12. We have heard learned counsel for the parties. We have p.e.rused the record ofthe trial Court asalso the impugned judgment. 13. Learned trial Court convicted the appellants by recording the following findings:- • Relying upon the finding recorded in the postmortem report, which has been proved by Dr. G. Govidani (PW- 23), it has been held that injury sustained by the ^;^ 's^. ^ ^^-B^Ti^. '^ \-: ""••""•"'•".^ ^ deceased could be caused by a sharp edged weapon like axe. Medico legal examination reports of appellants Gangadhar and Shyam Lal, which has been proved by Dr. G. Govidani (PW-23), shows that they sustained injuries described in Ex-P/27 and Ex.-P/28. Relying upon the evidence of Ram Lal Chouhan, 1.0., PW-1 Santram Sahu and PW-2 Narayan Singh Rana, it has been held that weapons of offence axe and club were recovered on the memorandums of the appellants. On the basis of evidence of Dr. G. Govidani (PW-23), it has also been held that the injuries present over person of Kanhaiya Lal could be caused by article 'M' axe seized on memorandum of appellant Gangadhar. On the basis of injury reports Ex.-P/27 and Ex.-P/28 of the appellants, which has been proved by Dr. G. Govidani (PW-23), it has been held that the accused persons sustained injuries described in Ex.-P/27 and Ex.-P/28 within 3-4 days of their examination. The aforesaid injuries could not be caused by police beating and the appellants sustained above injuries while they were beating Kanhaiya Lal as a result of scuffle between them and Kanhaiya Lal. Lathi article 'S' and axe article 'M' were found to be stained with blood. FSL, Sagar, in its report of Ex.-P/18 found the above weapons stained with blood and thus, it is proved beyond doubt that they caused injuries to Kanhaiya Lal by the aforesaid weapons and murdered him. In para-42, it has been held that the prosecution has failed to prove beyond reasonable doubt that the dead bodyof the deceased was recovered at the instance of the appellants. Relying upon the evidence of Santram Sahu (PW-1) and Mithila Bai (PW-24), it has been held that there was dispute between appellant and his brother Kanhaiya Lal ^ in relation to wooden plank placed in the well and maintaining parents. Similarly, appellant Shyam Lal suspected that Kanhaiya Lal was responsible for the death of his son Hemlal and thus both of them nourished grudge against Kanhaiya Lal and as such they had motive for commission of crime. . At the time of incident PW-8 Suklal, PW-9 Jagdish and PW-10 Motilal had seen the appellants near the place of incident from where the dead body was found. PW-28 Brijlal had seen the appellants quarrelling with Kanhaiya Lal near the place of incident. 14. Indisputably, initially case of the prosecution was that after registering the missing report on 13-12-88 the police recorded memorandums of the appellants on 14-12-88 in the village and discovered the dead body of the deceased. The trial Court after discussing the entire oral evidence available on record has disbelieved the evidence of Santram (PW-1), Awadhram (PW-7), Ganesh Kotwar (PW-30) and Chhatru (PW-25) and recorded a finding that everybody was knowing about the dead body of the deceased lying near culvert since Tuesday, the 13 December night and disbelieved the prosecution case in this regard. However, relying upon the recovery of blood stained axe and club on memorandums of the appellants from their houses and further relying upon the FSL report in which presence of blood in the said articles has been confirmed and the doctor has opined that the injuries present over person of the deceased could be caused by the axe, it has been held that recovery of axe from the appellants connects 'them with commission of offence. f^, AQ/ ./ 15.PW-1 Santram Sahu has proved memorandum of Ex.-P/1 of Gangadhar and Ex.-P/2 of Shyam Lal. He has deposed that on interrogation by the Investigating Officer Gangadhar stated that he has disposed of the body of deceased Kanhaiya Lal in a pit near culvert and kept axe and wearing apparels in the house. He has also proved seizure memo of Ex.-P/7 by which axe was seized. Similarly, this witness has also proved seizure of club at the instance of appellant Shyam Lal. 16. PW-2 Narayan Singh, another Panch witness of memorandum and seizure, has also proved recovery of axe and club on the basis of disclosure statements Ex.-P/1 and Ex.-P/2 of both the appellants. Dr. G. Govidani (PW-23) has proved his report of Ex.-P/24 and deposed that weapons of offence axe and club were sent for examination. These articles were stained with blood and he had advised for chemical examination of the aforesaid articles. However, he was not certain that the axe was the same axe which was brought'to him for examination, as the axe was not brought in a sealed condition. He has further stated that article 'M' axe which was shown to him appeared to be blunt, but the weapon which was sent for examination was sharp edged. He has also deposed that clean cut edges could not be caused by article 'M' produced in the Court. FSL in its report of Ex.-P/18 found that article 'B' Gamcha, 'd' axe, seized from Gangadhar and article 'D' lathi & article 'E2' Baniyan seized from Shyam Lal were stained with blood. However, for confirmation of origin and group, these articles were referred to Serologist. Report of the Serologist is not available on record. s'SBa i "^ -L11 '^'1. .-^••r 10 / ^\y 17. PW-3 Khokhan, PW-4 Cherku and PW-5 Sarju have not supported the prosecution case and they were cross-examined by the prosecuton, however, the prosecution could not elicit anything from these witnesses in support ofthe prosecution case. 18. PW-6 Sukhdev has deposed that on Wednesday he reached near the canal where the dead body of Kanhaiya was lying. The appellants were present there with the police. Club and axe were seized from the house of Shyam Lal and Gangadhar. 19. PW-8 Suklal, PW-9 Jagdish and PW-10 Motilal have deposed that on Monday they were returning to village Kamrod. They saw Gangadhar and Shyam Lal standing on way near Telibandha canal. Both of them were having bicycles. Sun was already set in. Next day they heard they Kanhaiya Lal has not returned from Khalari bazaar. 20. Prem Lal (PW-14) is the father of deceased Kanhaiya Lal and appellant Gangadhar. He has deposed that Shyam Lal is his nephew. He had partitioned the land between his both sons 15-20 years before. He had kept 2 acres for him. Both were earning through their fields and there was no quarrel between them about property. His son Kanhaiya had gone to Khalari market on Monday, however,"he did not return. Derha Sahu and Chatru, son of Kanhaiya had gone to search him. On Tuesday Chatru informed him at 12 noon that his father Kanhaiya is lying dead near canal. At 2 O' clock on Tuesday he along with other villagers went to the place and saw Kanhaiya lying dead. They also saw bicycle, basket, lungi, slippers, etc. on the other side of the canal. He went to Mahasamund and informed the police. 11 /.^/ i\ y Kanhaiya Lal had proceeded for Khalari market at 11 am and his son Gangadhar gave him medicine in the evening on Monday. In para-11 of cross-examination, he has further stated that on Monday when Kanhaiya had gone to Khalari Bazar, he fell sick and he had called Gangadhar, who gave him medicine and stayed with him for.an hour or two after sun set. Kanhaiya had told him that 2-3 goons in the Khalari market threatened him and demanded money whereupon he had advised him to return early. 21. PW-24 Mithla Bai is the wife of the deceased. She has deposed that her husband Kanhaiya and Gangadhar are brothers whereas Shyam Lal is their cousin. In para-8 of her cross-examination, she has stated that there was land related dispute between Gangadhar and.Kanhaiya. She has further stated that she had narrated about the dispute regarding partition to the police. She had also narrated that they maintained father-in-law and mother-in-law for 15 days after partition and thereafter Gangadhar took back the land and paddy and kept his parents for 4 months. He left them thereafter. However, this fact does not find place in her diary statement of Ex.-D/1. Her version that Gangadhar branded her mother-in-law, sister-in-law and sister "Tonhi" is also missing in her diary statement of Ex.-D/1 (Para-10 of cross- examination). 22. PW-25 Chatru is the son of Kanhaiya. This witness has also deposed in para-3 that his father had dispute with Gangadhar about partition of land. This witness in para-6 has admitted that his father had no quarrel with Shyam Lal. 12 "^ ' / 23. PW-26 Purushottam is the nephew of the appellants and the deceased. He has deposed that his father Sukhdev fell critically ill 6 months before the death of Kanhaiya. Hemlal was called for treating him through witchcraft. However, he said that Mutki, wife of Prem Lal; Mithla, wife of Kanhaiyaand Kunj, sister of Kanhaiya Lal had.practiced witchcraft. However, his father was cured. This witness has further stated that there was no quarrel between the appellants and Kanhaiya Lal because of this incident. His father died 4-5 months after Hemlal baiga treated him by witchcraft though there was no quarrel after his death. 24. Bhagwani (PW-27) has deposed that 2 years before he was returning to his village Chapora from Khalari bazaar. He met Sarju-, Khokhan and Brijlal on way, who were returning to their village on foot. He also accompanied them. When they reached near canal, they saw that a few persons were quarrelling, however, he could not see and recognize due to darkness as to how many persons were there and who Were quarrelling with each other. The persons, who were quarrelling, were under the influence of liquor, thereafter he returned to his village Chapora by bicycle. 2-3 days thereafter he was interrogated by the police. He was cross-examined by the prosecution after declaring hostile, however, he did not depose anything against the accused persons in cross-examination also. 25. PW-28 Brijlal has been examined as eyewitness. He has deposed that last year on Monday he had gone to Khalari Bazar to purchase vegetables. He was returning to his village Telibandha with Sarju, Khokhan and Bhagwani. When they reached near the canal, they saw 13 that accused persons Shyam Lal, Gangadhar and Kanh.aiya were involved in scuffle. He shouted as to why they were quarreling and asked to run and separate them. However, appellants Shyam Lal and Gangadhar fled away towards the canal whereas, Kanhaiya fled towards the field. Thereafter, all of them went to their respective villages. On the next day, son of Kanhaiya went in search of Kanhaiya and on Wednesday he learnt that Kanhaiya has died. His house is at a distance of 2-3 furlong from thecanal in village Telibandha. In cross- examination, he stated that Bhagwani returned with them from Khalari Bazar. In para-5 of his cross-examination, he has stated that quarrel had taken place at a distance of 8-10 paces from canal. Kanhaiya was lying on the ground and was shouting. Kanhaiya was lying at the place of quarrel. They did not go there and remained standing on the road. Gangadhar and Shyam Lal were beating Kanhaiya. In para-8, he deposed that he did not disclose this fact to the villagers. He has contradicted his diary statement of Ex.-D/2 wherein it is mentioned that he did not disclose the above fact out of fear to anyone and did not come out of his home. He has further deposed that the police recorded his statement after 2 days and denied that his statement was recorded after one and half month. He has further contradicted the portion C to G that he gets frightened by remembering the said incident even now. He had no quarrel with Shyam Lal and he considered him to be a good man and contradicted his diary statement wherein it is mentioned that Shyam Lal was miscreant. He has admitted that he did not disclose about the incident to anyone. He has further stated that he only saw the physical scuffle between the appellants and the 14 deceased. They did not see as to who was beating and by what. It was not dark at the time of incident. He did not see the appellants assaulting the deceased with axe and lathi and thus he has contradicted his diary statement of Ex.-D/2 in this regard. j< ^ 26. PW-30 Ganesh is the Kotwar of the village. He is the witness of the fact that when Kanhaiya did not return from Khalari market, he was informed by Prem Lal that Chatru and Derha had gone to search him and after return, they informed that cycle of Kanhaiya was l^ing on the bank of canal. However, they could not find Kanhaiya, thereafter he had accompanied Prem Lal, Chatru and Awadhram to Police Station Mahasamund where Prem Lal lodged the report. 27. We first of all propose to examine whether learned trial Court was justified in relying upon the evidence of Brijlal (PW-28), who claims to have witnessed the appellants quarrelling with Kanhaiya Lal near the place of incident. The police recorded statement (Ex.-Dir2) of this witness on 31st January, 1989. PW-19 ASI Ram Lal Chouhan, l.0., who has recorded statement of Ex.-D/2, has deposed in para-36 that he recorded the statement on 31 January, 1989 as he learned from informers that Brij Lal, Bhagwani and Phool Singh were witnesses of the incident. He has also stated that he did not record the statement of Brij Lal before 31 January, 1989 whereas, Brij Lal himself deposed in para-9 that only 2 days after the incident police interrogated him and recorded his statement. He contradicted the portion 'B to B' of his diary statement that out of fear he did not disclose to anyone and did not come out from his village and that on remembering the incident he still gets frightened. It is incorrect to say that the police recorded his 15 statement after one and half months. In para-17, he has categorically stated that the police did not record any statement one and half months after the incident. He has also contradicted his diary statement wherein he has claimed that the appellants were assaulting the deceased with axe and lathi and has stated that he did not see the appellants assaulting the deceased with axe and lathi. In para-18, he has stated that he had only seen the physical scuffle and thereafter they had run away to their houses. In