TJLLQF ”N’ILélJIiIoI/QIL’WII' C ? mwg yéf/Z l PEAL OF PRISONE [cvu' pears av. é dayghe may be , 'hechar thc prlsontir mshed to b r .Vprcncd n a copy o£ mdgancnt o der pa, ed in o r oE transmlsglon to the proper Appllatu cour. Memo OE Appcal o£ the Apphlllatc cu grt m. amma ‘ 2] \ u— §%§ v , _ DatE w )J \ 7r , E‘orw rdgc to th :1 f i in -; Date o recept ‘ / e Sct or ot \ i ‘ ‘- 'r . x t g 2Q :; ‘v d / ”x XI-HC-22 631la5l mfg” 200 Sat‘sh Prosécutor ahd Shri Akhil Mishra. Panel Lawyer for the State. Heard. 1 Learned counsel for the State pointed out that the appellant has already preferred an appeal be aring Criminal Appeal N0198993 (Sukman & Others vs. The Sta hrough Shri R.K. Jain, ’ Advocate and submits that the Jai appeal is supemuous. Since, Shri R.K. Jain, Advocate has preferred an appeal on behalf of the and the Numer is V. pwwxw Cr. Appeal No. 98/1 993, thekappeal is dismissed as superfluous. l- N A *l Dilip Raosaheb Dekh Judge appellant appeal i’sE/f i Fakhruddin Judge (00%31) l1 e of M.P. t b l a Sd i shmu v L: r: m ma imam mmmw . . v m Wigqww “$‘W3 wiagw Divison Bench :V, Hon’ble Shri Fakhruddin & Hon’ble Shri D.R.Deshmukh, JJ': 18-08-2005 _ This is a jail appeaL Shri Ashish Shukia, Govt. Advocate/Additional Public HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON’BLE SHRI RAJEEV GUPTA, C.J. as \ HON’BLE SHRI SUNI’L KUMAR SINHA, J. Criminal Aypeal No. 98 of 1993 APPELLANTS 1 Sukman S/o Bodku aged about 49 years (Dead- Name deleted) Bansingh S/ o Laxman, aged about 40 years Budhman spn of Laxman aged about 42 years 4 Kana S/o Thosal aged about 44 years (Dead- Name deleted) Somaru S/o Thosal aged about 46 years Jamelal S/o Dhansingh aged about 24 years Nanjat son of Somaru aged about 26 years Dhedram S/o Somaru aged about 23 years All Koshta, Cultivators and residents of Village Mulmula, RESPONDENT The State of M.P. (Now State of Chhattisgarh) APPEAL UNDER SECTION 374 12) OF THE CODE OF CRIMINAL PROCEDURE Appearance z Miss Maya Verma, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. a \ Thana Kondagaon, District Bastar, M . P. (Now Chhattisgarh) Versus 2 Criminal Appeal No. 98 of 1 993 JUDGMENT ( 4.01.201 1) The following judgment of the Court was delivered by Sunil Kumar Sinha, J: (1) This appeal is directed against the judgment dated 21st of January, 1993 passed in Sessions Trial No. 50/88 by the Second Additional Sessions Judge, Bastar at Jagdalpur. By the impugned a judgment, the appellants have been convicted u/ss 148 & 302/ 149 IPC and sentenced to undergo R.I. for 1 year and imprisonment for life with the further direction to run the sentences concurrently. (2) Appellant No.1 — Sukman and appellant No.4 — Kana died during the pendency of the appeal Therefore, their names have g been deleted from the cause-title of the appeal and the appeal filed on behalf of appellant No.1- Sukrnan and appellant No.4 — Kana K stands abated. (3) Appellant No.2— Bansingh, appellant No.3 — Budhman and appellant No.5 — Somaru, after their conviction, have been released on 1.11.2001 and 15.8.2004 by earning remissions, and in this manner, they have already served the sentences imposed against them. 44) Miss.Maya Verma, learned counsel appearing 9n behalf of the appellants, therefore, has pressed the appeal on behalf of appellants 6 to 8 only. It is stated that the above appellants are on a \ bail; \ 3 Criminal Aggeal No. 98 of 1993 (5) The facts, briefly stated, are as under:- Two brothers namely Mehettar and Dhaniram 10st their life in the alleged incident which took place at about 10.00 am; on 23.10.87. In all 16 accused persons were prosecuted for the offences punishable u/ss 148, 302 85 302/ 149 IPC. Accused- Sukman and Jamelal were further prosecuted u/s 324/34 IPC for causing injuries to Gopal Koshta (PW-1). The allegations are that on 23.10.87, the accused persons formed an unlawful assembly, participated in. rioting with deadly weapons and in furtherance of the common object of the said assembly committed murder of deceased Mehettar and Dhaniram. The incident tooki place when the deceased persons were harvesting the paddy crops of a f1eld known as Dumarbeda. The case of the prosecution was based on eye-witness account of Gopal Koshta (PW~1), Rameshwar (PW-4), Jaiman (PW-5), Bannudas (PW-6), Budhyarin Bai (PW—7), Suresh (PW—9) and Shamdei (PW—.1 1). Out of above eyewitnesses, Rameshwar (PW—4) and Suresh (PW—9) turned hostile and they did not support the case of the prosecution. The learned Sessions Judge,relying on the testimonies of remaining eye-witnesses, held that only 8 appellants were responsible for commission of murder of the deceased persons. Therefore, the appellants (accused No. 1 to 8) were convicted and sentenced as aforementioned. However, the remaining 8 accused persons (accused No. 9 to l6) were acquitted of the charges framed against them. Accused— Sukman and Jamelal were also acquitted of the charges framed u/s 324/34 IPC. (6) Miss Maya Verma, learned counsel appearingon behalf of i the appellants 6 to 8, has not disputed the homicidal death of the deceased persons. She argued that in the facts and circumstances ‘ ,7, ,,,,.. ¢ 4 . Criminal Apgea] No. 98 of 1993 of the case, participation of the above 3 appellants was highly suspicious. She argued that the F.I.R. (Ex.—P/9) was lodged by village Kotwar — Sukaludas (PW—3), who was duly briefed by the injured eye—witness Gopal Koshta (PW—1). The F.I.R. contains the names of only 5 accused persons and it does not contain the names of these appellants. Later on, Gopal Koshta (PW-1) submitted a written report in which he mentioned the names of as many as 16 accused persons who were ultimately prosecuted. She also argued on many material discrepancies in the evidence of the above eye—witnesses, on which the Sessions Judge has pa’rtly relied for resting the conviction of the appellants particularly appellants 6 to 8. (7) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. a: ,; ~ i. % (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) Gopal Koshta (PW’I) is an injured witness. 'According to him, he had witnessed the entire incident. The case of the prosecution is that just after the incident Gopal Koshta (PW—1) and Rameshwar (PW-4) rushed to village Kotwar- Sukaludas (PW- 3) and narrated the entire story to him. Sukaludas (PW—3) lodged the F.I.R. (EX.—P/9) within pne and half hour of the incident to police station Kondagaon Which‘is at a distance of 20 Kms from { 5 Criminal Appeal No. 98 of 1993 village Mulmula, where the incident took place. We flnd that the F.I.R. contains all details regarding the incident and it also contains the names of 5 assailants namely Sukman, Budhman, Bansingh, Kana 85 Somaru (accused/appellants 1 to 5). Even it contains the names of the eye-witnesses. However, it does not containthe names of 3 appellants i.e. Jamelal, Nanjat and Dhedram (accused/appellants 6 to 8). Therefore, material particulars are missing in the F.I.R. which ere bound to be w communicated to the maker by the eye~witnesses, and thus, the prosecution story, s'o far- it relates to appellants 6 to 8 becomes suSplClOUS. / (10) The F.I.R. was lodge on 23.10.87. Thereafter on 24.10.87 d Gopal Koshta (PW—l) sumitted a written report (Ex.—P/ 1) to the b police station which contins the names of 16 accused persons. If the 16 accused persons wer really involved in commission of the aforesaid offences, Gopal Koshta (PW-1) would have communicated their nams to Sukaludas Kotwar (PW—3) and in e tum Sukaludas would have ntioned their names in the F.I.R. me Gopal Koshta (PW—1) is real brother of the deceased persons. He admitted in his cross-examination tha after the incident, he met t the village kotwar and narrated the story to im, He further h claimed that he narrated the names of all the 16 accused persons to the’Kotwar. Sukaludas (PW*3) has supported the contents of ‘ the F.I.R. and he very specifically admitted in the cross— examination that Gopal Koshta (PW-1) had disclosed the names of a l . a e 6 Criminal AQpeal No. 98 of 1993 5 accused persons only. He further admitted that even Gopal Koshta did not disclose that the assailants Were more than the above 5 accused persons who are named in the F.I.R. On appreciation of the evidence of Gopal Koshta (PW— 1) in light of the evidence of Sukaludas (PW-3) and the contents of the F.I.R., his evidence, so far as it relates to appellants 6 to 8, becomes unreliable and cannot be made basis of conviction of appellants 6 to 8. (11) Besides the above, we also find that Gopal Koshta (PW-1) was also sent for his medical examination on 23.10.87 and was, / examined by the Doctor at about 6.10 p.rn. on the same day. In the inquest report (Ex.-P/36), sent for examination of Gopal Koshta' (PW-1), the names of only 5 accused persons are there who are named in the F.I.R. If all the 16 accused persons were involved in commission of the aforesaid offence, as claimed by Gopal x Koshta (PW-1) by filing written complaint (Ex.-P/ 1) on 24.10.87, he had an opportunity to tell to the police officer their names on 23.10.87 itself, which he did not do on the said date and filed a written complaint on 24.10.87 mentioning the names of as many as 16 accused persons as the assailants of the deceased persons. This omission also throws doubt on the complicity of the remaining accused persons including the appellants. a (12) Jaiman (PW-5) also claims to be an eye—Witness. In Para-10 of his cross—examination, he admitted that he was detained by the police for 2 days. Even the) police did not allow him to go for Criminal Agpeal No. 98 of 1993 meals. He very clearly admitted that when he took the names of the accused persons, then only he was left by police. According to him, the police personnels pressurized him in the custody for taking the names of the accused persons. ‘He took the names of the accused persons on the threatening of the police that he will be roped in this case» He admitted that on the above threatening only he told the names of the accused persons as the assailants in the said incident. He also admitted in the last para of his cross— examination that he is deposing these facts on the instruction of Gopal Koshta (PW-1). For the above reasons, we do not find his evidence to be reliable and trustworthy. (13) Bannudas (PW—6) deposed that he was present as a labour for harvesting the field. He took the names of various accused persons who assaulted the deceased persons. There are many omissions in his case diary statement (Ex.-D/3) recorded u/s 161 .Cr.P.C. Apart: from the above, he could not depose as to what weapon was carried by which accused person. He could not depose as to how the deceased persons were assaulted. Moreover, he very specifically admitted in cross—examination that accused— Subartin Bai, Sukali Bai and Kundal were not present at the place of occurrence. In fact, he adopted the method of pick 8t choose. His such conduct of deliberately leaving the names of some of the accused persons at the time of trial as also‘many material omissions in his 161 statement shows that it was not safe to rely on the testimony of this witness. 8 (14) Budhyarin Bai (PW-7), another eye—witness, is the widow of deceased Dhanira. After deposing about the incident, she further deposed that hen the deceased pesons died, the accused w r persons uttered that “W m Eff ii w W and thereafter they took the blood of the deceased persons and poured it on a Devi- deity which was at a distance of 100 steps from the disputed field. Thereafter they returned back an started dancing on the dead d bodies o the decesed persons. The eyes of her husband were f a removed after his death. A11 these facts are omissions in her case diary statement (EX.-D) recorded u/s 161 Cr.P.C. Even there /4 are other material omissions in her case diary statement. There are discrepancies in er ocular version and medical evidence i.e. h post—mortem‘ report of' deceased-Dhaniram (Ex.—P/17) in which eyes etc. were not found to have been removed. (15) Shamdei (PW-11) is the wi of deceased Mehettar. She fe deposed that “All 16 persons assauld the deceased persons. te Accused- ana and Somaru were carrying bohnah (a bamboo stick K which is used for taking the crops on shoulder). Other accused persons were holding sickles. All assaulted deceased— Mehettar. They cut (removed) the penis of her husband. They pierced and completely damaged his eyes. They pierced bohnah in his cheek. They also dissected (opened) the abdomen of her husband”. We find that in the post—mortem examination no such injuries were received by deceased- Mehettar. Therefore, there is material a Criminal Appeal No. 98 of 1993 m , 9 Criminal Aggzal No. 98 of 1993 discrepancy in the oral testimony of Shamdei (PW—11) and the post-mortem report of deceased’ Mehettar (Ex.—P/ 18). (16) The above eye—Witnesses were held to be unreliable for the 8 accused persons who have been acquitted by the learned Sessions Judge. On appreciation of the entire evidence of the above eye- witnesses in light of the contents of the F.I.R. as also the evidence of Kotwar (PW—3),‘and Dr. G.S. Bacchu (PW-12), we find that it was not safe to rely on the testimonies of the above eye—witnesses so far as appellants 6 to 8 are concemed,and thevlearned Sessions Judge erred in law in convicting these appellants (appellants 6 to 8) on the basis of testimonies of these eye—witnesses. It appears that after lodging the F.I.R. mentioning the names of 5 accused persons, these witnesses have tried to implicate more and more persons including the 3 appellants herein. \ (17) For the foregoing reasons, we allow this appeal and set'aside the conviction and sentences awarded to appellants 6 to 8. Appellants 6 to 8 are acquitted of the charges framed against them. It is stated that theseappellants are on bail. Their bail bonds vatti are cancelled and sureties stand discharged. l w .Sti/~ Sunii- 2J2a~ Sdl- Kumar sinha ’ l Chief Justice L‘ ‘ Judge a Judge \