/"^^"} HIGH COURT OF CHHATTISGARH, BILASPUR SINGLEBENCH: HQN'BLE SHRI R. L. JHANWAR, J. Criminal Appeal No. 131/1993 APPELLANTS Mohanlal and others. Versus RESPONDENT State ofM.P.(now C.G.) JUDGMENT POSTON H NOVEMBER, 2009 Sd/- R-L.Jhanwar Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:10 +0530 •^ -7 A HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR. J. Appellants Accused (in iain Respondent Criminal Appeal No.131 /1993 1. Mohanlal, S/o Chetram Sahu, aged about 37 years. ('Johanlal' was mentioned in the Judgment) 2. Golu alias Ashok Kumar, S/o Shankarlal, aged about 30 years. 3. Pardesi, s/o Sonaoram Bareth - all are residents of Gram Raseda, P.S. Akaltara, Distt. Bilaspur(M.P.) Versus State of M.P. through P.S. Akaltara, Distt. Bilaspur (M.P.) Criminal ARpeal Under Section 374 (2) af the Code of Criminal Procedure Present- Shri V.C.Ottalwar with Shri Akhtar Hussain for the appellants. Shri Rajendra Tripathi, counsel for the State. JUDGMENT (Delivered on 17 /11/2009) This appeal is directed against the judgment of conviction and sentence of order dated 12.02.1993 delivered by learned Additional Sessions Judge in Sessions Case No. 167/88 whereby the appellants were convicted under Section 307 of the I.P.C. and sentenced to rigorous imprisonment for 7 years each. 2. The prosecution story in brief is that on 10.07.1986 at 12.00 p.m. in the night the complainant - Bhagatram was sleeping in courtyard (Parchee) a{ village Raseda and when he awoke for attending nature call, he heard recitation of 'Ramayan' in a loud-speaker from the nearby neighbour. At the same time, the appellant - Johanlal armed with knife, crowbar by Pardesi and Fars/ by Golu came to courtyard (Parchee) and assaulted Bhagatram, as a result of which, the complainant sustained injuries on the beard, back and head. Thereafter, the complainant ^-^?^^ ,^ became unconscious. Hearing the voice of the complainant, his brother Madan came to the spot and he took the complainant to the Police Station with the aid of co-villagers. Due to injuries sustained by him, the complainant was not in a position to speak. Madanlal reported the matter. Bhagatram was admitted into Bilaspur hospital where his dying declaration was to be recorded but in vain because the complainant was not even able to speak. During medical examination, the following injuries were sustained by the complainant: 01. Incised wound was present over scalp extending from left parietal region to temporal region size 6x 2 x 11/^ cm. 02. Incised wound was present over left ear direction towards left temporal to occipital region size 5 x 2Vz x1^ cm.deep. 03. Incised wound was present over left shoulderhorizontal in direction size5 x 2 1/2 x 1^ cm. 04. Incised wound was present over lower left jaw direction horizohtal size 3x1^ x 1 cm. 05. Incised wound was present over left scapular region size 4x1 x 1cm. deep. Doctor opined that the above injures were caused by some sharp and blunt object. For Injuries No.1 & 2, which are grievous in nature, are referred to Bilaspur for X-ray report. Stitches applied with duration of 6 hours. Bloodstained clothes and soil were seized at the spot. Statements of witnesses were recorded underSection 161 Cr.P.C. 3. After completion of investigation, challan was filed before the Chief Judicial Magistrate, Bilaspur, who in due course committed the case to the Court of Sessions Judge. 4. The learned Sessions Judge made over the case to the Additional Sessions Judge, Sakti framed charge under Section 307 of the I.P.C. against the appellants. The charge was read over and explained to the appellants who abjured the guilt, pleaded innocence and false implication. 5. I have heard the learned counsel for the parties and perused the record. 6. The learned counsel for the appellant argued that none was present at the time of incident and for injured Bhagatram, who was not even in a position to identify the accused persons since there was darl. The statement of Madanlal and Amarnath is not corroborated each other. f i^ i In F.1.R. Madanlal stated that he saw Johanlal Nai, Jeevanlal, Fagua, Khaiber Dhobi and Chandram Gond were going towards Bhatapara and therefore, he was under that impression that they could have assaulted his brother whereas in his statement on oath in court he stated that he saw Johan, Goluand Pardesi was running away. He also stated that he lodged report Ex.P.1. He further stated in cross-examination in paragraph 14 that when he lodged Ex. P.1 he mentioned the names of Pardesi and Golu. He also denied that he heard the noise of 4 or 5 persons. He has also stated that in Ex.P.1 he has not reported Johanlal Nai, Jeevanlal, Fagua, Khaiber Dhobi and Chandram Gond were going towards Bhatapara. In this way, in F.1.R, he mentioned the names of above persons and they could have assaulted his brother. If that be so, how this witness came to know that Johan, Pardesi and Golu assaulted his brother. Therefore, the version of Madanlal, Amarnath and Bhagatram is not reliable and they ought not to have adopted pick and choose method to implicate the appellants in this case. Thus, he urged that the appellants be acquitted. Reliance on Rewaram Kalloram vs. State of Madhya Pradesh, 1977 M.P.LJ. 547 by the learned counsel for the appellants in support of his arguments. 7. Bhagatram P.W.1 stated that on 10.07.1986 at night 12.00 p.m. he was sleeping on a cot in courtyard. At the same time recitation of 'Ramayan' was also going on. According to his statement, he got up for attending nature call and after that he was about to asleep, at that time Johan, Pardesi and Golu came to his house. Johan started abusing him and beat him by hand. When he again get up from the cot, he saw that Johan was armed with knife, crowbar (Tafojba/) at the hands of Pardesi and Golu with Farsi and all the accused assaulted him. Johan assaulted him with knife on the beard (chin) and Pardesi and Golu assaulted his back by crowbar and farsi. At the time of incident, the complainant raised shouts and Pardesi and Golu again assaulted him on his head. Thereafter, he became unconscious. He also stated that at the time of incident, his wife, son and daughter-in-law were also present inside the house. However, no member of his family has come to witness the incident. 8. Bhagatram stated that when he was sleeping in the night at courtyard, Johan, Golu and Pardesi came and assaulted him, as stated fr^ ^- 4 above. The incident took place in the midnight at 12.00 p.m. and he was sleeping on cot in the courtyard of that house. According to statement of Madanlal P.W.3, when he got up he lit the lamp and then opened the door meaning thereby there was no light and how Bhagatram seen the appellants and could have identified is not forthcoming in his statement. This also creates a serious doubt. He also stated that there was enmity between him and accused persons. But none had supported this fact. He clearly stated that he was not beaten by Johanlal Nai, Chandram Gond, Khaiber Dhobi, Jeevanlal and Fagua. He only stated thatJohan, Golu and Pardesi assaulted him. In his statement Ex.D.1 he stated the names of Johan, Chandram Gond, Ashok, Fagua and Khaiber but in Court he denied this fact. This shows that he exaggerated his evidence and leftthe names of above persons and added the names of Golu, Pardesi and Johan. Why it was done is well known to him and his brother. It creates serious doubt on whole story. The names of persons mentioned in the F.1.R. and his statement under Section 161 Cr.P.C. have not taken place in the statement of Bhagatram in Court. So many contradictions have taken place in statement of Bhagatram given in Court and F.1.R. Ex.P.1 and also statement Ex.D.1. This is main contradiction. Therefore, his statement is not reliable. 9. Amarnath P.W.2 stated that on 10.07.1986 at about 12.00 p.m. in the night he was going to hear recitation of 'Ramayana'. When he reached the house of Bhagat, he saw Bhagat was assaulted by these three accused/appellants. Pardesi was armed with crowbar (Tabbal), Golu was armed with Fars/' and Johan was armed with knife. After witnessing this incident, he rushed to his house and narrated the incident to his wife and mother and thereafter slept. It is clear from his evidence that they did not raise any hue and cry and did not even call anybody to help the complainant. Again he stated that when he saw Madanlal at Bilaspur Hospital, he narrated the story to Madanlal but Madanlal P.W.3 did not depose this fact in his statement about the incident being witnessed by Amarnath. In cross-examination, Amarnath stated that when he went to the house of Bhagatram in morning, he saw the wife of Bhagatram but did not narrate her incident which he witnessed in the night. According to his statement, it is clear that he had not stated the name of accused persons in his police statement Ex.D.2. It is evident /% from the evidence of Amarnath P.W.2 that he saw the incident but he also stated that after seeing the incident he came back to the house and slept and did not narrate the incident to anybody even to the wife of Bhagat. This act of Amarnath that he saw Bhagatram was assaulted by somebody and did not narrate about the incident is very shocking and against the human conduct. He also stated that when police came to village, he did not narrate the story to them nor disclose before anybody. His house is situated V/z furlong away from the house of Bhagatram and it is not possible for him to witness the incident in the night. Therefore, it is evident that he did not see the incident or otherwise he would have narrated the story when police personnel came to his village and thus his testimony is not reliable. 10. Madanlal P.W.3 stated that on 11.07.1986 at night near about 12.00 p.m. he was sleeping and programme of recitation of (Ramayan' was going on. At the same time he heard screams of somebody and while putting on the light peeped into outside. First he saw towards the place of recitation of 'Ramayan' where nobody was present and two minutes thereafter he saw towards the house of Bhagatram where Bhagatram made a deep sounds expressing pain while sitting on cot. He also stated that after that he saw the appellants Johanram, Golu and Paradesi fleeing from the house of Bhagatram. He thereafter called Nanki, son of Bhagatram and went to the house of Bhagatram and saw the condition of Bhagatram who became unconscious lying on the cot, in the zero power light. He stated that from the injuries sustained by Bhagatram blood was oozing and then with the help of neighbours Bhagatram was brought to Akaltara where a report vide Ex.P.1 was lodged by this witness in the police station of Akaltara and from there Bhagatram was brought to Bilaspur Hospital and he was not in a position to speak out. He also stated in paragraph 9 that at 11.00 p.m. when he got up for attending nature call, he saw Johanlal Nai, Fagua, Khaiber, Chandram Gond and Jeevalal going towards Bhatapara. He further stated that six days after the incident, Bhagatram told this witness that he was beaten and assaulted by Johan, Golu and Pardesi. In cross-examination paragraph 14, he deposed that in his report Ex.P.1 he did not mention that he saw Johan, Golu and Pardesi from the distance of 25 - 30 meters of the house of Bhagatram and they were running away. On perusal of ^.^^ fO "i ^ ^m%s 'w;; t-! f'fif) F.1.R. Ex.P.1, there is no mention about this fact that Johan, Golu and Pardesi were running away. He also confronted with the report Ex. P.1 in which it is written that when he came to outside he heard some voice of persons running away. In F.1.R. jt is written that when he got up he saw Johanlal Nai, Chandram Gond, Jeevanlal, Fagua and Khaiber Dhobi were going towards Bhatapara. Therefore, he doubted that they could have assaulted Bhagatram. In his statement in Court he denied that he did not report the above matter in Ex.P.1 that Johanlal Nai, Chandram Gond, Jeevanlal, Fagua and Khaiber Dhobi were going and expressed his doubt that they could have assaulted Bhagatram. He also stated in cross- examination that his statement Ex.D^_was taken by the Magistrate, Janjgir in which he admitted that namevx)f Pardesi was not mentioned. It is also evident from the statement of Madanlal that he has written the names of Johanlal Nai, Fagua, Jeevanlal, Fagua and Chandram Gond and also Khaiber in F.1. R. whereas he denied in the statement on oath before the Court that he mentioned the names of Johan, Golu and Pardesi. Therefore, his statement is also not reliable because his brother Bhagatram did not inform the names of accused persons to this witness. 11. Ajay Singh P.W.6 is investigating officer, who has stated that he sent Bhagatram for medical examination and also seized one lungi and gamcha, which were bloodstained. He also seized bloodstained soil and plain soil from the spot vide Ex.P.2. He also stated that he has written Ex.P.1 and also recorded statements of Bhagatram, Madanlal and Amarnath vide Ex.D.1, 2 & 3. 12. Having scrutinized the evidence of the above witnesses i.e. Bhagatram, Amarnath and Madanlal led by the prosecution.l am of the considered opinion that the above witnesses especially Bhagatram and Mandanlal have adopted the pick and choose method just to implicate the appellants falsely in this case and nothing else. The learned lower Court relying on the evidence of Madanlal, Amarnath and Bhagatram and also Doctor who examined Bhagatram also erred in believing the evidence of complainant and other witnesses resulting in the appellants were convicted under Section 307 I.P.C. and sentenced by the learned trial Court. 1 r'^ 13. In the result, the appeal succeeds. Conviction of the appellants under Section 307 of the I.P.C. and the sentence ordered against the appellants is set aside. The appellants are acquitted of the charge under Section 307 of the I.P.C. and shall be set at liberty forthwith if not required in any other case. Sd/- R.L. Jhanwar Judge 1