AF^ ^t HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'bleShri Sunil Kumar Sinha, J. Criminal Appeal No. 727 of 1993 Jaichand @ Jaisan & Others Vs. State pf Madhya Pradesh (Now State ofChhattisgarh) JUDGIVIENT _EoLCQD_sjderatLQD_ Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICERAJEEV GUPTA Sd/- Chief Jiisdce ^ /08/2010 Post forJudgment:/0/68/2010 Sd/- i-virwry <^ /08/201Q RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:33:43 +0530 M^. HIGHCOURT OFCHHATTISGARH, BILASPUR COFIAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri SunilKumarSinha.J. Criminal Appeal No. 727 of 1993 APPELI-ANTS 'C 8 10 Jaichand @ Jaisan S/o Asha Ram Ganda Aged about 19 years Bisambhar @ Bisam S/o Mahadeo Ganda, Aged about 29years Beesoo S/o Mahadeo Ganda, Aged about 25 years Kamat @ Kamayu S/o Abbi Ganda, Aged about 25 years Chetan S/o Bhuwanfi Ganda Aged about25years (Dead- Name deleted vide Court orderdated 28.7.2010) Ghasiram @ Ghasi Nayak S/o Bhuwano Ganda, Aged about18 years Padu @ Padu Lochan S/o Kavi Lal Ganda, Aged about 18 years Chhabi Ram S/o Arkhit Garida, Aged about 50 years (Dead- Name deleted vide Court orderdated 28.7.2010 Bhuwano S/o Sado Ganda, Aged about45years (Dead- Name deleted vide Court orderdated 28.7.2010) Pustam S/o Jagdish Rawat Aged about 30 years All Residents of Khawaspara, P.S. Deobhog, Tah. Gariaband, District Raipur (M.P.) (Now State of Chhattisgarh) Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) Through Police Station Deobhog, DistrictRaipur Criminal ATOeal No. 727 of 1993 (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) ApDearance: Ms. Maya Verma, Advocate for the appellants. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (10.08.2010) Following judgment of the Court was delivered by Sunil KumarSinha. J. (1) This appeal is directed against the judgment dated 8.7.93 passed in Sessions Trial No. 220/91 by the Third Additional Sessions Judge, Raipur. (2) Appellants 1 to 7 were convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life and appellants 8 to 10 were convicted u/s 201 of IPC and sentenced to undergo R.l. for 6 months. (3) Appellant No.5- Chetan, appellant No.8 - Chhabi Ram & appellant No.9 - Bhuwano died during the pendency ofthe appeal, therefore, their nameshave been deleted and the appeal filed by them has abated. (4) The facts, briefly stated, are as under:- Deceased-Bhikari @ Mungli was resident of village PaiKpara (Orissa). He was disciple of Radhamal Vaishnav @ Radhamohan Das Vaishnaw (PW-1), who was a pauper and resident of village Khawaspara. On 3,3.90, deceased visited the house of Radhamal. He left his house at about 11.00 a.m. On the same day his dead body was found in a field inthe outerarea ofthe village. There- were injuriesonthe body. Appellant No. 8- Chhabi Ram wentto the police station along with appellant No.9- Bhuwano and appellant Cruninal Auoeal No. 727 of 1993 No.10- Pustam and lodged themerg intimation (Ex.-P/22), based on which the First fnformation Report was lodged. In the merg intimation, they did not disclose that the deceased diedonaccount of assault made bythe accused persons. On 4.3.90, the Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/23) to the Panchas, prepared inquest (Ex.-P/11)on the body of the deceased and the dead body was sent for its post- mortem. The post-mortem examination was conducted by Dr.K.L. Banjare (PW-13), who prepared his report Ex.-P/16. He notice following external injuries on the body ofthe deceased:- (i) Swelling over middle of the forehead, size 7cm. x 5 cm.; (ii) Lacerated wound over middle of the forehead extending towardsleft side, size 5 cm. x % cm. x % cm. & (iii) Lacerated wound over root ofnose, size1/2 Gm. x % cm. x1/4cm. Clotted blood was found beneath injury No. (ii) & (iii). On internal examination, he found that the left lung was adherent to chest walland was highly affected from some disease. He also noticed that the spleen was highly enlarged to the size of21cm.x 18 cm. The Autopsy Surgeon opined that injuries were ante- mortem and the causeof death was shock on accountofabove injuries and the disease of lung and spleen. In further investigation, statements of eye-witnesses, including Radhamal Vaishnav (PW-1), were recorded who stated that theappellants had assaulted the deceased by lathis and hands & fists. Thereafter the appellantswere taken into custody and their memorandum statementswere recorded and /a /s were seized at their instances. Seized articles were sent for their .chemical examination to Forensic Science Laboratory, Sagar, from wHere, a report (EX.-P/33 & P/34) was received. According to the F.S.L. report, no blood stains were found on the four /affi/s sent for their' examination and bloodstainsWere found only on the stained soil seized from the place of occurrence. Crimmal Aopeal No. 727 of 1993 Thecase ofthe prosecution was based upon the eye-witness account of Radhamal Vaishnav (PW-1 ), Bayaram (PW-2), Ramcharan (PW-3), Dhansingh (PW-4), Pandu (PW-5) and Dhenuram (PW-6). Out of the above witnesses, except Radhamal Vaishnav (PW-1), all turned hostile and they did not'support the case of the prosecution. The learned Sessions Judge, relying on the sole testimony of Radhamal Vaishnav (PW-1), convicted and sentenced the appellants as aforementioned. (5) Ms. Maya Verma, learned counsel appearing on behalf of the appellants, argued that the testimony of Radhamal Vaishnav (PW-1) is not reliable; his evidence is unnatural; there are material contradictions in his evidence; he did not disclose the incident to anybody for more than 2 days; and there are many discrepancies in his evidence, therefore, the conviction based on sole testimony of single eye-witness cannot be sustained. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) It is not doubt true that the conviction can be based on sole testimony of a solitary eye-witness but in order to be the basis of conviction his evidence must be natural and his testimony should be strong and reliable and free from any blemish so as to create any doubt on such testimony. In a criminal case what is importarit is not how many witness has been examined by the prosecution but what is the nature and Y// ^.. ^ ""il Bi w ^ CriminalApcealNo.727 of 1993 quality of theevidence on which the prosecution relies. It is in this background, the evidence of Radhamal Vaishnav (PW-1) has to be examined critically. (9) Radhamal Vaishnav (PW-1) deposed that deceased-Bhikari @ Mungli was his disciple. On 3 of March 1990, the deceased visited his house. When the deceased left his house for going to village Paikpara, he went to a nearby house where a marriage ceremony was being performed. Bayaram (PW-2) came in the marriage house and told that some persons are quarrelling with the deceased. On this, he went tothe place of occurrence and saw that appellants 1 to 7 were assaulting the deceased by lathis. He had talked with the appellants, on which appellant- Kamat threatened him. Thereafter he returned to the marriage house and sent some persons to save the deceased. The persons who went to the place of occurrence returned and told him that the deceased has died. In the cross-examination, he was confronted with his 161 Cr.P.C. statement (Ex.-P/1), in which, he deposed that when the deceased left his house, he himself heard his cries. He came out from his house and saw that the above accused persons were assaulting the deceased. The other contradiction was that in 161 statement, he categorically stated that when he reached to the place of occurrence Dhanno, Jaharpal, Pustak, Dhansingh, Ramchand, Dhenu, Pandu, Bhakalu, Sheshu, Deju etc: were also present there and they were seeing the assault, which he had denied in his court evidence. When he was faced these statements, he stated that he did not depose like this before the police. Though, he claims to see the incident from a distance of 5-6 gaz, but he could not tell that out of the above 7 accused/appellants, who 1. 1 13' / ^^'yk—^9'^ Criminal Apueal No. 727 of 1993 were armed with /a /'s. Even he could notspeak that amongthe above accused persons, who in fact, assaulted the deceased and who was merely standing. We note that according to the post-mortem, the deceased received only 3 external injuries. They were superficial injuries and there were no corresponding internal injuries to the above injuries. If, in fact, 7 persons were assaulting the deceased in the above manner, as stated by PW-1, such discrepancy in his oral testimony and medlcal evidence would not have occurred. (10) We note yet an another important factor in the testimony ofPW-1, that he deposed in the cross-examination that after 2-4 hours of the incident, he had gone to see the dead body ofthe deceased and at that time also all the 7 appellants (A-1 to A-7) were present at the place of occurrence and they had threatened him. In normal conduct, the assailants would immediately try to run away from the place of occurrence. Why they will remain present for 4 hours on the place of occurrence. This is also an exaggeration which creates doubt on the testimonyof thiswitness. Apart from theabove, we also note the conduct of PW-1 that he did not disclose theincident to the police prior to 5.3.90 when his 161 Cr.P.C. statement was recorded. The deceased was his disciple. On the fateful day, he has visited his house and immediately after his departure from the house of PW-1, the incident took place. According to PW-1, he witnessed the incident and he was threatened by the accused personsat that time and even after 4 hours of the incident when he again went to the placeof occurrence, he again saw the accused personswho again threatened him, but he did not make a report ^ ! ^ ' ' . ' : ;' immediately to the police on his own neither he informedthe police about I .^f Criminal Aptieal No. 727 of 1993 the incident on 4.3.90 when the inquest etc. was being done and he disclosed atl this on 5.3.90 onlywhen his 161 statementWas recorded. (11) In the above facts and circumstances of thecase, we feel it unsafe to rely on the testimony of Radhamal Vaishnav (PW-1). For the foregoing reasons, the conviction basedon the sole testimony of Radhamal Vaishnav (PW-1) cannot be sustained and the same deserves to the set- aside. (1:2) In the result, the appeal is allowed. The conviction and sentences awarded to theappellants u/ss 302/34 & 201 IPC are set-aside. They are acquitted of the charges framed against them. It is stated that the appellants are on bail. Theirbail borids are cancelled and sureties stand discharged. Sd/- Chlef Jusdce Sd/- Sunil Kumar Sinha Judge vatti