INT G C O DIC T CRIMINAL AP?EAL N0. [U®§_ 12062 ‘ABPELLAg T (Appgglant /_. is in jail) o Jim @ Jeevan Nishad, 8/0 Babumn ' Nishad, aged 20 years, R10 Village - Gandadaeh, Police sulion — Dhamdha. Present Address — Mnktidham, Guyanagar, Durg (C.G.) .VERsvs- State of Chhattisguh through Stetion House omeer, Kotwali Police Station, District Durg (C.G.) APPEAL U/S 374 (a! OF THE CODE OF CRIMINAL PEQCEQURE t Qa W/vyOB/a m 2003 WWifW‘WW $3f§mmé¥r APPELLANT: (In Jail) Shrawan Kumar, S/o Bhuwan Das Sahu, Aged abouf 20 year‘s, R/o Before Mukh‘ Dham, Gayu Nagar, burg, Tah. & DisTT. Durg (C.G.) o Versus - l‘ RESPONDENT: smn of ChhafTisgarh. Criminal Apneal N9.1003 of 2002 Jifu @ Jeevcm Nishad, S/o Baburam Nishcxd/ Aged 20 year‘s, APPELLANT: (In Jail) R/o Village: Gandadeeh, Police S‘rah’on: Dhamdha, Presenf Address: Mukfidham, Gayanagar', Durg (C.G.) L Versus — S’ra‘re of Chha‘h‘isgarh Through Sfa’rion House Officer, Kofwdi Police Smfion, DisfricT Durg (C.G.) AND RESPONDENT: APPELLANT/z ‘ (Accusad) RESPONDENTS: cl-;...;..u: Ag-ml—Noeree—of—aeea——— Jani Vadav, aged abou’r 20 year‘s, S/o Baiga Yadav, Mukfi Dham, ' Gaya Nagar, Durg (C.G.) — VerSus — STuTe of ChhaTTisgarh 7A7: Through P.$. Dur‘g. 2. Jae? alias Jeevan Nisad, Aged abouf 20 years, S/o Baburam Nisad, R/o Village Gudadih, Thana Dhamda, Presenf address MukTidham Gayanagar, Durg, Dis’r’r. Durg (6.6.) 3. Shrawan Kumar, . Aged abouT 20 years, S/o Bhubandas Sahu, R/o Village: Makhul, Thana: Churiya, DisTf. Rajnandgaon, PresenT address Muk’ridham Gayanagar, Dis’r‘rDurg (6.6.) (Appeals under Secfion 374 (2) of fhe Code of Criminal Procedure) t \ WW,W,W$ m W ui 200 mm (WW) .u Wm gi 200 WWW WWW WWW WW (W) mmifz‘érm amfawm .. . o Hon'ble Mr. Eiunil Kumar Sinha JJ. 1 2 —1 1 -2007 Mr. N.$. Dhurandhar, No.908/2002. Mr. V.C. Oh‘alwar‘, counsel counsel for The appeHanT in Cr.A. For The appellcm'r in Cr.A.No.IOO3/2002. Mr. Anand Kumar Tiwali, counsel for fhe appellan’r in Cr.A. No.100/2003. Mrs. Anju Ahuja, DepuTy Gav’r. Advocm‘e for The SToTe/ respondent Oral judgmen‘r dic‘rafed on Da/s. L.C. BHADOO J. Cr.A.No.908/2002 filed by Shrilwan Kumar, Cr.A.No.1003/2002 filed by Jifu @ Jeevon Nishad and Cr.A,No.100/ZOO3 filed by Joni Yodav are being disposed of by +his common judgmen’r, as all These fhree appeals are arising ouT of The same incidem‘ and sane judgmenf daTed 31-7—2002 passed by ’rhe 15* Additional Sessions Judge, Durg in Sessions Trial No.62/2000. By These appeals, The appellanfs of The judgmenT of convicTion passe‘d by The 15* Additional Sessions Judge, Durg in Sessions Trial 'No.62/2000 whereby & whereunder learned AddiTional Sessions Judge have quesfioned legaliTy and correcfness 1nd order of senfence da’red 31-7—2002 mmfmw‘o amanéwm offence under Section 302 read wifh S cfion 34 of ’rhe I.P.C., for committing The murder of one Radheyshyam ingh, senfenced each of The accused] To undergo imprisonmem for life nd pay a fine of Rs.1,000/-, in defaulf of payment of fine to furfher unde go RI. for six months. ) Case of The prosecuTion, in brie , is ThaT on 11—9—1999 Nokul Singh (PW-4) came To The house of Toran ingh where Toran along wiTh his broTher Radheyshyam (since deceased) ere consuming Their meals, afTer meal was over, all The Three lefT for Go a square of Goya Nagar in order To chew GuTkha. Near Gora square, ac used Joni Vadav, Jeefu Nishad, Udayram Nirmalkar (juvenile) 6i Shrawan umar Sahu meT Them holding sword, GupTi 6i knife and on accounT of old an mosiTy, all The four aTTacked Radheyshyam wiTh The weapons They were car ying. Toran & Nakul Tried To inTervene, on which JeeTu Nishad, The appella T herein, rushed Towards Them, Therefore, They ran away in The nearby sTr eT. All The four accused persons afiacked The deceased wiTh The weapons hey were carrying and They fled away from The Scene of occurrence. The eafTer, Toran & Nakul again came on The scene of occurrence and saw inJ‘ red Radheyshyam, blood was oozing ouT of his injuries and he was already ead. AfTer hearing The commoTion, Mobin Khan & Eaia Shukla reached on T e spoT. 5 b/D WW a1 200 3mm (W) mmm wmm mwm f a Wj ? t V émfmm . - he sam day aT abouT 8.30 p.m. in Police Sfm‘ion: Durg. He also gave mer‘g im‘imc‘rion Ex.P-9. R.P. Shukla (PW-8) afTeI recording merg infimafion and regisfering The case under EXP—8, requesfed ’rhe Tahsildar‘ under EXP-22 for preparing The si’re map. In The nean ’rirne, MD. Tiwar‘i (PW-9), Inspec’ror‘, received message on wireless ser Tha‘r four boys have affacked one person wi’rh knife, sword & Churi, Therefore, he reached on ’rhe spo’r immediafely and sawVThe body lying in fro ’r of fhe house of Vinod Agrawal. He prepared inquest EXP-10 on Th body of Radheyshyom ond also prepared The siTe plan Ex.D-1. r He seize bloodsToined soil, plain soil, black colour Torn shirT sTained wiTh blood co Taining Two rupees noTe in iTs pockeT, one broken piece of wood of The ha dle of sword covered wiTh plas’ric sTained wiTh blood and one iron piece o handle of The sword sTained wiTh blood. While in police cusTody, piece o sword was seized from accused Shrawan Kumar under EXP-12, one swor was seized from accused Jeevan Nishad under Ex.P—13 and one sword & one knife were seized from accused Jani Yadav under EXP—14. CloThes f accused J'ani Yodav, JeeTu & Shrawan were seized under E><'s.P-18, 19 20, respecTively. One sword was seized from accused Udayram Nirmalk r (juvenile) under EXP—15. Body of The .deceased was senT for posT-mo Tem examinaTion To GovernmenT HospiTal, ' Durg,‘where posT-morTem was onducTed by Dr. A.P. SawanT (PW-2). He d WW W 200 WWW mmm ‘- sharp edged weapons on almosf 'every par‘r of fhe body. Seized arficles were sen? fo Forensic Scienc Laboratory, Raipur under Ex.P~28 from where reporf EXP-29 was receiv d. 5. Affer complefion of invesfiga’ri n, charge shee‘r was filed in The Coyrf of Judicial Magistrate, Firs’r Class Durg, who in iurn commi‘i‘red The case ’ro The Sessions Judge, Durg fro Judge, Dur‘g received ’rhe case o ’fransfer‘ for frial. examined nine wi’rnesses. 7. Earlier, Mr. N.S. Dhurandhar \ / F where learned 15* Addi’rional Sessions 6. The prosecu‘rion in order to esf blish charges against the accused persons St tements of each of the accused were recorded under Section 313 of the Cr.P.C. in which each of the accused either denied or pleaded innoc nce about the material appearing against them in the prosecution eviden e and stated that he is innocent and has been falsely implicated in the c ime. The accused persons examined two defence witnesses namely, Dines Belchandan (DW-1) & Pawan Kumar Sinha (DW-2). Mr. V.C. Offalwar, learned counsel for Shrawan Kumar & Jitu @ Jeevan Nishad, respectively, stated that relatives of the accused persons have ta en file from them. Therefore, notice was sent to the accused persons for making arrangement for representation on mm 0mm) Jw: M/ writs—78 MW In 200 anéw m (Wen Maw WWW WWWIWW $Wm Their behalT and for arguing The appeals. lmr‘ry days' fume was allowed and i’r was fur‘rher‘ direc‘red The? i no counsel is engaged by The accused persons, Mr. N.S. Dhur‘andhar Mr‘. V.C. OTTalwar‘ will be dsked To argue The appeals, as fhe accused per ons are in jail since 1999. Regisfry sen’r f communica‘rions To fhe accused ersons which were served upon them on 4— L‘K 10—2007, bu’r no response has beanreceived fill Today. Therefore, Mr. N.S. Dhurandhar & Mr. V.C. Offalwai were asked To argue The appeals. Their argumenT's were heard. We have also heard Mr. Anand Kumar Tiwari, learned counsel on behalf of accused Jani Yadav and Mrs. Anju Ahuja, DepuTy GovT. AdvocaTe on behalf of The STaTe/respondenT. 8. So far as homicidal deaTh of Rac heyshyam is concerned, same has noT been dispuTed by learned counsel for The appellanTs. Moreover, Dr. A.P. SawanT ,(PW-2) has sTaTed’ in his evide ce ThaT on 12-9—1999 he was working as Medical Officer in DisTricT Hos iTal, Durg, and on ThaT day, he conducTed a posT—morfem on The body of Ra heyshyam. He has sTaTed ThaT as many as 77 incised & cuT wounds were fo nd on The body of Radheyshyam almosT on every parT of The body. As p r.his evidence, windpipe was found cuT, Trachea was also cuT, inTernal p rTs of neck were cuT, There was fracTure of mandible bone aT Three place , righT side 2“, 3rd, 4m, 7”‘ & 9”‘ ribs were fracTuned, 3rd rib of lefT side w s fracTured, sTernum was fracTured, righT clavicle was fracTured and Thr e fingers of righT hand were separaTed. ‘l w mW,W,W WW '81 200 mm (13W) mmm mm wm? %a‘mw 'gh’r lung & left lung. Righ’r & leff parr of hear’r was rupTured. S‘romach was rupTured aT fhree places. $mall & large infesfines were r‘up’rur'ed a’r fhr'ee places. There were cu‘r injuries < n liver & spleen. Kidney was pale. Injuries were an’re-morfem in nature an cause of dea’rh was shock & haemorrhage as a resui‘r of cumulafive effec of cu‘r injuriesg Dea’rh was homig’dai in na‘rure. In view of ’rhe above m dical evidence and posT-mor’rem reporT, iT is esTabIished ’rha‘r ’rhe deafh of» adheyshyam was homiaidai in ncrrure. As far as complici‘ry of The ac u5ed persans in fhe crime in question is concerned, Mr. Anand Kumar Ti ari argued fha‘l‘ in fhis caSe ail The Three eyewiTnesses namely, Toran Sin h Rajpu‘f (PW-3), Nakul Singh (PW-4) and Mobin Khan (PW-5) are inTeresT d wiTnesses, becauSe, Toran is broTher of deceased Radheyshyam, Nakul friend of Toran and Mobin Khan happens To be TenanT of Toran & Radh yshyam. The incidenT Took place in The sTreeT aT abouT 7.45 p.m., There as rhovemenT of public on The road and no independenT wiTness has been amined. Therefore, no expliciT reliance can be placed on The evidence o These eyewiTnesSes. He furTher argued ThaT These wiTnesses have noT cl arly sTaTed as To which accused assaulTed which injury, omnibus evidence as been given, Therefore, baSed on such weak evidence, The accused per ns have been wrongly convicTed. Mr. V.C. ‘ i OTTalwar argued ThaT as per he evidence of Nakul Singh (PW-4) The pi — s - vii ea d i ?”g r‘ q; 9 mmm 3941mm Wwm mm m 200 mm (W) WWWifzém %-3ifan6n%¥r 10 11. the Police S‘rafion before 'rhe repor‘r was accused persons were already iq lodged, how These accused perspns were arresfed I'n advance is nof clear He furTher argued ThaT The prosecuTion r informaTion reporT was senT To The Chief w of The above facTs, The accused persons doubT parTicularly, when iT has come in shyam was a person of criminal record, ruled ouT ThaT on accounT of his criminal n aTTacked by some unknown persons and :n implicaTed in The crime. Mr. N.5. )pearing on behalf of accused Shrawan of Mr. Anand Kumar Tiwari dl Mr. V.C. l from fhe prosecuTion evidence. has failed To prove Tha’r The firs Judicial Magisfrafe, Durg. In vie are en’riTled To The benefiT of evidence ThaT deceased Rad‘he) Therefore, possibiliTy cannot be anTecedenTs, he mighT have bee The accused persons have bei Dhurandhar, learned counsel a; Kumar, adopfed The arguments OTTalwar. On The oTher hand, Mrs. Anju supporTed The judgmenT of The Tr‘ ial CourT. IT is admiTTed posiTion ThaT convicTion resTs on The TesTimony of Toran 1 (PW-4) and Mobin Khan (PW-5). As far p, boTh The eyewiTnesses have sTaTed ThaT Police STaTion. IT is noT a case where aT The insTance of The aCCUSed. IT is also is broTher of deceased Radheyshyam, \ Ahuja, learned DepuTy GovT. AdvocaTe, Singh RajpuT (PW-3),.Nakul Sing as recovery of sword is concerne sword was already preSenT in T reaovery of sword has been made admiTTed posiTion ThaT Toran WE am £3; g To find ouT wheTher iT is cogenfand credible. Similar view has been Taken by The Apex CourT in The maTTer of Narndeo vs. STaTe of Maharasl Tra .. ‘x As far as The evidence Of Mob n Khan (PW—5) is concerned, Torah Singh (PW-3) in para 2 of his evideice has sTaTed ThaT The accused persons aTTacked his broTher and his broTher fell down in fronT of The house of Vinod Agrawal, in The mean Time Singh (PW-4) in para 19 of his evidence has sTaTed ThaT iT is correcT To say ‘ ' 1AIR 2003 SC 976 2 2007 AIR SCW 1835 w‘mx A« g :é ~:. R7 Toran prior- fo The iricidem‘. Now, The law is well seffled Tha’r Tes‘rimony of a wifness canno’r be rgjecfed merely on fhe ground Tha'r The wifness is rela’rive of The vic’rim,‘ buf ’rhe same has f0 be scrufinized wi‘rh are and lcircumspecfion. In ’rhe mai’rer of Rizan and ano‘rher vs. 51'a‘r Secremlj'y, Govt. of Chhaftisg rh, Raipur‘l The Apex CourT held ThaT The relaTionship is noT a facTor To lffecT credibiliTy-of a wiTness. IT is more ofTen Than noT a relaTion wo ld noT conceal acTual culpriT and make allegaTions againsT an innocenT person. FoundaTion has To be laid if plea of false implicaTion is made. In suth a case, The CourT has To adopT a careful approach and analyze evidence Vi 12. ,zrr 2 of 'ChhaTTisgarh, Through The Chief U10” Mobin di l2aja reached on The spoT. Nakul {(3 Wm a1 200 Wm (W) mwfaw‘ra? W m 14 WWW WWWIWW éwimm hc’r Mobin & Ra'a came on fhe s of a ’rer' The Police ire chad There. T d e Moreover, Mobin Khan (PW-5), w o is once said ’ro be The ’renan‘r of Tomn & Radheyshyam, in para 2 of his dence has sfa’red ThaT af abou‘r 7—8 p.m. when he was refurning To Gird ari Nagar‘, he saw Tha‘r near Gor‘a square four persons were ah‘acking on person wi’rh sword, af’rer ’rhe incidenf he came To know The name of Th ic’rim as Radheyshyam. Once upon a Time when This wiTness was already T nanT of Toran, Then how he has said ThaT he came To know The name of T e vicTim afTer The incidenT. Even Though This wiTness has denied The sug esTion in The cross—examinaTion ThaT iT is incorrecT To say ThaT he reache on The SpoT afTer The aTTack was already over and The accused persons fl d from The scene of occurrence, buT The evidence of Toran Singh (PW & Nakul Singh (PW-4) which has been referred above, makes iT clear haT This wiTness in facT reached The spoT afTer The incidenT was already o er. Therefore, reliance cannoT be placed on The evidence of This wiTnes (PW-5) ThaT in facT, he wiTnessed The aTTack made by The accused per ons on vicTim RadheyshyamThaT leaves us To scruTinize The evidence of To n Singh (PW—3) & Nakul Singh (PW-4). Toran Singh (PW—3) has sTaTed n his evidence ThaT on The faTefuI day aT abouT 7.30 p.m. he along wiTh is broTher Radheyshyam was consuming meals aT Their residence, aT haT Time, Nakul Singh came There and 'afTer consuming meals They Ie T for Gora square for chewing GuTkha. i e — ) m W WWW Ime, accuse ea u, and aT’racked his bro’rher‘, whe Jeefu Nishad rushed Towards “H he will kill Them' Therefore, the) The sfreef He has fur‘rher sfa Wt 200 mm (W) mmew %af‘ana1%¥r I mm sword 1 he along wiTh Nakul Tried To intervene em holding sword in his hand and said ThaT i sTarTed crying ‘save save’ and ran Towards ed ThaT The accused persons aTTaQked The deceased on neck chest sTomw h and o‘rher‘ par’rs of The body, (15* also on “4 ~’ % kms. from The place of occurr In cross-examinaTion of These Tv of These wiTnesses. These Two i police case diary sTaTemenTs, bu“ been found in Their TesTimony. I {immedmeiy lodged FIR. Ex.P-s 45 minuTes of The incidenT and The Police STaTion is aT a disTance of abouT 1 ence. The maTTer was reporTed prémpTly. lo wiTnesses, defence has noT been able To eliciT any circumsTance on any maTerial poinT which discrediTs The evidence IiTnesses have been confronTed wiTh Their no maTerial conTradicTion or omission has Their evidence is corroboraTed by The in which names of all The assailanTs and 12 m head, as a resulT of which his troTher fell down In fronT of The house Vinod Agrawal. He saw ThaT his broTher's body was movemenT—less, he was already dead, in The mean Time, The Police came on The spoT and Took The body of his broTher To The hoSFiTal where he was declared broughT dead. He wenT To The Police STaTion and lodged reporT EXP—8. 15. Nakul Singh (PW-4) has corrobo‘aTed The evidence of Tor'an Singh (PW-3) in maTerial par'Ticulars. The maTTer' was reporTed aT abouT 8.30 wiThin 13 (Q injuries menTioned in ‘rhe po‘sf—mor'fem r‘ por‘f and The evidence of Dr'. A.P. Sawanf (PW-2) esfablish fhaf as many as 77 external injuries in The na‘rure of inciSed or cuT wounds have been ound on vifal organs of The body as well as oTher parTs of The body. Ribs were fracTured, sTernum was‘fracTured hearT, spleen, lungs, infesfines veins & museles of neck were‘aISn arres’red along wi’rh The weap‘cns immediately affer fhe incidenT by a l paTrolling police parTy and They were immediaTely Taken To The Police Sfafion where sword and every‘hing were seized. All *These facTors and circumsfances corroborate The "esTimony of Toran Singh (PW-3) & Nakul singh (PW-4). I ere cuT, even windpipe and mos‘r of ’rhe cuT. Moreover, The accused persons were Coming To The argumenT of Mr. Anand Kumar Tiwari Thaf These wiTnesses (PW-3 & PW‘4) have noT sTaTed 1s To which accused inflicTed which injury, in facT as per Their evidence all The four accused persons sTarTed aTTacking The deceased mercilessly wiTh deadly weapons and when They Tried To inTervene, accused Jee"u rushed Towards Them and said ThaT he will kill Them, Therefore, They ran inTo The sTreeT. The aTTack made by The four accused persons wiTh dead y weapons like sword eTc. was so sudden ThaT in such a siTuaTion, iT is diff’culT for any one To memorize or disTincTly l noTice wiTh precision as To which accused aTTacked The deceased on which 1 W mm,m,w ‘1 Now coming To The oT'her poinT ised by Mr, V.C. OTTalwar ThaT The F.I.R. was noT senT To The Chief Jud al MagisTraTe, Durg, perusal of The FIR. (Ex.P-8) shows ThaT There is an dorsemenT ThaT on The some day, copy of ¢ 4 F.I.R. was sem‘ To The C.J.M. par’r of7he body. On fhis co‘un‘r, we‘do noT find any infirmh‘y on The evidence of fhese witnesses. As regards fhe argumenf of Mr. V.C. Offolwar Thaf Nakul Singh (PW-4) has sTa’red in his evidence Thu? wh They reached Police 5TaTion' The’accused persons were already si’rTing o side The lockup, The prosecuTion riias noT broughT on record ThaT how Th e persons arresTed. M.D. Tiwari (PW-9), InspecTor, in para 19 of his evi‘ ence has sTaTed ThaT The accused persons were Taken info cusTody by pa rolling poiice parTy of Puigaon and They broughT Them To Police STaTion: Durg. He has also sTaTed ThaT he himself received message on wireleSs ab u’r The aTTack made on one person by four persons and he reached The sp . From his evidence i’r is clear ThaT when The Police received message reg rding The aTTack, They immediaTely flashed The message To all The police aTrolling parTies, The paTrolling parTy of Pulgaon caughT The accused pers n5 wiTh The weapons and broughT Them To The Police STaTion. Therefore, hey were in Police STaTion, as suchiwe do noT find any subsTance in This ar umenT. z reover, This poinT was noT raised before w 18. e o a i n o W wm Vi 200 mm (W) azn W WWW WMiwm awifanm x 15 W In 200 Wm mm (W) WWW m. . WWW We rm our . Copy of ¥Ee F.I of fhe frial Courf. PW 8 who examined on This aspecf fhm‘ fh has no? been given any oppm Receipf To show ThaT ”the FIR v of fhe Trial Court Therefore, i1 no? senT To fhe C.J.M. No ofher‘ poim‘s were raised by Ie . In view of ’rhe above evidence of prosecu’rion wiTnesses, evidence of Dinesh Belchandan (DW-l) & Pawan Kumar Sinha (DW-Z) is of no help To The accused/appellam‘s. Moreover, argued on This aspecf of mdf'rer'. For The foregoing reasons, we do noT find any illegaliTy or infirmiTy in The cTing The accused persons for commission id wiTh SecTion 34 of The I.P.C. judgmenf of The Trial Cour? conv of offence under Sec’rion 302 re¢ 22 In The resul’r, The appeals are dismissed and are hereby dismiss . Sd/e L.C..Bhadé0 Judge WWdwm am’hmm Mn record recorded fhe FIR. has no‘r been cross- e FIR. was no’r sen’r fo The C.J.M. and he "runify To explain by cross—examina’rion. ‘ias sen‘r To The C.J'.M. is available on ‘B' file cannoT be said ThaT copy of The F.I.R. was :arned counsel for The appeIIanTs. earned counsel for appelIanTs has noT devoid of meriT, They are liable To be d. o sd/— Sunil Kumar Sinha Judge