.^?3"'% HIGH COURT OF CHHATTISGARH. BILASPUR 3°-ll')c> CORAWI; Hon'bleShri RaieevGupta. C.J. & Hoj^bl&ShnSunLI Kymar^inha, J. CriminalApBealNo. 681 of 1993 Mahant Pathak @ Bulthu Pathak Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunii Kuniar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA Sd/- CSiiefJustice a^ Post for Judgment :3>o/11/2010 Sd/- Sunil Kumar Sinha Judge •-••^ l' 1; " ^" .r. 1 i;:r''&-":y Eil!^j^ '^^:s^^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. 3o.'t|^b .StSBi APPELLANT RESPONDENT Criminal Appeal Np. 681 of 1993 •» Mahant Pathak @ Bulthu Pathak, S/o Shri Ratan Lal Pathak, Aged about 28 y'ears, R/o Kankali Para, Raipur, Tah. & District Raipur, MP (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh), Through Station Incharge, Police Station, Azad Chowk, Raipur (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. SurendraSingh, Senior Advocate with Mr. Neeraj Mehta, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (30.11.2010) Following judgment of'theCourt was delivered by Synil Kumar Sinha.^ (1) This appeal i§ directed against the judgment dated 19.5.93 / passed in Sessions Trial No. 206/92 by the Third Additional Sessions Judge, Raipur. (2) By the impugned judgment, the appellant has been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. "\. ^ Criminal Apoeal No. 681 of 1993 (3) The facts, briefly stated, are as under:- Deceased- Rajkumar was running a betel shop in Lili- Chowk, Raipur. The case of the prosecution is that on 8.2.92 at about 9.30 p.m., when the deceased was closing his betel shop, the appellant and another assailant namely Bhuru came there and assaulted the deceased by knife. Dinesh Kumar (PW-1 - brother ofthe deceased) sawthe incidentand lodged the First Information Report (Ex.-P/1) in police station Purani Basti, Raipur, on which an offence u/s 307/34 IPC was registered. Later on, the F.1. R. was transferred to police station AzadChowk, Raipur, where F.I.R. No., 39/92 (Ex.-P/1-A) was registered. The deceased died during the course of his treatment in hospital. The Investigation Officer reached to the hospital, gave notice (Ex.-P/S) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. The dead body of the deceased was sent for post-mortem. The post-mortem examination was conducted by Dr. Arvind Nirulwar (PW-11). The post-mortem report is Ex.-P/10. He noticed multipie incised wounds, including stab wounds, on the body of the deceased and opined that the cause of death was syncope due to haemorrhage and-shock on account of multiple injuries caused to the deceased. The injuries were ante-mortem caused by sharp cutting weapon. The death was homicidal in nature. During the course of further investigation, the appellant was tak.6n into custody and his memorandum statement (Ex.- , P/8) u/s 27 ofthe Evidence Act was recorded on 20.2.92 and a knife was seized at the instance of the appellant vide seizure memo Ex.-P/9. The seized articles, including the knife, were sent for their chemieal examination to Forensic Scienee Laboratory, Sagar, from where, a report Ex.-P/12 was ;; 'received. According to the F.S.L. report, blood stains were .v': . ^ • • ' ' 'f^ ^-1. ^.,. •'y -\. A Criminal Aooeal No. 681 of 1993 found on the cloths of the deceased, whereas, no blood stains were found on the knife allegedly seized from the possessions oftheappellant. According to the F.1.R., lodged by Dinesh Kumar (PW-1 - brother of the deceased), Bhuru @ Ashok Sindhi was the other assailant who was accompanying the appellant and who also inflicted injuries to the deceased. Therefore, Bhuru was also arrested and the case was registered against the appellant and Bhuru @ Ashok Sindhi and remand was taken for both of them. However, on 15.5.92, the Investigating Officer filed an application before the remand Court for discharging co-accused - Bhuru @ Ashok Sindhi on the ground that in the investigation, it was found that Bhuru was not at all involved in commission of the said crime. On this application, Bhuru was directed to be released by the concerned Magistrate and was discharged from the said offence at the stage of remand itself on 15.5.92. The charge- sheet, therefore, was filed against the appellant alone and the matter was committed to the Sessions Court, from where, it was received on transfer by Third Additional Sessions Judge, Raipur, who conducted th'e trial and convicted & sentenced the appellant as aforementioned. It appears that after conviction of the appellant in Sessions Trial No. 206/92 on 19.5.93, another charge-sheet was filed against accused- Ikram Ullah Khan in the year 1994. In the/said charge-sheet, the prosecution came with the allegations that, in faQt, Ikram Ullah Khan was accompanying the appellanton 8.2.92 and the appellant & Ikram Ullah Khan were the assailants of the deceased. The said charge-sheet became thesubject matter of Sessions Trial No. 272/94 which was conducted by the Second Additional Sessions Judge, Rsiipur.In the said Sessions Trial, the learned Additional a, ^ Crimmal Apneal No. 681 of 1993 Sessions Judge acquitted accused- Ikram Ullah Khan vide judgment dated 16th February,2001. (4) In the present matter, the prosecution examined 4 eye- witnesses. They are Dinesh Kumar Soni (PW-1), Prashant Sharma (PW-2), Maniram Soni (PW-3) and Rameshwar Prasad Choudhary (PW-6). Rameshwar (PW-6) turned hostile and he did not support the case of the prosecution. Prashant Sharma (PW-2) Was disbelieved by the Sessions Judge. hlowever, the learned Sessions Judge relied on the testimonies of Dinesh Kumar Soni (PW-1) and Maniram Soni (PW-3) and held that the appellant along with another assailant committed murder of the deceased by assaulting him by knifes. (5) Mr. Surendra Singh, learned Sr. Advocate appearing on behalf of the appellant, argued that the prosecution came with different stories at different point of time. Even they got evidence to that effect also, therefore, the entire case of the prosecution is under shadow of doubt. He further argued that both the eye-witnesses i.e. Dinesh Kumar Soni (PW-1) and'Maniram Soni (PW-3) arethe got- up witnesses; there are many discrepancies in their evidence and their testimoofes are not reliable to rest the conviction of the appellant. \>. (6)' Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. ;&ESzEEi Criminal Apceal No. 681 of 1993 (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) According to the F.1.R. (Ex.-P/1) two assailants namely appellant-Bulthu Pathak and Bhuru participated in commission of crime. This is clear from the contents of the F.1.R. promptly lodged J by the brother of the deceased namely Dinesh Kumar (PW-1) who claimsto be an eye-witness. On account of this report, the appetlant and Bhuru @ Ashok Sindhi both were arrested. The records of the sessions trial would show that on 27.2.92 a btood stained knife was also seized at the instance of Bhuru @ Ashok Sindhi and the same was also sent for its chemical examination to F.S.L., Sagar through memo Ex.-P/12. This is clear from the contents of Ex.-P/12. This wasarticle-C. According to the F.S.L. report, blood stains were not found on article-C. Upto 15.5.92, the prosecution went on investigation on the line that the appellant and Bhuru @ Ashok Sindhi were the two assailants. Thereafter on 15.5.92, an application was moved by the Investigating Officer before the remand/committal Court to discharge Bhuru @ Ashok Sindhi be.cause according to him, on the investigation, it was found that • Bhuru @ Ashok Sindhi was notat all involved in the said incident. Bhuru @ Ashok Sindhi, therefore, was discharged. Later on,in their • further investigation, the prosecution eame with the case that.in fact, Ikram Ullah Khan was the personwho was involved in the said jncident and a charge-sheetwas filed against Ikram Ullah Khan in ^ .•i: .:^"':.A fe %>,.jsy ../ Cruninal Appeal No. 681 of 1993 the year 1994. This was the third stand taken by the proseGUtion in this matter. It is therefore clear that the prosecution came with different stories at different point of time so far as involvement of the assailants are concerned'and the prosecution was not sure about theassailants till the filing'ofthe second charge-sheet against Ikram Ullah Khan. (9) Dinesh Kumar Soni (PW-1 ) deposed that on the fateful night, he saw that the appellant and another assailant, whom he does not know by name but he can identify by face, came there on foot and both assaulted his brother by knifes whjch they were carrying. He took his brother to thepolice station on a rickshaw and thereafter he took him to D.K. Hospital, Raipur. He had lodged the F.1.R. to the police in D.K. Hospital, Raipur. He identified his signature on the F.1.R. (Ex.-P/l). There are many contradictions in the evidence of this witness. In the F.1.R. (Ex.-P/1), he deposed that the appellant was accompanied by Bhuru, whereas in his court evidence, he did not take the name of Bhuru and simply deposed that he can identify the other assailant. He was also contradicted by his police case diary statement (Ex.-D/1), where he had taken the name of Bhuru @ Ashok SindMi. He denied to take the name of Ashok Sindhi in his 161 statement. He was furfher contradicted on manyother points. In 'appreciation, we find that initially, he had involved Bhuru @ Ashok Sindhi as one of the assailant, but later on he left him and he only made statement against the appellant. It is on the report of this •^-^'./ '•<B, '''SF' '<i; :-.. ^'^ Criminal Apceal No. 681 of 1993 A.,, •<'\ witness and his 161 statement, Bhuru @ Ashok Sindhi was made an accused, but later on the prosecution found that he was no at all involved in crime in question and forthat reason Bhuru was got discharged by the prosecution in the above manner on 15.5.92. This makes two things clear, first that even according to the prosecution, Bhuru @ Ashok Sindhi was falsely implicated by PW-1 in F.I.R. and in his 161 statement; and the second, that the prosecution got the evidence of false seizure of blood stained knife at the instance of Bhuru @ Ashok Sindhi and sent it for chemical examination to F.S.L., Sagar. Dinesh Kumar (PW-1) very specificallydeposed that he lodged the F.I.R. in D.K. Hospital, Raipur, whereas, the contents of the F.1.R. (Ex.-P/1) would show that it was not in form of dehatinalishi but it was in the prescribed format of taking a report u/s 154 Cr.P.C. and the above report was lodged in the police station- Purani Basti, Raipur. The above contradictions and variance in t)ie evidence ofthis witnesscreates a serious doubt on his testimony. It also creates doubt on the conduct of the prosecution and the investigation, in which the false seizure of weapon from the possession of Bhuru @ Ashok Sindhi was made alleging that it was staihed with blood like substance. The tendency of thiswitness to falsely imp'licate an innocent person makes his evidence full of doubts. (10) ManiramSoni (PW-3) deposed that "On the fateful night he was present -near the place of occurrence and he saw that the '•^-" "~ "s. A ^ ^ ^ .'? ^' Criminal Apoeal No. 681 of 1993 appellant was assaulting the deceased by guph'and knife. He very clearly deposed that another person was also with the appellant. The assailants ran awayafter assaulting the deceased. Thereafter the deceased was taken-to the hospital". hle was confronted with his casediary statement (Ex.-D/3). In his case diary statement, he had stated that the appellant was accompanied by Bhuru @ Ashok Sindhi, who was also armed with knife and who also assaulted the deceased by knife. Whereas, in the court evidence he omitted the name of Ashok Sindhi. Even he went to the extent to say that he does not know Ashok Sindhi. When he was faced with above case diary statement, he could not explain the said contradiction and said that these things have been wrongly written in his case diary statement. This was a material contradiction in the evidence of this witness which makes him unreliable. (11) It was argued before us by learned counsel for the State that the evidence of above two eye-witnesses are intact against the appellant, therefore, the conviction of the appellant on the basis of testimonies of these twq witriesses was justified. We are unable to accept this argument in light of the above discussion. In our - - considere^ view, the evidence of these two witnesses were not fully reliable ahd they were th& infirm witnesses. In MuluwaS/o Binda and others -Vs- The State of Madhva Pradesh, AIR 1976 SC 989, it was held that the evidence of an infirmwitness does not \, become reli'able merely because it has beencorroborated by a '•x-; '" • ^ /! Criminal Appeal No. 681 of 1993 number of witnesses of the same brand; for, evidence is to be weighed not counted. In the present case, we do not find the overall conduct ofthe witnesses to be credibleand trustworthy. (12) On appreciation of entire evidence of these two witnesses and the above conduct of the prosecution, which changed the face of its case at many occasions, we are of the opinion that the conviction based on the testimonies of these 2 witnesses cannot be sustained. The testimonies of these witnesses are highly suspicious and the Sessions Judge erred in law in relying on their testimonies to rest the conviction ofthe appellant. (13) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302/34 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled andsurety stands discharged. Sd/- Chief Justice Sd/- SunilKumarSinha Judge vatti