CF0000062686 §V THE HIGH GOURT OF JUDICATURE AT JABaMJPUR (1%) CRnximAL MFEAL No. :1 (Egg /99 Gamma; mama! UNDER SEcggom wag; oF'THE (mm 9F cwxmh rm€§§€am ' : l. Modiym"Kmna~“Raa scan of Darla, aged 55years. ~ 2. Tatiram Doria, aged Babu, abouizwal somof Malia years. 3. Ma§irr Dhaxmayya son oi‘ I v Marsa mrla aged about 3lyears. Tati Malia son of Munni- mrla aged about 28 years. Tati Munni scan of pappayya aged abc ut ’46 ygars. Tati Ramlu‘ son of Narsa aged about 29 years. Tat Krista son OE Na fyya, aged abaut 55 yrsyi? 8. Chinta Mutta: son of Bujja Kiaged about 25 years. 9. Modiyem Kanna son of Dula “gaged about 56 yeays; h 10. Chixam Kri staysion of Mutta aged 56 years. ll. Dhurta Hoon ga””’son of Bablu /aged about 29 years. ( 12. Sodhi Kankaygra son of E : iMutta aged about 51 years. j 15. Kaati Bhima,»so’no f ‘ \ g’ ’Lakshmayya aged about 21 years. All cultivators“and resicients of Village Lemkapalli, Police- Station U sur , Di st .Dantewara. M??? -Ver su 5- State of Madhya Pradesh 0‘ 0&2 ” ' CGNXI CT.I.9£ To each of the Appellants U/s 147 Linc. . I U/s 528 I.y.cz/ JOne year R.I. and fine 33.50%» U/s 201 & 50613 Ipc. ” U/s 302 R/w 149 I.P.C. SE EVTEVC one yé§§.R.I. andgfine of $1oo/- 1n default R.I. for one mon’Eh. 5 years R.I. fine 33.500/- i default 5 mormhs BJ/ / 1n default one’month EX. Li fe impr i smnm en}/" ‘ / n HIGH COURT OF CHHATTISGARH BILASPUR D.B: HON’BLE SHE! LC. BHADOO, Ag.C.J. HON’BLE SHRI SUNIL KUMAR SINHA, J Criminal Mal No.2886 of 1999 Modiyam Kanrna Rao and 12 others Vs. State of M.P. (Now Chhattisgarh} Judgment for consideration Sunil Kumar Sinha , £Ud§e i 17,.012037 Hon’ble the Acting Chief Justice. Sdl- Acting Chief Justice V WV ,nw/WV Post for Judgment: z; O 1 . 2007 _ .__HA¥ A M HIGH COURT OF CHHATTI3GARH BILASPUR Criminal Aggeal No.2886/ 1999 Modiyam Kanna Rao and 12 others _Vs_ State of M.P. (Now Chhattisgarh) ‘ Aggearanc : ‘ y ‘ Shn' Rajesh Kumar Jain, counsel for the appennnts. A Shri U.N.S. Dco, Addl. Public Prosecutor, for the State. A a ° JUDGMENT ( 2g 31.2007; Suni! Kumar sinha J —-——-—_..—__;_4 (I) This appeal is directed against the judgment of conviction and order of sentence passed by the Iilst Addl. Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 14/ 1999 whereby the learned Addl. Sessions Judge held each of the appellants guilty of the odence punishable under the following Sections of IPC and oniexed them to undergo sentences as follows with a further direction to run the sentences concutrently: Conviction Sentence u/s 147 IPC R.I. for one year and fine of Rs.100/~, in default of payment of fine, to further undergo R.I. for one month. u/s 328 R.I.> for 5 years and fme of Rs.500/-, in default of payment of dne to further undergo R.I. 3 months u/s 201 & 506 11.1. for one year and tine ofRs.sou/-in (part ii) [PC default of payment of fine to further undergo R.I, for one month. u/s 302 r/w section Life imprisonment 149 IPC 3‘ The appellants were charged with thc o ence punishable u/ss 147, 148, 328, 302 mad with section 149 and 120-3, 201 and 506 (PaJt II) IPC. While convicu'ng them as afommentioned, the lamed Addl, Sessions Judge, acquitted them of the charges u] s 120-B and 148 ofthe IPC. (:2) The brief facts am that the deceased namely Modiyam [Lachhamayya was the Patel of village Lankanpalli. The accused ' : V ‘ Modiyam‘ Kenna Rao was the Sarpanch of the village. He was haviQg inimical relan'ons with the deceased. The mason was that the deceased being the Patel of the village used to object the illegalities committed by the Salpanch as the Saxpanch did not spent the entire Government funds in the developmental works of the village and he used to misappropriate the major portion of it. The son of the deceased namely Modiyam Ramulu gave a Dehatz' Nalishi on 17.10.1998 that on account of all this, the Sarpanch used to instigate the villagers by saying them that his father was practicing witchcraft against them and by using the sentiments of the villagers on the said pretext, on 05. 10. 1998, the Sarpanch called a meeting in the village. He was also present in the meeting. The Sarpanch Modiyam Kanna Rao, continued with the meeting horn 11 — 12 0’ clock till 5 0’ clock in the evening, in which, about all the villagers. Were present. He entered into'c ' inal conspiiacy with the villagers for causing death of his father and the Sarpanch Karma Rao and his associates, namely Taii Rambabu, Madi Dharmaiah, Tati Krishna @ Tati Kidarayya, Chinta Mutta, Dhurta Hunga, Sodi Kanakayya, ’I‘ati Ramulu, Modiyam Kanna, Tati Munni, Tati Mall, Chintam Kn'sta, Kadati Bhima etc., assaulted his father ‘i with hands, shoes and Chappal and théy constrained him to consume stool (excreta) after adding some poisonous substance therein and after consuming it, they sent hjm to his house. His father returned to the house and died after two hours of the jincident. On 06.10.1998, all the above persons came to his house, forcibly took the body of his father and consigned the deceased to flames. The accused Kanna Rao (Smpanch) and his sssooiates also threatened the complainant with dire consequences saying that if he reports this matter to the Police he waould also‘be killed like his father, due to which, he could not lodge the report but when the Police came on investigation of the crime of murder of Sodi Narayan on the report of his son Talam Sammi, he could also dare to lodge the report, on which, the said Dehati Nalishi EXP-8 was recorded. (3) On the above report, the investigating omcer recorded Dehati Merg under EXP-9 on the same day and thereafter, he prepared a Panchnama under EXP-2 on 18.10.1998 in which the cause of death of deceased was recorded by the Village Panchas. On the same day, he seized burnt bone pieces (100 grams), ashes and the soil from the place where the body was burnt under EXP-3, he prepared site plan under EXP-12 and thereaiter, on the basis of seized bone pieces and ashes of the deceased, registered the dist information report under Ex.P10 1’“ against 13 accused persons. The seized articles were sent for chemical examination, After completion of the enquiria charge sheet under sections 147, 328, 302 read with section 149, 12GB and 201 of IPC was tiled on 19.10.1998 in the Court of C.J.M., Dantewada, who in turn, committed the case to the Court of ’ @ Sessions on 04.1.1999 from where the Addl. Sessions Judge, Bastar at Jagdalpur received the case on tansfer and conducted the trial. (4) In order to establish the guilt of the accused persons, the prosecution examined as many as 8 Wimesses, out of which, except the son and Wife of the deceased namely Modiyam gRamum (P.w.6) and Modiyam Mum (P.w.7) and the 1 héesu'gau'ng O$cer R.S. Patel (P.W.8), all other witnesses 1 tuxned hostile. The conviction is based upon the testimonies of ‘ 4 o ‘these three Wltnesses only. (5) Learned counsel for the appellants argued that the pmsecution has failed to establish the homicidal death of the deceased“ He also argued, that the involvement of these appellants have also not been established by the prosecution and these appellants, especially appellant nos. 2 to 13 may be given beneht of doubt. (6) On the other hand, learned State Counsel opposed the above arguments and supported the conviction and sentence awarded by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records‘of the Sessions Trial. (8) So far as the factum of homicidal death of deceased is concerned, it'has been stated by the son of the deceased namely Modiyam Ramulu (awe) that his father died on 5th of october, 1993 on account of consuming stool (excreta) mixed with poison at the instance of Sarpanch Kanna Raoand his associates. His father was Patel of the Village and he was having inimical mlations with Kanna Rao on account ofwhjch, Kanna Rao has called a meeh'ng 1'11 the village and in the said meeting, the ‘ accused persons started beating his father by Danda and legs and thereafter they conshained him to consume stool (excreta) t after adding some poisonous medicine in it. His father was ‘ resisting to consume the same, for which he was again beating § by the accused persons. Atter that his father came to the house Where he died. He has further stated that on the next morning, 1 the accused persons again came to his house and the dead body of his father vi'as taken to the place where it was burnt. He also mentioned about the threatening given by the accused peisons, Almost similar evidence on this point has been g‘ven by the Wife of the deceased namely Modiyam Mutti (P.W.7). Supporting the evidence of her son, she states that the accused persons present in the Court mmdered her husband. Her husband was village Patel and accused Modiyam Kanna Rao was the Sarpanch. He being the Sarpanch called the meeting. She does not know Why the meeting was called. Her husband has gone to the meeting, he was accompanied by her son Modiyam Ramulu, her husband was assaulted by legs, hsts and Dancia. Thereafter some poisonous substance was mixed in the stool (excreta) and her husband was fbrced to consume it which he consumed. She has categorically stated that she had seen the accused persons assaulting her husband. She states that thereafter her husband died in the house. She iinther states that in the next morning the accused persons came to her house and took the body of her husband towards the funeral site Where his Kn‘ya Karma were done by them. She was threatened by them for not disclosing/ ““3“. t /" / x/ ' / the facts to thc others and also for not mporting tha matter saying that if the matter will be reported, they all will be put on flre confining them in their house. (9) Apart hum this, the contents of Panchnama Ex. P-Z would show that the deceased was beaten by the accused persons who ‘ are named in the Parwhnarha and was constrained to consume the stool mixed with poisonous substance, on account ofwhich, he died. The investigating o$cer atter taking Panchnama, has also seized the pieces of bones and the ashes hum the place Where the dead body was burnt, as indicated by the son of the deceased, under EXP—3, which was sent for chemical examination, on which a Ieport EXP-30 was received, according to which, the bones wele of human origin, they wexe bones belong‘ng to some individual. The sex was male, age towalds old. The expert also opined that the cause of death remains 1 opened as no injuiy was evident on the available bones and the duration of the death cannot be said as the bones wele burnt. All above evidence shows that in the first instance the deceased Modiyam Lachhmayya was assaulted with hands, iists and Danda and then he was constlained to consume stool (excreta) mixed with some poisonous substance and after xeceiving such assault by so many persons, he went to his house Where he died and in the next morning his body was fowibly taken nom the house which was bumt. In these ciicumstances, it is festablished that Modiyam Lachhmayya met with a homicidal death. (10) Now the second question axises about the involvement of 'the appellants in commission of the aforesaid odence. It has been stated by the son of deceased Modiyam Ramulu (P.W.6) that the Sarpanch Modiyam Kanna Rao on account of inimical relations with his father convened a meeting on 5th of October 31998 and called his father who was Patel of the village. The teason of animosity was that his father used to object the ; illegalities committed by the Serpanch as he did not make the conect payments to the villagers and his father was always plt‘es‘sing for making correct payments to them, on this Kanna Rao made conspiracy to kill his father. After this, the meeh'ng was called and“ the villagers were provided Alcohol and Kmma Rao also promised to give Rs. lOOOl- each. His father was called in the meeting. He has also gone to the meeting. He was beaten there and was thieatened not to teport the matter to the Police Station, otherwise he will he killed. After this, his father was also beaten by the accused persons by Danda and Legs and thereafter he was constrained to consume stool mixed with poison. When he resisted to take the same he was severely beaten but nnally he was constrained to drink it after beatings and then his father came to the house where he died. In the court statement, this witness has only named the Sarpanch (Modiyam Kenna Rao) but he has not named other accused persons and has only uttered “Karma Rao and his associates”, butwho were his associates is nowhere disclosed in the evidence ‘\\< of this Winiess. Though it comes in the second paragraph of his //examination-in-chief that the accused persons had assaulted his A a \ K father with the help of Danda and legs, but even here also he , p I/ / has not named the accused persons nor identided them from the dock but in vague and general manner he gave an omnibus / statement that the accused persons have done like that. Same is the position of other Witness i.e., the Wife of deceased namely Modiyam Mutu' (P.W.7). She has also named Modiyam ‘Kanna $Rao in her evidence but she has not named other accused .1persons, though she has made statement in the manner saying :that “Hazir Adalat Abhjyuk; Gan” which means the accused ipersons present in the court. F t t i w " :‘(1 1) The argument of learned counsel for the appellants was fthat the evidence recorded in the said manner is not sunicient to 1 A a involve the accused persons, who are neither named in the statement nor idenlilied by the Witnesses, and this vague and general description given by the witnesses in their examination in chief would not be suhicient to hold the accused persons guilty of the ohence. This argument advanced by learned counsel for the appellants was vehemently opposed by counsel for the State.’ Learned State Counsel submitted that the accused persons ale named in the Dehati Nalishi (Ex P—8) as also in Merg intimation (EXP-9) and the F.l.R. (EXP-10) lodged by P.W.6 Modiyam Ramulu, son of the deceased and therefore, when these witnesses are deposing in the manner referring to the words “Abhiyukt Gan Hazir Adalat" , then it should be held that they were referring to the accused persons who were present in the Court and their such evidence is corroborated by \ G the, DehatiNalishi, merg intimation and F.I.R. \\ / (12) It is a settled principle of law that the first informat'on report is a report giving information of the commission of a cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an / ,\ \, \t /\ 1/ ~ ’3 \ \\ / ‘\ < otfance. It is intend€d to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to~writing by the o$cer in charge of the Police Station which has to be signed by the person giving it and the substance themof is required to be entered in a book to be kept by such o$cer in such form as the State Govemment may prescn’be in that behalf. The Iegistration of the F.I.R., empowers the ‘otncer in charge of the police station to commence investigation with respect to the crime reported to him, A copy ‘ 4 I ‘ of the FIR is required to be sent forthwith to the Magistrate empowered to take cognizance of such omce. After recording the F.I.R. , the o$cer in charge of the police station is obliged to proceed in person or depute one of his subordinate odicers not below such rank as the State Government may, by general or special order, prescribe in that behalf to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the on‘ender. The Apex Court has further held that it is a settled principle of law that the F.I.R. is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section 161 of the Evidence Act, 1872 or to contradict him u/s 145 of the said Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. (Please see C2005) 9 SCC 315 — Ravi Kumar ~vs- Stat: \\ / (13) In order to establish the involvement of the accused persons, in commitn'ng murder of Modiyam Lachhmayya and / Punjab). ' 10 that they weIE members of the unlawful assembly, the prosecution thorough these witnesses ought to have adduced the evidence by naming each of the accused that they were ‘members of the unlawful assembly and each of them acted in .jfurtherance of common object of the unlawful assembly or if it :was not possible for the witness to take their names in the Court ievidence, then atleast the witnesses ought to have identined ith‘ese accused by indicating towards each of the accused in their Court evidence that he was member of the unlawful assembly at A A the n'me of commission of crime or their evidence should have been recorded in such a manner which may identify each of the accused, making allegations regarding their involvement in the crime. Unless each of the accused is identified befote the Court or is named by the Witnesses before the Court saying that he took part in commission of the crime either being the member'of unlawful assembly or by adding particular overt act, merely by saying that the accused persons were the members of the unlawful assembly and they had participated in beating of the deceased without their proper identification before the Court either by name or by any other means, which have been stated herein above, they cannot be held guilty of offence on such a week evidence produced against them. (14) There appears to be force in the arguments advanced by learned counsel for the appellants and the arguments advanced by learned counsel for the State that since the accused persons were named in the F.l.R., therefore, the evidence of these witnesses stands corroborated, cannot be accepted. Rather it would be an omission on the part of these witnesses that they @ s ” 11 did not mention the names of persons whom they had mentioned in their earlier statement like Dehati Nalz'shi, Merg intimation, F.I.R., and in their 161 statements and to that extent their evidence cannot be held to be reliable. (i5) In the opinion of this court, the evidenee of these two wiimesses namely Modiyam Rémulu P.W.6 and Modiyam Mutti PIW.7, son and Wife of the deceased, so far as it relates to appellant‘noQ to 13 cannot be accepted and the involvement of a§pelLants no.2 to 13 in both the incidents i.e., in the incident of the village meeting on 05.10.1998 and also in the incident of taking and burning the body of the deceased on the subsequent day are doubtful and they are entitled to be given benent of doubt and we hold it accordingly. (l6) So far as the accused/appellant Kanna Rao (Samanch) is concerned, he is named by these witnesses in their statements and evidence against him is cogent and reliable and his involvement in the incident is, proved beyond masonable doubt and to this extent, the testimony of these two witnesses are corrobomted by each other and also by the F.l.R. etc. Their evidence is held to be reliable to the said extent. (17) So far as commission of oEence u/s 328 is concerned, there is no evidence that the accused persons brought poison wand the deceased was forced to consume the same. In the L\\absence of cogent evidence that in fact the accused peisons were <in possession of some poisonous substance and the same was / mixed in the stool and the deceased was constrained to consume it, they cannot be held guilty of this oh'ence. As we have already i $ .. u /\ / i/ / / x 12 held that the involvement of the Appellants no.2 to 13 is doubtful and there is no positive evidence that even the accused appellant Modiyam Kanna Rao consuained the deceased to consume poisonous subetance, we hold that the prosecuh'on has I‘ltterly failed to establish this oiT’ence against the accused persons. Likewise, oEence ulrs 147 is also not established by cogent and Ieliable evidence. l “* ‘ (18} So far as offences u/ ss 506(part ii) and 201 are concemed, there is evidence of P.W.6 and P.W.7 that they were threatened, but there also; except Appellant no.1, no particular person is named by them and if we read their statements in the context of only one named person i.e., Sarpanch Modiyam Kanna Rao, then these oti‘ences am also not established against other 4 persons. Who wele the persons thleatened them ? Who were the persons causing disappeaiance of the evidence by putting the dead body to the is not established beyond reasonable doubt. Therefore, all the accused persons except appellant no.1 Modium Kanna Rao deserve to be acquitted under these charges also. (19) In the result, this appeal is partly allowed. The conviction and sentences of appellant nos. 2 to 13 are set aside. They are acquitted of the charges framed against them giving beneiit of doubt to them. The conviction and sentence of appellant no. 1 ‘\Modiyam Kanna Rao u/s 302 read with section 149 is _ /maintained. His conviction and sentence u/s 201 and 506 (part // ii) are also maintained. However, this appellant is also acquitted //v of the charges framed u/s 147 and 328 IPC. 13 (20) This Court takes judicial noh’ce that another person WM namely Sodi Narayan was also vicf of almost similar kind of crime, for which, a sepaxate Sessions Trial vide No. 15/ 1999 was sonducted by the same A.S.J., and all the accused persons (the iamsent appellants) were convictzd, against the said conviction an appeal was $ed which was heard and disposed of by the Division Bench of this Court vide Cn'minal Appeal M12942] 19‘9‘9 injwhich 10 accused persons were acquitted. In the said appeal (Cr.A.No.2942/99) one of us (L.C.Bhadoo, J) had presided over the Bench and in that case also, almost similar situation was faced by the Bench and before parting with the judgnent, the said Bench made observations that “it is sad that in. such-heinous c ' e on account of the lapse of investigation, the pmsecution agency’as well as the indiil‘eient attitude of the Presiding Q$cen the above ten accused persons have been acquitted. The perusal of the recon! shows that the investigation has been conducted in a very casual and cavalier manner without realizing the sensitivity of the matter. Equally, the Pmsecutor before the Court has not conducted the case with sincerity. He did not care, while examining the prosecution witnesses, to ensure that the evidence of prosecution‘witness must be adduced in a proper manner about the involvement of each accused. The Presiding Otlicer, who was a Judicial Otlicer of the rank of Sessions Judge, was equally casual and callous while recording the evidence. The manner