HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon’bl'e Shri Rajeev Gupta, C.J. r& Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 616 of 2004 AP‘PELLANTs 1. Ramsagar aged 48 years, S/o. Ganesh Kenwat 2. Rajkumar, aged 25 years, S/o Ramsagar Kenwat, Both R/o. village Belari, P.S. Shivari Narayan, Distt. Janjgir—Champa [\ Versus ; i RESPONDENT B State of Chhattisgarh Through — District Magistrate Janjgir-Champa (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Shri Ravindra Agrawal, Counsel for the appellants. Shri Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (4.09.2008) Following judgment of thie Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment of conviction and order of sentence dated 28.02.2003 passed by the Fourth Additional Sessions Judge (F.T.C.) Janjgir in Sessions Trial No. 436/2001, whereby the appellants have been convicted under Section 302 IPC and ‘v sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.100-100/-, in default of payment of fine to further undergo R.l. for 1—1 month. \ 2 Criminal Appeal No‘ 616 of 2004 (2) The case of the prosecution is that on 13.8.2001 at about 7.30 a.m. deceased- Pardeshi Kenwat was working in his field. The allegations are that the two appellants, who are the father and son, assaulted the deceased with Lathi and Chatwar (an agricultural equipment fitted with sharp edged iron portion). Three eye witnesses l namely- Bahartin Bai (PW-1), Ku Sunita (PW-4) & Nihal (PW-5) had witnessed the occurrence. Nihal immediately rushed to Babulal (PW-8), who‘was working in a nearby field. Both came to the place of occurrence and they put the deceased on a dry place as he was lying at a watery ‘ £ place. At that time, the deceased was alive but he was severely injured, therefore, he was not in a position to speak and he died after sometime. (3) PW-5, Nihal, lodged the First Information Report (Ex.-P/10) and the merg intimation (Ex.-P/9). The Investigating Officer reached to the place of occurrence, gave notice (Ex.—P/1) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body of the deceased was sent for post mortem to Government Hospital, Shivari Narayan, where the post mortem examination was conducted by Dr. Mohan Lal Sahu (PW-15), who prepared his report Ex.-P/14. The Autopsy Surgeon noticed multiple lacerated and deep incised wounds on the body of the deceased. On internal examination, he found that there were depressed fractures of occipital and cranial bone and there were other fractures also and there were subdural haemorrhage in brain, brain membrane and occipital region. The brain membrane was ruptured with intracranial haemorrhage.‘ Right lung was ruptured and there was aCCUmulation of blood in thorasic cavity. He opined that the @ 3 Criminal Appeal No. 616 of 2004 cause of death was profuse bleeding from wounds and mode of death was syncope due to extensive haemorrhage and death was homicidal in nature. (4)3 In further investigation, the appeilants were taken into custody and their discovery memos (Ex.-P/3 & P/4) u/s27 of the Evidence Act were reeorded and accordingly, Lathi ‘8‘ Chatwar were seized under Ex.-P/5 & PL6frespectively. Other articles were also seized and the seized articles were s‘ent for their chemical examination to Forensic Science Laboratory, Sagar, from where, the report (Ex.—PIZO) was received. i According to the F.S.L. report, humantblood was found in cloths of the deceased, whereas, blood stains were found on Danda seized at the instance of appellant- Ramsagar but their origin could not be determined. However, no blood stains were found on Chatwar seized at the instance of appellant- Rajkumar. (5) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate Eirst Class, Janjgir, who in tum ' committed the matter to the Court of concerned Sessions Judge, from where it was received on transfer -by the Fourth Additional Sessions Judge (F.T.C.), Janjgir, who conducted the trial and convicted and sentenced the appellants as aforementioned. (6) The conviction of the appellants is mainly based upon the ‘) testimonies of 3 eye witnesses Le. Bahartin Bai (PW-1), Ku. Sunita (PW- 4) & Nihal (PW-5) support by other evidence on record. \ 4 (7) Learned counsel for the appellants has not disted the homicidal pu deth of the eceased. He argued that version of the eye witneses a d the s wo show that,,i fact, they have not witnessed the occurrence. PW-1, Bartin Bai, and (PW-4), Ku. Sunita, cannot se the occuence in the sitin in which they have claimed to witness it. About W—5, Nihal, it wa argued that on appreciation of his evience, it would apar that he rehe to th scene f ocrenc after the mait was er and he had not seen the appellant assaulting the deceased. I? uld n ah e rr tuao P s d pe acd e o cure rp ov V? (8) On the thr hand, learned cunsel for the State opposed these . oe o ‘ argments and supported the judgent passed by the trial Court. u m (9) We have heard the learn nsel f the parties at length and ed cou or have also perused the rords of the sessions case. ec (10) PW-1, Barn Bai, deposed that on the fateful da at aout 7.00 hati y b a.m she was present inside her house. After hering hue and cry, she ., a came in the courtyard and saw hat the appellants were asaulting th t s e deCeaed in his field. Appellant amgar was armed with Lathi and apellant Raju was armed with Chatwar. At that time, brother (cousin) of p the deceased, Nihal was going towards the field,whom she stopped. The deceased died on the spot. In cross examition, she deposed that na she had seen the instance from a ditances of 300 yards; she cannot tell s as to how the instance began; s admitted that she could only identify he t appellants from their voice. She ver specifically admitted that it is he y true to say that Nihal (W-5) reached to the place of occurrence after the incident Was over. PW-1 has admitted in her cross examination that / l Criminal Appeal No. 616 of 2004 s s Rsa P 5 éK‘ Criminal Appeal No. 616 of2oo4 se was not knowing the appellants prior to the said incident. She had net gone to their house and she had seen them 1-2 months prior to the InCIdent and there was no Intimacy between herself and the appellants ln this state of eVIdence when the appellants were not preVIously known to this Witness and she had no prevrous occaSIon to Interact wrth them it ldoes not appear to be reasonable to believe that she must have identitied the appellants by their voice. Her claim in examination-in-chief thatashe saw the appellants assaulting the deceased gets abolished by her admission that she could only identify them by their voice. Moreover, l A ’ it does not appear to be true that in a cloudy weather day, she would have been able to identify the appellants from a distance of 300 yards and to say that who was holding which weapon. Therefore, in light of the above features, the evidence of this witness does not appear to be reliable. At the most she may have heard hue and cry and with an intention that some untoward incident may not take place, she may have stopped Nihal (PW-5). (11) PW-4, Ku. Sunita, was aged about 15 years. According to her evidence, she saw that at about 7.00 a.m., both the appellants were assaulting the deceased with Lathi and C‘hatwar and she had prayed to them by folded hands that "please do not assault Pardeshi”. At that time, no other persons of the village was there. She started weeping, then, appellants left the place of occurrence. ln the cross examination, in Para-5, she admitted that she had not gone to the place of occurrence and had witnessed the occurrence from her house. She further admitted that- her house is at a distance of ‘100 yards from the place of x; h ‘> 6 Criminal Appeal No. 616 of2004 Qccurrence, from where, she had witnessed the occurrence. She further admitted that it was the month of Sawan-Bhado and the day was a ctoudy day. She said that the marpit continued upto 1 hour. She admitted in Para-3 of her cross examination that she was not knowing the names of the appellants, therefore, she had not mentioned their names in her police case diary statement, Ex.-D/1. How the names of the appellants have been mentioned in her statement by the police, she c‘a'r‘f mot tell the reason for it. Even, she had not told the name of deceased and how all this is written at place A-A, B-B & C-C in her ‘ A police case diary statement, she cannot say. In light of the above admission, it does not appear that, ‘in fact, she had witnessed the. occurrence. In examination-in-chief, she says that she prayed with folded hands to the appellants to leave the deceased, whereas, in the cross examination, she says that even she had not gone to the place of occurrence and she had seen the occurrence from a distance of 100 yards. In View of all this and in view of the material contradictions from her police case diary statement, her testimony also does not inspire s confidence of the Court and we are afraid to place reliance on her testimony. t (12) PW—5, Nihal, deposed that on the fateful day, he was going on his bicycle to his field. As soon as he reached near Dabri tank, he heard noise of two persons. Then he saw that the appellants were assaulting the deceased with Lathi & Chatwar. He went towards that place. ln the way, wife of Nanku (Bahartin PW-1) stopped him and said with folded hands that-“please do not go to the place of occurrence, murder has 7 é? Criminal Appeal N0. 616 of 2004 taken place, you wil‘I also be murdered”. On this, he put-off his shoes and crossed one more field. There he saw that Ramsagar was staring towards him and Rajkumar was assaulting the deceased with Chatwar. Seeing all this, he returned and met Babulal Sabaria (PW-8). Both went to the place of oceurrence, where the deceased was Iying at a watery plaice. They took the deceased and put him at a dry place. The deceased died after sometime. The case of the prosecution is that thereafter, he went to the police station and lodged the First Information Report (Ex.—P/10) and merg intimation (Ex.-P/9) but in his further 1 4 ~ . l u f examination, this witness clearly denied to lodge the report or to give mejrg intimation to the police. He said that he had never gone to the police station to lodge such report. He was declared hostile by the prosecution and was cross examined but he did not admit even in the cross examination‘that either he had gone to the police station or had lodged these 2 reports.- If we appreciate his evidence in light of the evidence of PW-1, Bahartin Bai, it would be clear that according to his own version, he was stopped by PW7tsaying that he should not go to . the place of occurrence and he remained there. Moreover, he also deposed that PW—1 said him that murder has taken place, that means, by the time he reached to the house of PW-1, which is at a distance of 300 yards from the place of occurrence, the murder had already taken place and even he did not reach to that place. PW—1' has also stated that " it is true to say that this witness had gone to the place of occurrence when marpit was over. Babulal (PW-8) has admitted in cross examination that PW-5 rushed to him and told him that somebody has N 8 @ Criminal Appeal No. 616 of 2004 murdered the deceased in his field, thereafter, they had gone to the field of the deceased. If)in fact}, PW-5 had seen the appellants assaulting the deceased, in normal conduct, he would have mentioned the names of the appeilants to Babulal and he would not have said that somebody has murdered the deceased. All this show that in fact, Nihal, PW-5, had rea‘ched to the place of occurrence after the incident was over and for t r these reasons his testimony appears to be unreliable. 1‘s? (13) In view o‘f the foregoing discussions, the testimonies of Bahartin Bai (PW-1), Ku.«Sunita (PW-4) & Nihal (PW-5) are not reliable and conviction of the appellants, based on their such testimonies, cannot be sustained. e (14) in the result, the appeal is allowed. The conviction and sentence awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them. lt is stated that the appellants are in jail since 14.8.2001. They be set at liberty, forthwith, if not required in any other case. Sdl- Sdl- Sunil Kumar Sinha Chief Justice Judge vatti