HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: ‘Coram: HON’BLE MR.T.P.SHARMA & HON‘BLE MR.R.L.JHANWAR, JJ. Criminal Appeal No.39 of 2005 Anjordas and another Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sdl— I I m. Shar‘Ea ‘. ‘ I I Judgej‘I Izi//I II Q) a 9/ Sal— .» Post for Judgment on : 29/3/2011 ' Sdl- T. P. Sharma Judge Hon’ble Mr.R.L.Jhanwar, J. w L ‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aggeal No.39 of 2005 DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.L.JHANWAR, JJ. APPELLANTS 1. Anjordas S/o Guharam Satnami aged (In Jail) about 4O years. 2. Glrdharl @ Batau S/o Guharam Satnaml Aged about 35 years Both R/o Vlllage Monhda P.S.Hirri, Dist : Bilaspur-(C.G.) Versus State of Chhattisgarh Through P.S. \ Hirri Dist‘Bilaspur—(C G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE 1973) RESPONDENT MrGovmd Ram Mm With MrYogeshwar Sharma counsel for the Mr.Sanjeev Kumar Agrawal, Panel Lawyer‘ for the State/respondent. appellants wFEJN (Delivered on 29‘ March, 2011) The judgment of the Court was delivered by T.P.Sharma, J.:— 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 3.11.2004 passed by the 10th Additional Sessions Judge (F.T.C.), Bilaspur in Sessions Trial No.307/2003, whereby & whereunder learned 10th Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Chandraram‘ Shyamratan, Kunjbihari and Dhaniram in sharing common intention convicted them under Section 302 read with Section 34 of the I P C 302 l read With Section 34 of the I P C 302 read With Section 34 of the I P C 302 read With Section 34 of the I P C and 323 read With Section 34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.500l— in defautt of payment of fine to further undergo S.I. for two months for each conviction under Section 302 read with Section 34 of the I.P.C. and fine of Rs.200/-, in default of payment of fine to undergo S.l. for one month under Section 323 read with Section 34 of the l.P.C. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of prosecution, on the fateful night of 4.6.2003 at about 4 a.m. at morning Chandraram (since deceased) was sleeping in his temporary hut (kundra) situate in front of his house which was under construction along with his son Rajkumar Kurré (PW-8), Kunjbihari (since deceased) his guest was also sleeping nearby son of Chandraram, Shyamratan ‘a s (since deceased) was also sleeping on sand. Between 3.45 to 4 a.m., appellants Anjor Satnami and Batau Satnami came to temporary hut, they were hofding stick- and betel axe, they asked Rajkumar Kurre (PW-8) about his father, at the same time Chandraram woke up, then they pushed Chandraram, Chandraram fell down on sand, thereafter simultaneously both the appellants assaulted him by betel axe and stick. Shyamratan woke up and tried to intervene and save his father, appellants also assaulted him by stick and betel axe. Third unfortunate deceased Kunjbihari also woke up, appellants also assaulted him. Rajkumar Kurre (PW—8) immediately proceeded from the spot, appellants also assaulted Rajkumar by stick over his right hand. While he was running from the spot he fell down and also received injury on his left leg. He went to the hous.e\ of 4‘“ deceased Dhaniram, his uncle whom he told the incident, Dhaniram came to the spot i.e., near the house of Chandraram and started weeping near dead body of Chandraram i.e., his brother, at the same time accused Dhansu and Anil, appellants Anjor and Batau Satnami came from back and assaulted Dhaniram by stick and betel axe and killed him. After causing injury the appellants. fled from the spot. In morning Rajkumar Kurre (PW-8) saw dead body of guest Kunjbihari in ditch (diged for collecting waste material) (ghunNa). Rajkumar Kurre (PW-8) informed his grandfather Guhan (PW-2) and Kotwar Prakash Das (PW-9) who Went Police Station for lodging report and lodged Rojnamcha Sanha vide EXP/46A. Investigating officer N.P.Mishra (PW-14) left for scene~of occurrenCe after recording Rojnamcha vide Ex.P/47A, he reached village Monhda, Police Station Hirri, seven kilometers away from the spot. Rajkumar Kurre (PW-8) lodged dehati nalishi vide Ex.P/12A and dehati merg intimation vide Exs.P/13A, P/32, P/33 and P/34. Finally F.I.R. was lodged vide Ex.P/12 and merg intimation was recorded vide Exs.P/13, P/14, P/15 and P/16. After summoning the witnesses vide Ex.P/‘l7, inquest over dead bodies of deceased Shyamratan Kurre, Kunjbiharif" Chandraram Kurre and Dhaniram were prepared vide Exs.P/18 to P/21. Bloodstained and plain soil were recovered from the spot vide Exs.P/29 and P/30. injured Rajkumar was sent for medical examination vide EXP/5, he was examined by Dr.A.K.Sanyal (PW-4) vide Ex.P/5 and found following injuries? 4 (i) Contusion of 6 cm. x 2 cm. on right upper arm below deltoid a *3 o region. (ii) Contusion and suspected fracture of middle metacarpal bone of right ring and middle finger. (iii) Abrasion of 3 cm. x 3 cm. on left knee. Dead bodies of the aforesaid deceased were sent for autopsy to Community Health Centre, Bilha where Dr. A.K.Sanyal (PW-4) conducted autopsy of Shyam Ratan vide Ex.P/1 and found following injuries:- (i) Lacerated wound just above right eye. Eye ball was ruptured. Orbital bone was found fractured and there was hole in orbital area of 5 cm. x 3 cm. x 3 cm. (ii) Lacerated wound on left zygometic process. Underline bone was found fractured. Eye ball was ruptured. (iii) Lacerated wound over mouth. Mandible was fractured in multiple pieces. inciser teeth was broken. Lower lip fare. Left jaw was also fractured in many pieces. incised wound on base of neck on right side of 6 cm. X 2 1/2 cm. x 5 cm. Underline trachea, skin and bone were found cut. (v) incised wound on right clavicle region of 3 cm. x 1 cm. X 4 cm. Underline clavicle was found cut. (vi) Incised wound behind left ear of 5 cm. X 1 1/2 cm. x 2 cm. (vii) incised wound on parietal region of 5 cm. x 2 cm. 1 cm. (viii) incised wound on occipital region of 10 cm. X 3 cm. x‘ 2 cm. Underline skin and muscle bone were found cut. aim. Heamorrhage and fracture of left metacarpal bone of middle and ring finger. (x) Confusion on chest b s shock. Dr.A.K.Sanyal also conducted autopsy of Kunjbihari Vide EXP/2 and found following injuries:- Contusion on outer aspect of left p elow of 10 cm on left cabidai fossa of 15 cm. x 4 cm. Ribs were found fractured. 0X) Cause of death wa (i) Lacerated wound on forehead of 5 cm. x 1 cm. x bone deep. region from left eye to (ii) Lacerated wound on left temporal ear. Underline skull bone, orbital bone, upper part of mandible were fractured in multiple pieces. Left eye ball ‘ _was crushed. (iii) 3 UV) Lacerated wound of 1 1/2 x 1 x bone deep on left zygometic pfocess. Underline bone was found fractured. in multiple pieces. Upper and lower inciser t Confusion on left side of chin. Underline mandible fracture eeth were broken. of 4 cm. from left e'ar 5 (v) lncised wound on occipital region cm. x 1 1/2 cm. x brain deep. Skull bone, skin and brain found were cut. (vi) lncised wound on occipital region of 3 cm above injury No.5 of 8 cm. x 2 cm. x brain deep. Skin skull bone was found cut. Brain matter comes out. (vii) lncised wound on left thumb of 4 cm. x 1/2 cm. x bone deep. f6cm.x‘/2cm.x ex middle finger of 1 1/2 (viii) lncised wound on darsum of left palm o bone deep. Metacarpal bone of ind x 1/4 x bone deep. Bone was found cut. Cause of death was heamorrhage and shock. Dr.A.K.Sanyal (PW-4) also man vide EXP/3 and found following conducted autopsy of Chandra injuries:— (i) One crush injury on face including face to chin. Underline skull bone, orbital, nasal, zygometic and mandible bone were found cut. lnciser & canial teeth were broken. (ii) (iii) (iV) (i) (ii) (iii) (iv) @ incised wound on left side of forehead of 5 cm. x 1 cm. x bone deep. lncised wound on left side of face from nose to neck including Ieft‘ear of 10 cm. x'5 cm. x bone deep. Underline bone, cheek, mandibie left ear were found cut. lncised wound below right zygometic process from below nose to right ear. Underline skin, jaw, mandible and tongue were found cut of 8 cm. x 1 1/2 cm. x bone deep. lncised wound below neck above left clavicle of 5 cm. 1 1/2 cm. x 5 cm. Underline bone, clavicle and muscle were found cut. lncised wound on abdomen from above umbilicus to right ant.Sup gliac spin. intestine was visible of 1O cm. x 3 cm. 5 c'm. lncised wound of 10 cm. above left heal on sin of tibia of 5 cm. x 1 cm. 1 1/2 cm. Underline skin, bone and muscle were found cut. \ th was heamorraghe and shock. Dr. A.K.Sanyal‘(PW—4) also conducted autopsy of Dhaniram vide Ex.P/4 and found following injuries:- lncised wound above left eye brow of 4 cm. x 1 1/2 cm. x bone deep. . A Lacerated wound on left zygometic process. Zygometic process was crushed. Contusion on right zygometic process of 5 cm. x 2 cm. incised injury on left tempo occipital region of 10 cm. X 5 cm. x brain deep. Underline skin, bone and brain were found cut. Brain matter comes out. Big heamatoma was found cut. Contusion on parietal region of 7 cm. x 3 cm. Skull bone was found fractured in multiple pieces. “‘ was found fractured in multiple pieces. Heamatoma was found cut of 15 cm. x 10 cm. Cause of dea (vi) Multiple contusion on left scapular region. SCapuia bone‘g— (vii) incised wound below Ieft axilla of 8 cm. x 3 1/2 cm. x 4 cm. Underline skin, muscle & 4 ribs were found cut. Lung was visible. Cause of death was heamorrhage and shock. Spot map was prepared vide EXP/37. During the course of investigation, appellants were taken into custody, appellant Anjor Das made disclosure statement of betel axe and stick vide EXP/22, same were recovered at his instance vide EXP/23. Appellant Girdhari @ Batau made disclosure statement of axe vide EXP/24, same was recovered at his instance vide EXP/25. Another accused Dwarika @ Dhansu juvenile offender made disclosurestatement of axe «glide EXP/26, another accused Anil Satnami made disclosure statement of stick vide EXP/27, same was recovered from accused Anil vide EXP/428. One‘terrlcot lungi, plain soil and bloodstained soil were recovered from thekspot vide Ex.P/38. Sealed clothes of deceased Kunjbihari, Dhaniram, Chandram and Shyamratan were seized vide EXP/40. Documents relating to age of Dhansu were seized vide Ex.P/41. Seized articles were sent for chemical examination vide EXP/44 and? presence of blood on betel axe, stick and axe recovered from the appellants has been confirmed vide Ex.P/49. Statements, of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘Code’) and after completion of investigation charge sheet was filed before the Additional Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned 10m Additional Sessions Judge (F.T.C.), Bilaspur received the case on transfer for trial. . ln order to prove the guilt of the accused/appellants, prosecution has examined as many as fourteen witnesses. Accused/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and claimed innocence and false implication in crime in question. ) . After affording an opportunity of hearing to the parties, learned 10th Additional Sessions Judge (F.T.C.), Bilaspur convicted and sentenced the appellants as aforementioned. l l l a 3” f 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsei for the appellants vehemently agued that this is a case of blind murder of four persons in which the present appellants have been falsely implicated without any cause, they have not committed murder of aforesaid four persons, they were not having grudge against the deceased persons and deceased Kunjbihari was not resident of the place of incident. After brutal murder of four persons at the instance of Rajkumar Kurre (PW-8) matter was intimated by telephone to Police Station -Hirri, thereafter at the instance of Rajkumar Kurre (PW—8) Kotwar Prakash Das (PW-g) fwent to the Police Station along with Guhan, grandfather of Rajkumar and sukhsagar and informed the police that unknown persons have kitted Chandarman Satnami, Dhaniram Satnami, Shyamratan Satnami and onexother person vide Ex.P/46(A), then police officers proceeded for the spot after recorded Rojnamcha Sanha vide Ex.P/47(A). Till that time assailants were unknown and when the police came to the village then after discussion with other persons, false report against the present appellants has been lodged. Presence of the appellants after commission of incident shows their natural conduct that they have not committed any offence. Only evidence of Rajkumar Kurre (PW-8) and Panchu (PW-1) do not inspire confidence and trustworthy, they are interested witnesses. Learned counsel further submits that evidence collected on behalf of prosecution i’s not sufficient for conviction of the appellants. 9. Learned counsel placed reliance in the matter of Ashish Batham v. State of Madhya Pradesh1 in which the Supreme Court has held that mere suspicion, however, strong or probable it may be is no effect substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly ”remember that there is a long mental distance between ‘may be true and ‘must be true’. ‘Learned counsel further placed reliance in the matter of Ram Kumar Pande v. The State of Madhya Pradeshz in which .the ZAIR 1975 SC 1026 l Ltzooz CRI.L.J.4676 Supreme Courf has held that omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution. case. Learned counsel also placed reliance in the matter of K.Ashokan v. State of Kerla3 in which the Supreme Court has held that F.l.R. lodged by eyewitness within 3 hours of incident, details given of every aspect and accused persons known but not named‘ prosecution case becomes doubtful. Learned counsel relied upon the matter of State of M.P. v. Rambagas‘ in which the High Court of Madhya Pradesh has held that if FIR is lodged by Kotwar then it may be presumed that after collecting all relevant information frOm all concerned persons he has lodged FIR and non-mentioning the name in FIR is omission in material point and goes to show that none has witnessed the incident. Statements of alleged eye witnesses full of doubt and is close relative, conviction c‘annot recorded Only on the basis of such witness. Learned counsel further placed reliance in the matter of State of M.P. v. Kriparam5 in which the Supreme Court has held that delay in lodging .\ F.l.R. is required to be explained on behalf of prosecution and in absenCe of proof of human blood on the article makes the case of prosecution doubtful. Learned counsel also placed reliance in the matter of Durbal v. State of Uttar Pradeshs in which the Supreme Court has held that in absence of any motive for causing attack or in absence of any attempt of attack by accused upon single witness who alleged to have seen the incident throws doubt upon prosecution case. Learned counsel relied upon the matter of State of Uttar Pradesh v. Jageshwar and others7, in which the Supreme Court has held that presence of accused persons at the seen of occurrence after committing murder are highly improbable. 10.0n the other hand, learned State counsel opposed the appeal and argued that in the present case Rajkumar Kurre (PW-8) is relative witness and son of deceased Chandraram, but his evidence cannot be discarded on the ground of his relation. A close relation would be the last to screen the real about 14 years is not only eyewitness but also injured witness; therefore, K .culprit’and falsely implicate an innocent person. Rajkumar Kurre (PW-8) aged 3 M.P.w.N.L1998 (u) 113] 4M.P.W.N.[2oo1 (I) 5] 52004 (1) ccsc 188 6(201 1) 2 scc 676 71983 CRI.L.J.686 his presence cannot be doubtful, although this witness has not shouted for help. His age is only 14 years and he was shocked on account of murder of his four relatives. The appellants have not speared him, they have He has not informed Kotwar or any other person that some unknown persons have committed the offence. Defence himself has asked Prakash Das (PW-9) in para 3 of his cross-examination that he was not informed by Rajkumar relating to incident. This shows that at that time of lodging of Rojnamcha Sanha EXP/46A, Prakash Das (PW-9) was not having also assaulted him, he rushed from the spot, thereby he has been saved. i . knowledge that present appellants'have committed the offence. After recording Rojnamcha Sanha investigating officer immediately proceeded for the spot, then Rajkumar Kurre (PW-8) who has witnessed the incident and was also assaulted by the accused persons has lodged dehati nalis‘hi and merg in which he has specifically informed and described the names of assailants and weapons which they were holding and injuries caused by them to four persons. Betel axe, axe and stick have been recovered from the appellants and presence of blood has been confirmed on the -' aforesaid articles, although prosecution has not proved presence of human blood, that too blood group of the deceased but in the light of evidence of Rajkumar Kurre (PW-8) and Panchu (PW~1) same is not fatal to prosecution. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as aforementioned. . 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution- 12.ln the present case, homicidal deaths as a result of multiple fatal injuries found over vital parts cf bodies of Chandraram, Kunjbihari, Dhaniram and Shyamratan have not been substantially disputed on behalf of the appellants, on the other hand, also established by evidence of Dr.A.K.Sanyal (PW—4) and autopsy reports Exs.P/1 to P/4. Present ‘ appellants have also not disputed simple injuries found over the body of L Rajkumar, same has also been established by evidence of.Dr.A.K.Sanyal i‘ (PW—4)and injury report Ex.P/5 which reveals that Contusion of 6 cm. x 2 i cm. on right upper arm below deltoid region, contusion and suspected a fracture of middle metacarpal bone of right ring and middle finger and l g; V son Panchfam i.e., Panchu (PW— body of his brother Chandraram, '_U 11 Sudharam whom the police directed to Iodge report at Police Station. Thereafter report was lodged and police came to the village whom he lodged merg vide Exs.P/13A, P/14, P/15 and P/16 and dehati nalishi vide EXP/12A. i 14.Panchu (PW—1) son of ltwari, 10'years aged child witness, has deposed in his evidence that he along with his mother Muniya Bai went to the spot at about 4 a.m. where he saw that appellants assaulted his elder uncle Dhaniram by betel axe, stick and axe, Chandraram, Kunjbihari and Shyamratan were also present there, then he along with his brother went inside ditch (digging for manure) for hiding themselves, after sometime the appellaiats went from the place of incident, then they went near dead bodies of Dhaniram, Chandraram, Kunjbihari and Shyamratan. As per evidenci of Muniyabai (PW—3), on the date of incident at about 4 a.m._ Raju @l RajkumarlKurre (PW—8) came to the house of Dhaniram and informed his uncle Dhaniram that the appellants were assaulting to Shyamratan and others, then Dhaniram went to the spot, she along with her son Panchu also went to the spot, appellants assaulted by aforesaid weapons. Raju @ Rajkumar Kurre was also present with her, then they went inside Ghurwa for hiding themselves. After sometime they went to their house and they were informed relating to deaths of Chandraram, Shyamratan, Kunjbihari and Dhaniram. 15.Defence has cross—examined Pancu (PW-1), child witness in details In para 2 of his detailed cross-examination he has admitted that he has seen dead body of Kunjbihari at Ghurwa. He has also admitted in his cross- examination that he is school going children and he used to go in school and casually he do not go to school. In para 6 of his cross—examination he has further admitted that previously he was residing at Artara, nearby village Monhda. On the date of recording his evidence he was called by Police from Artara, at that time some ritual on account of death was performed. In para 1O of his cross-examination he has deposed that he along with his mother went to the spot after sunrise along with Dhaniram, but he has further stated that he do not know the minutes. In para 11 of his cross—examination, he has denied the suggestion that he was not present at the time of incident, therefore, he has not seen the incident. Defence has also cross—examined Muniyabai (PW~3) in detail. In para 7 12 t J of her cross—examination she has specifically deposed that she has visited the spot at about 4 a.m. along with Dhaniram. She has also admitted that Dhaniram was her neighbour and Rajkumar has visited the house of Dhaniram. She has heard discussion of Dhaniram and Rajkumar. She has denied the suggestion that she has not seen the incident and she has not gone to the spot at the time of incident in para 10 of her cross— examination. L 16.Defence has cross-examined Rajkumar Kurre (PW-8) in detail. In para 12 he has denied the suggestion that he was not sleeping near the house under construction. In para 13 he has admitted that he has not narrated the incident to Guhan, Su'khsagar and Prakash. He has denied the suggestion in pa-ra 15 that he has not seen the incident. He has also denied the suggestion that he has telephoned to Bhilai. He has deposed £ in para 25 of his cross-examination that at the time of recording dehati nalishi and statement he has stated the police that Muniya Chachi and her son Panchram has also visited the place of incident and on the direction of Muniya he fled from the spot. He has denied the suggestion in para 31 .of his cross-examination that after consuming liquor his father and Kunjbihari were quarreling with two-three persons. He has also denied the suggestion in para 32 of his cross-examination that two-three persons were assaulting Kunjbihari and his father and as directed by his father he went to his house for sleeping. He has also denied the suggestion that the persons who had assaulted his father have committed robbery of money which his father was keeping with him. He has admitted that prior to incident there was no dispute between the appellants and themselves. In para 34, he has further denied the suggestion that at night time Kunjbihari was assaulting his father and he also chased him, then he fell down and received injuries. 17.Rajkumar Kurre (PW-8), Panchu (PW-1) and Muniyabai (PW-3) are relatives witnesses. Evidence of relative witnesses cannot be discarded only on the ground of their relation. While dealing with the question of reliability of relative witness the Supreme Court in the matter of Dalip ingh and others v. The State of Punjab8 has held that a witness is 3 AIR 1953 SC 364 S 13 Inormally to be considered independent unless he or she springs from sources which are Iikely to be tainted. Para 26 of the said judgment reads as under:— “26.