@ HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon’ble Shri Rajeev Gupta, C.J. 8a Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 761 of 2004 Ramdeo ‘ v Vs. State of Chhattisgarh JUDGMENT For consideration I Sdl— ¥V\\ Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA Q Post for Judgment :217‘ 09/2008 J Sdl- Sunil Kumar Sinha Judge @ x HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon’ble Shri Rajeev Gupta, C.J. 8a Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 761 of 2004 Ramdeo, son of Shri Heera Pando, aged about 45 years, resident of village Sudama Nagar (Pandopara), P.S. Jainagar, Chowki — Karanji, Distt. Surguja (C.G.) APPELLANT ‘ Vefsus RE§PDNDENT State of Chhattisgarh, through : the Police Out Post — Karanji, Police Station — Jainagar, Distt. Surguja (Chhattisgarh) 3 (1) Appellant— Ramdeo stands convicted unde‘r Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/ -, in default of payment of line to further undergo additional imprisonment for 2 months, by the 3rd Additional Sessions Judge (F.T.C.), Surajpur in Sessions Trial No. 254/2003 on 3rd of August, 2004. b (2) The facts, briefly stated are, that on 11.3.2003 at about 4.00 p.m., complainant- Gulab Pando (PW-2) was returning from village SOndihapara along with his wife Nanki Bai. When they reached near village Sudamanagar, they heard cries and saw that the appellant was assaulting the deceased— Sahal Pando with a Tabbal ("K (Appeal under Section 374 (2) of The Code of Criminal \V Procedure) Appearance: Ms. Pushpa Dwivedi, Counsel for the appellant. Shri Ashish Shukla, Govt; Advocate, for the State. JUDGMENT (22 .09.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. 2 Criminal Appeal No. 761 of 2004 and the Wife of the appellant (co—accused Indermani) had restrained him. When 'Gulab Pando tried to go there, the appellant resisted and chased him. After sometime, the family members of the deceased came there and took the deceased with them. The deceased died in the night. Gulab Pando reported the matter to out-post Karanji, Where the First Information Report (Ex.-P/4) was registered. The merg intimations (EX.—P/3 85 P/ 16) were also registered and the matter was taken up for investigation. (3) The Investigating Officei‘r reached to village Kharsura on 12.3.2003, where the dead body was kept. He gave notice (EX.—P/5) to E'fe Panchas and prepared inquest (EX.—P/6) on the body of the deceased. Plain soil 85 blood stained soil were seized from the place of ocgurrence v‘ide Ex.-P/7 and the site plan was prepared vide Ex.—P/9. The dead body of the deceased was sent for its postmortem to Community Health Center, Vishrampur, where the postmortem examination was conducted by Dr. P.K. Sharma (PW- 10), who prepared his report Ex.—P/ 12. The Autopsy Surgeon found that there was only one injury on the body of the deceased, i.e., one incised wound on the lateral side of lower portion of the left leg in size of 8 cm x 3 cm x 2 cm bone deep and the left lower end of fibula was cut and all soft tissues, blood vessels were also cut having a deep tissue hemorrhage. He opined that the cause of death was shock due to excessive bleeding on account of injury sustained by the deceased. (4) In further investigation, a memorandum (Ex.-P/ 1) of the appellant was recorded u/s 27 of the Evidence Act on 29.4.2003 leading to discovery of the weapon of offence, Tabbal, in pursuance of which, a Tabbal was recovered from the possession of the appellant under EX.—P/2. The seized articles were sent for their chemical examination to F.S.L., Raipur, from where, a report was received, according to which, blood stains were found on Tabbal. -(5) After completion of usual investigation, the charge—sheet was filed in the Court of Judicial Magistrate First Class, Surajpur, who in turn committed the matter to the Court of Sessions, from where, ~ it was received on transfer by the 3rd Additional Sessions Judge %§” Criminal Appeal N0. 761 of 2004 (FTC), Surajpur, Who conducted the trial and convicted and sentenced the appellant as aforementioned. However, the co— accused, Indermani @ Indro, wife of the appellant—Ramdeo, was acquitted. (6) The conviction of the appellant is based upon the testimonies of 3 eye witnesses namely— Gulab Pando (PW—2), Gautam (PW—3) & Moharlal (PW—4) supported by the evidence of Dr. P.K. Sharma (PW-10). Initially, the prosecution has cited only Gulab Pando as an eye Witn‘ess but the 2 other witnesses i.e. Gautam (PW—3) 85 Moharlal (PW-4) claimed to be the eye Witnesses wH‘ilé their examination before the Court. Learned Sessions Judge, believing the testimonies of all these Witnesses, recorded a finding that Ehey had seen the occurrence. (7) Ms. Pushpa DWivedi, learned counsel for the appellant, argued that Gulab Pando (PW—2) has not supported the case of prosecution as he denied about Witnessing the incident in his cross examination. Gautam (PW-3) and Moharlal (PW—4) were not the eye Witnesses as they reached to the place of occurrence after a long time. Their versions about the occurrence are omissions in their police case diary statements. »a (8) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (10) PW—2, Gulab, deposed that “On the fateful day, when he was returning With his Wife, he saw that the appellant—Ramdeo was assaulting the deceased- Sahal by a Tabbal. He had seen the occurrence from a distance of 75 yards. After sometime, the wife of appellant—Ramdeo also came there but she» did nothing to the deceased. He made hue and cries but nobody came to the place of occurrence. Thereafter, he went to the house of Jagbar and told the story to him and also to the father of the deceased. The family 4 @ wk axw (r / Crlmlnal Appeal No 761 of2004 members of the deceased went to the scene of occurrence and brought the deceased to the house on a cot. The deceased had received injury on his leg, he was unable to talk. The deceased was taken to out—post Karanji,’ where he died. He had lodged the merg intimation as also the First Information Report in the concerned out-post”. In the cross examination, in Para—5, he categorically admitted that when he heard the cries of the deceased, he did not go towards him and straightway went to his house and he had seen nothing. He further admitted that since Raghubir (son of the deceased) was saying that Ramde'o may have assaulted his father, therefore, he had mentioned his name. In Para—6 of the cross exam‘iri’ation, in reference to the F.I.R, he further deposed that the police had not read over the report to him and he had only told to the police that Sahal has died but he never told about the incident (L to them. The above admissions in the cross examination clearly show that this witness has denied to ‘see the occurrence and has further denied to lodge a report of such nature to the concerned police station. On the face of such categorical admissions made by him, no reliance can be placed on the testimony of this witness. .o; (11) PW-3, Gautam, deposed that he had seen the occurrence from a distance of 25 yards. He saw that appellant-Ramdeo has assaulted the deceased by a Pharsha and has ran away towards village Sudamanagar. These facts are missing in his 161 Cr.P.C. statement, EX.—D/l. When he was faced with his 161 statement regarding such omission, he deposed that he had told all this to the police and if these facts are not mentioned in his 161 statement, he cannot tell the reason for it. s (12) PW—4, Moharlal is the son of the deceased. He deposed that “He had seen the appellant assaulting his father from a distance of 25 yards”. But, theses facts are omissions in his police case diary statement, Ex.—D/2.when he was faced with the contents of Ex.— fD/2, he deposed that he had told all this to the police and if these facts are missing in his case diary statement, hecannot tell the reason for it. % 1 Criminal ApQeal No. 761 of 2004 (13) According to the prosecution, PW—3, Gautam and PW—4, Moharlal were not cited as the eye Witnesses. This is clear from their 161 statements. But they improved their statements before the Court and deposed as if they were the eye Witnesses. However, they could not offer any explanation as to Why they had not disclosed these factswbefore the police. In these circumstances, 'reliance cannot be placed on the testimonies of these witnesses as they have given a new version before the Court claiming themselves to be the eye witnesses and the omissions in their 161 statements were fatal to the prosécution. (14) “S‘o far as recovery of weapon at the instance of the appellant is concerned, PW-l, Lalan Prasad, deposed that the appellant had given information regarding the Tabbal, which was reduced into writing by the Inv‘estigating Officer vide Ex.-P/ 1. Tabbal was seized on the instance of the appellant vide seizure memo EX.-P/2, but he added that the Tabbal, which was seized was without any handle (wooden portion) and blood like stains were also not seen by him on the said article. Whereas, the Tabbal which was sent for examination to the Doctor was having wooden portion of 28 inches as is clear from seizure memo EX.—P/2. Perhaps for this reason, this witness was declared hostile by the prosecution and was cross examined but nothing could be elicited in his cross examination by the Public Prosecutor. Therefore, the recovery of the weapon appears to be doubtful and in such situation, the report‘about presence of blood on the article (Weapon), sent for chemical examination, alone would not lead to an incriminating circumstance against the appellant. \ (-15) In the facts and circumstances of the case, in our opinion, the learned Sessions Judge erred in law in appreciating the evidence of these witnesses. He has only taken into consideration their examinations-in-chief and has not considered their cross examinations. In the cross examination of PW-2, Gulab, there is clear admission that he had not seen the occurrence and in the cross examination of PW-3, Gautam & PW-4, Moharlal, material omissions are proved. They have deposed before the Court what 6 Criminal Appeal No. 761 of 2004 they had not disclosed before the police and by this they are I claiming to be the eye witnesses before the Court, Whereas according to their 161 statements, they were not the eye witness. (,16) In View of the above, the conviction of the appellant based upon such testimonies of these witnesses cannot be sustained and the same deserves to be set aside by this Court. (17) Accordingly, the appeal is allowed. The conviction and sentence imposed against the appellant are set aside. He is acquitted of the charges framed against him. It is stated that the apt”: ellant is in jail since 30.4.2003. He be set at liberty, forthwith, if not required in any other case. Sdl- Sd/— st Sunil Kumar Sinha Chief‘Justice Judge