3?T^[^l fqiw ^T^T 3TI^T 5b^ich 'S^ ^iWW^, ^xfl^'Ko, (slOK-iy <*v..^. ^02-, W^v\{ sbHlch "•"—•""• ^—•••"••—""•^ 200 3H^?T W^K ( 4^^^) '^Rnw^n^TT^T APPELLANTT (InJail) RESPONDENT: {Criminal appeal under Division Bench: a^d Hon?ble Mr. L.C. Bhadoo Hon^ble Mr. Sunil Kumar SEinha, JJ. 20-12-2007 Mr. R.K. Jain, counse Mr. U.K.S. Chandel, Oral judgment dictate ;aitist Sunil Kuinar Sinha, J: - This appeal is directed agai(ist sentence dated 20-10-2003 (Fast Track Court), Durg, i{ appellant has been convicttd I.P.C. and sentenced to un<| Rs.500/-, in default of pay]|ient month, to undergo R.I. for| default of payment of fine t(| <t)l^t<!l<ftl *11^<!lt ^fe^ <P»t^l< ^3?iRpT3?rT^T Santosh Kunnar Sahu, S/o Vedram Sahu, Aged about 35 years, R/o Village Satmara, P.S. Ranchirai, Distt. Durg (C.G.) - Versus - The State of Chhattisgarh Section 374 (2) of the Code of Criminal Procedure} for the appellant. Lawyer for the State/respondent. Pfcnel 11 on Dais. the judgment of conviction and order of passed by the 7th Additional Sessions Judge a Sessions Trial No.87/2001 by which the under Sections 302, 458 & 323 of the lergo imprisonment for life & pay a fine of of fine to further undergo S.I. for one seven years 85 pay a fine of Rs.200/-, in further undergo 8.1. for one month and to 7^S( ^l^l^, ^>Tf1^'|<o, (s|<»-»l^^< Kl^dl **<!<*» ..C1.J.......2-..0^7.. "•^ 200^ ^ni?r ^5w (4^^<^T) 3:f1^T ^T f^-licb ^^T 37T^T sh^ch ^^TTW;Hftn 3?I^T undergo ss.l. tor mree mont|ins, respectively, witn a turmer direction to run the sentences concurreijitly. Case of the prosecution is t| 22-1-2001 the deceased na|mel5 and his daughter Radhika Q deceased was sleeping in th^ daughter were sleeping in^ daughter & wife of the dece^ they woke up, at that time ^ entered inside the room, he| the deceased, wife of the d^ entering there said her to l^ (PW-4) with some iron equi^ (PW-3), but she caught the| save'. On this, the said p| Badi portion of the house. could see that person from ] and lean & thin personalitt jacket and was also keepin^ saw her father, he had rec^ived received injuries. Radhikaj the injured to the hospitajl hospital. The matter was i^ intimation Ex.P-6 was lod^ information report Ex.P-4wt CM^t<i<i1i ^w<3il ^f^s^ <F»i<^i< ^^TRw^n^T lat in the intervening night of 21-1-2001 8& mely, Kriparam, his wife Ardho Bai (PW-4) ai (PW-3) were sleeping in their house. The Varandah of the house, whereas his wife 85 ide the room. At about 1.30 mid night, ised heard some sound from the Varandah, omebody opened the door of their room and threw torch light on the face of the wife of ceased asked as to who is he. The person eep quite and he also assaulted Ardho Bai ment. He also tried to assault Radhika Bai equipment and started carrying like 'save ^rson ran away from their house from the Radhika Bai switched on the lights and she backside. He was a person of short height He was wearing yellow-cream coloured ^ saffron shawlon his head. Radhika Bai serious injuries. Her mother had also Bai called her brother and they took both The deceased died on the way to the .formed in the Police station on which merg ed. Based on such merg intimatioi , first is registered. 7^3[ ^||<4|<v!)^, tS>Tn^41<o, (s|01^^< ^c^ 'Cs.^ ^INdl (b*(|cb &..A...1.S.^.. -^ 2004/ 3TT^?T 'q^W ( 4^^^) 3:ff^T ?5T f<rli<=b TT^TT 3n^?T $h^ich '^TTW^rf^T 3iTT^T "3^Afier receiving rhe informa scene of occurrence. He pre|pared site plan under Ex.P-5. Sari ofArdho Bai was seized under Ex.P) stains^on which Ardho Bai vj bed sheet was seized undel were seized under Ex.P-12. Ex.P-13. The Investigating| and prepared inquest Ex.P-^ the deceased was sent for| Hospital, Gunderdehi unde] conducted post-mortem ar) following injuries: - a) Blood stains were] also present on ey^ 3" x 2" x I" and tlj compound fracturej <=t)iAi(<3i<I1Ti ^i*Knl ^fe^ <Fat^i< ^" ^fRw 3??T^T ion, the Siadon House Officer left for the 7. A portion of bedding containing blood ras sleeping^was seized under Ex.P-7A. One ' Ex.P-11. Blood stained soil & plain soil Clothes of the deceased were seized under Officer gave notice Ex.P-8 to the Panchas on the body of the deceased. Dead body of post-mortem examination to Government - Ex.P-10, where Dr. C.B. Prasad (PW-12) d prepared report Ex.P-23. He noticed present near nose and blood stains were membrane 85 right cheek. b) There was a lacerajted wound on left side of head admeasuring e underlying bone was fractured. It was a mina1ji< On internal examinatjion, the doctor found that head bone was fractured into many pieces head, remaining internal congested. According to hi fracture of skull bone with the death was homicidal in jiature. land massive blood clots were there in the [organs were pale, liver & kidney were ^ opinion, cause of death was coma due to excessive intra cerebral haemorrhage and 7S3! ^PT??^T, ^TlTR7T^, Is|<?'>l'y^< .^:.A...^U ^IMdl (b*41<sb "——"•'••••"—•"•"/••••"•••--•"-- ^ 20( 3^ipT ^ra^ (4CI^<^) ^i ^TliST^T R^ich WT3?TT^T 5b^J<=b '^iTW^ftn 3Ti^T After fpMng the flnmisied/ cni^f<n41i Hi+KriT'^ f^st ^^K '^3fRTH37T^T ^pellant into custQdY, his memorandum It). under Section 27 of the and in pursuance of the $ equipment used in bullock full shirt & one small torch v 1A. Indilan Evidence Act was recorded vide Ex.P-1 sjaid memorandum, one Kotia (small iron jart), one woolen shawl, one full pant, one \ere seized form his possession under Ex.P- After completion of usual ir Court of Judicial Magistratej the case to the Court of ^ received on transfer by the Court, Durg, who conduct] accused/appellant as aforeir| l.vestigation, charge sheet was filed in the First Class, Durg, who in turn committed |essions Judge, Durg, from where it was |7th Additional Sessions Judge, Fast Track ^d trial and convicted & sentenced the lentioned. At the very outset, learned the homicidal death of the d( of the injured namely, Ardtj heard some noise from the ^f just thereafter some body ei also tried to assault her drc said person ran away frorrj Varandah, they saw that de| condition having serious inj^ the hospital, he died on th^ body was sent for post-m| conducted by Dr. C.B. P|- ^ounsel for the appellant has not disputed ;ceased. Moreover, it comes in the evidence o Bai (PW-4) that in the fateful night she rarandah where her husband was sleeping, itered into her room and assaulted her, he ; ughter namely, Radhika Bai. Thereafter, | their house and when they went to the | ^eased Kriparam was lying there in injured j tries on his head and when he was taken to way to the hospital. After his death, the >rtem examination and post-mortem was •asad (PW-12) who gave report Ex.P-23, ^/59—8/2007 —30,000. ^n^r^r ^ich TCTW??T $h^|cb Q.. 'S^Sf ^|<i.ij0q, ^xfl^^Ko, [s|01^^< C^ A '^,U •WRTT g^f^•••"•-—•"•••"••"y---•••"---^ 200^ 3^?T XR^ (^ct^^) '^ITW^Tf^T 3^T1^T according to which, above i cM^f<yt<fll ^l+KrlT^f f^^ iPsl^K '^^tRpT^n^T i^juries were found on the body of the mdrtem deceased which were ante-] due to fracture of skull bone 8k death was homicidal in natuN evidence, it is established tha| nature. As far as complicity of th^ concerned, learned counsel fot evidence of Radhika Bai (PW| established that it was the committed the murder of th^ (PW-4). He submits that in when the accused was tak|( identification parade would 4 but nothing was done and Radhika Bai (PW-3) & Ardh<() accused by identifying him i^i evidence were recorded on $ further submits that in the ab|< should be given the benefit of On the other hand, learned P^ supports the judgment of coj|iviction the trial Court. in nature, cause of death was coma massive intra cerebral haemorrhage and In view of the above ocular and medical It death of the deceased was homicidal in accused in the crime in question is r the appellant argues that on the basis of -3) 8s Ardho Bai (PW-4) it has not been accused who entered into their house, deceased and has assaulted Ardho Bai :he facts and circumstances of this case, en into custody on 25-1-2001, a test iave been conducted by the prosecution, jiltimately the two eyewitnesses namely, Bai (PW-4) have tried to implicate the the Court for the first time when their >-3-2002 8& 5-4-2002. Learned counsel ove circumstances, the accused/appellant doubt. inel Lawyer opposes these arguments and and order of sentence passed by /59—8/2007 —30,000. T^( ^ww^, ^^wiQ, (st0i-y^< ^D 1 IWRW ^ITN?••-••"v-^1 •-^•w-y------""•"•^ 200 ^- sn^r^ra; ('^^vs) 3n^?r^ f<^ch TCTWCT $ht1|cb '^rrw^rf^ ^TI^T We have heard Mr. R.K. Jainl U.K.S. Chandel, learned Pan^ also perused the records of th\ O. Admittedly, the F.I.R. (Ex.P-4| (PW-3). The first information| 2001 at about 7.05 a.m. i.e. ^ the appellant or any other pe^ details of the incidenf in the i cbl^t<rt4lTl *ll^<yiT'^ k^\ <r3l<^l< ^3ffhH3TI^T learned counsel for the appellant 85 Mr. |1 Lawyer on behalf of the State and have ^ sessions case. in this case was lodged by Radhika Bai [report, which was lodged by her on 22-7- |most same day, does not contain name of [son as assailant. This witness had given [irst information report. It is contained in the report that she heard som|e noise from the side where her father was sleeping and she also heard tl|ie sound of steps. On hearing so, she and her mother woke up. At tha^ time, somebody opened the door of their room and entered in the roc|m, that person threw torch light on her mother on which her mother to keep quife. There was son) >aid as to who is he, then that person said e talk between that person 85 her mother, at that time, said person who|was holding some equipment in his hand assaulted her mother on her Ijiead. He also tried to assault her, but she caught the equipment and st^rted crying like 'save save' on which said person ran away from the padi side of their house. On this, she switched on the lights and s^w that person from backside. He was a person of short height havin^ lean & thin personality, wearing yellow- cream pant and keeping a sa| the only information given bj and ultimately, on suspiciorj Ffron coloured shawl on his head. This is Radhika Bai (PW-3) to the Police in the first information report. Basejd on this report, investigation commenced , the accused/appellant was taken into custody on 25-1-2001 and hi|s memorandum was recorded. When this -FS/59—8/2007 —30,000. ^. '.^&2^ "^ 'kJ'. ? ""~^s ^ /" ->,: '^—^ TS^ ^iNi^-ii, ^Tf1'y4i<o, (c(<7I>i'y^< ^^.........Cr..^.;...3^.U. ^W<?{[ (b^llcb •^ 200^- 3^?r xra^ (^cif^^) 3?TT^T^T R^icb ^ITW^T st)q|ch 11. '^TTW^f^T 3?n^T was the evidence available wlth person was taken into custody prosecution to at least put tha| before Radhika Bai (PW-3) & ^ whether he was the actual culprj was not done by the prosecution) only seizure of iron equipment (1 admittedly belonging to the ac| these articles were also not put proving as to whether the assailjant or he was holding that torch whi l|tie prosecution up to ^o-l-^uul and a ^jn the said date, it was the duty of the .[ person for test identification parade |rdho Bai (PW-4) and ascertain as to |.t of the crime in question or not. This 1 and on the basis of the memorandum, ^otia), above clothes & torch,which are [^used/appellant^were made and even bo identification to the eyewitnesses for was actually wearing those clothes t;h was seized form his possession. So far as the evidence of these t^ 3) 8& Ardho Bai (PW-4) are conc^ before the Court on 5-3-2002 night when she was sleeping in Varandah where her father was woke up. Thereafter, the accL<se< holding torch in his hand, he sv^ also assaulted her mother. He| stopped the assault and cried| accused ran away form their hoi( of this witness is that in her stal (Ex.D-2), name of the accused the Court she is taking the n|< confronted by her police case| CM<lt<n<fll iTTTRTf ^ 'f^st Tf^R^R ^r ^fRFT 3T[^[ ^o witnesses namely, Radhika Bai (PW- trned, Radhika Bai (PW-3) has deposed that at about 1.30 hrs. on the fateful 1-ier house, she heard a sound from the >leeping, on this she & her mother both (sed/appellant entered into their room. itehed on the torch and at that time he |had also tried to assault her, but she like 'brother, brother' on which the Lse. Major improvement in the evidence ^ment under Section 161 ofthe Cr.P.C. not there, but in her evidence before lame of the accused. When she was diary statement Ex.D~2 as also first /S/59—8/2007.—30.000. 7^( ^WW^, ^•^\W\<o, ^vftW^. •^r.. Nl*4dl **<(<* •""" •^ 200^- 3^?T ^^K (^ctf^^) ^TT^T^T ^icb WT^TT^T sb^lcb \. L 12. '^RTTW^Rf^T 3TI^T information report Ex.P-4 regard these documents, she could not has most categorically deposed i|-i seen the accused from front si4e police case diary statement Ex.] these facts have not been writtejn same. She has also deposed family and the accused. She ha$ not belong to her family and he has specifically deposed that she| has also deposed that the Polic^ of the accused. ^ive any explanation for the same. She para 12 of her evidence that she had and she mentioned this fact in her ^)-2 as also in her report Ex.P-4, but if k|n there, she cannot tell reason for the there is no animosity between their further deposed that the accused does |is not a relation from village side. She was not in fear from the accused. She had never called her for identification thlat Ardho Bai (PW-4) has also d<| identified the accused/appell^nt examination-in-chief. She has entered into their room and ass identified the accused/appella^t became unconscious. In para taking the name of the accused/|appellant her and she had clearly identifie|l was faced with her police case d\ not taken the name of the a^ explanation for such omission. cni<i?<n<flTl 'RTF^ff ^ Fs^ <p3i<^K '^3tRR3T^T ng omissinn ofname of^-hp apm.sed in ^posed in similar fashion. She has before the Court during her stated that the accused/appellant had •aulted her with Kotia, she had clearly at that time and thereafter, she 3 of her evidence, she has deposed by saying that he had assaulted him. In cross-examination, when she ary statement Ex.D-4 in which she had >sailant, she had also not given any ^iiy^ ^NN- g^TT^^,.. { —FS/59— 8/2007 —30.000. ^':'^f^'\ ;.?CI-HC-78, ^1*4MI 5b*41cb ^rar ^i<4id<Li, ^Tft^li<o, ^di^y •'•'••'•^•••••••••••/••* ^ 200 / 341^1 4sl<h ('i<=<^c<^) 3TT^T^)T^Tf^ cTSTTW^Tsb^icb ?^fT8fK^rf?cT3TT^T 3. Admittedly, omission of the 4< report as also in the police c^ i.e. Radhika Bai (PW-3) 8s Ar|dho If the accused/appellant w^ natural manner, his name information and he should diary statements of these tw|< Omission of the name of the case diary statements Exs.D{ of these two witnesses. Cerl before the Court and they appellant for the first time t(( recorded after a very long perJLod. ame of the accused in the first information ^e diary statements ofthese two witnesses Bai (PW-4) is fatal for the prosecution. s identified by these two witnesses in a »hould have been mentioned in the first ilso have been named in the police case witnesses which is lacking in this case. [appellant in the F.I.R. as also in the police -2 8& D-4 throws shadow on the credibility |:ainly they are exaggerating their evidence are adding the name of the accused/ ^fore the Court when their evidence were 4. About serious lacuna in tV\ accused to test identification Court in the matter of Bolla^ State of Andhra Pradesh rei It is has been held by the Ap( "The credibility of the depends largely on obser^e the assailants memorize the impres during the hours of d strangers to the witn< persons assumes gra. a matter of crucial si suspects identified b^ -^L also arises. In ab 4)i^fd41^ ^i^^T^teI^'<^i^i< ^3:rf^T3:n^?T prosecution case i.e. not putting the parade, principle laid down by the Apex taram. Pedda Narsi Reddy and others vs. (orted in 1991 SCC (Cri) 586 is important. Court that jevidence relating to the identiflcation [he opportunity the witness had to when the crime was committed and lion. When the crime was committed ^.rkness and the assailants were utter >ses, the identification of the accused |.t importance. The prevailing light is ^niflcance. The necessity to have the the witnesses soon after their arrest (^ence of cogent evidence that the P.T.O. *11^dl ff»*1ich . 3:5ET ^qi^ld^, ^Tfl^^Ko, fadKriy ^.6;^..A^?7 <-7L ^: 20Q4^- 311^1 45«ch((^rf3^T) CT^T^rf^TW cTSTT3T[^T5h^ich ^<TTW;R1?^'W^T witnesses by reason ^ of occurrence and pi|-oximity vision of the action df order that their featulres to enable them to assailants even aftei hazardous to drawl appellants are the re^-l eve|n cotuld bebn |15. In the present case also part that the prosecution but features of the assailant of F.I.R. Ex.P-4. She has cles occasion to see the assailanl shawl on his head 85 wearin^ drawn that from backside fe^ assailant, could not have the test identification paradt would have been difficult fol when there was hardly any| particularly by the maker of| admittedly, test identificatio}i prosecution and dock identi^ two eyewitnesses namely, Ardho Bai is taking name o| fashion as if the assailant ^ basis of evidence of these tv^t <=hl<4f^t41^ ^I^^T^:tel:^'<^1^K ^3Tf^T3TI^?r f the visibility of the light at the place to the assailants had a clear each one of the accused persons m could get impressed in their minds 'ecollect the same and identify the a long lapse of time, it would be the inference that the accused- assailants." for the sake of argument we ignore the not conduct test identification parade, jhave also not been described by the maker 3|rly mentioned in the F.I.R. that she had an from backside, the assailant was keeping some clothes. A clear presumption can be itures, particularly face features etc. of the seen by the maker of the F.I.R. Even if would have been conducted, perhaps it this Court to rely on such identification |chance of identification by two witnesses the F.I.R. Be that as it may, in this case, parade has not been conducted by the ication in the Court has been done by the I^adhika Bai (PW-3) 85 Ardho Bai (PW-4). the assailant and she has deposed in a j^as previously well known to her. On the \o witnesses, as also on the point that the P.T.O. 3-^ «^NI<7'><4, t$T{1^41<o, fs|c'»l^^< wn ^te......£x..A.....^..^ ^ 200^- 3^(?T TI^? (4C<^<^) ^TT^T^T R^ich 'WT3R^?T sti^icn Soma 16. 17. ^onvictlon can rest. |As far as memorandum & seizui |has very much relied for resting] |the seized articles were belongini |not incriminating articles and Ko\ |carts) is a very common article v| ^very villager. Moreover, no received by the prosecution [weightage can be given to recove]|y |of the appellant on his memoran(| |not find any clinching, cogent ^onvicting the appellant under ISections. re^ardin^ [n the result, the appeal desen| doubt to the appellant. It is sentences imposed upon the apit of the I.P.C. are set aside and h4 stated that the appellant is in jai|l required to be detained in any ot} Sd/- L.C, Bhadoo Judge cni^f<yt<fll 'HR^ff ^ ft^t ^^K '^'3TRPT3T^T luct test identificatu de, no -^ of articles, on which the trial Court |conviction, are concerned, admittedly ^ to the accused. Clothes & torch are |:ia (the iron equipment used in bullock i^hich could be found in the houses of [^hemical examiner report has been ^arding these articles. Therefore, no of these articles from the possession ium. For the foregoing reasons, we do ind reliable evidence in this case for ISection 302 of the I.P.C. and other ^s to be allowed by giving benefit of iccordingly, allowed. Conviction and ellant under Sections 302, 458 8& 323 is acquitted of the said charges. It is He be set at liberty forthwith, unless ler case. Sd/- Sunil Kumar Sinha Judge ^liy<fl<4 ^ft^ ^"ll^, <l<»l^i^lH —FS/59— 8/2007 —30.000.