/v i?/p HIGH COURT OF CHHATTISGARH, BILASF r's?- CORAM: HON'BLE SHR1RAJEEV GUPTA, C.J^& HON'BLE SHRI SUNIL KUMAR SINHA, J. Criminal Anneal No. 530 of 2003 Shyam Kumar @ Shyarn Yadav Vs. State of Chhattisgarh .^..^^yss»l JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA idA~ Chief Justice PostforJudga-i£uLL_2-0 /08/2009^2 Sd/. ,9/08/2009 '"s. /i-r'/^ /-"M- HIGH COURT OF CHHATTISGARH, BILASPb CORAM: Hon'ble Shri Rajeev Gupta, C.J., Hon'ble Shri Sunil Kumar Sinha, J Criminal Appeal No. 530 of 2003 APPELLANT(S) RESPONDENT Ajuram, son of Sporajman Yadav, aged about 25 years, Died on 25.10.2008, name deleted and appeal abated on his behalf. .Shyam Kumar @ Shyam. Yadav, s/o Soorajman Yadav, aged about 22 yeeirs Both residents of Nagoi Khar, P.S. Darri Versus State of Chhattisgarh Through- Police Station- Darri, Distt. Korba (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mrs.Meena Shastri, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (2 P.08.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) The appellants were convicted u/s 302/34 IPC and sentenced to undergo iraprisonment for life and to pay fine of \ Rs.500/-, in default of payment of fine to further undergo S.I. :l!tt i: !°• ' ./. ^ ~--^:.?.'^---"."-''-'^-^•^ Cr.A.No.530/2003 '- -^-- - -- for two months by the III Addl. Sessions Judge (F.T.C), Korba (C.G) in Sessions Trial No. 190/2002 on 05th ofApril, 2003. (2) Appellant no.l Ajuram died on 25.10.2008 during the pendency of the appeal, therefore, the appeal filed on his behalf has abated and his name has been deleted from the array of the appellants. (3) The facts, briefly stated, are as under :- The case of the prosecution is that on 25.03.2002 at about 9 p.m., deceased Jai Prakash was returning to his house. When he reached near Pankaj Kirana Store, he was assaulted by accused Ajuram arid Shyamlal. Ajuram was armed with a Farsa and Shyam Kumar was arnied with a lathi. He received many injuries and succumbed to those injuries on the spot itself. Mukesh Yadav (P.W.3) and Sanjay Chauhan (P.W.22) went to the house of deceased and narrated the story to his brother Jagesh Yadav (P.W.l) who reported the matter to the concerned Police Station on the same day at about 9.25 p.m., on which, a first information report (Ex.P.1) was registered. The F.I.R. does not contain the name of appellant Shyam Kumar. No overt act was attributed to him in the F.I.R. Even his presence was not mentioned in the F.I.R. The Merg intimation was also registered under Ex.P-4. The Investigating Officer reached to the scene of occurrence, gave notice Ex.P-2 to the Panchas and prepared inquest Ex.P-3 on the body of the deceased. Site plan was prepared under Ex.P-16. Blood stained soil and plain soil were seized from the place of occurrence under Ex.P.13. The Cr.A.No.530/2003 dead body of the deceased was sent for its postmortem to Hundred-bed hospital, Korba under Ex.P.26 where the postmortem examination was conducted by Dr. A. D. Purena (P.W. 12) who prepared his report Ex.P.17. He noticed multiple incised wounds on the body of the deceased. There were cut injuries on the vertebral coluran, skull and vertebra. There was a deep cut injuiy on the right parietal region. Even the brain matter was cut. There were injuries on chest. Trachea was cut. The autopsy surgeon opined that the cause of death was hemorrhagic shock due to excessive hemorrhage from the injury site and it was homicidal in nature. After taking the accused persons in custody, their memorandum statements Ex.P-9 & Ex.P-11 were recorded u/s 27 of the Evidence Act and a Farsa was seized at the instance ofaccused Ajuram under Ex.P.9 and lathi was seized at the instance of accused Shyam Kumar under Ex.P-12. Another site plan was prepared by Halka Patwari under Ex.P.19. The seized articles were sent for their chemical exaraination to Forensic Science Laboratoiy, Raipur, but the F.S.L. report could not be filed. After completion of usual investigation, charge sheet was filed in the Court of C.J.M., Korba, who in turn committed the matter to the Sessions Court, Korba, from where it was received on transfer by the III Addl. Sessions Judge (F.T.C), Korba, who conducted the trial and convicted and sentenced the accused persons, as above. i '"•'ET.n-:";;''' ,-.: ..^s. Cr.A.No.530/2003 (4) The conviction is based on the testimonies of Tersia Bai (P.W.2), Shanta (P.W.4), Ram Bai (P.W.20), Mukesh Yadav (P.W.3), Sanjay (P.W.22) and Omprakash (P.W.6) supported by the First Information Report lodged by Jagesh (P.W. 1). (5) Smt. Meena Shastri, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of the deceased. She has also not disputed the involvement of accused Ajurara (whose appeal stands abated since he died) in crime in question. She argued that the involvement of appellant Shayam Kum.ar appears to be doubtful; his name does not find place in the first information report; he was said to be armed with lathi but the injuries sustained by the deceased were the incised wounds; and the •••witnesses are unreliable, so far as accused Shyam Kumar is concerned. Therefore, the prosecution has failed to prove a case beyond reasonable doubts against this accused. (6) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. Tersia Bai (P.W.2) deposed that "She was present in her house along-with Shanta Bai (P.W.4). One Mahadev came there and told that accused Aju and Shyamu are assaulting deceased Jai Prakash in front of Kirana Shop. On this, she came out from the house and reached to the scene of occurrence. Shanta Bai (P.W.4) accompanied her. She saw that accused Aju was assaulting the deceased with a Farsa and accused Shyamu was assaulting hira with a lathi. She made hue and cry but no Mi:!5%sa' f -^: jf.:: ^SSKS^ Cr.A.No.530/2003 body carae to rescue. On this, she went to the house of Raju and narrated the story to his raother. She again came back to the place of occurrence and saw that deceased Jai Prakash was lying in pool of blood. The accused persons were not present there. Many other villagers had also gathered." In cross examination vide Para 22, she was confronted with her police case diary stateraent (Ex.D-1), in which, she did not state that she had seen the accused persons assaulting the deceased and she had pnly said that both the accused persons were standing there. Her case diary statement was recorded on 26.03.2002. If in fact she had seen the accused persons assaulting the deceased in the above manner, she should have mentioned all this in her case diary statement Ex.D-1. The aforesaid omission is a material omission which creates a doubt on the testimony of this witness. (7) P.W.4 Shanta Bai had reached to the scene of occurrence following Tersia Bai (P.W.2). She also deposed that she had seen fhe accused persons assaulting the deceased. Aju was assaulting by a Farsa and Shyamu was assaulting by a lathi. Admittedly, as per her version, she reached to the scene of occurrence following Tersia Bai. When Tersia Bai reached to the scene of occurrence, she saw that the deceased was lying and the accused persons were standing there, which shows that the incident was over by that time. In the above situation, how the version of this witness can be relied on when she reached after reaching Tersia Bai to the scene of occurrence. A Cr.A.No.530/2003 She was also confronted with her case diary stateraent (Ex.D- 3). Her such version, that she saw the accused persons assaulting the deceased, cannot be relied on in view of the version of Tersia Bai. (8) P.W.3 Mukesh Kumar is a child witness. He is the real brother of the deceased. He is also the brother of Jagesh (P.W.l), who lodged the first information report. He deposed vide para 4 that "He was watching television in the house of Sanjay Kumar (P.W.22). Tersia Bai came there and told that Aju and Shyamu are assaulting his brother Jaiprakash in front of the Kirana shop. He rushed there and saw that accused Aju was assaulting his brother by a Farsa and accused Shyamu was assaulting hini by a lathi. He had a talk with them on which they threatened him". (9) Sanjay Kumar (P.W.22) is also a child witness. He also stated that "On information given by Tersia Bai he went to the scene of occurrence and saw that Aju and Shyamu were assaulting the deceased. He deposed that while watching Television in his house along with Mukesh (P.W.3), Tersia Bai came there and inforraed that Aju and Shyamu are assaulting the deceased. On this, he along-with Mukesh (P.W.3) went to the scene of occurrence. They had a talk with the accused persons. The accused persons threatened them. On this, they went to the house of the deceased and narrated the story to his brother Jagesh (P.W.l). Jagesh (P.W.l) has lodged in the first information report (Ex.P.l). He has also mentioned the names «'•°<;" ''*• 's sma'^l '"f .•^^yS& - .•J?:^?"-^'^7-^'^'?"1 '^SS.f^s.. -I•SSs•:'-^ri^K>-5 Cr.A.No.530/2003 of these two witnesses namely Mukesh Yadav (P.W.3) and Sanjay Chauhan (P.W.22) in the F.I.R., and stated that these witnesses disclosed to him that Ajuram has killed Jaiprakash by assaulting him by a Farsa. Mukesh Yadav (P.W.3) is the real brother of the deceased and this witness Jagesh. If in fact these witnesses had seen that appellant Shyam Kumar was also involved in the assault, they would have stated it to Jagesh and Jagesh would have mentioned the name of accused Shyam Kumar in the First Information Report. (10) According to P.W.3 Mukesh and P.W.22 Sanjay Kumar, they were informed by Tersia Bai (P.W.2) and then they had gone to the scene of occurrence. As we have stated above, Tersia Bai and Shanta Bai (P.W.4) reached to the scene of occurrence when the assault was over. They had only witnessed the presence of fhe accused persons on the scene of occurrence and had not seen the actual assault. This further goes to show that Mukesh Yadav (P.W.3) and Sanjay Chauhan (P.W.22) never saw the actual assault. (11) Ram Bai (P.W.20) deposed that she had seen that the deceased was assaulted by Ajuram and Shyamu. Ajuram was armed with Farsa and Shyamu was armed with a lathi. Her case diary statement was recorded on 07.06.2002. She deposed that accused Ajuram had chopped both the legs of the deceased by Farsa. The postmortem report does not reveal like that. Therefore, we hesitate to rely on the testimony of this witness. ^CSSK. 'w":'si::vt. "V S :^ .tS3"SS» ^2^ Cr.A.No.530/2003 (12) Omprakash (P.W.6) is the shop keeper of the said Kirana Shop. He deposed that when he heard the hue and cry, he came out from his shop and saw that accused Ajuram and Shyamu were going from the scene of occurrence. Aju was armed with a Tangia and Shyamu was armed with a Danda. After sonietime, Aju again returned back and assaulted the deceased with Tangia who was lying on the ground. Therefore, he had also not seen Appellant no.2 Shyam Kumar assaulting the deceased. (13) In appreciation of the entire evidence on record, particularly, in view of the fact that the name of accused Shyamlal is not mentioned in the F.I.R, we have doubt about his involvement in crime in question. The omission of his name in the F.I.R., which was lodged by the real brother of the deceased on the information of the two eye-witnesses, one of whom was also the real brother of the deceased, was fatal to the prosecution. (14) We may also note that the deceased had sustained incised wounds only which were caused by sharp edged weapon whereas, the allegation against appellant Shyam. Kumar was that he assaulted the deceased with lathi. Therefore, there was material discrepancy in the ocular version and the medical evidence. This also creates a doubt about the actual involvement of this appellant. In absence of positive evidence of common intention, the accused cannot be held responsible even with the aid of Section 34 IPC. For the II Bi-si.tf^ 'if*K'.,''::'~'VSt~f.. ^ "»'"S~'%s. S T1 f, Cr.A.No.530/2003 foregoing reasons, we are unable to sustain the conviction of appellant Shyam Kumar u/s 302 /34 IPC. (15) In the above facts and circumstances of the case, the involvement of this appellant in crime in question appears to be doubtful. The prosecution has not proved a case against him beyond all reasonable doubts. In our considered view, the appellant is entitled for benefit of doubt. (16) Accordingly, the appeal filed on behalf of appellant Shyam Kumar is allowed. The conviction and sentence awarded to him u/s 302/34 IPC are set aside. He is acquitted of the charges framed against him. It is stated that appellant Shyam Kumar @ Shyamu Yadav is in jail since 27.3.2002. He be set at liberty, forthwith, if not required in any other case. Chief Justice ^e^ii. •"ir Sd/- Sunil Kumar Sinha Judge Rao