H16H COURT OF CHHA‘I‘I’ISGARH AT BILASPUR Criminal Appeal No.996 of 1991 Wow r APPELLANTS 1 Safir'am son of Kamlu Knlnr aged 35 years. 2 Manku son of Madhumm aged 85 years 3 Mohan alias Laddu son of Sukuldhar aged abou‘r 32 years 4 Roopdhar son of Mongol sai Kalar/ aged abouf 42 year-s 5 Balsingh son of Sukuidhar Kuhn aged abouf 27' years, 6 Hardev son of Sukhna'l’h Kalar, aged abouf 28 year's, 7 Deepchand son of Sukuldhar- Kalar- aged abou'l' 32 years, 8 Buchanu son of Madhumm Kalar aged abouf 32 years, PaTiram son of Knmlu Kalar, aged abouf 37 years, 10 Ramdhar' son of 5ulmldhar Kalar, aged abou‘r 42 years,. 11 Sukhna‘l’h son of Baibo‘ri Kalar aged abou'r 47 years, 12 Sukuldhar son of Bdibofi Kalar- aged abouf 57 years, x.‘\ x Raidhar son of Sukuldhaf Kalar' aged abouf 42 years, 14 Thokndu son of Madhumm Kalar, aged 27 years All residen‘rs of Ka‘mhmr P.S. Geedam, Distric‘r Bas‘l'ar, MP (Now CG) a VERSUS The afe of Madhya Pmdesh (Now Chhaffisgarh) Appearance: Sri R.N.Jha, counsel for the appellanfs. h Shri Assh Shukia, Government Advoca're for The fafe. hi S ivision Bench?— ' ‘ L JUDG (05.05.2010) Per T.P.Sharma; J. 1. Appellanfs No.11— Sukhnafh, No.12- Sukuld‘iar and No.14- Thokadu aré repor‘red 1o be dead, i‘herefore, fhis appeal on 1heir behalf sfands abaTed. 2. Challenge in this appeal is +0 The judgment of conviction and order of sentence dated 30.10.1991, passed by the 2"“ Additional . Sessions Judge, Bastar at lagdalpur in Sessions Trial No.2$/89‘, a Sf . RESPONDE§ CRIMINAL APPEAL UNDER SECTION 374 {g} OF THE OODE OF CRIMINAL PROCEDURE D Honble $hri T.P. $hanna & Honble $hri R.L.Jhonwar,JJ ORA $EE! whereby and whereunder 'rhe learned 2"“ Addifional Sessions Judge whet" holding fhe appellanfs guih'y for forma‘rion of unlawful assembly, armed wifh deadly weapons having ifs common objecf 1’0 commi'l' culpable homicide amoun'i'ing fo murder of 3 persons Sondos, Snmna‘i‘h and Anudhor in furtherance of 1heir common object of the uniawful' assembly, caused fo‘ml injury and commif'l'ed culpable homicide amouni'ing fo murder of fhe aforesaid persons, convicfed .fhe appellan‘l’srunder Sections 148, 302/149, 302/149 and 302/149 of The IPC and sen‘ienced fhem To undergo RI for Two years and imprisonmenT for life respecTively. 3. ’ The convicTion is impugned on The ground ThaT wiThouTcredible and clinching evidence, The learned AddiTional Sessions Judge has convicTed and senTenced fhe appellants as aforemenTioned and Thereby commiTTed illegaliTy. 4. Brief case of The prosecution is ThaT on The faTeful day of 03.06.1989 aT abouT 6.00 p.m. Chamsundar P.W.3 along wiTh The deceased $ondas, 5amnaTh and Anudhar was coming from The Gidam markeT on bicycle afTer purchasing Their daily needs. While They were crossing The river near village Madse, The appellanTs surrounded Them and assaulTed Them. P.W.3 Chamsundar fled from The cIuTches of The appellanTs and hid himself in The shrubs and saw The incident All The appellanTs were, holding sTicks, bow-arrow, axe and &dri> They assaulTed Sondas, SamnaTh and Anudhar and caused Their deaTh. P.W.3 Chamsundar wenT To his house and narraTed The incidenT To his faTher P.W.4 Dayalu, village PaTel, KoTwar and oTher persons. 0n The second day, P.W.3 Chamsundar wenT To police sTaTion Gidam and iodged FIR; vide Ex.P.3. Merg was recorded vide Ex.P.26 *0 P28. Investigafing Officer lef‘r for ‘l'he scene of occurrence and after summoning ‘rhe wimesses, inques? over the dead bodies of 1he deceased was prepared vide Ex.P.19 To Z1. Dead bodies were sem- for autopsy +0 P.H.C. Gidam vide Ex.P.22 1’0 P.24. Amopsy of Anudhar ms * conduci’ed by P.W.12 Dr. Pradeep Basak vide Ex.P.33 and found foHowing injuries: i. Stab wound on sternum area of %" x iv" ii. Stab wound on sternum area of 1" x %" x upto the debth of / thoracic cavity. iii. Incised wound over clavicle area of 2" x 1". Intra thoracic viscera was coming out from the injpry. Incised wound of 2" x air"x 1" over the right eye. v. Incised wound of 1 x 1 x 1" on left mastoid process. vi. Incised wound of 3 x 1: x i" over the back of the head; vii. Lacerated wound of 1 x % x %" over the back of the head. viii. Lacerated wound of 2 x i— x 1" over’the back of the head. ix. Incised wound of 2 x 1 x 1'7 over the back of the head. x. Incised wound of i” x y over the back of the head. ' xi. Parallel multiple bruises were found over the back. xii. Right carotid artery was found ruptured. Mode of death was shock. Death was homicidal in nature. He has examined the dead body of Sarnnafh vide EXP.34 and found following injuries: i. Stab wound over thoracic cavityof 1 xj’ ii. Stab wound of %" x i" over thoracic cavity. iii. Multiple bruises over the back. We, W; i t lV. VJ. Abrasion below the leff nipph of 6 x i” Incised wound of 2 x y x I" over 1he righf eyebrow. Lacera‘red wound of 2 x i“ x brain deep over forehand Liquid from ‘rhe brain was coming out Incised wound of 3 x 1 x 1" on righf mastoid pmass. Incised wound of‘5 x 1 ir" x brain deep neur- injury number seven. Fmcfur-es of bo‘rh porie‘ral and occipifol bones. Carofid artery was found fractured. Mode of dea'rh was shock and demh was homicidal in naiure. The Docotor has also examined 50ndas vide Ex.P.35 and found IX. X. V”. ‘ VIII. 5+ab wound on sfernum area of 1 x 1". Incised wound of 1 x i" x y over the righ? side of 1he eye. ‘ Laoera‘red wound of 3 x %" x i" over occipifai area. Laoeraied wound of 1 x i x i" over masfoid process. Lacera‘red wound of %" x %" x 1/4" x %" over righf masroid process. Lacera‘red wound of 1 x 4%" x %" near injury number five. Laoera'i'ed wound of 1 air" x 1 x i} near injury number six. Lacera'red wound of 1 x y x i' over mastoid process. Incised wound of i” x 3" x %“ over left mastoid pmoess. Frac‘ture on left occipital and parietal region. Multiple bruises over the back andchest.‘ Right carotid artery and other veins were found fractured. ... III. vi. VII. VIII. IX. XI. XII. following injuries: . 7. Affer affording opporfuni'ry of hearing 1’0 ‘rhe parties, learned Addi‘rional Sessions Judge has convic‘red and sen‘renced 11mg appeHan'rs as aforemen‘rioned. 8. We have hear-d, Shri RN. Jha, learned counsel for appellams and 5hri Ashish Shukla, iear'ned Government Advooafe for the Sm'l'e, perused +he judgmenf impugned and record of The Court below. 9. Learned counsel for fhe appellants vehemently wgued fha‘l‘ in ihe presem case, conviction is based on the solitary evidence of P.W.3 Chamsunder, which does not inspire confidence and trustworthy. He r himself has received injuries, but has not mentioned the fact in the F.I.R. He went to his house and slept. He did not narrate the incident to his father or other witnesses and on second day when Police called him then he narrated the incident, which creates doubt upon his reliability. This is a case of‘brutal murder. Prosecution is required to prove the fact strictly by cogent and reliable evidence. In the present case, prosecution has not explained the delay in lodging F.1R. He placed reliance on the decision of the Apex Court renderedin the matter of stafe of MP. Vs. Kriparaln, 2005 5c? (6H) 830, in which the Apex Court has held that in absence of opinion of Serologist as to the origin of blood found on"crime weapon and clothes of accused, recovery of the said bloodstained articles, would be of no. assistance to the prosecution. He also placed reliance in the matter of Sadhu Ram and another Vs. Stafe of Ryasflmn, (2003) 11 5dr 231, iri which, Apex Court has held that conviction of &i accused can be based solely on the testimony of a solitary witness. However, in such a case the court must be satisfied that implicit reliance con be h ,~\ placed an 'l'he Testimony of such a wifness and 'l'huf his fesfimony is so free of blemish Thai i1- can be acted upon wi'rhou'r insisfing upon ‘ corroborahon He fur‘rher placed rehance m 1he mofi’er of KW Muhammad alias Khumani and anafher Vs 5mm of Kara/a, €004) 9 .556 1.93, in which, Apex Cour? has held 1'ha1' prosecu‘hon Is required To prove ihe place of incident Learned counsel for The appellan'l’s also placed reliance in ”the maffer- of Rqiuvan and anofhcr Vs. 51w: 0f Kara/a, (2003) 3 56'6' 355, in which, Apex Court has held tha‘l’ prosecui'ion is required To explain fhe delay in lodging F.I.R. l0. On fhe ofher hand, learned counsel for The Sfafe opposed ihe pe'rifion and submi'rfed fha‘r this is a case of murder of 3 persons. The * appellanfs have brutally and mercilessly murdered 3 persons namely Sondas, Sumna'i'h and Anudhar. P.W.3 Chamsundar has also received injuries. Chamsundar fled from the spo‘r and wen‘i' To his house. He h was nof in a position to narrate the incident to any person and Mien Police came and called then he narrated the incident to the Police and other persons. Only on account of the fact-that he has not narrated » the incident to anybody and has not lodged the report immediately, his evidence cannot be discarded. 11. In order to appreciate the arguments advanced on behaFf of the prosecution, we have examined the material availa‘ble on record. 12. In the present case, homicidal death as a result of ante moriiem fatal injuries to Sondas, 5amnath and, Anudhar have not been substantially disputed on behalf of the appellants, an the other hand, it is established by the evidence of Dr. Pradeep Basak P.W.12 md \ dufopsy reporfs Ex. P.33 1'0 P35 and demh of The aforesaid deceased persons was homicidal in na‘l'ure. The conviction is substan'l'ialiy based on The evidence of P.W.3. Chamsundar, who is an eye wifness and has deposed #haf he aiong wifh 50mins, Sammfn and Anudhar was coming from Gidam on bicycle, 1he appeilan'rs were hiding 1hemseives in ‘the shrubs and waifing for Them and when 1hey were crossing fhe river, the appeiian‘rs surrounded Them. They were holding bowerrows, sticks, axe and assauiTed Them. He received one sTob injury Then he fled and hid himself in The shrubs and saw The incident All The appellanTs assaulTed Sondas, 5amnaTh and Anudhar and They killed Them. He went To his house and narraTed The incidenT To his father and To The village KoTwar, PaTel and oTher persons aid ThereafTer, he ~ ’ wenT To Police STaTion for lodging The report P.W.4 Dayalu ha. corroborated his evidence and deposed ThaT P.W.3 Chamsmdar narraTed The incidenT, buT in cross examinaTion hehas sTuTed The on second day when Police came and called Then Chamsundar narra'led The incident He has also sTaTed ThaT They have asked Chamsundar ThaT why he has noT narraTed The incidenT earlier. He has admiTTed ThaT They convened The meeTing along wiTh Police and on The basis of enmiTy of The appellanTs wiTh The deceased They Told The names‘of The accused persons. P.W.5 Manglu has subsTanTially corroboraTed The evidence of P.W.6 Mummi. P.W.3 Chamsundar has admiTTed in m 11 of his cross examinaTion ThaT he has noT narraTed The incidenT To SobharnaTh and Sukhram. He hid in The shrubs and went To his house. He has also admiTTed ThaT he has noT narraTed ‘The incidenT To Sarpanch, Manglu. In para 12‘of his cross examinaTion he has sTakd ThaT he narraTed The incidmT only To his faTher and on second da v y 10 when Police came a? abou'l' 12 O'clock and called him fhen he nnrmfed ‘rhe incidenf 1'0 ‘l’he o‘l‘her persons before The Police. 13. Evidence of This wifness revealed 1ha1- he had not lodged 'rhe reporf af Police Sfa'l‘ion and when Police came fo fhe village fhen he lodgedg'rhe report Evidenceof prosecufion witnesses revealed tha‘l' persons of' village Madse saw 'rhe dead body fhen they called o1her people of the village and Kotwar and they watched the dead body in the night and on second day Police was intimated. When Police came then they convened a meeting and P.W.3 Chamsunder narrated the’ incident to Police, where F.I.R. was lodged. Evidence of P.W.4 Dayah, P.W.5 Manglu, P.W.6 Mummi revealed that on the basis ofenmity, ~ names of the appellants were told.'They asked P.W.3 Chamsun¢r that why he has not narrated the incident earlier. 14. In the matter of Sadhu Ram and another Vs. sink of Rqiasfhan, (2003) 11 562' 231 (Supra), it was held by the Supreme Court that‘conviction can be based on the statement of solitary witness, if it satisfied the touchstone of law. The relevant'paragraptr is as under- : If is no docbr true that the conviction of on accused can be based sole/y on the fesfilnony of a m/ifoty wifness. However, in such a case the cow Inusf be safisfied fhaf imp/icif reliance can be placed on fhe festimony of such a witness and the? his fesfimony is so free of blemish that it can be acted won without insist/m upon corroboration. The testimony of the witness must be one, which Mspines confidence and leaves no docbt in the mind of the cow about the twthfu/ness of the. witness. In the facts of this case'the credibility of Mala Ram, PW3 has been (‘\ 11 sufficienfly impeached. We cannof say fhaf I‘M/a Ram is a wifness an whom imp/icif reliance an bc placed. H: cerfainly due: m cm in flu aafagoly of a Mines: an whom imlicif reliance can be placcdr In facf we are inclincd fa fake Me vicw thaf hr i: a «dial/y unreliable Wines: aw no convicfion can be based an file evidence of such on mrelioble m Even if we place Mala Ram in fhe cafegary of or parfially reliable wimess, we find m evidence to con-abarofe his feefirnony and, ‘rherefm; if is nor safe to base a convicfion an fhe fesfilnony of such a wifness. Moreover we find fhar fhe medical evidence doe: nor swporr his fesfimony. Aeeoidity fo Mala Ram fhe wife of Sadhu Ram had conmiffed ’ suicide. He is caregoric in his asserfion rho? the bodies were haryirg when he saw 'fhem and fheir badies were bum rhmafm. rm, medical evidence, which we find no reason to disregoid. is clearly fo fhe confrary. Dr. 5harmo who was one of fhe docfors who conducfed flie’ post morfem exominoiions is clear and cafegoric in assertiry fhaf fhe injm'ies were anfe~morfein and he has given good reasons fo swporf his opinion. The medical evidence is consisfenf wiih fhe defence case Moi the deceased died ‘of bw-ning in on accidental fire, but fhe some is nor consisfenf wifh fhe version given by Mala Rom, PW3 fhai' their dead bodies wet! x? ablaze later. If if were so, rho iru’u'ies fowd could nm‘ have been anfe-morfein inim'es, aid the presence of soofy carbon particles would no? have been found in larynx frachea, pharynx and x oesophagus 1%. In The present case, as per the evidence of P.W.3‘Chamsundar, all ‘rhe appelIanTs were holding bow-arrow, slicksand axe, but They have no‘r used the aforesaid weapons for omsing injqry to ‘lhis witness and some body has pelfed sfone upon fhis wifness. This evidence ifself is unnatural. He has seen fhe incident buf has nof narro'red #he 12 inciden‘r To any person. He wen‘r fo his house and slep‘r and when Police came on next day and called him, he narrafed fhe inciden'r 1'0 fhe Police, bu? Police has no? corroborafed fhe fact Thai They have regisTered FIR. in The village. Evidence of soIiTar-yv wiTncss P.W‘.3 Chamsunder does noT inspire confidence. No reliance can be planed on The TesTii'nony of such o wiTness wiThouT furTher corroboraTion. Only - on The ground ThaT 3 persons have been murdered, liabiliT-yconnoT be ' fosTened upon The appellenTs wiThouT any legal evidence. 16. On close scruTiny of The evidence, we are of The view ThoT evidence of solitary wiTness P.W.3 Chamsundar does noT in$ire confidence and TrusTworThy. 17. While convicTing and senTencing The appellanTs, count below has noT considered The aforesaid aspecT of The case and Thereby commiTTed illegaIiTy. 18. For The foregoing reasons, The appeal is allowed. ConvicTion and I, senTence of The appellanTs under SecTions 148, 302/149, 302/149 and v 302/149 of The IPC are seT aside. They be seT aT liberTy aT once, if noT required in any oTher case. Sd/- Sd/- l R.L.Jhanwar JW >,/—>=/' ‘T.P. Judge Sharma ,,J:1*1ge ’ W ‘ \