HIGH COURT OF CHHATI'ISGARH AT BILASPUR DIVISION BENCH: CORAM: HON’BL‘E MR.T.P SHARMA & I HON’BLE MR.N.K'.AGARWAL, JJ. Criminal Appeal No.169 of 2004 Ajay Prakash Banjare and three-others Ver‘sus w ”State ummi of€hha§t§s§§(h a JUDGMENT FOR CONSIDERATION Sdl- T.P. Sharma , ‘ r Judge - Hon’ble Mr.N.K.Agarwal, J. Sd/— N. K'Agarwa! I . Judge V Post for of the-Judgment on’ : 25/2/201 1 pronpuncement a‘ ///’/ sdl- ‘ ', T. P. Sharma Judge //—f'-: @ 2.‘ Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appeiiants as aforementioned and thereby committed illegality. As per case of the prosecution, on the fateful day of 10.5.2002 at about 10 p.m. all the'appellants were searching MOhan Banjare (since deceased), they were holding deadly weapons, they were beating Mohan Banjare near Girhola bridge where unfortunate deceased Mohan Banjare came at about 10 p,m., the appellants were holding sword dragger stick and non-chalk they repeatedly caused injuries to Mohan Banjare by the aforesaid weapons they dragged and caused his Instantaneously death Thereafter, they dragged dead body of Mohan Banjare from bridge to field where they concealed dead body. Appellagt Ajay Bapjare was holding sword, appellant Omprakash was holding dragger appellant Tekram was holding non—chalk and appellant Dameshwar was holding stick After committing the offence all the appellants went to Police Station Nandini four kilometers away from the place of inCIdent at 11.45 p.m., Within one hour and forty five minutes. At the instance of appellant Ajay Banjare, F.I.R. was registered vide EXP/3. Appellant Ajay produced sword stained with blood which was seized from him vide Ex.P/4. Appellant Omprakash produced dragger stained with blood which was seized from him vide EXP/5. Appellant Dameshwar produced one stick, some scale of stick was missing, same was recovered from appellant Dameshwar vide Ex.P/6. Appellant Tekram produced broken piece of non—chalk same was seized vide Ex P/7 Investigating officer proceeded for scene of occurrence and seized one piece of bamboo stick broken piece of non-chalk, one piece of bamboo stick, four teethes of deceased stained with blood, hairs of the head of the deceased, bloodstained and plain soil, one piece of bamboo stick and one pair chappal of the deceased stained with blood vide EXP/16. After summoning the witnesses vide §X.P/13, inquest over dead body of deceased Mohan Banjare was prepared vide Ex.P/14. Spot map was prepared by inVestigating officer vide Ex.P/12. Dead body was sent for autopsy to District Hospital, Durg where Dr.A.P.Samant (PW-9) conducted autopsy vide EX.P/1O and found following injuries:- Hc ’ ,_. / @ (i) Incised wound of 11 cm. x 4 cm. x bone deep over chin. (ii) Incised wound of 1O cm. x 2 cm. x 1/2 cm. between chin and neck. (iii) Incised wound of 2 cm. x 1 cm. over middle part of nose. (iV) Incised wound of 1 cm. x 1/2 cm. x 1/2 cm. over right cheek. (V) Incised w0und of 4 cm. x 1 cm. x bone deep over back occipital region of skuil. (vi) Incised wound of 5 cm. x 2 cm. x bone deep over right parietai region of skull. (vii) Incised wound of 10 cm. x 3 cm. x bone deep over ieft parietal region of skull InCIsed wound of 6 cm x 2 cm x bone deep over left parietal region of skuii. r/r‘. (viii) £ (iX) InCIsed wound of 3 cm x 2 cm x bone deep over Ieft OCCIpItai region of skull Stab wound of 2 1/2 cm. x 1 cm. over right infra clavicle region (xi) Stab wound of 2 cm. x 1 cm. x chest deep over right infra clavicle region. (xii) Stab wound of 2 cm. x 1 cm. x chest deep over right supermemory region. (xiii) Stab wound of 2 cm. x 1 cm. X chest deep o'ver right memory region (xiv) Stab wound of 2 cm x 1 cm x chest deep upto right Inframemory region. (XV) Stab wound of 2 1/2 cm. x 1 cm. x chest deep upto right inframemory region. (xvi) Stab wound of 2 1/2 cm. x 1 cm. x chest deep upto right inframemory region. (xvii) Stab wound of 2 cm. x 1 cm. x chest deep upto right inframemory region. (xviii) Stab wound of 2 cm. x 1 cm. x chest deep just below injury No.17. (xix) Stab wound of 3 cm. x 1 cm. x deep upto left side of chest deep infra clavicle region. ~ @ Stab wound of 3 cm. x 1 cm. x deep to the right infra clavicle region. (xxi) Stab wound of 3 cm. x 1 cm. x deep into the chest over left super memory region. (xxii) Stab wound of 2 cm. X 1 cm. x deep into the chest over left memory’region. (xxiii) Stab wound of 2 cm. x 1 cm. x deep into the che'st over Ieft memory region. (xxiv) Stab wound of 3 cm. x 1 cm. X deep into the Ieft side of chest parasternal region. (xxx)? Stab wound o'f 3 cm. x 1 cm. x deep into the chest over ieft p_recordial region. (xxvi) Stab wound two in number of 3 cm. x 1 cm. x deep into the abdomen over apigestic region. Membrain of intestine was coming out from the injury. (xxvii) Stab wound of 3 cm. x 1 cm. up to abdomen deep over right hypocordia’m.’ " (xxviii) Stab wound of 3 cm. X 1 cm. X abdomen deep over left hypocoidrim. (xxix) Stab wound of 2 cm. X 1 cm. x abdomen deep near amphaios. (xxx) lncised wound of 6 cm. X 5 cm. X bone deep over right wrist. (xxxi) incised wound of 2 cm. x 1 cm. x bone deep over right forearm. (xxxii) Incised wound of4 cm. x 1 cm. x 1 cm. over right middle fingerg. t (xxxiii) Incised wound of 10 cm. X 5 cm. X bone deep over Ieft hand. Incised wound of4 cm. X 1/2 cm. X 1/2 cm. over right hand. (xxxv) Incised wound of 10 cm. X 6 cm. X 1 cm. over Ieft (XX) (xxxiv) Lemuel Ui . e s. .. .. f'O f’eé‘i'm .' ‘(xxxvn Incised wound of4 cm. X 1/2 cm. X 1/2 cm. over left knee. (xxxvii) Stab wound of 2 cm. x 1/2 cm. X 1/2 cm. over right scapuia region. _. Stab wound of 2 cm‘ x 1/2 cm. X 1/2 cm. over back. Incised wound of 4 cm. x 1 cm. x 1/2 cm. over right ear. Incised wound of 2 cm. x 1/2 cm. x 1/2 cm. over trachea. Incised wound of 1 cm. X 1 cm. over trachea. Fracture of occipitat region of 8 cm. x 8 cm. and heamotoma on brain. Five perforating wounds on left lung and six purporting. wounds on right lung. Six perforating wounds and five perforating wounds on right and left plural cavity. Three perforating wounds on pericardium. Fourperforating wounds on stomach. Two perforating wounds on small intestine. Two perforating wounds on large intestine. Two perforating wounds on lever. Two perforating wounds on splin. Cause of death was shock as a result of excessive hemorrhage. One full paint stained with blood was seized from Pransingh Banja're, father of deceased Mohan Banjare vide Ex.P/1. Patwari also prepared spot map vide Ex.P/9. Sealed clothes of the deceased were seized vide Ex.P/17. Seized articles were sent for chemical examination and presence of blood on dragger seized from appellant Omprakash and sword seized from appellant Ajay Banjare was confirmed vide Ex.P/1 9. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) and after completion. of.investigatior.i, charge sheet was filed before the Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions, Durg, from where learned 5th Additional Sessions Judge, Durg received the case on transfer for trial. In grder to prove the guilt of the accused/appellants, the prosecution has eXamined as many'as/thir’t’een witnesses. Accused/appellants were examined under Section» 313 of the Code, in which they denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. (xlixQ .' (xlv) (xlvi) (xlvii) (xlviii) (xlix) l (xxxviii) (xxxix) (x1) (xli) (xlii) (xliii) After providing an opportunity of hearing to the parties, learned 5‘“ Additional Sessions Judge, Durg has convicted and sentenced the appellants as aforementioned. We have heard Mr.Rajkumar Gupta, counsel for appellant No.1, Mr.Yogesh Pandey, cog‘nsel for appellant No.2, Mrs.Hamida Siddique, counsel for appellant No.3, Mr.Prafull Bharat, counsel for appellant No.4 and Mrs.Madhunisha rSingh, Panel Lawyer for the State/respondent, perused the judgment impugned and record of the trial Court. Mr.Ra‘j‘kgmar Gupta, learned counsel for appellant No.1, Mr.Yogesh Pandey, learned counsel for appellant No.2, Mrs.Hamida Siddique, learned counsel for appellant No.3 and Mr.Prafull Bharat, learned counsel for appellant No.4 argued that the case is substantially based on circumstantial ‘evidence. In case of conviction based on circumstantial evidence the prosecution is required to prove the circumstantial evidence complete HxWv H1 and u pl incapable l of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent withthe guilt of the accused but should be inconsistent with his innocence, but in the present case, prosecution has not produced any evidence to connectlthe appellants in crime in question. Conviction is based on conjectures and surmises; conviction of the appellants is not sustainable under the law. Accused persons have not lodged F.l.R., even it is considered that the appellants have lodged the F.l.R. EXP/3, then same is‘not admissible in evidence and is hit by Sections 25, 26 and 27 of the Evidence Act. Virtually prosecution has not adduced any evidence for drawing inference that the appellants have committed the aforesaid offence. On the other hand, learned State counsel supported the judgment impugned andargued that in the present case, appellants themselves ave lodged F.l.R. Ex.P/3, they produced weapons stained with blood and same have beenrecovered at their instances, dead body was found, homicidal death of deceased Mohan Banjare has been established by the evidence of the doctor and the prosecution has proved complete chain of circumstances. h . In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. In the present case, homicidal death as a result of fatal injuries found over body of deceased i.e., about fourteen external and forty five internal injuries, fracture, hemorrhage and perforating wounds, has not been disputed on behalf of the appellants, on the other hand, also established by the evidence of'Dr.A.P.Samant (PW—9) and autopsy report Ex.P/1O and death was homicidal in nature. 12. As regards the complICIty of the appellants In the crime In question conwctlon Is substantially based on production and seizure of weapons presence of the appellantsat Police rStatIon Just after the ineldent presence of blood on sword and dragger recovered from appellants Ajay Banjare and Omprakash piece of non chalk found on the spot and second part was seized from appellant Tekram. Disclosure of dead body at the instance of appellant Ajay Banjare. . l‘n'th'e’”V‘pr'es'e'nt'”casélffi‘nftually“independentWitnesses have not supported the case of the prosecution. As per evidence of Pransingh Banjare (PW-1), father of the deceased Mohan Banjare, on the date of incident at night he was informed by the police that'body of his son Mohan is lying near Nikudiya road, then hewent toNikUdiya road where body 'of his son was lying near nala on the field of Chhabi, he was badly injured. After seven days of the incident one jeans paint belonging to appellant Tekram was found near the place of incident which he produced before the police and same was seized vide Ex.P/1. As per para 7 of his cross examination police informed him at about 4 at night relating to idCident Sangeeta (PW 2) Sister of deceased Mohan Banjare, has not supported the case of the prosecution. Bhag Bali (PW-3) has also not supported the case of the prosecution. Ghanshyam Mishra (PW 4) and Mohd Abid (PW—6) witnesses of the F l R Ex P/3 and seizure Exs P/4 to P/7 have also not supported the case of‘the‘ prosecution but they have admitted Signatures over Exs P/3 to P/7. Police has declared them hostile. Chaitu (PW 5) betel shopkeeper has deposed in his evidence that at 7 p.m.‘appellant Dameshwar along with lshwari and deceased Mohan came to his betel \ ¢ n: \1 rv 1 )S‘ e,‘ 5;» a sums? --‘ op nd after pchasi utkha th en fm his shop and on sed dy moin he cae to know that Man has been urdered. lshwariprsad (P-) has a not supported the case o the rosecution. As per para 1 of evidence of Sub Inspctor l.P.Kharwade (PW—13) i.. inesigating fficer who has nvestigate the offence, on 10.002 at 1.45 p.m. appellant Ajay Banjare lodged F..R. vide E.P/3 which he as registered in the presence of Ghanshy Mishra (P-4) nd Mohd.Aid (PW-). As per para 4 of his vidence, apella ay produced sword which has seized vide Ex.P/4, appellant Omprakash proced rgger hich has seize ide x.P/5, appellant amhar produce one s hich has seizd ide Ex.P/6 and ppllan Tekram oducd'on-halk hic has seized vide Ex./7. A e‘E.P/3, >F.|:.'hae‘gitéreda . o ..002, heafr withintwenty minutes o lodging of F.l.R. this witness has seized word from appellant Aja Banjare vide Ex.P/4, after twent five minutes of lodging of F..R. he a seized dragge frm appellant Omakash vide EP/5, after thir minutes of lodgin of F.I.R. h a pr x. ty g e hs sei'estiCK‘fr’‘m ”alat "’shwr ide E/ and a'fterthiry ve minute of lodgi of F.l.R. he ha seized piece of non-ch from apa d . l osetion as ouced nly foresaid p of evidence hath' prsn apelat’mea'cedrRQlice tonNad at 11. tvte eet plnsrh Stai‘nini 45 pm. on 52 ty wee h e ep la Ajy Banjare has lodged F..R. vide EXP/3, then other appellants produced the aforesaid weapons which this witness has seized vide Exs.P/4 to P/7. As per chemical examination report EXP/19, dragger seized, from ,appellant,Qmnnalsasb,,..§w0.rd .seizeg,,from appeHant Ajay Banjare and second part of non-chalk found near the place of incident was stand with blood. Ex.P/3 F.l.R. consists confessional and non—confessional information. Witnesses of Exs.P/3 to P/7 Ghanshyam ,yMishra (PW-4) and Mohd.Abid (PW-6) have not ‘supported the aforesaid documents, but they have admitted signatures over the aforesaid documents. They have not deposed anything relating to any pressure, threatror fear made by the police or any other circumstances for signing upon the aforesaid documents. This shows that they are zd‘o ppeln 'Damea V XP6' 't fi s ng s alk pellnt Tekram vie Ex.P/7. Virtualy prcu h prd o a iece . 10..200, he r olding aforsaid waons. Appelnt a l 37% sh a urng g ey wt ro con a rng m oh m a W7 lso f p e e vt o id .52 1 I X h am W a b 6 e pnt Aj du da w d v E Desw d tick w e v aet prenc wh ' P s p:x Rs"bérlréém1:45 pm n 1052 trete ‘ f s y y I hs r o concealing the truth. In these circumstances, only the evidence of investigating officer l.P.Kharwade (PW—13) is remain for consideration. . He is poiice officer, but his evidence cannot be discarded only on the ground that he is police officer and interested in the outcome of the case. While dealing with the question of evidentiary value and reliabiiity of the statement of police officer, the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra‘ has held that witnesses being police officers does not by itself create a doubt about their creditworthtness if non examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under: “Mcfeed all the five prosecution Witnesses who have been examined in #suppon‘ of search and seizure were members of the raiding party They are all police off/Cla/s There Is however no rulegof law that the ewdence of police off/Clals has to be discarded or that It suffers from some Inherent Inf/rmlty Prudence however reqwres that the ewdence of the police off/crals who are Interested In the outcome of the result of the case, needs to be carefully scrutinized and independent/y appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials .does:_.not...b_y_-itselfe..gtve-uiriseataeanycdoubt. about their creditworthiness. We have carefully and critically analysed the evidence of all—the 5 police officials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross examination their evidence has remained unshaken throughout These Witnesses have deposed In clear terms the data/ls of the trap that was Iald to apprehend the appellant and the manner In which he was apprehended The/r eVIdence regard/ng‘s’éarch and seizure of the weapons from the appellant Is stralghtfonll/ard conSIstent and speCIfIc It Inspires confidence and learned counsel for the appellant has not been able to pomt out any serious let alone fatal Inf/rmlty In the/r eVIdence In our opinion the factum of search and seizure of the country made revolver from the conscvous possesSIon of the appellant has been established by the prosecution beyond any reasonable doubt The explanation given by the prosecution, for the non-examlnatlon of the two Panch Witnesses, Which is supported by the report Ex. 24 filed by PW—4 P./. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join With them two ndependent Panchas at the time of search and seizure and they were so jomed They are also Cited as prosecutron itnesses and summoned to give eVIdence However despite diligent efforts made by the prosecuting agency to serve them they could not be located or traced and therefore they could not 1 AIR 1996 scw 2943 l I W l be examined at the trial. In the face of the facts-stated in report EX. 24, the correctness of which has remained virtua/ly nchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on ccount of any oblique reason. Their non production at the tn‘al thus has not created any dent in the prosecution case. The prosecution cannot be accused of Withholding these witnesses since it made every/effort to trace and produce them at the trial ut failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefOre, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority be‘ééusepf the non examination of the Panch witnesses we find that the evidenceHpf law) PWHannnxvw 1 to PW-5 is reliable, cogent and ,.., .,..‘.. ,x,. H trustw0rthy. " W £ . In the matter of P.P. Beeran v. State of Kerala2 it has been held by the Supreme Court that the reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police. . In the present case, Ghansh'a‘rh’Mishra' (PW—4) and Mohd.Abid (PW-6) have not stated anything that why they have signed over five papers if they were not prepared and police has not seized aforesaid weapons rom the appellants. In absence of aforesaid circumstance, it reveals that they are concealing truth. . Defence has not able to elicit anything in their defence to show that Assistant Sub Inspector l.P.Kharwade (PW—13) is interested witness and has not followed the procedure prescribed. He is police officer. It was his duty to investigate the offence and only on the ground of his offici‘a‘ duty he cannotot‘xnlSHWgHt be branded wemn as tnterested witness. His evidence cannot be discarded or rejected on the ground that he is olice officer. 19. In the present case, prosecution has substantially examined l.P.Kharwade (PW-13) i.e., investigating officer and medical evidence. sAs per para 1 of evidence o'f Sub Inspector I.P.Kharwade (PW-13) i.e. Investigating officer-who has investigated the offence, on 10.5.2002 a 11.45 p.m. appellant Ajay Banjare lodged F.I.R. vide Ex.P/3 which he 2 AIR 2001 SC 2420 u a b 'y f l p t l \ \ 11 has registered in the presence of Ghanshyam Mishra (PW-4) and Mohd.Abid (PW-6). As per para 4 of his evidence, appellant Ajay produced sword which has seized vide Ex.P/4, appeiiant Omprakash produced dragger which has seized vide Ex.P/5, appellant Dameshwar produced one stick which has seized vide Ex.P/6 and appeliant Tekram produced non-chalk whiCh has seized vide Ex.P/7. As per Ex.P/3, F.l.R. has een registere at 1.45 .m. on 10.5.2002, thereafter within twet minutes of loging of F.l.R. thi witness hs sized sword from appeHant Ajay Banja d E/4, after tenty five mintes of Iodging o R gg e as eréhi i h h ppet w d 6 a n ig h see f b d 1 p ny d s a e re vie XP w u f F.l.. he has seized draer from appllant Omprakh vide Ex.P/5, aftrty mnutes of lodging of F.l.R. e as seized stick from allan Dameshar vie Ex.P/ nd after thirty five miutes of lodgn of F.ltR., he as izd piece of non—chalk rom appellant ea ge .. of evidenc of I.P.harwad Tkrm vid ExP/7 As per‘para‘ 5 e Ke (PW-13), he hs seize one piec o amboo ick, iece of nonhalk, ie o baoo ck, teethes o te deceased, hars of head o the de d a h ed v e p 7' s ed es ide EXP/16. As pr ara of hi evidence he has sent‘ size articl t Frnsic Sciee Labatr, Rau for chemica examnation vi X18 and report is EX19 whih conmmed presene of blood on drger seze frm appellant Omprakash and sw seed from ll Ajay, piece no-al ling in the place of icidnt, eethes s and aie siz th ot SW nd rag eifr ppea Ay ”and Ork t cle e iz n Gi bge f me w ha s m t i t tes o llnt l b wa ne d ta’piEk‘2art iZd id EXP6 w und n i ge n d h m e te e fg fo ora ride. Ingati ofger [P,Ka, v .(PJ13 as po F.lR. E . vesting fi Juhrwade .ju,‘ cm“ yV) h rved . x.P/3 lodge b one fh present appellat i.e., Aja nj. x./ F.lR contents, a d e f b st p -c pce f mb sti f h i f ceased, bloodstained an plin soil and chappals of te deceas i o oe nc oroy 'ipr l i de EP/ P/ c c ag id o ord iz appeant of nchk y ne t, hair bloodstnd soil eed from e sp. ord a dger szed‘om allnts ja mpaash. Res artis hav been seed ear rhola rid. Deence has cross-exaind this itness at length but s not been able ‘to elicit anything in hi cross- exaination tha he has not sezed he aforesaid aricl frm the appeas and near Girhoa bridge. Dead ody s found ar nala in the fiel. As per spo‘m.’P/£1,icles see ve‘ /1 ere fo ear Grhola brid ad ead body of te deceased has been recovered fro th field at h distanc of one urlon rm afesid bg cl d y ote ns y Baare EP3 .. A Hlk) ejl 4. u h I . v“ \ (a) Confessional statement of appellant Ajay Banjare. (b) Non-confessional statement of appellant Ajay Banjare. (c) Statement of disclosure of fact. As per Ex.P/3 F.l.R. all the appellants have encircled deceased Mohan Banjare and caused his homicidal death. Aforesaid part of confessional statement is hit by Section 25