y~t-s HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH A£^ CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.815 of 2005 1. Rajendra Gandhi, son of Ratilal Gandhi, aged 34 years, Resident of Kewamunda Ward, Jagdalpur, District Bastar (CG). 2. Haresh Kbthari, son of Late Gangaram Kothari, aged 44 years,; JiSesjdent of Rautpara, Jagdalpur, District Bastar (CG). . 3. Arun Diwan, son pf Dilbagrai Diwan, aged 35 years, Resident of Chandrabhawan, Patharaguda, Jagdalpur, District Bastar 4. Hori Mandal, son of G.P.;Mandal, aged 35 years, Resident of Gurynanak Chowk, Jagdalpur, District Bastar (CG). 5. Babli @ Sandeep Kundu, son of B.K. Kundu, aged 35 years, Resident of Nayapara; Jagdalpur, Djstrict Bastar (CG). (In the order of the Court below the father's name has been wrongly mehtionedas C.K. Kundu) Versus State of Chhattisgarh ; . Present: Mr. Pawan Kesharwani, counset fpr appellant No.1 Rajendragandhi. Mr. Surendra Singh, Senior Advocate with Mr. GoutamKhetrapal, Advocate for appellants No.2, 3 & 4 namely Haresh Kothari, Arun Diwan & Hori Mandal, respectivety. Mr. B.D. Guru, counsel for appellant No.5 Babli @ SandeepKundu. Mr. D.K. Gwalre, Govt. Advocate withMrs. MadhunishaSingh, Panel Lawyer for the State/respondent. 1 K:,^^:. '^!t- Er%: 's 's K'^-y ^•.rfh.sF',,, ^^iC <-;'.^.2-:<E& APPELLANT: (In custody) RESPONDENT: APPELLANT: (InCustody) RESPONDENT: ia •^KS^ Criminal Appeal No.459^of^OQ6 RamKumar S/o Gauri Shankar, 33 years R/o Hikmipara, Jagdalpur Distt. Bastar Versus State pf Chhattisgarh through the District Magistrate Bastar, Jagdalpur AND CrimlnaLAppeal No.9Q7 of 2010 Ramjan Beg, S/o Karamat Beg, 35 ye^o, R/o Ganga Munda Ward, Jagdalpur, Distt. Bastar (C.G.) Versus State of Chhattisgarh, Through District Magistrate, Jagdalpur, Bastar (C.G.) {Criminal appeals underSection 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. Prafull Bharat, counsel for the appellants in Cr.A.Nos.459/20QgA 907/2010. Mr. D.K. Gwalre, Govt. Advocate with Mrs. Madhunisha SingSPanel Lawyer for the State/respondent. ^- JUDGMENT >tR (28mJuly,2011) The foilowing iudqment ofthe Court was oassed bv T.P. Sharma, J: - » I.Cr.A.Nos.815/2005 & 907/2010.filedon behalf of accusea persons/ appellants RajendraGandhi, Haresh Kothari, Arun Diwan, Hori Mandal, Babli @ Sandeep Kundu & Ramjan Beg against the judgment of conviction & order of sentence dated 29-9-2005 passed by the 3rd AdditionalSessions Judge, Jagdalpur in Sessions Trial No.160/2001 and Cr.A.No.459/2006 filed on behalf of absconding accused/appellant Rarn Kumar against the judgment of conviction & order of sentence dated 6-5- 2006 passed by the 3 Additional Sessions Judge, Jagdalpur in Sessions Trial No.160/2001 relating to commission of same offences, are being disposed of by this common judgment. v 2. Vide judgment of conviction & order of sentence dated 29-9-2005, the 3rd Additional Sessions Judge, Jagdalpur, in Sessions TrialNo.160/2001, has convicted & sentenced the appellants in Cr.A.Nos.815/2005 & 907/2010 for commission of culpable homicide amounting to murder in furtherance of common obj'ect of the unlawful assembly formed by them who were armed with deadly weapons and for commissibn of the offence of kidnapping & extortion, under Sections 148, 302 read with Section 149, 329 read withSection 149,348 & 364 of the IPC. Appellant Ram Kumar in Cr.A.No.459/2006 was absconding, subsequently he was arrested and after trial he was also convicted & sentenced under Sections 148, 302 read with Section 149, 329 read with Section 149,348 & 364 of the IPC vide judgment dated 6-5-2006 passed by the 3rd Additional Sessions Judge, Jagdalpur, ih Sessions Trial No.160/2001. All the appellants have been convicted and sentenced in the following manner for causing homicidal death amounting to murder of Vinod Gupta after kidnapping and extortion: - 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellantsand thereby committed illegality. 4. As per case oi the prosecufion, Vinod Gupta (since deceased) was working in the shop of appellant Haresh Kothari. As per case of the appellants and material collected on behalf of the prosecution, on account of suspicion of commission of theft of Rs.3 lakhs from the Kothari Complex, the appellants kidnapped Vinod Gupta and took him to the house of Kothari Seth situate af Rautpara, Jagdalpur where they assaulted and caused injuries to Vinod Gupta by burning polythene & cigarette, there.by, they caused serious injuries to Vinod Gupta. Vinod '.I'^SSWIIiialtWfsMSslf Conviction Sentence Section148ofthelPC Rl for oneyear & fine of Rs.1,000/- each, in default additional Rl for three months. Section 302 read with Section 149ofthelPC Imprisonment for life & fine of Rs.5,000/- each, in default additional Rl for one year. Section 329 read with Section149ofthelPC Rl for seven years & fine of Rs.5,000/- each, in default additional Rl for oneyear. Section348ofthelPC Rl.for one year & fine of Rs.1,000/- each, in default additional Rl for three months. Section364ofthelPC Rl for seven years & fine of Rs.5,000/- each, in default additional Rl for oneyear. -^ ^;-""^ *sa^, • i- 'J' Gupta was confined by the appellants from 26-4-2000 till 28-4-2000. Thereafter, on 28-4-2000 at 11 p.m.appellant Haresh Kothari tetephoned to Police Station Jagdalpur that Vinod Gupta has been confined in Parpa Dhaba for interrogation relating to theft of Rs.3 lakhs from his shop. Police immediatety mshed to Parpa Dhaba where Vinod Gupta was present in injured condition, on being asked, he told that appellant Rajendra Gandhi alongwith other persons has kidnapped him and has caused aforesaid injuries by burning polythene and other articles. Vinod Gupta was not in a position to talk, he Was badly injured. Immediately he was taken to the police station and was sent for medical examin^ RoznamchaNo.1687 was recordedat 11 p.m. on 28-4-2000. V?,od Gupta was sent for medical examination on 28-4-2000 and he was < examined by Dr. K. Vinay Kumar (PW-9) vide Ex.P-14 and following injuries & symptoms were found: - 1. Defused swelling over right hand and right leg.with tendemess of 65 c.m. in roundshape. 2. Abrasion over right hand in black colour of 9 c.m. x 5 c.m. 3. Two abrasions over right wrist of 1 %c.m. x 1 c.m. and % c.m. x % c.m. in black cotour. , 4. Abrasion of 5 c.m. x 5 c.m. over upper side of hand in black colour. 5. Multiple abrasions overall fingers. . 6. Defused swelling over right hand of 65 c.m. in round shape h^ unbearable pain. 7. Multiple abrasions over left hand of 2 c.m. x % c.m. and % c.m. in -» black colour. 8. Defused abrasion of 29 c.m. x 7 c.m. in black colour on lower part of hand with unbearable pain. ^- 9. Multiple abrasionsover atl fingers of left hand with discharge of water like substance. 10-Defused swelling over right eye, hairs of eyelids were burnt and colour was black. 11. Four abrasions over right side of face in the size of 1 c.m. to 2 c.m. and % c.m. 12-Four abrasions over rightside offacejnthe sizeof2 c.m. to 1 'A c.m. and 1 c.m. 13.Three abrasions over chin of 1 % c.m. to 1 c.m. 14.Multiple abrasions, twelve in number, over right thigh and leg in the size of2 c.m. to 1 c.m. x 1 c.m. es^si li'. • ' ^i 15.Multiple abrasions over left thigh and lower part of foot, thirteen jn number, in the size of 1 c.m. to % c.m. x 1 c.m. 16.Abrasion over left knee of 8 c.m. x 5 c.m. in black colour. 17.Multiple burn injuries, 12-15 in number, like water drops in the size of Vz c.m. in circular shape over back portion and stomach. IS.Superficial bum injuries over chest of 9 c.m. x 2 c.m., colour of skin was blackandskin was peeling of. 19.Three superficial burn injuries of1 c.m. x % c.m., skin was peeling of over chest. 20.Three abrasions over left side of waist in the size of 10 c.m. x 5 c.m. and 3 c.m. x 2 % c.m. in black colour. 21. Blood clot on front part of penis. 22.Abrasion over left buttock of 8 c.m. x 5 c.m. 23.1-lairs offbrehead were brunt. Injured Vinod Gupta was advised for x-ray of both hands and chest. He was gdmitted in the hospital for further treatment. During treatment, relatives of Vinod Gupta took him to Visakhapatnam for treatment where he died on 9-5-2000. Thereafter, on being asked by the police vide Ex.P-32, Dr. K. VinSy Kumar (PW-9)opined that the jnjuries found over the body of the injured may be sufficient to cause death. On 2-5-2000 at about 8 p.m. at Maharani Hospital, Jagdalpur during treatment of Vinod Gupta, he lodged dehati nalsi vide Ex.P-33. On the basis of Ex.P-33, FIR Ex.P-34 was registered. Vinod Gupta also made dying declaration before his mother & wife namely Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13), respectively. Injured Vinod Gupta was admitted in Seven Hills Hospital, Visakhapatnam on 7-5-2000 and he died on 9-5-2000 during the course of treatment. Death of Vinod Gupta was intimated vide Ex.P-22. Merg was'recorded vide Ex.P-21A at Police Station Bodhghat. After summoning the witnesses vide Ex.P-9, inquest over the dead body of Vinod Gupta was prepared vide Ex.P-8. Dead body was sent for autopsy to Andhra Medical College, Visakhapatnam vide Ex.P-20. Dr. N.V.S.L. Narasimham (PW-11) conducted autopsy vide Ex. P-19 and found following injuries & symptoms: - > Swelting around right eyes and eyelids. > Skin was peeled of. > Staining was visible. > Mark of stamp ink was present on right thumb. ^1"s.. Ui^hirkr ^ ^ ~ >^. R!1K ^ > Bum injuries were found over neck, > Injurieswere foundon both Shoulders, both hands, chest.baek, abdomen, buttocks, knee and penis. > No burn injuries were found over arms. > Bum injuries are superficial and 40%. Cause of death was burn injuries, infection, septic, toxic and its complications. During the course of investigation, accused persons were taken into custody. Accused/appellant Hori Mandal made discloser statement of stick vide Ex.P-1 and same was recovered at his instance vjde Ex. P-2. Accused/appellant Haresh Kothari made disq statement of nylon rope vide Ex.P-3 and same was recovered at ®s; instance vide Ex.P-4. Accused/appellant Mirja Ramjan Beg made discloser Statement pf electric wire, ploythene and wax candle vide EX.P- 6. House of Ramjan was searched, but nothingwas found, panchnama was prepared vide Ex.P-10. Accused/appellant Ram Kumar made discloser statement of Maruti van vide Ex.P-11 and same was recovered at the instance of accused/appellant Haresh Kothari vide Ex.P-12 along with papers of the vehicle. Papers of the vehiclewere also seized vide Ex.P-13. Accused/appellant Babli @ Sandeep Kundu made discloser statement of piecesof stone (gitti) vide Ex.P-16. Spot map was prepared vide Exs.P-23 & P-24. The accused persons were arrested videExs.P-25toP-31. 5. Statements of the witnesses were recorded under Section 161 of the "'(• ' :! CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Jagdalpur, who committed the case to the Court of Sessions, Jagdalpur, from where leamed Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen witnesses. During the course of trial, accused/appellant Ram Kumar absconded. The case was bifurcated against other appellantsexcept Ram Kumar. Subsequently, Ram Kumar was arrested, he was again tried and was convicted & sentenced as | aforementioned vide judgment dated 6-5-2006. The accusediperspns 1 were examined under Section 313 oftheCrPC in which they denied the g circumstances appearing against them, pleaded innocence and false implication in the crime in question. ~.a ws :-fsSM aa 'ittS sr I— /• .'r^^i^ :-?';^i^ '^'•^SSM "i'r i^ \ E,..,-— 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appeltants as aforementioned vide the two judgments. 8. We have heard leamed counset for the parties, perused the judgments and record ofthetrial Court. 9. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of appellants Haresh Kothari, Arun Diwan & Hori Mandal, submits that as per case of the prosecution, on account of recovery of money alleged to have been stolen by deceased Vinod Gupta, the appellants have extorted Vinod Gupta and tried to recover Rs.3 lakhs from him. During the course of such extortion, injuries were caused to Vinod Gupta which shows that the appellants have not committed culpable homicide amounting to murder of Vinod Gupta. The persons who committed the aforesaid offence may be liable for epnviction and sentence under Section 330 of the IPC. The doctor has not opined/the prosecution has not collected any evidence to establish that the injuries caused to Vinod Gupta were sufficient for causing his death in ordinary course of nature. Interalia, as perthe doctor's opinion, especially evidence of Dr. K. Vinay Kumar (PW-9) and Ex.P-15, on account of injuries found over the body of Vinod Gupta, death was probable. Mr. Surendra Singh further submits that as per case of the prosecution, Vinod Gupta was kidnapped on 26- 4-2000 and was extorted up to 28-4-2000, thereafter, appeljant Haresh Kothari telephoned to Potice Station Jagdalpur relating to'ktdnap of Vinod Gupta. The pQlice officers immediately rushed to Parpa Dhaba where Vinod Guptawas confined, police officers brought him to the police station and In-charge Police Station Bhalekar recorded roznamcha No. 1687 on 28-4-2000 at 11 p.m. which clearly reveals that on being asked, Vinod Gupta (since deceased) made statement before Bhalekar that he was badly assaulted by Ramjan along with two other persons and was kidnapped & extorted since 26-4-2000 till 28-4-2000 on account of theft, and they have assaulted him by hands, crushed him by legs, burnt him by ploythene and wax candle over different parts ofthe body. Vinod Gupta was shifted to the hospital for treatment. This shows that the aforesaid roznamcha was the first dying declaration of the deceased in which he has pointed only one accused Ramjan along with two other persons, but he has not named other persons. However, for the reasons best known to the prosecution, the prosecution has not proved the m^^ •^y' aforesaid roznamcha, though the prosecution was under obligation to produce and prove such roznamcha. This roznamcha was the first dying declaration which reveals the commission of offence by one accused and other unidentified persons whom Vinod Gupta has not identified later on till his death. Therefore, convictionand sentences imposed upon the appellants, except appellant Ramj'an, are not sustainable under the law. Mr. Surendra Singh also submits that dehati nalsi Ex.P-33 has been recorded on 2-5-2000 in which Vinod Gupta (since deceased) has mentioned the names-of six accused persons namely Ramjan Musalman, Arun, Hori Mandal, Gandhi, Kothari Seth & Babli @ S^ideep but has not named another accused Ram Kumar. After the dehati nalsi Ex.P-33, allegedly recorded on 2-5-2000, the deceased died on 9-5-2000, after lapse of seven days, but the police has not tried to record his dying declaration by the competent authority, even the police has not recorded his statement under Section 161 of the CrPC. The aforesaid dehati nalsi is a suspicious document and does not inspire confidence, it is not trustworthy and same cannot be relied upon for conviction of the appellants. Mr. Surendra Singh contends that Smt. Geeta GuptaJ:PW-12) - mother of Vinod Gupta & Smt. Anuradha Gupta (PW-13) - wife of Vinod Gupta have deposed in their evidence that Vinod Gupta has made dying declaration before them in which he has named all the appellants. Evidence of the aforesaid witnesses does not inspire confidence and is not trustworthy. Their statements' Section 161 of the CrPC as Exs.D-1 & D-3 have been recorded by the police on 2-5-2000 and supplementary statement of Smt. Anuradha Gupta (PW-13) as Ex.D-2 has been recorded on 18-5-2000. This shows that the police have recorded the aforesaid statements after registratjon of the alleged dehati nalsi. Mr. SurendraSingh further. sontends that roznamcha dated 28-4-2000, dehati nalsi Ex.P-33 and statements of .Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13) are self- contradictory and in absence of dying declaration recorded by competent authority, no reliance can be placed upon the aforesaid alleged dying declarations. Except theaforesaid dying declarations, the prosecution has not collected any material against the appellants to prove their guilt. Mr. Surendra Singh also contends that in view of the aforesaid circumstances, conviction & sentences imposed upon the appellants are badin law and are not sustainable underthe law. 1 ^ lO.During the course of argument, Mr. Surendra Singh, learned Senior Advocate, produced one photocopy of roznamcha No. 1687 dated 28-4- 2000 appears to be recorded at Police Station Jagdalpur which was taken on record. 11.Mr. Surendra Singh, learned Senior Advocate appearing on behalf of appellants Haresh Kothari, Arun Diwan & Hori Mandal, placed reliance in the matter of Bhagawantibai v. State of M.P. in which by relying upon the dictum in the matters of Samedas v. State of M.P. and Lallusingh v. State of hrt.P. , the Madhya Pradesh High Court (Indore Bench) has held that document filed on behalf of the prosecution but not proved can be relied upon and used by the defence in their support. Mr. Surendra Singh further placed reliance in the matter of K. Ramachandra Reddy and another v. The Public Prosecutor in which the Supreme Court has held that dying declaration can be accepted and may be basis of conviction if accepted as true and voluntary. Dying declaration being a statement not on oath having no opportunity of cross-examination for testing its truthfulness before accepting it. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased haid a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true ; and voluntary it can be sufficient to found the conviction even without any further corroboration. Mr. Surendra Singh also placed reliance in the matter of State of Assam v. Mafizuddin Ahmed in which the Supreme Court has held that dying declaration can be sole basis of conviction provided it is truthful. In para 13 the Supreme Court has observed as follows: - ' "13. The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. It is not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent on such a dying declaration." 1 2002 Cr.L.R. (M.P.) 679 21969JLJSNS4 31996MPU452 4(1976)3SCC618 5 AIR1983 SC 274 C^J\ 10 Mr. Surendra Singh relied upon the matter of State of Gujarat v. Khumansingh Karsan Singh and others6 in which the Supreme Court has held that inconsistency between two dying declarations suggesting possibility of tutoring and false involvement due to strained relations with both accused, conviction cannot be based on such inconsistent dying declarations. Mr. Surendra Singh further relied upon the matter of Sharda v. State of Rajasthan in which the Supreme Court has held that evidence relating to dying declaration is based on legal maxim, "Nemo moriturus proesumitur mentirf, it implies that a man who is on death bed would not tell a lie to falsely implicate innocent persor Supreme Court has further held that conviction can be based Si'f the dying declaration if same is found trustworthy, in case of more than one dying declarations the court is required to scrutinize minutety before relying upon them. 12.Mr. Surendra Singh also relied upon the matter of Ram Jattan and others v. State of U.P. in Which the Supreme Court has held that multiple injuries inflicted by twelve accused on non-vital parts, common intention to cause death absent, medical report not certifying injuries sufficient to cause death in ordinary course of nature, Clause first and third of Section 300 of the IPC not attracted, conviction would be under Section 304 Part-lt read with Section 149 of the IPC and sentence of Rl for five years was imposed. Mr. Surendra Singh placed reHancej matter of Dalip Singh and others v.State of Haryana9 in which the Supreme Court has held that incase of eustodial death.in absence^of intention of causing murder, accused sharing common intention to beat deceased violently, they must be attributed knowledge only that by inflicting injuries, they were likely to cause death, case falls under Section 304 Part-11 of the IPC rtot under Sectipn 304 Part-1 of the IPC and sentence of Rl for five years was found sufficient. Mr. Surendra Singh further placed reliance in the matterof Adu Ram v. Mukna and others10 in which the Supreme Court has held that alteration of conviction from Section 302 to Section 304 Part-1 of the IPC, number of injuries on deceased person not always determinative of offence, weapon used, part of body where injuries were inflicted and nature of 6AIR1994SC1641 7AIR2010SC408 8AIR 1994 SC 1130 9AIR1993SC2302 10AIR 2004 SC 5064 ^'•^. ^ ^~yr »<• i . 11 injuries are relevant factors, assaults made in course of quarrel, 34 injuries including several fractures on non-vital parts found over the body of the deceased, no grievance injury found over head and all injuries on head were simple in nature, conviction would be under Section 304 Part- 1 of the IPC and custodial sentence of six years would be sufficient. Mr. Surendra Singh also placed reliance in thematter of B.K. Channappa v. State of Karnataka in which the Supreme Court has held that as many as 18 injuries found on the dead body of the deceased including large crush injury or tacerated injuries on chin, right leg, left knee, left wrist, right shoulder, right forearm etc., as per evidence of doctor none of injuries was found on any of vital part of body, conviction would be under Section 304 Part-11 ofthelPC. 13.By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Pawan Kesharwani, learned counsel appearing on behalf of appellant Rajendra Gandhi, and Mr. B.D. Guru, leamed counsel appearing on behalf of appellant Babli @ Sandeep Kundu, submit that the prosecution has not proved its case beyond all reasonable doubts and has not collected evidence against the appeltants to show their involvement. lo absence of evidence, appellants Rajendra Gandhi & Babli @ Sandeep Kundu are entitled for acquittal. 14. By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Prafull Bharat, leamed counsel appearing on behalf of appellants Ram Kumar & Ramjan Beg, submits that act of appellant Ramjan Beg does not travel beyond the scope of Section 330 of the IPC and evidence adduced on behalf of the prosecution is not sufficient for drawing definite conclusion that Ramjan Beg having no interest in extortion, has committed the offence. Mr. Prafull Bharat further submits that as far as the case of appellant Ram Kumar is concemed, the proseeution has collected the only material and evidence that Ram Kumar is driver of appellant Haresh Kothari, he was driving Maruti van and on the basis of discloser statement of Maruti van vide Ex.P-11, Maruti van has been recovered from Kothari Compiex vide Ex.P-12. Mr. Prafull Bharat also submits that driving of the vehicle of co-accused Haresh Kothari by itself is not an offence, the prosecution has not collected other evidence especially relating to presence of appellant Ram Kumar at the time of alleged incident or any act attributed to him. In absence of such 11 AIR 2007 SC 432 ^' >T'1^ f^^ 12 evidence, virtually, this is a case of no evidence relating to appeltant Ram Kumar. 15.0n the other hand, Mr. D.K. Gwalre, learned Government Advocate appearing on behalf of the State/respondent, vehemently opposes the appeals and submits that the alleged roznamcha has not been produced & proved by the other party, the appellants have tried to take the benefit of the alleged roznamcha at the appeltate stage and it was incumbent upon the appellants to examine witnesses to prove the roznamcha before relying upon it, but for the reasons best known to the appellants, they have not tried to examine any witness to prove the roznamq the stage of appeal, the appellants want to take benefit of the aneged unproved document which is not permissible under the law.