CRIMINAL PEAL N0.573 OF 2001 APPELLANTS (Accused in Jail) Lnkshmi Narayan Mishra & another Vs The State ofChhattisgarh. CRIMINAL ^PPEAL hKLlJZ^QFZ! Sheshnath .Tiwari Vs The State ofChhattisgarh Jadge I-JF^ L.C^WAQQQ^ J Sd/- L.C.BHADOO Judge .- :il : P05T FOR JUDGMENT ON ?^'JULY. 2007 -^. Sd/- , jtT&ii ^. .07.; -l-1 T' " Paee 1 of 14 HIGKCOURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. MR. L.C. BHADOO & HON. MR. DHIRENDRA MtSHRA, JJ CRIMINAL APPEAL N0.573 OF 2001 APPELLANTS [Accused in Jail] 1. Lakshmi Narayan Mishra, S/o Byash Mishra, aged 20 years, Occupation Betel Shop. 2. Sanjay Kumar^Pandey, S/o Brajnath Pandey, aged 20 years, Occupation Betel Shop. Both residents of Saraipali, Mohalla Mahatpara, P.S. & Tahsil Mahalpara, District Mahasamund. Vs RESPONDENT The State of Chhattisgarh, through District Magistrate, Mahasamund. the CRIMINAL APPEAL N0.772 OF 2001 APPELLANT Vs RESPONDENT Sheshnath Tiwari, S/o Shri Brij Bihari Tiwari, aged 30 years, R/o Saraipali, Mahalpara, P.S. & Tah. Mahalpara, District Mahasamund. The State of Chhattisgarh, through the Station House Officer, P.S. Saraipali, Mahasamund. Present: Mr. S.R.J. Jajswal, Advocate for appellants in Cr. A. No.573/01 . Miss Nirupama Bajpai, Advocate for appellant in Cr. A. No.772/01 . Mr. Sudhir Bajpayee, !3y. Govt. Advocate for the State in both the appeals. JUDGMENT (Delivered on SL, .7.2007) Per Dhirendra Mishra. J; Criminal Appeal No.573/2001 & Criminal Appeal No.722/01 are being decided by this common judgment, as both these appeals are arising out of the judgment dated 28.6.2001 passed by learned 1 Additionai Sessions Judge, Mahasamund in Sessions Trial No.146/200) whersby learned AdditionaJ Sessions Judge convicted the appellants under Sections 148 & 302/149 for causing death of Vidhyawati, under Section 302/149 of IPC for causing death of Vindhyacha! Mishra and also under Section 323/149 of the IPC for causing injuries to Pawan Mishra and. sentenced each of the accused person to undergo R.l. for one year; imprisonment for life and to pay a fine of Rs.5,000/-, in default of paynt:eht of fine to further undergo R.l. for two years, imprisonment for life and to pay a ffne of Rs.5,000/-, in default of payment offine to further undergo IN. .tit Paee 2 of 14 R.l. for two years & R.!. for one year respectiveiy. It has been further directed that all the sentences shali run concurrently. 2. Case of the prosecution, in brief, is that on 7.2.2000 around 20.00 hrs in the night when Vindhyachal Mishra (since deceased) was sitting in the kiosk after faking betel, accused Ramanand & Laxminaryan @ Chunchun came from bus stand side and picked-up quarrsl v/ith Vindhyachal in relation to som® old animosity. However, all the three went to their respective houses. When at about 9.00 p.m. accused Ramanand, Sheshnath, Shashibhusan, Laxminarayan & Sanjay were preparing for cooking fish in their tenanted house, at that time Vindhyachai came to ttielr house and challenged them, whereupon accused Ramanand holdins flat iron plate (patta) and other four holding Danda together attacked Vindhyachal and caused him grievous injuries. Vindhyachal shouted for rescue, on which his wife Vidhyawati (since deceased) came to rescue him, however, accused psrsons assaulted her also and caused her grievous injuries. Their sons nameiy Vishnu & Pawan also reached their, whereupon Pawan was also assaulted. Vindhyacha! & Vidhyawati were taken to the hospital in unconscious condition and they died in the Medical College Hospjtal, Raipur. 3. Report of the incident was received on telephone at 21.15 hrs, which was recorded in the Rdznamchasanha at Sr. No.308 dated 7.2.2000 (Ex.P-27) and constables were sent to the place of incident. Vishnu (PW-6) also gave information at about 21.25 hrs, which was aiso recorded in the Roznamchasanha at Sr. No.309 vide Ex. P-28. Offence was registered under Sections 147, 148, 307 & 323 of IPC vide Dehati Nalishi of Ex.P-6 on the information of Vishnu (PW-6) at 22.15 hrs on 7.2.2000. Vidhyawati was sent for medical examination to the Community Health Centre, Saraipali where Dr. B.A. Koshariya (PW-16) examined her and gave the injury report of Ex.P-23. Vindhyachal was also sent for medicai examination to theCommunity Health Centre where Dr. B.A. Koshariya examined him and gave hls report of Ex.P-24. 4. On the basis of information received from Constable Ali Mohammed that Vidhyawati died at about 5.50 a.m. on 8.2.2000 and Vindhyachai died at 2.00 p.m. in the afternoon on 9.2.2000 the merg intimation of Ex.P-21 was recorded. On the basis of information of constable Prakash Chandra at 22.40 hrs FiR (Ex.P-20) was recorded. Inquest over the bodies of deceased persons were prepared in the presence of the witnesses after due notice to them vide Ex.P-7 & P-9. Their bodies were sent for autopsy to Medrca! Co!lege Hospita!, Raipur where Dr. Uihaas Unnade (PW-10) A- -~~. L-L ^•/ e.s. r. ^ Page 3 of 14 ..t. ^- 6. 7. conducted postmortem and submitted his report of Ex.P-17 & P-18 respectively. Injured Pawan Kumar was also sent for medical examination to Community Health Centre, Saraipali where Dr. R.S. Patel (PW-11) examined him and gave the injury report of Ex.P-19. Accused Sheshnath was also sent for medica! examination to Community Health Centre, Saraipali where Dr. R.S. Pate! examined him and gave his report of Ex.P-20. Slood stained and p!ain soil was taken into possession from the place of occurrence under Ex.P-1. Spot map of Ex.P-5 was got prepared by Halka Patwari Shri R.K. Akhade. The investigating Officer also prepared the site p!an (Ex.P-31) of the place of incident. Seated packets containing blood stained clothing of both fhe deceased persons received from the hospital were taken into possession vide Ex.P-11. On the memorandum of appellant Laxminarayan @ Chunchun of Ex.P-12, one club was taken into possession vide Ex.P-13 and heavy fiat p!ate (patta) of anyvehictewas taken into possession vide Ex.P-14. One lathi was taken into possession from accused Sanjay vlde Ex.P-15, another lathi was taken into possession on being produced by accused Sheshnath vide Ex.P-16. Weapons of offence i.e. lathi & iron plate were sent to the doctor of Government Hospital, Saraipali for his report whether the weapons contained blood stained and whether injuries sustained by Vindhyachal & Vidhyawati could be caused by the above weapons vide Ex.P-26Aand the report of the doctor is Ex.P-26. Seized artictes i.e. weapons of offence, piain soil & biood stained soii and wearing apparels of the deceased persons were sent for chemica! examination to the Forensic Science Laboratory, Raipur vide Ex.P-32 and the reportof FSL is Ex.P-33. After completion of investigation charge sheet was Tited in the Court of Additional Chief Judicial Magistrate, Mahasamund showing accused Ramnarayan Tiwari & Shashibhusan absconding, who in hirn committed the case to the Court of Sessions Judge, Raipur and the learned Additional Sessions Judge has received the same on transfer for tria!. The prosecution in order to establish the charges against the accused persons examined 18 witnesses in all. Statements of accused persons were recorded under Section 313 of the Cr.P.C. in v/hich they denied the circumstances appearing against them in the prosecution case and stated that they are innocent and have been faisely impiieated in the crime. Learned trial court after hearing the counset for the parties, convicted and sentencedthe appellants, asmentioned above. ^ Page 4 of 15 8. Homicidal deaths of Vindhyachal & Vidhyawati are not in dispute. Even otherwise from the statement of Dr. Uilhas Unnade (PW-10), who has conducted the postmortem over the persons of Vindhyachal & Vidyawati and has found the injuries on their persons described herein belov/, and who has further opined that deceased Vidhyawati died homicidal death as a result of complication due to head injuries, whereas, Vindhyacha! died as a result of complication due to head injuries and the same is homicidal ^y V^A"t ^ in nature. From the evidence of syewitnesses PW-6 Vinohy & PW-7 Pawan who have seen the appellants assauiting frie deceased persons, the homicidal death ofVidhyawati & Vindhyachal is established. Injuries over the person ofdeceased Vidhvawati;- • Rigor mortis was present in legs and arms. • Postmortem staining was present on the back of the body. • Both the eyes were ciosed. Cornea hazy, both hands smudge with blood (dry). • A stitched surgica! wound in saggita! plane present on left side of skull in the size of 7.5 c.m., wound present 5 cm above mid of left eyebrow. Underneath surrounding skin shows contusion. Fracture present in carnial plane on left temporal region in the size of 7cm. Fracture present on left side and middle cranial fossa. • A contusion on the back of vault of skull in an area of 3" diameter. • Multiple abrasion present on dorsum of right elbow and the size varying from 1cm diameter to 0.5 cm irregular. • Left eye contused. iniuries over the person ofdeceased Vindhvacha!;- • Surgical stitched wound on the right suprasternal margin in the size of 8cm transverse. Surgical stitehed wound on rightfrontal region. Surgicai stitched wound from midpoint between suprasternal margin. both Rai! pattern bruise present as anterior aspect of chest, blind end situated on right side and at upper level situated 8cm below suprasternal notch and lateral to midline lowered (open end situated 7cm left lateral to midiine. Size 21x1.5cm. Rai! pattern bruise with upper open end present on xiphi sternum and rest on left side of abdomen, lower blind end situated 5 cm below xiphi sternum and 6cm left lateral to midline. Size 7cm x 2 cm. Rail pattern bruise present on left lateral aspect of abdomen with upper open end is on the line of ilace crest 9 cm above and lower blind end situated 4 cm to ilace crest. Size 9.5cm x 0.2cm. Abrasion present on anterior aspect of abdomen on left size 8 cm below xiphi sternum & 4 cm left lateral to midline. Size 3x0.5cm transverse irregular. /A' '-a^ Bi:: ^ Page5 of15 • Abrasion present on chest left lateral aspect 9cm below ant. Axilliary fold size 9cm x1cm transverse irregular. • Abrasion present on exterior aspect of ieft forearm in midline starting from elbow in the size of 7x1 cm vertical irregular. • Abrasion present on exterior aspect of left forearm 8 cm be!ow the elbow in midline in the size of 3x0.5cm transverse irregular. • Muttiple abrasion present on anterior aspect of both knees. • Rai! pattern bruise present on back side situated 22cm below cervical vertebra. * Abrasion present on left side of back situated 32cm be!ow ' cervical vertebra and 12 cm left laterai midline. Size 2.5cm diameter irregular Learned counsel for the appellants submitted that the appeilants have been convicted in the aforesaid offence with the aid of Section 149 ofthe IPC. The appellants have also been convicted under Section 1 48 of the IPC for rioting with deadly weapon. However, from perusal of the prosecution case itself it would be evident that deceased Vindhyachal was the aggressor, who went to the house of accused persons and chailenged them and as such quarrel was initlated by him. The place of incident is near the tenanted house of the accused persons and there is no evidence available on record that the appsllants have formed an unlawful assembly with a common object to cause homicida! deaths of Vindhyacha! & Vidhyawati and in the absence of evidence of formation of uniawfu! assembly by the accused persons they cou!d not be held guiify for any criminal liabiiity. ReTerring to the statements of Vishnu (PW-6), son of deceased persons, it has been argued that it is evident that firstly oral altereation took place in the betel shop between Vindhyachal & accused persons, thereafter Vindhyachal's wife Vidhyawati went to house of the accused persons and after sometime Vindhyachal aiso reached there and they were followed by their sons namely Pawan & Vishnu. Similar is the statement of injured witness Pawan (PW-7) who has stated in Para 3 that his father came home, he had some taik with his mother and thereafter his mother went to the spot first, she was foliowed by his father and after hearing the commotion he along with his brother went to the spot and there they saw the incident. Witness Vishnu (PW-6) has stated that he saw the accused persons assaulting his father & mother. He has further stated that Shashibhusan was holding patta, whereas others were holding rod & lathi. Shashibushan assaulted her mother on her stomach & head. He also assaulted his father over his forehead by that patta. Omnibus allegations have been made by this witness agalnst the^appeilants and no specific blow has been attributed to them. This Page 6 of 15 10. witness has contradicted his diary statement of Ex.D-1 on the materia! facts that Ramanand assaulted wlth iron plate. Similarly Pawan IVIishra (PW-7) has also stated that Shashlbhusan was assaulting his father by iron plate, his father was lying on the ground and rest of the accused persons was assauiting her mother by lathi. This witness has also contradicted his diary statement of Ex.D-2 in which he has stated that Ramanand Tiwari was holding iron plate in his hand and he has assaulted by that iron plate. There was a long drawn enmity between Ramanand Tiwari and deceased Vindhyachal. Except these two highly interested witnesses other witnesses have not supported the prosecution case and they have turned hostile. It was further argued that Visnhu has given information in the police station at about 21.25 hrs, which was recorded in Sanha (Ex.P-28), to the effect that Shashibushan and others are beating his father, but the names of the appeliants have not been mentioned. In the inquest report of deceased persons, which has been prepared In presence of Vishnu (PW-6) on 9.2.2000, accused Sanjay & Laxminarayan have not been mentioned by names and the same also does not bear the crime number. Similarly, the requisition for postmortem also does not mention the names of appellant Sanjay & Laxminarayan. Further there is no eyidence available on record to show that copy of F1R (Ex.P-20) w?as forwarded to the concerned Magistrate and the Investigating Officer (PW- 18) Shri P.S. Thakur has admitted in Para 23 of his deposition that no document showing the fact that the copy of FIR was sent to the Magistrate has been produced. Dehati Nalishi (Ex.-P-6) is a suspicious document as from perusal of this document it would be evident that the signature of informant was taken on a blank paper and subsequently document was prepared. On the other hand, learned Deputy Government Advocate for the State supported the judgment ofthe trial court. The conviction of the appellant is based on the evidence of Vishnu (PW- 6) & Pawan (PW-7), who are the sons of deceased persons and they have been examined as eyewitnesses. PW-1 Suresh Kumar Kushwaha, PW-2 Loknath Sahu, PW-3 Ganpati & PW-4 Sadananad were also cited as eyewitnesses of the incident however, they have not supported the case of the prosecution and they have turned hostile. They have been cross-examined by the prosecution after declaring them hostiie. Version of PW-1 Suresh Kumar Kushwaha, PW-2 Loknath Sahu, & RA/-4 ' Sadananad in their diary statement of Ex.P-2, Ex.P-3 & Ex.P-4 respectively was that at the time of incident at about 9.00 p.m. they saw the decesased Vindhyachai in front of the house of Shashibhusan in. •i Page 7 of 15 inebriated condition, he was abusing Shashibushan @ Mona and also beating the roof of his house. Vindhyachal and Shashibusan were engaged in physical scuffle, whereupon Ramanand came out with an iron p!ate and assauited Vindhyachal. Vidhyawati and her children came there to support them. However, Vidhyawati was also assaulted by Ramanand and other accused persons. They have resiled from their statements and the prosecution has not been able to elicit any , incriminating evidence against the appellants in their cross-examination. 12. Vishnu Verma (PW-6), who is the son of the deceased persons, has stated that accused persons who are his maternal uncles were abusing his father on the square. His father narrated this to his mother Vidhyawati after returning home, his mother went to the quarter of accused person, which is situated in Mahalpara, whereupon the accused persons assaulted his mother. His father also reached there and he was also assaulted by them. He along with his brother Pawan went there and saw the accused persons assau!ting his father and mother. The accused persons also chased him, whereupon he fled from there and reached the police station. Shashibushan was holding flat iron plate (patta), whereas, others were holding danda and rod. Shashibushan assaulted his mother over her stomach and head by the patta. He had also assaulted his father over his forehead by the same weapon. Other accused persons have beaten them by club. Persons from the neighbourhood gathered, however, he does not know their names. He had narrated the whole incident in the police station and the police accompanied him to the spot inciuding one Journalist namely Rajeev. When they returned the accused persons had already fled after assaulting his parents. Report was recorded jn the hospital as his parents were taken to the hospital. His parents were unconscious. He took his parents to Raipur and admitted them in the hospita!. However, his mother died at 4.00 a.m., whereas, his father died at about 2.00 p.m. in the afternoon. This witness has also proved the Dehati Naiishi (EX.P-6), inquest report of Ex.P-7 & Ex.P-8 and seizure memo of Ex.P-11 . In the cross examination he has stated that the bete! Kiosk is 100 yard away Trom his house, he did not hear the accused persons abusing his father. He has admitted that the house of Suresh (PW-1) where the accused Chunchun & Shahsibushan reside as tenant is some 150 yards away from his home. However, he has denied knowing Rishikesh Patel. Place of incident is at some 20-25 feet from the house of Suresh (PW-1). He has denied that he mentioned in his case diary of Ex.P-1 that the incident occurred before the house of "Rishikesti PafS". He has stated that he reached the police station within 1% to 2 •\ ; ^,i,,_,S^£asSa^SSS..»'SS^'SSI'^S^SSXISSCS!S!iaSKSSSX^^ Page 8 of 15 mlnutes of the incident and informed the police. However, the poiice did not take his signature and all his signatures were obtained in the hospitai. In Para 8 he has stated that Laxminarayan was hoiding club llke weapon, Sanjay was holding bamboo rafter, whereas, Shashibushan was holding fiat iron bar of truck and Ramanand was holding club. He has denied having told the police that Ramandand assaulted by iron plate of Ex.D-1. In Para 25 he has further denied that he had assauited Sheshnath by c!ub and his mother & brother Pawan had bitten him. PW-7 Pawan Mishra has stated that at the time of incident he was in his home and he was giving fodder to his cow. it was night. He a!ong with his brother went to the place of incident and saw his mother & father lying there. He saw from a distance of 25-30 feet Shashibushan assaulting his father by flat iron plate, at that time his father was lying on the ground. Remaining accused persons were assaulting him by club. His mother fell over his father, she was also assaulted by the accused persons. Shashibushan caught hoid of handof his brother and exhorted others to "ki!i hlm also", whereupon his brother somehow managed to escape and returned home and proceeded for police station in a bicycle. He also proceeded to police station by another bicycle. He instructed his younger brother to remain in the home. He stayed in the police station, his younger brother was also called in the police station and he was aiso made to sleep there. The police proceeded to the spot with his eider brother. Before this incident his father had returned and talked to his mother, however, he does not know about the conversation. His mother went to the spot first. He does not know why she went there. His father foilowed her, after hearing commotion he along with his brother went behind them. The incident occurred in front of the house of Suresh. !n the cross examination this witness has also stated that the house of Suresh is at a distance of 150 meter from his house. His father had already fallen on the ground and Shashibushan was assauiting him, whereupon his mother fell on his father, however, he cannot say whether she was also assaulted by the plate or not. However, she had also sustained injuries: In para 9 he has denied the portion "Ramanand Tiwari assauited with iron piate" of Ex.D-2 and siated that Shashibushan assaulted with plate and he does not know as to how this fact is missing in his diary statement of Ex.D-2. He has further denied that in his diary statement of Ex.D-2 he had mentioned that the incident occurred before ' the house of'Rishikesh Patel". Learned counsel for the appeliants vehemently argued that Dehati Nalishi (Ex.P-B) '& FIR (Ex.P-20) are fabricated documents. Names of the {: '«-- ^ .-;' Page 9 of 15 appellants were not mentioned by Vishnu (PW-6) who reached to the police station and infprmed about the incident immediateiy at about 9.25 hrs vide Ex.P-28. 15. We propose to examine the genuineness and authenticity of Dehati Nalishi of Ex.P-6 and F.I.R. of Ex.P-20 in the light of arguments advanced by learned counsel for the appellants. After careful examination of the documents available on record we found following anomalles and inconsistencies which have not been explained by the prosecution during' trial. a) Vishnu (PW-6) complainant after narrating the detalls of incident in para 2 of his deposition has stated that accused persons a!so chased him, whereupon he ran away and reached the police station. In para 4 he has stated that he narrated the whole incident to the police whereupon the poiice came to the spot with him and one journaSist. By the time they returned the accused persons already fled after assaulting his parents. The police have recorded the information given by Vishnu at 21.25 hrs in the Sanha of Ex.P- 28, however, information is to the effect that Shashibushan and others are assaulting his father. Thus, from the document of Ex.P- 28 it is evident that this witness did not given any information about the assault by the appellants as also assault on his mother. b) From close scrutiny of Ex.P-6 particulariy the signature of complainant Vishnu we observed that the concluding part particulariy the last but one !ine of the report has been so wrltten that it appears that the same has been written after document was already signed by the complainant. Therefore, we find foree in the arguments of learned counsel for the appellants that Dehati Nallshi was written subsequently after obtaining the signature of the complainant over the blank paper. c) Apart from above, inquest report was prepared on 9.2.2000 in the presence of Vishnu (PW-6) and after interrogation of Vishnu (PW- 6). However, in th®inquest report of both the deceased persons name of Sheshnath Tiwari, Ramanand, Shashibushan, his brother- in-law and others are mentioned. From perusal of these two documents we infer that by the time these documents were prepared the name of other two accused persons namely Laxminarayan & Sanjay were not available to the Investigating Officer. These documents also do not contain the crime number ^ Page 10 of 15 though as per the case of the prosecution crime was already registered on 7.2.2000 itselfvide Ex.P-20. d) In the requisition for postmortem report also, which is prepared on 9.2.2000 at about 14.15 hrs, it mention the name of complainant Vishnu (PW-6) as the person who has accompanied the dead body, the name of assailants is mentioned as Sheshnath Tiwari, Ramanand Tiwari, Shashibuhsan & associates and names of accused Sanjay & Laxminarayan are missing. e) !n the FIR of Ex.P-20, which has been recorded on the basis of information given by consfable Prakash Chandra, it is mentioned that today on 7.2.2000 at about 9.00 p.m. Shashibushan, Ramanand Tiwari and others have assaulted and injured Vindhyachal and his wife Vidhyawati. Receiving this information he