--^i HIGH COURT OF CHHATTISGARH. BILASPUR CORAhfl: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble ShrLSunjj Kumar SinhaLJ^ Criminal Appeal No. 994 of 1991 <!&• y Baldu @ Baldev & Others Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) »H i JUDGMENT £prcqRsldecatLQn., _ Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA 6 Sd/- • Chief Justice /07/2010 r« Post for Judgment^yUQXQmrL- Sd/- Jti^5i- /^707/2010 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri SunilKumar Sinha. J. APPELLANTS RESPONDENT CriminalADDealNo. 994 of 1991 1. Baldu @ Baldev S/o Faggu Sahu aged 35years Dead, name deleted as per Court order dated 15.7.2005 2. Dalluram S/o Faguram Sahu aged 28 years 3. Lalla S/o Faguram Sahu aged 25 years 4. Faguram @ Faggu S/o Shivcharan Sahu, aged 45 years (It is wrongly stated as 45 years, he isaged about 65 years) AII R/o Patharri, P.S. Lormi, District: Bilaspur (M.P.) (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal underSection 374 (2)of TheCode of Crimihal Procedure, 1973) ADDearance: Mr. S.C. Verma, Advocate for the appellants. Mr. Akhil Mishra, Dy. Govt. Advocate for the State, JUDGMENT (/5^07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) The appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and fine sentences by the Third Additional Judge to the Court of Sessions Judge.Bilaspur in Sessions Trial No. 204/850n 31 st0ctober, 1991. Criminal Aupeal No. 994 ofl991 (2) Appellant No.1 Baldu @ Baldev died during the pendency of the appeal. His name has been deleted vide Court order dated 15.7.2005. The appeal filed on behalf of appellant No.1 stands abated. ^ (3) The facts, briefly stated, are as under:- DeGeased-Kheduram was the elder brother of complainant Upasiram (PW-5). The deceased was working as a labour in the house of appellant No.4 Faguram. On some reason, he had left the work of appellant No.4 prior to 1985 and was working in the house of Kanahaiya Satanami. On 30.3.85 at about 5.00 p.m., the deceased was returning to the house of Kanahaiya Satnami with his cattles. Theallegations are that when he reached in front of the house of the appellants, who are father and sons, they came out from their house and assaulted the deceased by/a ;s. The deceased received many injuries and succumbedtb those injuries. The incident was witnessed by 4 eye-witnesses namely Panchram (PW-1), Upasiram (PW-5), Ludu(PW-8) and Gawaharam (PW-9). The First Information Report (Ex.-P/15) was lodged by Upasiram (PW-5). The learned Sessions Judge believed the testimonies of the above eye-witnesses andheld thatthe deceased was assaulted by all the appellants, and the appellants were convicted as aforementioned. (4) Mr. S.C. Verma, learned counsel appearing on behalf of the appellants, argued that the Sessions Judge erred in law in holding appellants 2 to 4 guilty of the offence punishable u/s 302 IPC. The eye- witnesses have exaggerated there versions in their court evidence that appellants 2 to 4 also participated in actual assault, whereas, in their case diary statements, they have categorically stated that the deceased was assaulted by appellant No.1 alorie and these appellants wereseen ^fa~'~l\.. Criminal Anoeal No. 994 of 1991 running from the place of occurrence. Even they have not said that they saw these appellants having lathis in their hands. He further argued that appellant No.1 Baldu receivedserious injuries in the same incident which were not explained by prosecution witnesses, therefore, on this account also, the versions ofthese witnesses become doubtful. (5) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment passed bythe Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the recordsof the sessions case. (7) Eye witnesses Panchram (PW-1), Upasiram (PW-5), Ludu (PW-8) and Gawaharam (PW-9) all have deposed in similar fashion. They have deposed that when they reached to the place of occurrence, they saw that the accused persons, namely Baldu, Faggu, Lalla & Dalluram, were assaulting the deceased by lathis in front of their house and the deceased died on account of injuries sustained by him. Panchram (PW-1) has further added that as soon as the deceased reached in front of house of the appellants, they surrounded him and thereafter they assaulted him by lathis. The incident took place at about 5.00 p.m. on 30.3.85 and 161 Cr.P.C. statements of these witnesses were recorded on the very next day i.e. on 31.3.85. In their 161 statements, none of the eye-witness stated that appellants 2 to 4 also participated in the assault given to the deceased. They have simply statedthat at the time of incident Faggu, Dally and Lalla were running towards their house arid have categbrically stated that Baldu alone was assaulting the deceased by lathi. Their case ,.?'^ ^ J. Criminal Apceal No.994 of 1991 diary statements as marked as Ex.D/1 to D/4. They have been asked to explain the above omissions and contradictions in their court evidence and the case diary statements but they could not explain it and simply denied to give such versions to the police as mentioned in their case diary statements. (8) Mr. Akhil Mishra, learned Dy. Govt. Advocate, argued that 164 Cr.P.C. statements of thesewitnesses were also recorded before the concerned Magistrate on 16.5.85, in which, they deposed thatthey had seen appellants 2 to 4 assaulting the deeeased. Therefore, their versions become reliable. We are unable to accept the saidargument advanced by the Dy. Govt. Advocate. Needless to say that 1 64 statements were not substantive evidence and they can be used only to contradict the witnesses who made such statementsat one point oftime. (9) On dueconsideration of the entire evidence of all these witnesses, we find that the omissions in their case diary statements regarding assaulting the deceased by appellants 2 to 4 were fatal to the prosecution and on this account, their testimonies cannot be relied on. Even these witnesses have not stated in their case diary statements thatwhen they saw appellants 2 to 4 running to their house, theywere armed with lathis. Appellants 2 & 3 arereal brothers and they aresons of appellant No.4. Appellant No.1 was alsoson of appellant No.4. It appears that the above prosecution witnesses have tried to implicate all the family members of appellant N0.1. If we look into overall scenario, the conduct of these witnesses is that they are giving different versions as different pointof time and their versions on the point of assault given by appellants 2 to 4 'lil ^ Criminal Appeal No. 994 of 1991 or their participation inany other manner has not been consistent. Therefore, it was not safe to rely on the testimonies of these witnesses for convicting appellants 2 to 4 for commission of murder of deceased- Kheduram. (10) Now we shall consider the second argument advanced by Mr. S.C. Verma. (11) It is an admitted position that appellant No.1 Baldu also received injury in the same incident. Hewasexamined by the Doctor. His injury report has been proved as Ex.-D/5. According to Doctor C.S. Sharma (DW-1), Baldu sustained fracture of his right ulna bone. The X-ray report has been proved as Ex.D/7. We find that such suggestions that Baldu sustained above injuries in the same transaction was given to the eye- witnesses Ludu (PW-8) and Gawaharam (PW-9) and they denied it in their cross-examination vide Para 6 & Para-4. (12) At the trial, the defence version was that when Kheduram assaulted Baldu on account ofsome previous transaction^then Baldu alsoassaulted him by lathi and except the above 2 persons no one was involved in the incident. Such defence version has also been recorded in Para-6 of the judgment. We find that the prosecution, in fact, has failed to explain the injuries sustained by appellantNo.1 Baldu and it was also a factor affectihg the prosecution case. In our considered view, non-explanation of such injuries sustained by appellant No.1 makes the prosecutioh version of the occurrence doubtful. It appears that the prosecutipn has suppressed the genesis and truth of occurrenceand a true versionofthe incident was not present before the Court. On the contrary, the defence ..i.^s.yi'^^.... Criminal Appeal No. 994 of 1991 has presented a probable story and has tried to explain the injuries sustained by appellant No.1 Baldu, frankly speaking that Baldu alone was assaulting the deceased on account of above reasons. (13) In appreeiation of the entire evidence available on record, we are unable to uphold the conviction awarded to appellants 2 to 4. It appears that on account of being real brothers and father of appellaht No.1 these appellants have also been implicated in this case. (14) For the foregoing reasons, the appeal filed by appellants 2 to 4 is allowed. The conviction and sentences awarded to these appellants u/s 302 IPC are set-aside. They are acquitted of the charges framed against them. These appellants are on bail. Their bail bonds are cancelled and suretiesstand discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge