XI-HC——'78 ‘ m CYIaNG“3Qa’Z 2003 a (Appeal under Section 3* 74 g2} of the Code of Criminal Procedure) m m (W33) am‘gg . ’ WWW ,mraznwmiwm avaimanaar APPELLANTS: 1. Lalsingh, S/o Baldevsingh (In Jail) aged about 27 years, Occupation k — Cultivation, R/o Village Khodari, Police VStation Jaithari, Tehsil Anuppurr District Shadole (M.P.) 2. Dhansingh, S/o Ahibaran Singh Gonh, aged about 45 Occupation Mazooduri. 3. Chhotelal, S/o Thakur Ram Gonh, aged about 5O years, Occupation Cultivation. 4. Bhavan Singh, S/o Ganesh Singh Gonh, aged about 20 Occupation Mazdoori. 5. Sevasingh, S/o Dhaniram Gonh, aged about-24 years, Occupation Mazdoori. Appellants no.2 to 5 all of them resident of Village Pakaria, Police Station Gaurella, Tehsil Pendra Road, District - Bilaspur (C.G.) -Versus- RESPONDENT: State of Chhattisgarh, Through Police Station House Officer, Police Station — Gaurella, Tehsil Pendra Road, District Bilaspur (C.G.) ‘XI-HC—78 3a W, m,W ”I a1. m w 200 ) 5mm (W) Division Bench: - Hon’blE Shri L.C. Bhadoo & Hon’ble Shri Dhirendra Mishra, JJ. 9-5-2007 : - ‘ Shri Malay Kumar Bhaduri, counsel for the appellants. Shri D.K. Gwalre, Additional Publicx Prosecutor for the State/ respondent. Oral judgment dictatid on Dais. L.c. Bhadoo, J. 1. This appeal is directed against judgment of conviction and order of sentence dated 29‘" ugust,‘ 2002 passed by the. 4‘“ Additional Sessions Judge, Bilas ur in S.T. No.396/2000 whereby learned Additional Sessions Jud e after holdingthe accused/appellants‘ guilty 'for commission of offen e under Sections 147, 148 and 302 read with Section 149 of the l.P.C , sentenced each of the accused to undergo R.l. for 1 year & to pay nne of Rs.500/-, in default of payment of tine to further undergo R.l. fo 3 months under Section 147 of the l.P.C.; to undergo R.l. for 2 year & to pay a fine of Rs.1,000/—,’ in default of payment of tine to furthe undergo R.l. for 6 months under Section 148 of the l.P.C. and to und rgo imprisonment for life & to pay a fine of Rs.1,000/-, in default of ayment of tine to further undergo R.l. for 6 months under Section 30' read with Section 149 of the l.P.C. 2. Case‘of the prosecution, in brief, as set out in para-6 of the judgment a of the trial Court, is that eceased Devlal used to doubt illicit relations of his wife with Amir Sai. ln that connection, Panchayat was convened WW, m, W‘ Wm in 200 mm (13W) mwm m mwm $3ffcmw in the village on -2000. The Panchayat got the matter compromised between evla! and Amir Sai. Even then Devlal used to doubt t'ldelity of his wife On 26-6-2000, when he returned to his house aftef finishing work in field, he saw thatxhis wife was hanging in his house. She committe suicide. After seeing the scene, he lost his temper, picked up a T bbal, went to the house of Amir Sai. He was ’ not at his residence. anti, wife of Amir Sai, was at the residence, i therefore, he attacked her with Tabbal. Accused persons Bhavan Singh and Seva Singh ersuaded Devial not to induige in Marpeet, on which Devial attackedt em with Tabbai and inflicted injuries. Accused Bhavan Singh, Seva SI gh and their relations became angry. They brought lathis from thei house and chased Devlal. He was caught in the field. There accus d Lal Singh snatched Tabbal. He attacked Devlal with that Tabbal. On account of injuries inflicted by the accused persons Devlal succu d to the injuries. The accused persons fled from the scene of occurrence. 3. Merg intimation Ex.-P/1 and first information report EX,-P/2 were given by Shiv Prasad, father of the deceased, to the Police Station Gaurella. Site plan (Ex.-P/3) of the place of occurrence was prepared by Patwari. Site Pian Ex.-Pl4 was prepared by the l.O. After giving notice to the Panchas, LO. prepared inquest Ex.-P/11 on the body of deceased Devlal. Thereafter, basied on documents, case for commission of offence under Sections 147, 148 and 302 read with Section 149 of the l.P.C. was registered under Ex.-P/21. The body of the deceased was sent for postmortem examination to the Government Hospital, Pendra Road, where Dr. R.K. Vyi'as (PW-15) conducted postmortem, prepared i ‘\ \ 96 t h m e M J , XI—HC—78 mam (13W) WWW ammm WWW mmiwm Qvwm opined that mode of death is coma and ry and haemorrhage due to lever injury. It repon Ex.-P/26 in which 1e syncope caused by head i1ju is homicidal in nature. : . After completion of the investigation, charge sheet was tiled in the Court of .Judiciai Magistrate, 15‘ Ciass, Pendra Road, who in turn committed the case to he learned Additional Sessions trial. . The prosecution examined establish the charge agair st Sessions Judge, Bilaspur, from where Judge received the case on transfer for 15 witnesses at the trial in order to the accused persons. Statements of the accused persons were recorded under Section 313 Cr.P.C. in which they' denied material apcearing against’cthem in the prosecution evidence. They stated that they are innocent and have been falsely implicated in the crime. . Learned Additional Sessio 1s Judge after hearing learned counsel for the respective parties, plac ng reliance on the evidence of PW-5 Fagnu Singh, hostile witness, co appellants as aforementioned. nvicted and sentenced the accused/ . We have heard Shri Mal Kumar Bhaduri, learned counsel for the accused/appellants and S ri D.K. Gwalre, Additional Public Prosecutor for the State/respondent. . At the outset, learned co nsel for the accused/appellants submitted that he is not disputing h i \ cidal death of the deceased. Moreover, Wm E1200: f§irih _w‘ , ., “A; 7A ,_‘ w )G-HC—78 WWW ammm a that death of Devlal was homi idal. In View of this evidence, it is established that death of De a! was homicidal in nature. 9. As far as involvement of the mused/appellants in crime in question is concerned, in this case, al ost all the eyewitnesses have turned hostile. Even PW-5 Fagnu ingh upon whose evidence the trial Court has convicted the accused/ ppellants is hostile witness. He has not supported the prosecution cse in totality. ln his evidence, he has admitted that he is servant o one Jagatram. He was informed by his owner Jagatram that few a ons have committed murder of Devlal. Jagatram also informed him that Devlal was doubting illicit relations between his wife and Amir S i. ThereforeKDevlal went to attack Amir Sai. ‘There he was murdered. Thereafter he was declared hostile. On cross-examination by A.G.P this witness has stated that at about 2 p.m. there was commotion n the vicinity that Devlal deceased has attacked Shanti Bai, Bhav Singh and Seva Singh with Tabbal. When he started attacking those persons. people of the vicinity became angry. The accused persons started running and they chased him. Devlal ran towards theithreshing field of Bhavan Singh. But he did not see the accused pengons. Thereafter he has stated that it is correct that the accused per£ons chased the deceased. They started attacking with lathis. He di not see accused Lal Singh snatching Tabbal from the deceased. He did not hear any cries of the deceased saying save save. lt is correct that when they were attacking Devlal, f \\\\‘\ he was frightened. He wa t standing at a distance. When Devlal ‘\\ stopped crying, the accusedf persons ran away after throwing Iathis. l é \ ‘ XI—HC 78 WW m 2am WW (WW) WWW WWW w WWW www%f3éim ama‘maném The incident was seen by M gal Singh, Ramjagat and Vaidhram. 0n cross-examination by couns i for the accused persons, he has stated that he returned at 'about 7 n the evening to his house after grazing cow. The piace where he as grazing cow is far from the place of occurrence. He did not s e the incident. It is correct that the deceased went to the house fAmir Sai to attack him, therefore, some dispute took place. He did t see any dispute between the accused persons and Devial. When he returned after grazing cow, he heard that Seva Singh and Bhavan Sing have been taken to the hospital, he saw them on the way while they w re being taken to the hospital. 10. The law on the point of pla ing reliance on the evidence of hostile witness is well settled. ln th matter of BaluSonba Shinde V. State of Maharashtra reported in 02 SAR (Criminal) 753 the Apex Court held that: ......... declaration fa witness to be hostile does not ipso facfo reject he evidence -— and it is now well-settled that the portion of evidence being advantageous to th parties may be taken advantage of — but the Court before whom such reliance is placed shall have to be extremely cautious and circumspect in such acceptance.“ 11.ln the matter of State of U.P. V. Ramesh Prasad Misra and another A i reported in (1 996) 10 SCC 3 0 the Apex Court held that ”it is equally \ settled law that the evidence iof ayhostile witness would not be totally \ rejected if spoken in favour jf the prosecution or the accused, but it \ .4. \ \ x XLgC—n WWW ammm mafmrsmr WW%WW %afi%m3n%$1 WT m NW 200 mm (W) can be subjected to close scrutiny and that portion of the evidence which is consistent With the :ase of the prosecution or defence may be accepted.” 12.!n the light of above judgments, if we scrutinize the evidence of PW-5 Fagnu Singh, in the first ins tance, he has totally denied about seeing the incident. Even on cross-examination by counsel for the accused, in para-8, he has stated th at he returned from the field after grazing cow at about 7 p.m. in the evening whereas, incident took place at about 2.30 p.m. during the day. He has stated that the place where he was grazing cow was far from the place of the incident. Even on cross-examination by A.G.F stated that he did not see th a Thereafter, he has stated that it is correct that the accused persons chased the deceased and attacked him with lathis. He did not see Lal Singh snatching Tabbal tron the deceased. Even if this portion is accepted as it is, it is dimcLlt to convict the accused persons on this evidence for the reason that in the first instance, evidence of this e, explicit reliance cannot be placed on Moreover, except this evidence, there is no corroboration. Almost eviery witness has turned hostile. Evidence of this witness supporting t e prosecution is that it is correct that the accused persons chased th ., in the hrst instance, this witness has accused persons chasing the deceased. i witness is wavering, therefor the evidence of this witness? deceased and attacked him with lathis. Even he has stated that he‘ did not see Lal Singh snatching Tabbal from the deceased. As pert time of the incident, therefo , e prosecution case, that happened at the , this part of the evidence of this witness r , XI-HC—78 mm (W) WW w 2w WWW ammm Wmm WW§F§$W éa‘aw'mm a it is not ciear and cogent in respect of the persons on the deceased. to connect the accused/appellants with Barve cannot be accepted becaus assault made by the accu 13.There is no other evidenc crime in question. 14.For the foregoing reasOns, accused/appellants by the not based on legal and cii are entitled for benem of do 15.in the result, the appeal is a upon the accused/appellan -. .With Section 149 of the LP said charges. lt is stated since 5-7-2000. The accus not required’in’any other cas 5di- l: . :éfL.c.BHADoo i Judge ll onviction and sentences imposed upon the al Court cannot be sustained as same is ching evidence. The accused/appellants bt. owed. Conviction and sentences imposed under Sections 147, 148 and 302 read . are set aside. "They are acquitted of the at the accused persons are in detention led/appellants be set at liberty forthwith, if Sdl- Dhirendra Mishra Judge e. mm, Wan—em s . i