\j ••^.^/ "':,^"^.ffiy^ """iif' HISH COURT OF CHHATTISGARH AT BILASPUR DiVISION BENCH; Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR, JJ. Criminal Appeal No.286 of 2007 Dilaram and others Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge Hon'bie Mr.R.L.Jhanwar, J. Sd/- R .L. JHANWAR Judge Post for pronouncement ofthe Judgmentonj^9^/2Bll sd/- T.P, Sharma Judge (^i 'sstR-SSi HIGH COURT OF CHHATTiSGARH AT BILASPUR Division Bench:- Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANW^R, JJ. APPELLANTS (!n Jaii) RESPONDENT Criminal Appea! ^to.288 of 2007 1. Diiaram, son of Surst Ram Yadav aged about 21 years, resident of Nagoi, presently at Rigriga, Potice StaUon- Kota, District-Bilaspur (C.G.) 2. Mansha Ram, son of Saepat Singh Yadav, aged about 25 years, resident of Rigriga, Chowki-Belgahna, Police Station-Kota, District-Bilaspur (C.G.) 3. Janam Lal Yadav, son of Rambharos Yadav, aged about 25 years, resident of Rigriga, Chowki Betgahna, Polkse Station-Kota, District-Bilaspur (C.G.) Versus State of Chhattisgarh, through the Distrfct Magistrate, Biiaspur, District- Bilaspur (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973} Mr.Yogeshwar Sharma, counsel for the appeiiante. Mr.D.K.Gwalre, Government Advocate forthe respondent/State. JUDGMENT (Delivered on 29"* June, 2011) The foiiowing judgment ofthe Court was deltvered by T.P.Sharma, J.:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 23.2.2007 passed by the First Additiona! Sessions Judge, Bilaspur in Sessions Triat No.109/2006, whereby & whereunder leamed First Additional Sessions Judge after holding the appelfante guilty for commission of cuipabie homicide amounting to murder of Agocharanand in sharing common intention and screening the evidence of criminai case convicted them under Sections 302 read with Section 34 and 201 of the i.P.C. and sentenced to undergo imprisonmeni for life & fine of Rs.500/, in default of payment of fine to further undergo R.i. for ^ ^ two months and R.l. for three years & fine of Rs.500/-, in defauit of payment of fine to further undergo R.f. for two months. 2. Conwction is impugned on the ground that without there being any k of evidence, the trial Court has convicted and sentenced the appeliants as aforementioned and thereby committed ili^ality. 3. As per case of the prosecution, m the fatefui day of 14.11.2005 at 6.30 p.m. when deceased Agocharanand was talking with Janak Ram (PW-1) and othere, appeliant Dilaram having enmity with Agocharanand on account of rape committed by him upon Makhan Bai and report lodged by Makhan Bai againsf appeilant Difaram at the instance of Agocharanand aiong with other appeftants Mansharam Yadav and Janam Yadav came to the spot, they were hofding sticte and caused injury over the head of Agocharanand, he feli down in the land, appeiiant Janam Yadav assaulted him over his head, appellant Dilaram agaan assaulted hfm hover the head and other appeilant Mansaram also assaulted by stick over his body, Agocharanand died on the spot. Thereafler the appellants took dead body of Agocharanand in cart and took towards river where they bumt dead body of Agocharanand. Janak Ram (PW-1) went to the Pofice Station and iodged F.i.R. vide Ex.P/32. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P/9 prepared inquest relating to bones and ash of dead body of the deceased vide Ex.P/10. Spot map was prqsared lay investigating officer vide Exs.P/6 & P/7. Bloodstained & piain soH were recovered from the spot vide Ex.P/12. Bones were sent for maiicai examination to Medical Cotlege, Raipur where Dr.Rajkumar (PW-17) conducted examination of bones vide Ex.P/28 and opined that bones were belonging to male and cause of death was as a result of injury. Duhng the course of investigation appetlants were iaken into custocty Appellant Diiaram Yadav made disclosure statement of axe, clothes, shoes, the place where dead body was bumt and cart vide Ex.P19 and at the instance of appellant Dilaram Yadav piace where dead body of Agocharanand was bumt was disclosed and bum charcoal, bones and ash were seized vide Ex.P/13. One pair of piastic shoes were seized at the instance of appellant Ditaram Yadav vide Ex.P/14. Kerosene iamp and rudraksh mala stained with blood were seized at the instance of appeilant Dilaram Yadav vide Ex.P/15. Axe and btoodstained clothes of appellant Dilaram were seized vide Ex.P/16. Cart was seized at the instance of appellant Dilaram vide Ex.P/17. Appelfant Janam Lat Yadav aiso made disclosure statement of stick and clothes vide Ex.P/18, same were recovered at his instance vide Ex.P/19. AppeSiant Mansaram aiso made disclosure statement of bioodstained clothes, s^cie and the piace where dead body was burnt Vide Ex.P/20, spade and bioodstained clothes were recovered at the insSance of appeltant Mansaram vide Ex.P/21. Plastic bag, frwo blankets, stee! dibba, toreh and other articies beionging to Agocharanand were seized from Prabhuial vide Ex.P/22. Panchnama of blood found in the cart was prepared vide Ex.P/23. 4. Statements of the witnesses were recorded under Section 161 of the Code of Cr.P.C. and after comptetion of investigation charge sheet was filed in the Court of Judicial Magistrate First Ciass, Bilaspurwho in turn committed the case to the Court of Sessions, Biia^sur, from whers iearned First Additlona! Sessions Judge, Biiaspur received the case on transfer for trial. 5. in orcier to prove the guilty of the accused/appeilants, the prc^ecution has examined as many as 23 witnesses. Accused were examined under section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and ciaimed innocence and false implteation in crime in question. 6. After affording opportunity of hearing to the parties, iearned triai Court convicted and sentenced the appeilants as aforementioned. 7. 8. We have heard learned counsei for the parties, perused ttse judgment impugned and record of-the trial Court. Learned counsel for the appetiants vehemently argued that presani case is based on evidence of eyewitness Janak Ram (PW-1) and statement of Prabhuial (PW-7), but evidence of the aforesaid witnesses does not inspire confldence and Srustworthy and same is not safe to reiy. Leamed counsel further argued that the prosecution has not proved homicidal death of Agocharanand and has failed to adduce evidence to connect the appeltants in the crime in question. Leamed counsel contended that F.i.R. has been lodged after considerabte time and deiay in todging of the F.i.R. has not been explained properly. w'.^~~->. '^ ISs!SSf*\ V ^"sN.^J 4 9. Learned counsel placed reliance in the matter of Patiram v. Stafe of M.P.1 in which the High Court of Madhya Pradesh has held that testimony of singte eye witness not reliable and accused cannot be convicted. Leamed counset further placed reliance in the matier of Thulai KaU v. The State of Tamil Nadu2 in which the Supreme Court tas held that delay in lodging the first information report quite often results in embeliishment which is a creature of afterthought. On accourt of delay the report not oniy gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coioured version, exaggerated account or concocted story as a rssult of deiiberation and consultation. it is therefore, essential that the delay in the lodging of the first information report should be satisfactoriiy explained. Leamed counsel retied upon the matter of Mohar Singh etc., v. State of Rajasthan and others etc., in whsch the Supreme Court has heid that FIR not reliabie as it was taken down after Inspector visited the site and witnesses were then taken to police station. Leamed counsei further piaced reliance in the matter of State of Bihar v. Jatashankar Thakur & Ors.4 in which the Patna High Court has held that testimony of sole eye-witness fail of discrepancies relating to place of occurrence, manner of assault and weapon used is not liable. 10. On the other hand, tearned counsei for the State opposed the appeal and argued that evidence of Janak Ram (R?V-1), soiitary witness, inspires confidence and trustworthy and is sufficient for drawing definite conciusion that only ihe appeilants have caused homicida! dsath amounting io murder of Agocharanand. The triat Court has rightiy comicted and serrtenced the appsllants as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12. in the present case, homicidal death as a result of injury found over the body of Agocharanand has not been substantiatty disputed on behalf of the appeltants, even otherwise, it is established by the evidenos of Dr.Rajkumar (PW-17) and medteal examination report Ex.P/28. '/28. 1i.989 (1) MPWN 29 21972Cri.L.J.1296 3AIR 1998 SC 2912 4 [2005 (2) AC 1 (Pat)] 'l 13. In the present case, conviction is substantially basaj on the evtdence of Janak Ram (PW-1). As per his evidence, on 14.11.2005 at about 6.30 p.m. he was sitting his Rlrana shop, Hafiz Ali, Sikandar Gond, Chandrabhan, ishwarsingh, Sonsai, Purushottam, Mathaniai and other persons were sitting in front of his shop, they were discussing about some religious film, deceased ^ocharanand was aiso presenf, at the same time all the appellants came there, they assaulted Agocharanand by sticks over his head, Agocharanand Teli down, then they also assauited by axe and spade, hs along with Sikandar and Sonsai went inside the room and other pereons fted from the spot. After 10 to 15 minutes PrabhuSal Gond came to the spot, at that tmie dead body of Agocharanand was lying in front of kirana shop stalned with blood and the appeliants were not present there. After sometime al! the appeilants came with cart, they were dragging cart, they took dead botiy of Agocharsnand in cart and proceeded towards river. PrabhuJal Gond along with his wife and chfidren came to the spot, ttiey wsre weeping, then this \witness came to the spot from his house. At ttie tims of taking dead body appellant Janam Yadav was threatening this witness that if he will come out Trom the house, then he will kitl. On that day, Sarpanch was not present in his house, on second day he visital the house of Sarpanch, Sarpanch was not present, then on 16.11.2005, aftsr two days of the incident he iodged F.i.R. vids Ex.P/30. Defence has cross- examined this witnsss at tength, especiaiiy relating to weapons used. This witness has categorically deposed that the appellants have assaulted by axe, sticR and spade but this fact has not been mentioned in ths F.i.R. lodged by him after two days ofthe incident. Hehas denied the suggestion that he has not seen the Incident. Other wttnesses i.e. Hafiz ASi (PW-2), Sikandar (PW-3) and Sonsai (PW-4) whom the prosecution has declared hostiie have deposed in their evidence that Agocharanand has been kiiled and they came to know from other persons that the appeilants have killed Agocharanand. ishwar Singh (RW-5) and Purushottam Singh (PW-6) have also corroborated the evidence of aforesaid witnesses. 14. As per evidence of Prabhuial (F!W-7), his wife asked appsliant Janam that why he has kltled Agocharachand, then Janam threatened her and also chalienged him that they are taking dead body of Agocharanand. As L per para 7 of his evidsnce, his terms with the appeiiants were not cordiai on account of rape committed by appeilant Dilaram with his daughter. Prabhulal (PW-7) has not seen the incident, but as per his evidenoe he has seen the appellants when they were taking dead body of Agocharanand by cart. Defence has cross-examined Janak Ram (PVV-1) and Prabhuial (PW-7), but has not been abie to elteit anything In thsir cros&^xamination to show that Janak Ram has not seen the incident and Prabhulal has not seen when the appellants were taking dead body of Agocharanand by cart. Evidence of these witnesses show that on account of threat given &y the appeilants they were apprehending and they have taken proper precaution to save their life. 15. In the present cass, F.i.R. has been todged after hwo days of the incident on account of absence of Sarpanch. Only on the ground of delay in lodging the F.I.R. evidence ofthe witnesses cannot be discarded if deiay in lodging the F.i.R. has been expiained properiy. 16. Virtualiy Agocharanand was nct reiative of any of the witnesses or viliagers. As per evidence, he was saint and was used to viilage of the witnesses, in these circumstances, under threat given by the appafiants and the fact that deceased was not relative or closed man of any of the witnesses, reluctancy in lodging the F.j.R. is not unnaturai. Evidence of Janak Ram (PW-1) is weii corroborated by the F.i.R. todged by him. Janak Ram (PW-1) is soiitary witness and his evlrience inspires confidence and trustworthy. 17. As held by the High Court of Madhya Pradesh in ihe matter of Patiram (supra), testimony of single eye witness was not reliabie, therefore, conviction was not sustained. Facts of the case of Patiram are distinguishable to that of ths present case. 18. As heid by the Supreme Court in the matters of Thuiai Kaii (supra) and Mohar Singh ete., (supra), delay in iodging the F.I.R. is required to be explained properiy, otherwise same is not safe to rely. In the present case, delay in iodging the F.1.R. has been properly expiained. 19. As held by the Patna High Court in the matter of JatashanRar Thakur & Ors., (supra), evidence of solitary witness was fuli of discrepancies reiating to place of occurrence, manner of assault and weapon used.IR the present case, evidence of solitary witness i.e. Janak Rsm (PW-1) is not contradictory to such extent. incident took place at about6.30 p.m. in the mwffit of November. This w'tness has identified the assailants, they have made repeated assault and also ihreatened, then he vffirt inside the room, in these circumstances, from reasonabie distance it was possibte for him to identity the persons, but normally it was not possibte for him to specify the weapons. Ait the weapons i.e. spade and axe were fitted weapons iike stick, in these circumstances, mentioning of sttek in F.!.R. is notunnatural. ^). Evidsnce of Janak Ram (PW-1) is suffici^Tt to estabiish the fact at aii the appetlants have made assault to the deceased resuittng into his death, thereafter they took dead body whlch was found bumt. Evidence of aforesaid witness inspires confidence and trustworthy and is suffteient for drawing definite conclusion that the appeilants have caused homicida! death amounting to murder of Agocharanand. 21. Afler appreciating the evidence availabte cn record, leamed First Additlonal Sessions Judge has convicted and sentenced the appeliants as aforementioned. 22. On close scrutiny of the evidence, we do not find any illegaiity or infirmity in the judgment impugned warranting any interference. 23. Consequently, the appeai teing devoid of merit is liable to be dismissed and it is hereby dismissed. sd/- T.P, Sharma Judge Sd/- R.L.JHANWAR Judge &9S91&V 1 1 E!/-