/-"~\ w, w A^'y /1-1 !' !'\ I ? \ -r--A ?ii-^ii^^£^§i^ •'s'.ss^^^ss^ HIGHCOURT OF aiHATnSGARH. BIIASPUR raividon Bench: Hon'Me Shri Justice L.C. Bhadoo & Hoa'ble Stei Justice Suatl Kutnmr Slnha, AI. Q-Iniaal Amwal ffo. 922 of 2001 Dashrath & 3 others Versus Slate ofChhattisgarh JUDGMENT Judgment for cousxleration Hoa'ble Shri Jnstice L.C. BItadoo, J Sd/- SunU Kumar Sinha Judge J^. Sd/- L.C.BHADOO Judge PostforJudgment: ^ .08.2007 vin-igs .08.2007 ^to' ^} HIGH <»URTOP CHHATnSGARH. BILASPUR Ca-imlnal Appeal No. 922 of 2001 APPBLLAKTS RESPONDBNT 1 Dashrafh aged 52 year 2 Gandhi aged 35 years 3 Jiilus aged 33 yeara AU sons of late Sahasiain Suiyavanshi. 4 Rauiswaroop son of Dashrafh aged 17 years. AU residents of ViOscge Nirtu, P.S. Sarkanda, Tashil aad DJstt. Bilaspur VCTSUS State of Chhattisgarh, Through : P.S. Sarkanda, Distt Bil^pur (C.G.) (Afpeal uader SecUoa 374 (21 otCt.P.C.} Appearance: Ms. Sofia Khan, counsel for fhe appeBants. Shri Ashish Shukla, Additional Publfc PTOsccutor for the State. (DIVI8IOW BBNCH} HON'BLB 8HRI L.C. BHADOO & HOirBLE SHRI 8VHIL KUMAR SIMHA, JJ. JUDGMBMT (§.08.2007) v-< Followiag judgment of fhe Coiut was deKvered by SunM Kuinar Siaha. J. (l( Ttiis appeal is directed against the judgment of conviction and order of sentences dated 26th Juty, 2001 passed by tfae 5th Additional Sessions Judge, Bilaspur in Sessions Trial No. Cr.A.No. 922 of2001 iSIMBII^ ^SK^ 466/2000, whereby fbe appeBants were coavicted u/ss, 323/34, 325/34 & 302/34 I.P.C. aad sentenced to undergo R.t. for 3 monttis and fine of Rs.100/-, R.I. for 3 yeara aud fine of Rs.1,000/- & imprisonmeat for Ufe and fine of Rs.5,000/- with default sentences and with a fiirther direction to rua tfae seutences consecuttvefy. (2) During the ^wndency of this appeal, appeBant Julus (appellant No.3) died on 24.09.2003 and no steps have been taken for his substitution, fhcrefore, ftic appeal ffled on behalfof fhis appellaat stands abated. (3) The case of fhe prosecutton is that appeBant Gandhi had taken a loaa of Rs.300/- •Grom fhe father of the coinplainaiit- Vinod Kunaar (P.W.-l) one year prior to the date of incident, which took place on 29.8.2000. On the said day at about 2.00 p.m., appeUant-Gandhi, anned with Lathi, caiais in finut of house of tfae complainant and started abusing his father by usiag filfhy language, He was calling hJTn for fight. The family Baeinbers did not come out fiom. fhe &ouse, on which, he retumed back. Thereafter, at about 5.00 p.m. when Raiakisun (father of fhe complainaat siace deceased) was retuming from his BmS, on fh.e way, he •waa stopped by appeBan.ts Gandhi, Julus, Dashrath aad Raaiswaroop. They were arm.ed wifh. Lathis. They started beatuig the deceased, who fell down on the ground. When tus sons, complainaat- Viaod Kiuuar (P.W.-l), Laxmi Prasad (P.W.-2) and wife Krishna Bai (P.W.-10) went for his rescue, they were also assaulted by fhe accused pcrsons. The incident was witnessed by Shiv Kumar Sarthi (P.W.-12), Rain KumarYadav (P.W.-13), Ramesh Yadav, Kaiata Yadav and Paadu ete. On account of iajuries, Rainkisiin became unconscious. He was taken to the police station and to Dfatrict Hospital, Bjlaspur, where he died on. the saine day at about 9.30 p.m. A report was lodged in. police station, Sarisanda under Ex.- P/1 and the inatterwas taken up for investigation. ^^^i^. Cr.A.No.922of2(X)I (4) Diirmg fhe coiirse of investigation, the dead body of fhe deceased was sent for post-inortem, which was conducted by Dr. T.S. Shyaia (P.W.-4), who noticed fhe foUowing injuries and prepared his report Ex.-P/3:- (i) SweUing on fhe right front side afthe head; (ii) SweBing on the left wrist; (iii) An iacised wound on the lower Up in svse of 1 % cia. x 1 cin, reddish in colour; (iv) A depressed wound, reddish in colour on thc right thigh ia size of 2 Vz inch x Va incl^ (v) Swellmg on fhe back portion on the head. According to him, aU fhe injuries were antemortem. On (he internal exainiaation, clotted blood was found ia fhe firontal region (right side) and on right parietal and left parietal region. There was a fi'acture in the scalp bone which extended fi?om right fion.to parietal region to left panetal region. In between 2 portions of brain, clotted and nonnal blood was foimd ia huge quantity. There was a fi-acture on left radius bone. Accordiag to him, the cause ofdeath was shock and infra cranial heinorrhage as a result of fiacture of skall bone. The other iajured persons namely Krishna Bai (P.W.-10), Vinod Kumar (P.W.-l) and Laxini Prasad (P.W.-3) were also sent for medk'al cxamination. Krishna Bai was exatained by Dr. (Smt.) M. Seu (P.W.3), who noticed 3 extemal iujuries and advised X-ray for injuries No. 1 & 2, about injury No.3, she gave her opuiion fhat it was suuple injury caused by rough object. Her injury report is Ex.-P/2. Vinod Kuiuar (P.W.-l) was examiaed by Dr. K.K. Shiilda (P.W.-5), who found 2 extemal injunes on his body. Injuiy No. 1 was snnple in nature aad for injuiy No. 2 he advised X-ray exammation. The iajuiy report ofVinod Kiunr is Ex.-P/S. He had also exauuned Laxmi Prasad (P.W.-2) and prepared his report under Ex.-P/7, according to which, Laxiui Prasad has also received 2 extemal injuries for which X-ray examination was advised. On further exanunation, it was found that there was a fracture of first ineta carpel bone of Laxxni Prasad. The X-ray report was collected 4 Cr.A.No. 922 of2001 lm ^^^^:s.s^ A;i^i;]^;^^. under Ex.-P/lO smd X-ray plate was coUected as Ex.-P/ll. No bony injuries were detected after X-ray examination ofmjuries of Krishna Bai (P.W.-10) and Vinod Kumar (P.W.-l). The reports to this eflfect were prepared by Dr. R. Jitpure (P.W.-8) under Ex.- P/12 to Ex.-P/15. Danda and Lalhi were seized fiom ffae possession ofappeUant- Gandhi & Julus under Ex.-P/17 & Ex.- P/18. Site plan was prepared under Ex.-P/17-A. Btood stamed and plain soil were seizcd fpoin the place of occurrence iinder Ex.-P/lS. A Danda. -was seized 6-ova the possession of Ramswaroop under Ex.-P/19, a Lathi and cloth was seized fiom the possession of Dashrath under Ex.-P/20. Some clofhes were seized fiom. the possession of Laxnu Prasad under Ex.-P/21. (5) Aflter completion of usual invest^ation, charge-sheet was ffled in the Court of Judicial Magistrate, First Class, Bflaspur, who in tum comnutted the case to the Court of Sessions Judge, Bilaspur, fiuia where it was received on traasfer by the 51S Additional Sessions Judge, Bilaspur, who conducted the trial, (6( The prosecution, ia order to established their case, examined 14 witaesses, the statement of accused persons werc recorded u/s 313 Cr.P.C., who denied the material appearing against fhem ui the prosecution evidence. Accused- Dashrath, Gandhi and Ramswaroop took pka that they have been falsefy ituplicated and fhey were not present at the place ofoccurrence, whereas accused- Julus stated that in fact, at about 5.00 p.m. on the said date, he was assaulted by persons of complainant parly nainely Laxini Prasad, Vinod Kuniar, Ram Prasad, Krfahna Bai, Laxini Bai, Shiv Kuinar and Rainkisun (deceased), who were anned wifh Tabal & Laffii. He received injuries on his head, teft haud and also on temporal region. There was a fi'acture in his hand and 12 stitches were put on fhfi head iajury. He had also goae to lodge a report at about 6.30 p.in. in the same police statfon and was sent by police for medical exanunation to Dharam Hospital. However, no defence witness was examined by ffae accused persons. C£A.Jfo.^22of2QQl (7) It is on these facts and circumstences, fhe leanied Additional Sessions Judge, convicted and sentenced the appellants as aforementioned, agamst which they have preferred fhis crimuial appeal. (8) Referrfng to the decision rendered ia the matter of Ba&tKtn Slnah Vs. State of Bafwmw. 2005 CQ. Cr^J. 205 (SC/, leamed counsel fer fhe appeUaats aiyied that ia ttus case, accused-Julus also received serious injuries and was sent for medical examination by the police but fhe uyiiries sustained by him. have not been explaiaed by fhe prosecution. Therefore, the entire stoiy of the piosecution should be disbeUeved. She secondly ai^ued fhat even iffhe case of prosecution is examined uidependenfty, it appears to be a case of firee fight between two groups, therefore, each one of the accused inust be held responsible for his own conduct aad action. (9) On fh.e other hand, leamed counsel for the State opposed fhese ai^uments and supported the judgment of conviction and order ofsentences passed by the trial Court. (10( So far as noa-explanation of injuiy(s) caused to the accused(s) arc concemed, the Apex Court held in. the matter of SttOx ofQutrat Vs. Bai Feittnw. cuuf another, fl97S) 2 SCC 7, that wlien the prosecution fails to explam the injuries on the person of an accused, depending on fhe facts of each case, any offhe fhree results may follow: (1) That fhe accused had inflicted fhe iajuries on the nieinbers of the prosecution party ia excrcise of fhe right of self-defence. (2) It makes fhe prosecution version of the occurrence doubtful and the chai^e against fhe accused cannot be held to have been proved beyond reasonabte doubt. (3) It does not affcct the prosecution caae ataU. :——.^. Cr.A.No. 922 of2001 (11) Further in catena of decisions, it has been held by the Apex Court that ifitis shown that accused susfained injuries in the course of the occuErence, prosecution has duty to ofier aa explanation so as to satisfy the court about the circumstatices under which the mjuries were caused. If fhe prosecution fails to do so, it may inean that: (1) tfae prosecution has suppressed fhe geneais and devetopment aad truth of fhe occiuTence and has not presented the true version; or (2) The witaesses who denied fhe presence of such injuries are lying ui regard to a laaterial part of fhe occurrence and therefore cannot be believed; or (3) The defence version which explams the iajuries is rendeied probable, so as to throw doubt on thc trutfa offhe prosecution case. These inferences inay not be drawn if (a) fhe injuries are not serious; or (b] ifthe evidence as a whole is so cogent, clear, consistent, credit worthy that it outwejghs the efifect of omission. on fhe part of prosecution witaesses to explaiu fhe injtiries. (12) In order to appreciate first argument regardmg non- °f explanation^injuriies, firsfly, it has to be exaiuined as to whether it has been brought on record ttiat accused-Julus had received iajuries in the occurrence. In fhis regard, no injury report of the said accused has been produced ou record. It only coiaes in Para-33 of cross-examiuation of fhe Investigation Officer Emil Lakra (P.W.-15) fhat on fhe said date, accused Julus had also received iajtuies on his head and body and was sent for niedical exaaunation and on his report, a scparate char^-sheet was fifcd ia the Court ofJudicial Magistrate, Pirst CIass, Bilaspur against ftie complainant Viaod Kumar, Rana. Kuaiar and Laxmi Bai. It has also conae in the evidence of P.W.-l Viuod Kuiaar, in Paia- 27, fhat accused Julus had also received injury on his head but he has denied fhe siiggestious fhat it was caused by them. He Cr.A.No. 922 of2001 S^SSitSBii^ ^ii^^^ Y_o has said that his father may have caused injiuy to him in his defence. Except this nothing has been brought on record ia this regard. Whether fhose injuries were serious injuries or fhey were superficial iajuries, whether the so catled injuries were visible or not,all these facts arc uot there on record and the aiyunent has been advanced on the basis of such admission of the Investigation Officer as also P.W.-l and the version made by accused in his defence. If the evidence regarduig injuries sustained by the accused are not brought on record, their caniiot be a search for theirexplaaation. In the matter ofBalwan Singh (supraj, which the learaed counsel for the appeBants has reUed, three accused/appeBants had received 7, 5 & 5 injuries. Tfae perusal of the judgment in Para-6 would show that those iajimes were of ineasurable size aad were serious injuries aud the inaterial to this effect was there on record as tfae Doctor (P.W.-6), who had examined thein, had proved-the above injuries ofaccused Al to A3. (13) In the present case, as stated above, no injuiy report of the accused has been produced and proved, therefore, the said judgment is distinguishable on this point and it would not be helpful to (he appellants. It is noteworthy that even the charge- sheet or other evidence or relevant material of the case pending ^ainst the complainant parfy were not produced by the defence, so as to find out as to whether the so called iujuries sustained by the accused was received in the same occurrence or was received ia some ofher occurrence and, in fact, there were such injurics which would have requited aa explanation by the prosecution, ia Ught of the judgments referred to above. (l4( Therefore, in view of the above facts and circiunstances; the first aigument advanced by learaed counsel for the appeUants that the iajuries sustained by accused Jirius has not been explaiaed by fhe prosecution, therefore, fhe entire version of the prosecution should be disbetievcd cannot be accepted because no evidence to fhis effect has been brought on record as D: Cr.A.No. 922 of2001 a^fs^^ii&, ^i£^g;^K£S?' swstasss to what kind of injunes were sustained by accused and whefher the sajd injuries were received in the saiae occurrence. (15) So feu- as second aigument is concenaed, Vinod Kiunar (P.W.-l) has deposed fliat on 29.8.2000 at about 5.00 p.m., he was ia his house. His father Rainldsun (deceased) had gone to Badi, which is at a distance of 150 metres and is situated behind fhe house of Dashrafh. His father had gone aU alone, At that tune, Shiv Kuinar, Sarthi and Ram Kuiaar Yadav come to his house and told hiin tbat his fafher is being beaten. On this, he alongwifh his mofher and brother Laxmi Prasad went there. He saw that his &ther was lyiag on the ground and Dashrath, Julus, Gandhi and Ramswaroop were assaulting him with Lathi aad rod. He speci&calfy stated that Ramswaroop was holdmg a rod and other fhree accused persons were holding Lathis. Whcn they uitervened, they were beaten by D^farath, Julus & Gandhi. (16) In the cross-exanunation, he has denied the suggestion, vide Para-24, that they had also beaten tfae accused persons and tliey all were armed with LcvOws. However, he deposed fhat he can not teU as to who assault his fafher wifh Lccthi at which part ofthe body. He has dcnied tus police stetement (Ex.-D/1) to this extent that he had not deposed that "fhey had gone to the place of occurrence taking Lcxffua in fheir hands", and if such version is recorded, he carmot teU any reason for fhe same. The evidence of this witncss regarding reaching to fhe spot on hue and ciy appears to be correct but evideuce that they were un-armed, on fhe face ofhis police stateinent, is an omission. (l7| Laxmi Prasad (P.W.-2) baa deposed that Parwati and Sushila told him that his father is beiag beaten, fhereafter, he aloug wifh his niother and brother Vinod Kumar went to the place ofoccurrence. He saw that Dashrafh, Gandhi & Julus were anned with Lccfhis and Rainswaroop was armed with a rod and aU ofthem were assaulting his father. His father has feU down of the ground. When fhey iatervened, the accused persons Gaadhi, 9 Cr.A.NQ.%2of2Q01 aiffi''giir Dashrafh aad Julus had alao assaulfed theia on accouat of which he received iajuries on his both wrists. He has also deposed that when he reached to the spot, he saw that his father was tying on ffae ground and accused persons were beatiag hun. He haa denied ttds fact that when he aIoDg wifh his brother aad inother had goue to the place of occurrence, they were atso carrying Laffus and if such fact is mentioned ia his police statement (Ex.-D/2), he caanot feB any reasoa for the saiue. Therefore, he has givea alaaost saine kind of evidence as has been given by his brofher Vinod Kumar (P.W.-l) but has inade an omission fhat they were also carrying Lathis when they had gone to the place ofoccurrence to rescue his father Rainkisun. (l8| Rain Prasad (P.W.-6) is another son of tfae deceased Raaikisun. He has also given similar evidence as has been given by his two brothers. In Para-2 of his depositioa he has ctearly stated that when he reached to fhe spot, he saw that accuscd Gandhi, Dashrath, Julus and Raiaswaroop were beating his feither. Gaadhi, Dashrath and Jiilus were armed with Danda and Ramswsuroop was anned with a rod. In Paia-11 of his cross- examiaation, he too has denied tfaat while giviug police statement (Ex.-D/3), he had not said fhat they have also used Lafhis in their defence aad if such statement is recorded, h.e cannot teM the reason for ihe same. Krishna Bai (P.W.-10) has deposed that at about 5.00 p.m., Sluy Kumar (P.W.-12) and Ram Kumar (P.W.-13) told them that fhe deceased was being beatea by Gandhi, Julus etc. On hearing this, when sbe reached to the place of occurrence, she saw tfaat her husband was beatmg accused Julus by Laffu' aud when he was doing so, accused Gandhi, fiom the back sjde, assaulted on fhe hcad of her husband by Laslhi, on which he fett down on fhe ground, thereafter, accused Julus, Gaadhi, Dashrath aud Rainswaroop aU started beating her husband. Rainswaroop was cartyiag a rod aad other accused persons were carrying Dandas. While making intewention, she was also 10 Cr.A. No. 922 of2001 assaulted. Vide Para-6 of her deposition, she has stated that thereafter, when her sons namely Laxmi Prasad aad Vinod Kiunar reached there, they were also assaulted by accused persons. There are soine omission m. her evidence and she has also denied that when after hearmg hue and ciy her sons had gone there, they were holding Lathis and if such statement is fhere ia the police case diary, she cannot teU any reason for fhe saine. She has also stated that she has told to fhe polfce that firstly her husband had assaulted accused Jnlus and if fhis fact is also not there in the case diary statement, she cannot tell any reason for the saine also. (20j Shiv Kumar has beea examined as P.W.-12. He tas deposed vide Para-3 fhat on fatefiil day Ramldsiui was advising the accused persons for not quarrelling and on this, soine talk was going onbetween Rainldsun and Dashrath. AU ofa sudden accused Gandhi came there with Lathi and assaulted Ramldsun, who received head injuiy and Ramkisun also assaulted accused persons wifh Latht. After this, he went to the house of the complaiaant and told them that their father has been beaten and he is lying on fhe ground, on which, the sons and daughter of Ramldsiui went to the place of occurrence. When they reached there, fhey were also assaulted by accused persons. In the cross- examination, in Para-10, he has stated that when tfae assault began, Ramkisun was un-anned and when the accused peraous started assaulting Ramkisiin, he snatehed Lafhi of oue accused and he also assaulted Julus. He cannot say that which part of body ofJulus was hit by Ramkisim. In Para-11 of his cross- examiuatioa, he has denied that portion of his poUce statement in which he stated that at that tuae wife of Ramldsun and his sons had also coine to place ofoccurtencc holding Lathis in their hands. (31) Rain Kiunar has been examined as P.W.-13. In hfe examination-in-chief, he has deposed that he saw that Dashrath, Julus, Gandhi and Rainswaroop were abusing Ramkisuu aad ^ 11 Cr.A. ,922 of2001 saying that ttiey wiB assault hiia. After sometime, when Ramkisiin was coming finm the side of Bau£,be was stopped by Julus, who gave assault to him. RamMsun stopped assault and fhereafter, he gave 3-4 Lathi blows to Julus. At that time, accused Gaudhi also reached there aad he assaulted Ramldsuu on his head and fhereafter other accused persons also assaulted him. In Paia-6, he has deposed that when he saw that Raxnldsun feH down on the ground due to assault, he along with Shiv Kuruar went to fhe house of Ramkisun and told thein that their fafher has been beaten, on which, his sous, Chotan, Viaod aod wife Krishna Bai reached to fh.e place of occurrence. Krishna Bai was assaulted by accused persons wifh Lathi and has received injury. Vinod had also received some injuiy. In Para-14, he has denied the suggestuns fhat he had deposed bcfore the poMce (Ex.-D/6) tfaat sons aad wife of Ramkisun had reached to the place of occiirrence with Daridas in fheir hands. If such statemeut is recorded fhere, he cannot tell the reason for the sanie. (22) If appreciate the evidence of fhese wittiesses, it would appear that P.W.-l Viaod Kumar, P.W.-2 Laxmi Prasad, P.W.-6 Rani Piasad, are the sons ofthe deceased and P.W.-10 Krishna Bai is the wife ofthe deceased. Laxini Prasad, Vinod Kumar and Krishna Bai are injured witaesses, who have received some injuries. Apart fmm. the said eye wituesscs, fhe second set of eye witness is that of Shjv Kumar (P.W.-12) and Ram Kiimar (P.W.- 13). They are independent witoesses. (23) So far as involyement of the accused peisons are conceraed, sons and wife have said about involvem.ent of all the accused persons, whereas independent witness naniely Ram Kuinar (P.W.-13) bas said about uwolveiuent of accused/appeUants Gaadhi aad Julus, according to hiin the fatal blow to fhe deceased was given by accused Gandhi, where afier he feU down on the ground but he also added that thereafter atl accuscd peraons started beating In'Tn but he has 9 ••w-w^ 12 Cr.A.No. 922 of2001 SMI not attributed spccific role to any one ofthem so far as beatmg of the deceased is concemed. As far as P.W.-12 is concemed, he has also stated that the fatal blow to the deceased was givea by accused Gandhi. These two witnesses have stated that afier seeing aU this, fhey had gone to the house ofthe dcceased and narrated the story to their sons aad wife. It has come in the evidence of Rain Piasad vide Para-10, fhat the place of occurreace was at a dislance of 100 metres firom their house and aU fhese witaesses i.e. P.W.-l, P.W.-2, P.W.-6 and P.W.-10 say that after hearing this, they went to the place of occiurence and saw that fhe deceased was lying on the giound and fhe accused persons were beating him with Lathi and rod. A distance of 100 metres is measitrable distance aad if these two witnesses i.e. Shiv Kumar and Raiu Kumar teft the place ofoccurrence afijer assault was over as they have said, they must have taken some time to reach to the distance of 100 inetres and thereafter, the otber said eye witaesses i.e. the relative witnesses, they too xaust have also taken some time to reach the place ofoccurrence and it does not appear to be reasonable that in between this period, beating was goiag on aad fhey could see that tfae dcceased was being beateu by aU the accused peraons while he was fying on the ground. So far as evidence of their first sight regardiag tying the deceased on the ground M concemed, there is no dispute about it. AB fhe above related witnesses are sayiag that when they reached to fhe spot, the deceased was fying on the ground aad they saw that he was being beaten by accused peraons. The story setforth that they, is. fact, witoessed beating of the deceased appear to be unreUable in the facts and circumstances aud fheir evidence regarding assault of the deceased by aU accused persons by means Dandaasd rcxl while he was lying on fhe ground cannot be accepted. In fact, as stated by P.W.-12 and P.W.-13 these relatives had reached to the place of occurreace afiter a short while when the deceased was already lying on the gToiind ia injured couditiou and in this regard, there was a ^ht ainong ffae family member