MVVU HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH R H wwg \6 \0 CORAM: HON’BLE M. T.P. SARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.205 of 2002 Suman and others — Versus - The State of Chhattisgarh JUDGMENT FUR CONSIDERATION ., Sd/- T.P. Sharma Judge HON’BLE MR. JUSTICE R.L. JHANWAR w- Sdl— R.L. Jhanwar Judge Post for pronouncement of iudqment on i1i5t“ February, 2010 Sdl- T. P. Sharma Judge Is -2-2o10‘~ I * i @ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND I HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.205 of 2002 APPELLANTS/: 1. Chandrika S/o Badri Rathore, aged 60 (Accuseds) ‘ years, resident of Rank, Thana Sipat, Distt. (In Jail) Bilaspur. (DIED AND DELETED) 2. Suman S/o Chandrika Rathore aged 28 year§,' resident of Rank, _.Police Station Sipat, Distt. Bilaspur. V 1‘ 3. Chhatram S/o Chandrika Rathore, aged 30 years, resident of Rank, Police Station Sipat, Distt. Bilaspur. A ‘ 4. Narmada Bai Wd/o Shanichram Rathore, u aged 30 years, R/o Rank, Police Station Sipat, Distt. Bilaspur. Versus RESPONDENT: The State of Chhattisgarh, Through the District Magistrate Bilaspur (CG). {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Shailendra Dubey, counsel for the abpellants. Mr. Sandeep Yadav, Deputy Govt..Advocate for the .State/ respondent. JUDGMENT (15th February, 2010) The following iudqment of the Court was passed bv T.P. Sharma,‘ J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 1871-2002 passed by the 5th Additional Sessions Judge, Bilaspur, in Sessions Trial No.377/2001, whereby & whereunder learned O l Additional Sessions Judge, while acquitting other co—accused Manjri Bai ‘ ‘1 l & Badrika Bai, held the appellants guilty for commission of culpable homicide amounting to murder of Ram Kumar in sharing common intention, convicted them under Section 302 read with Section 34 of the @gw l.P.C. and sentenced each of them to undergo imprisonment for life & pay fine of Rs.1,000/—, in defauit of payment of fine to further undergo R.i. for one month. . On account of the death of appellant No.1 Chandrika, the name of Chandrika was deleted from the arrayrof cause title vide order dated 12- 9-2008 passed by this Court. . Judgment is impugned on the ground that without any clinching and cfedibie evidence against the appellants, the Court below has convicted &‘sentenced them as aforementioned and thereby committed illegality. ‘ u f . Case of the prosecution, in brief, is that on thefateful day of 17—6-2001 at aboutA7 p.m. at. Village Rank, Police Station Sipat, Distt. Bilaspur, the appellants along with Manjri Bai & Badrika Bai, relatives of deceased' R‘am Kumar, dragged Ram Kumar inside their house and after CIOSing the door, all the accused persons assaulted Ram Kumar with sticks, hands & fists. Wife of Ram Kumar Fagni Bai (PW—1) cried for help and also sent her daughter Miss Sunanda (PW—3) towards the place of incident. Mother—in—law of Fagni Bai (PWI1) namely, Rahi Bai (PW-2) — wife of deceased appellant Chandrika was trying to open the door, but the appellants assaulted her also. Hearing the cries, Shivram, Bahoran Yadav, Girija Shankar, Ram Prasad & Dudhari came to the spot and seen the incident. The appellants assaulted Miss Sunanda (PW-3) also. Girija Shankar & Ram Prasad took injured Ram Kumar and the appellants. Fagni Bai (PW-1) went to the Police Station and lodged F.l.R. vide EXP—25. Injured Ram Kumar was sent for treatment to Primary Health Centre, Sipat. He was examined by Dr. Rajesh Kumar (PW—15) vide EX.P~18. He was unconscious. Fracture of little finger of right hand, swelling over right wrist and lacerated wound of 10 cms. x 0.5 . Had cm. x 0.5 cm. over left hand were found. Injured Rahi Bai (PW-2) was aiso sent for medical examination and she was examined by Dr. Rajesh Kumar (PW—15) vide Ex.P-19. She was unconscious, fracture was suspected over left thigh and she was referred to District Hospitai, Bilaspur. Miss Sunanda (PW-3) was aiso examined by Dr. Rajesh Kumar (PW-15) vide Ex.P-20 and sweiiing of 3 cms. x 2 cms. over right u leg, swelling & tenderness over right wrist were found and fracture of wrist was suspected. During the course of treatment, Ram Kumar died. M‘erg was recorded vide EXP-2‘6. After summoning the witnesses vide Ex.l3-J4, inquest over the dead body of Ram Kumar was prepared vide Ex.P-15. Dead body was sent for autopsy toDistrict Hospital, Bilaspur and astopsy was conducted by Dr. C.M. Tiwari (PW-13) vide Ex.P—16 who found following injuries: — l (1) Fracture of left radius with haematoma. (2) Fracture/dislocation of little finger of right hand with haematoma. (3) One abrasion of 6 cms. length over left infra scapular region. (4) Lacerated wound of 3 cms. x 1 cm. x bone deep over left fronto parietal region comprising hairline fracture of left fronto parietal bone and subdural haematoma. (5) Lacerated wound over right parietal region of 2 cms. x 1 cm. x bone deep. Injuries No.1 to 4 were grievous in nature and death of the deceased \._ was due to coma as a result of head injury. 5. X-ray of Rahi Bai (PW-2) was taken and fracture of left femur was found vide Ex.P-2. X-ray of right little finger & left forearm of injured Ram Kumar was also taken and fracture of middle phalange & left radius was ”found vide EXP-3. During the course of investigation, accused Chandrika (since deceased) was taken into custody, on 24—6-2001 he made discloser statement of stick vide Ex.P-8 and the same was recovered at the instance of Chandrika vide EXP-9. Appellant Chhatram was also taken into custody, on 24-6-2001 he made discloser statement of stick vide EX.P-10 and the same was recovered from Chhatram vide Ex.P-11. Appellant Suman was taken into custody, he also made discloser statement of stick vide EXP-12 and the same was recovered at the instance of Suman vide EXP-13. . Patwari prepared spot’map vide Ex.P-17. Seized articles were sent for examination to Dr. Rajesh Kumar (PW-15) who opined that the injuries found over the dead body of Ram Kumar may be caused by the sticks. Bed head ticket of the deceased was seized vide EXP-24. Spot map was‘ also prepared vide Ex.P-27. v . Statements of the witnesses were recorded under Section 161 of the £ Cr.P‘C. and afterucompletion of investigation, charge sheet was tiled _ before the Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. a . ln order to prove the guilt of the accused persons, the prosecution has examined as many as twenty witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. The accused persons have also examined defence witnesses Alakh Ram (DW-1) & Kashi Prasad Rathore (DW-2) and have taken the plea of alibi that unknown persons have assaulted Ram Kumar in the field, Ram Kumar was lying in_the field and they took Ram Kumar to his house, on that day Fagni Bai & Sunanda were not present in the village, they came at about 8.30 pm. and they have not seen the incident. 9 After affording opportunity of hearing to the parties, learned Additional Sessions Judge has acquitted two accused namely, Manjri Bai & Badrika Bai, and convicted & sentenced the appellants in the aforesaid manner. 10.We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 11.Learned counsel for the appellants vehemently argued that the case is based on the evidence of relative witnesses Fagni Bai (PW-1), wife of deceased Ram Kumar & child witness Miss Sunanda (PW-3), daughter of deceased Ram Kumar, who are highly interested-xwitnesses, their evidences are full of omissions & contradictions, they are not the natural witnesses and their evidences are not safe to rely. The appellants are A close relatives of the deceased, they have not caused any injury to the deceased, some other person has caused injury to the deceased while he was present in the field. Defence witnesses Alakh Ram (DW—1) & Kashi Prasad Rathore (DW-2) have informed the appellants & their . relatives that somebody has assaulted Ram Kumar on which the appellants & other persons went to the field and took Ram Kumar to his house. Fagni Bai (PW—1) & Miss Sunanda (PW-3) were not present in the village on the fateful day, they came at about 8.30 p.m. and they have falsely implicated the appellants- Even othenivise, the place of incident is not visible from outside and Fagni Bai (PW-1) & Miss Sunanda (PW—3) have not seen the incident. it was not even possible to see the incident from outside. Learned counsel further argued that nothing has been recovered at the instance of the appellants; The \‘ l ”prosecution has not proved presence of blood over the sticks, therefore, seizure of sticks from the appellants is of no use. Learned counsel n l l l m. placed reliance in the matter of Gendiya v. State of M.P.1 in which the High Court of Madhya Pradesh has heid that unreliable testimony of sole eye witness cannot be acted upon to convict accused for charge of murder. Learned counsel further placed reliance in the matter of Ramdhar & another v. State of C.G.2 in which this Court has held that in absence of human blood over the article recovered from the accused and the statements of eye witnesses not inspire confidence, conviction Would not be possible. Learned counsel also placed reliance in the matter of State of M.P. v. Mangu3 in which the High Court of Madhya Pradesh has held that in case of conviction on the basis of solitary eye witness, the evidence of solitary eye witness should be of sterling worth. Learned counsel relied upon the matter of Pohap Singh v. State of Haryana and others" in which the Apex Court has held that improbable version and improvement by eye—witnesses make their evidence unreliable. Learned counsel further relied upon the matter of State of Kerala v. Anilachandran @ Madhu and others5 in which it has been held by the Apex Court that tampering of F.l.R., considerable delay in sending copy of the F.l.R. to the Magistrate and variation in the evidence are not safe to rely. Learned counsel also relied upon the matter of Joseph v. State of Keralae in which the Apex Court has held that .material contradiction in the testimony of sole eyewitness is not safe to rely. Learned counsel placed reliance in the matter of State of Rajasthan v. Rajendra Singh7 in which it has been held by the Apex Court that contradiction in police statement and Court statement on material points creates serious doubt about the truthfulness of the 17 1 1986 (I) MPWN 106 2 2004 (1) CGLJ 370 3 1997 CrLR (MP) 106 1 4 1998 (1) CCrJ (SC) 132 62009(77)AIC 46(SC) l 5 2003 CrLR (SC) 670 7 1998 scc (Cri) 1605 l r t a ) W witness. Learned counsel further placed reliance in the matter of Joginder Singh & Ors. v. State of Punjabs in which the Apex Court has held that in case of police witness not trustworthy and investigation not fair, conviction is not safe. Learned counsel also placed reliance in the matter of Satish Narayan Sawant v. State of Goag in which it has been held by the Apex Court that fatal injury found on back side ofthe deceased shows that intention was not to kill or to inflict an injury of a particular degree of seriousness. In case of hot exchange of words before‘the incident which occurred at the spur of moment, offence falls under, Section 304 Part—ll of the l.P.C. Learned counsel further placed i reliance in the matter of Hazari Lal v. The State (Delhi Admn.)1° in ' which the Apex Gourt has held that statements made by witnesses in the u course of investigation cannot be used as substantive evidence. 12.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that conviction is based on the evidence of eyewitnesses Fag’ni Bai (PW—1) & Miss Sunanda (PW—3), wife & daughter of the deceased, respectively, their presence at the time of incident was natural, they have seen the incident and they shouted for help on which the villagers came and took out injured Ram Kumar from the house of the accused persons. The evidence of Fagni Bai (PW—1) & Miss Sunanda (PW-3) inspire confidence, their evidence is trustworthy and safe to rely. The evidence of the aforesaid witnesses is also ‘ corroborated by recovery of weapons on the basis of discloser statements made by the accused persons. , \ , 13m order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. i ‘k 8 1998 CrLR (sC) 32o 9 2009 orLR (SC) 829 i ‘ 101980 CriLJ 564 a 14.ln the present case, homicidal death of the deceased as a result of fata! injuries found: over his body has not been substantially disputed by the appellants, othenNise also established by the evidence of Dr. Rajesh Kumar (PW-15), Dr. C.M. Tiwari (PW-13) and autopsy report EXP-16 which reveal that fracture of temporal bone & haematoma were found over the body of the deceased which was fatal to life and death of the deceased was homicidal in nature. 15.Asl regards complicity of the appellants in the crime in question, conviction is based on the direct evidence of eyewitnesses Fagni Bai (PW‘f) — wife ofthe deceased and Miss Sunanda (PW-3) —— daughter of the deceased. t 16.Fagni Bai (PW-1)“— wife of the deceased, daughter—in—law of deceased _, appellant Chandrika & sister—in-law of the appellants herein has deposed in her evidence that on the fateful day her husband deceased Ram Kumar was going in front of the house of the appellants‘ suddenly appellant Chhatram caught hold of his hand and dragged him into his house, appellant Suman also caught hold of his neck and deceased appellant Chandrika helped Chhatram & Suman in dragging Ram Kumar inside their house, appellant Narmada Bai closed the door from inside and they assaulted her husband. Her husband cried for help ‘save saVe run run’ on which she sent her daughter Miss Sunanda (PW-3) to see the incident and she also went to the house of the appellants through another way. She requested the appellants for opening the door, but they did not open the door. Her daughter also reached there and appellants Chandrika, Chhatram & Suman assaulted her daughter over ’* her waist. She went to call the persons for help and came with Bahoran ' & Girija Shankar. Lastly they took out the injured from the house of the appellants. Rahi Bai (PW-2) — wife of deceased appellant Chandrika and 9 @ mother of deceased Ram Kumar & the appellants herein also came to the place of incident and opposed the incident on which the appellants assaulted her also. This witness {Fagni Bai (PW—1)} went to the Police Station and lodged report. She has further deposed that the police has not written the report in accordance with .her version. 17.The‘prosecution has also examined Rahi Bai (PW-2), the injured witness, who has admitted their relationship, but has not supported the case of the prosecution and the prosecution has declared her hostile. Rahi Bai (PW-2) is mother of appellants No.2 to 4 herein and wife of deceased appellant Chandrika. Although deceased Ram Kumar was also her son, it appears that on the ground of relation she has not £ corroborated the eyidence of Fagni Bai (PW-1) which is not unnatural. 18.Another eye witness Miss Sunanda (PW—3) has deposed in her evidence that while her father was coming in front of the house of the appellants, the appellants caught hold of him and dragged inside their house, Narmada closed the door from inside and they assaulted her father, then she reached near the place of incident through the kitchen garden of Manharan and saw the incident. She tried to intervene in the incident, but instead of stopping the quarrel they assaulted her over her waist. Her mother came with Bahoran, Hemant Sharma, Panchram and other persons who caused to open the door and at that time her grand—mother Rahi Bai also came, when the accused persons chased Rahi Bai to assault her, she (Sunanda) fled away towards Bazaar Para. After causing injury to Ram Kumar, the appellants came to the house of this Cwitness and tried to assault her, her mother & her younger sister. V l Keshav & Sumant took out her father from the house of the appellants. s‘ She asked her father that at whose instance he was beaten to which her ' l l father told that he was beaten at the instance of Sarpanch on the ground , “1 1O of payment of compensation, They took the injured to the Police Station where her mother lodged the report. The police has not sent her for medical examination. 19.Gendram (PW-5), Ram Prasad (PW-6) & Mst. Bhaga Bai (PW—7) have only deposed that Ram Kumar died, but they have not supported the case of the prosecution and the prosecution has declared them hostile. 20.Bahoran (PW-8) has deposed that on the fateful day at about 8 p.m. he was sitting at Bazaar Para near the house of Pusau where wife of Ram Kumar namely, Fagni Bai (PW-1) came and took him to the house of the Vt appellants where‘100-150 persons were standing, deceased Chandrika & his sons were also standing and Chandrika told him that he should let t them beat and do“not intervene, at that time, Fagni Bai also came whom \_ Chandrika pushed. The prosecution has also declared this witness as hostile. 21.8hivram (PW-9) has deposed in his evidence that on the fateful day he along with Ram Kumar was coming from pond, he went inside his house, Ram Kumar went ahead, after some time heard cries and the house of Chandrika was closed. After some time, persons took out Ram Kumar from the house and took Ram Kumar to the Police Station. He has further deposed that he has not seen the incident and the prosecution has declared him hostile. 22.The evidence of hostile witnesses Gendram (PW-5), Ram Prasad- (PW-6) ..\ & Mst. Bhaga Bai (PW-7) reveal that some incident took place near the i,house of the appellants, Ram Kumar sustained injuries and as a result of l such injuries he ultimately died. The evidence of Bahoran (PW-8) reveals that deceased appellant Chandrika along with others was quarrelling with Ram Kumar. In his cross-examination he has admitted i l l l ‘ . 11 that Fagni Bai informed him that the appellants are assaulting her husband. Likewise, the evidence of Shivram (PW-9) reveals that some incident took place between the appellants & Ram Kumar, Ram Kumar sustained injuries and finally he died. 23.Defence has examined Alakh Ram (DW—1) & Kashi Prasad Rathore (DW-2). Alakh Ram (DW-1) has deposed in his evidence that at the time of incident there was complete darkness, there was no facility of light near the place of incident, visibility was very poor, he was sitting near his hoUse, one person came and informed that somebody assaulted Ram Kumar? in the field, then deceased appellant Chandrika, appellant Chhatram & injured Rahi Bai went to the field for bringing deceased Ram A ‘ a Kumar and finallyithey brought Ram Kumar from the field to his house. He has further deposed that on that day, Fagni Bai & Sunanda were not present in the village and they came between 8.30 & 9 p.m. He has given description of the kitchen garden of Chandrika and stated that the kitchen garden was surrounded by a wall and houses of Tijau & Jivan, height of the wall is 8—10.ft. He has denied the suggestions that on the date of incident Fagni Bai & Sunanda were present in the village, there was no darkness at the time of incident and Ram Kumar was not lying in the field. 24.Another defence witness Kashi Prasad Rathore (DW-2) has also deposed that there was no light near the place of incident and kitchen garden of the appellants was surrounded by a wall of 7—8 ft. height. He has further deposed that he was sitting near the square, then one person Was shouting, he came and told that somebody has assaulted Ram Kumar in the field, Chandrika came to him, they went to the field and brought Ram Kumar to the village. At that time, Fagni Bai & Sunanda were not present in their house, they had gone outside and they came at @ about 8.30 — 9 p.m. In his cross—examination, he has denied the suggestions that Fagni Bai & Sunanda were present in the village, Ram Kumar was not iying in the field and nobody has informed him. 25.0n ciose scrutiny of the evidence of these witnesses (DW-1 & DW-2) it reveals that they were not in a position to say that who informed them about the incident, how they knew the incident that some person has assaulted Ram Kumar and that Ram Kumar was lying in the field, where he} resides and how these witnesses know the fact that Fagni Bai & Su‘ndanda were not present in the village and they came between 8.30 & 9 pffhi especially when other witnesses had specifically admitted the presence of Fagni Bai near the place of incident, at the time of incident. 1 Bahoran (PW-8)‘has specifically deposed that Fagni Bai came to him and took him to the place of incident. This fact clearly shows that Alakh Ra‘m (DW—1) & Kashi Prasad Rathore (DW—2) are not speaking truth, inter alia, they are concealing the truth. 26.Defence has cross-examined Fagni Bai (PW-1) at length. In her detailed cross-examination, she Was stuck to her version that the appellants are the persons who have dragged her husband inside the room and assaulted her husband. She has also deposed in para 13 of her cross- examination that she requested the appellants for opening the door, but they did not open the door on which she went to the village for calling other persons. She has further admitted that the appellants assaulted her daughter Sunanda and her mother-in-law Rahi Bai also. ln para 22 of her cross—examination she has admitted the suggestion that her house ~ j” consists of two floors (temporary termed as patav). In para 25 she has l denied the suggestion that Anand Sharma, Hemant Sharma & Pusau Vastrakar have assaulted her husband. She has also denied the ' i l suggestion that after knowing the fact that they have assaulted her 13 husband, the appellants went to the spot for bringing her husband and they brought her husband. She has further denied the suggestion that she was not present in the village and when she came to her village, Anand Sharma mislead her that the appellants have assaulted her husband, therefore, she has lodged the report. She has also denied the suggestion in para 2870f her cross-examination that only with a view to take the property of the accused persons which she may get after conviction of the accused, she has lodged false report against th ‘ appellants. 27.Defe‘nc‘3e has also cross-examined Miss Sunanda (PW—3) in detail. She has stated in para 15 of her cross-examination that when she reached .3 near the spot and she saw her injured father whose hand & leg were fractured, the appellants were consuming liquor and they were assaulting her father. She has denied the suggestion in para 19 of her cross- examination that on the fateful day she & her mother were not present in the village and when they came from her maternal uncle’s village, she came to know that Anand Sharma & others