<3? i l l i {Criminal appeal under Section 374 (I Division Bench: Hon’ble Mi'. L.C. Bhadoo and Hon’ble Mr. Sunil Kumar Sinha, JJ. 8-$-2007 Mr. V.C. Ottalwar, counsel for tl Additioi Mr. Ashish Shukla, respondent. Oral judgment dictated on Dais l ie appellants. ial Public Prosecutor for the State/ EL.C. Bhadoo, J: — The accused/appellants have preferred this appeal being aggrieved by the judgment of conviction and orderiof sentence dated 31“ December, 2002, passed by the 2““ Additional Sessio s Judge (Fast Track Court), Janjgir, in Sessions Trial No.464/2000, whereb learned Additional Sessions Judge after W m.zes tW 2003 3mm (W) t) of the Code of the Criminal Procedure} mmW wmm mW 311% WM§WW a? aim 31m! APPEEDANTS‘, “I. 5n’anlr’dl’“, DID Jandh Kdl”, (In Jail) aged 26 years, Caste-Satnami, 2. Lachram, S/o Janakram‘ aged 34 years, Caste—Satnami, Both the appellants are R/o Village Tulsi, Police Station Sheorinarayan‘ District Janjgir—Champa (C,G‘)A - Versus - RESPONDENT: State of Chhattlsgarh through Station House Officer, Police Station, Sheorinarayan, Districl Janjgir- Champa (C.G.) XI—HC—78 itiwg WW,W,W Wm Qi 200 mam (W) 'mmm ammm WWifgQW ‘ $WW mmm holding the accused/appellants guilty for commission of offence under Section 302 of the I.P.C., sentenced each of them to undergo imprisonment for iife and pay a fine of Rs.100/-. Case of the prosecution, in brief, is that on 1'7-2000 complainant Parésram was at his residence, Le ram Kewat came and informed him that his brother Darasram (since decea ed) has been attacked by Lachhram, Nageshwar, Shaniram, Janakram, maru, Jainarayan & Kushi Satnami with Lathi & axe near Kanharibhata. rasram is being brought to the house by Manaram Nirmalkar & Ramnaraya Kashyap. After receiving the information when he went to Kanharibhata, he s w that near Cooperative Bank, Manaram & Ramnarayan were bringing his bother Darasram, body of Da‘rasram was drenched with blood and there we injuries on head & body. On being asked by him, Darasram disclosed him that on accour‘it'bf illegal possession of Government land, some dispute st rted. The accused persons had attacked him, on hearing the cries, Manar & Ramnarayan rushed towards him to rescue him on which the accused p rsons ran away. Parasram offered water to his brother Darasram, jeep was arranged and Darasram was taken to Sheorinarayan hospital. By the ti e, Darasram was taken to the hospital he was already. dead. A report to tha effect Ex.P-1 was lodged by Parasram at Police Station: Sheorinarayan. He also gave merg intimation Ex.P-2. After registering F.I.R. Ex.P—1, the inVestig tion officer left for the scene of occurrence and after giving notice Ex.P-3 to th Panchas, he prepared inquest EXP-5 on the body of Darasram. Body of Da asram was sent to Primary Health Centre, Sheorinarayan under Ex.P-6 for p st—mortem where Dr. M.L. Sahu (PW-8) 'condUcted post-mortem and opined that cause of death was fracture of skull e a a r a XI-HC—78 W mm, WE, WW mam-m (W) v/gi g1 200 mmm mm WW évwm g bone and torn of dura mater, mode homicidal. Site plan Ex.P—7 was pre After due completion of inves of Judicial Magistrate, First Class, Jz Sessions Judge, Bilaspur, from v received the‘case on transfer for tria . The prosecution in order 1 Statemer under Section 313 of the Cr.P.C. ir against them in the prosecution ev they have been falsely implicated in the crime. defence witness R.S. Prabhakar ( 1). Learned Additional Sessio Judge after hearing the arguments of counsel for respective parties, convi ted and sentenced the accused/ appellants in the aforesaid manner, however, a quitted co-accused Kartikram, Jainatayan, Samaru, Janakram & Sahettar. We have heard Mr. V.C. Otta ar, learned counsel for the appellants and Mr. Ashish Shukla, learned Addition l Public Prosecutor on behalf of the State/ respondent. At the out set, Mr. Ottalwar has not disputed the homicidal death of Darasram. Moreover, Dr. M.L. Sah (PW-8), who conducted post—mortem on his evidence that on 1-7-2000 at about 3 pm. He conducted post-mortem on t e body of Darasram, there were injuries on scapular region, one incised wound on occipital region, another incised wound examined 24 witnesses. bf death was coma and nature of death was aared by the Halka Patwari. tigation, charge sheet was filed in the Court injgir, who in turn committed the case to the there learned Additional Sessions Judge o establish charge against the accused ts of the accused persons were recorded which they denied the material appearing nce and stated that they are innocent and They also examined one D - n the body of Darasram, has stated i i e XI—HC—478 mw,m,m %« WW .......; .................................................wt 200 ‘ 3mm: (WW) Hmgg . . . mmm ‘ mammiwm assimm on left side of occipital region, on? crushed wound on temporai region, there was a depressed fracture on fro I and parietal bone. skull bone turned into three pieces, occipital skull bone s also fractured, the bone turned into five pieces, there was laceration of du mater. Cause of death was fracture of skull bone and laceration of dura mat and the death was homicidal in nature. in view of the above evidence, it is tablished that the death of Darasram was homicidal in nature. As far as involvement of t accused/appellants in the crime in question is concerned, the prosecution h tried to establish its caSe based on the following circumstances: - 1) That, deceased Darasram m de oral dying declaration before his brother Parasram (PW-1), complain ntand a 2) Thaththe‘attack was witnes d by Manaram (PW—3), Ramnarayan (PW- 4) & Ramcharan (PW-7). As far as the oral dying decl ration made by Darasram before Parasram (PW-1) is concerned, in the first ins ance, DarasRam Yadav (PW-1 1), driver of the jeep in which Darasram, injured was being taken to the hospital, has stated in para 3 of his evidence that br ther of Darasram namely, Parasram was enquiring from him as to who has at acked him, but Darasram was unconscious, He was not able to speak. Even P rasram (PW-1) has stated in his evidence that he was informed by Leelar about the attack made by the accused persons on his brother, when he as going towards that side, he saw that Manaram & Ramnarayan were brin ing Darasram towards the house, body of ’Darasram was drenched with bloo and there were injuries on head & hand. When he enquired from his brother s to who has attacked, Darasram disclosed that on the ground of dispute o Government tand, Nageshwar Satnami. ¥\\ n r V a e s h a a XI-HC—78 mar m‘ v1 200 mam-m (W) WWW mmiwm amwm Shaniram Satnami & Lachhram S itnami have attacked him with axe, whereas, Sahattar Satnami, Janak Satnami, Samaru Satnami, Jainarayan S'atnami & Kushi Satnami have attacked wuth Lathi. Darasram further disclosed that Leelaram, Ramnarayan, Manaram & Phulsai had witnessed the attack, whereas, Manaram (PW—3) & Ramnaraye‘n (PW-4) have not stated anything that Da"rasram made an‘y oral dying declaration to his brother. Moreover, as per the evidence of Parasram (PW—1), the deceased disclosed him that all the accused persons attacked, whereas the eyewitnesses have stated that only Shaniram & Lachhram had attacked and remahing accused persons were standing at some distance. Therefore, on the foregoing grounds, the theory of oral dying declaration appears to be created by Parasrarr. Dr. M.L. Sahu (PW-8) who conducted post- mortem on the body of Darasram, has stated that looking to the nature of injuries sustained by Darasram, it was not possible for him to speak. ln the circumstances, case of the prosecution that deceased Darasram made oral dying declaration before Parasran‘L does not inspire confidence of the Court. Even the trial Court has also sbelieved this aspect and we are of the considered opinion that the theor of oral dying declaration has rightly been disbelieved. ‘ Now, coming to the evidenc of eyewitnesses namely, Manaram (PW—3), Ramnarayan (PW-4) & Ramcharan (PW-7), Ramcharan (PW-7) has stated in his evidence that accused Shaniram d attacked Darasram with axe on backside of head only once, thereafter, Ma aram & one Baiga lifted Darasram and took 'him ta residence. ln cross-examin tion, he has stated that he had not stated in the police case diary statement tha he was taking rest after lunch. It is incorrect re.\\that he was taking rest after his lun h. He has not given statement to the Police, XI-HC—78 an 200 3“?“ m (W) mmm mmm WWW wwwmiwm am‘fanm ;e diary statement Ex.D-3 he does not know. taram came after the incident, he does not know how the quarrel started and he does not know whether Sahettar sustained any Injury. I Therefore, Ramcharan (PVI the deceased and none of the ot \ "-7) has stated that only Shaniram attacked er accused persons attacked the deceased. Moreover, his evidence before the ourt is contradictory to his poiice case diary statement Ex.D-3 in which he as stated that he was taking rest at his residence, he heard sounds from t e side of society godown, he rushed towards that side, Ramnarayan also wen along with him and the accused persons attacked with axe & Lathis. Ramnarayan (PW-4) has st ted in his evidence that on the fateful day at about ’lO.30_ a.m. he was going t ards Bhatapara, he heard commotion and was called by Manaram & Ramch ran, they said that Darasram be taken to the residence. This witness has state that Manaram & Ramcharan asked him that Darasram be taken to the residen e, whereas, Ramcharan (PW-7) has stated that when he reached there he sa that Manaram & one Baiga lifted Darasram and there was bleeding from the h ad of Darasram. This witness (Ramcharan) has not stated that he along ith Manaram asked Ramnarayan to take Darasram, He has stated that La shram & Shaniram attacked Darasram with axe, Sahettar was holding Darasr m. In para 13 of his cross-examination, he has stated that it is incorrect to sa that Manaram disclosed him that Darasram has been attacked. He has furt ' 'already reached before he reached on the spot, when he went to call Manaram, by that time, Marpeet was already ver, he does not know how Marpeet started and who participated in the Marpe t, he came to kncw only on the information l Wm how it was written in the police ca: In para 4, he has stated that Ma r stated that it is correct that Ramcharan XI—HC 78 'mmm mmm given by Manaram & Ramcharan. Therefore, he was not eyewitness to the incident, whereas, Ramcharan as has been discussed earlier, has stated that Manaram (PW-3) & Ramnarayan (PW—4) were already there before he reached. \ Manaram (PW-3) has stated in-his evidence that on the fateful day at about 11.30 a.m. he was in Limah / ar field where tractor was ploughing the land, he heard the commotion. H saw that accused Sahetar was holding Darasram by hand whereas, Nages war, Shaniram & Lakshram were attacking Darasram with axe and Samaru, Jai arayan & Janak were holding Lathis. This witness has stated that Nageshwar Shaniram & Lakshram had attacked the deceased with axe, whereas, Ra narayan (PW-4) has stated that only Lakshram & Shaniram attacked wit axe and Ramcharan (PW-7) has stated only about Shaniram. This is materi i contradiction. between the three witnesses namely, Manaram (PW-3), Ramnara an (PW-4) & Ramcharan (PW-7) regarding witnessing the crime by these witnes es. 'ln cross—examination, Manar (PW—3) has stated that he was going to Limhakhar field whereas, in exami ation-in-chief, he has stated that he was already in the Limhakhar field. He h s stated that in police case diary statement Ex.D—1 he had not stated that he wa coming from the side of society godown. ln para 8, he has stated that the soci ty godown is at a distance of about 1/2 km. from his house and from there, plac of occurrence is at a distance of about 1/2 km. In para 9, he has stated that wh In he heard commotion he was in the field, Ramnarayan was behind him, ap from Ramnarayan, Ramcharan was also there, whereas, Ramcharan has st ted that Ramnarayan & Manaram were already there and Ramnarayan has stated that Manaram & Ramcharan were already there. Ramcharan has state that Manaram came on the spot after the i incident was over. xs h a a a WWW WWWIWW Q ‘ WWW Emma-trian- awifanm Therefore, in view of the ove contradictory evidence of these three witnesses viz., Manaram (PW-3), Ramnarayan (PW-4) & Ramcharah (PW-7), the prosecution has not been ab i i to establish beyond reasonable doubt that any of the witnesses had _in fact tnessed the incident. It appears from the evidence that all the three witness s had reached on the spot after the incident was over, because there is contr diction in respect of the persons as to who attacked the deceased and there s contradiction about the presence of these three witnesses that as to who w re already thereon the spot and who came later on, their statements are al o contradictory with thevpolice case diary statements. In the circumstanc s, the evidence of these three so' called eyewitnesses does not inspire co fidence of the Court about witnessing the incident by them. Hence, finding of the trial Court convicting the present two accused persons for committing t e murder of Datasram cannot be sustained and the same is liable to be set asi e. In the result, the appeal o the appellants succeeds. Conviction and sentences imposed upon the ac used/appellants for commission of offence under Section 302 of the l.P.C. ar set aside and they are acquitted of the said charge. The appellants are said t be in detention since 3-7-2000, therefore, they be set at liberty fotthwith, if no required in any other case. t l a , ll tl Sdl- Sdl- 13L ic IJudge B‘HADoo Sunil Kumar Judge Sinh 4x ..1 l jb XI—HC—78 mam, Wm, W3? . X ' “ W m a1 200 (5% manna (W)