Yr- HIGH COURT OF CHHATnSGARH AT BILASPUR DIVISION BENCH: HON. MR. DHIRENDRA MISHRA. <& HON. MR. R.N. CHANbRAKAR. JJ CRIMINAL APPEAL N0.137 OF 2002 Rajesh Kumar <& another Versus State of ChhattiS9arh ^ JUb&MENT FOR CONSIDERATION HON'BLE MR. JUSTECE R.N. CHANORAKAR 3 ot-c .Sd/- JU D^E y_-10-2009 Sd/- R.N. Chandrakar Judge POST FOR JUbGMENT ON -^t -10-2009 Sd/- Dhirendra Mishra Judge v- ^ HIGH COURT OF CHHATTISeARH AT BILASPUR DIVISION BENCH: HON. MR. DHIRENbRA MISHRA. <& HON. MR. R.N. CHANDRAKAR. JJ CRIMINAL APPEAL N0.137 0^2002 APPELLANTS Vs RESPONbENT 1. Rajesh Kumar, aged about 22 years. 2. Nand Kumar, aged about 24 years. Both sons of Shri Heeraman Pandey, resident of Village Putkikala Police Chauki Pandatari, Police Station Kunda, Tahsil Pandariya, District Kawardha (CG) State of Chhattisgarh, acting through- District Mogistrate Kawardha. Present: Mr. Arun Kochar, Advocate for appellants. Mr. Ashish Shukla, Government Advocate for the State. JUDGMENT (Delivered on^J_.l0.2009) bhirendra Mishra. J; 1. The appellants have preferred this criminat appeal under Section 374 (2) of the Cr.P.C. against the judgment dated 26.12.2001 passed in S.T. No.237/99 whereby the learned Additional Sessions Judge, Mungeli, District Bilaspur has convicted the appellants under Sections 341/34, 302/34 <& 302/34 of the I.P.C. and sentenced both of them to undergo S.I. for 1 month <& R.I. for life imprisonment and to pay a fine of Rs.1000/, in default of payment of fine to undergo additional R.I. for 6 months on two counts for causing homicidal death of Gopal Giri & Parmeshwar Giri. 2. Case of the prosecution, in brief, is that on 3.7.1999 around 9.00 p.m. complainant Chandra Sen Giri (PW-1) while going towards the house of his brother Ravi Sen (PW-7) saw the appellants proceeding towards tank armed with axe <& lance (barchi). In the same night around 9.45 p.m., Hemgiri (PW-4) told him that the appellants have commi'tted murder of Parmeshwar Giri <& Gopal Giri near Dayali Bagicha, whereupon, they went to the place of incident and found both of them dead. Incident was c^ •v" witnessed by Hemendra Giri (PW-4) <& Raghav Yadav (PW-10). Report of the incident was lodged by Chandra Sen G\ri in the Police Out-post Pandatarai on the basis of which merg intimation of Ex.P-1 with respect to death of Parmeshwar Giri and Ex.P-2 for the death of Gopal 6\ri were recorded at about 00.30 hrs <& 00.35 hrs on 4.7.1999. Thereafter, FIR of Ex.P-3 was recorded on 4.7.1999 at 00.45 hrs. 3. The police proceeded for the scene of occurrence and prepared the spot map of Ex.P-4. Inquests over the dead body of deceased Parmeshwar and Gopal were prepared in the presence of the witnesses vide Ex.P-13 & Ex.P- 15. Nazri Naksha was got prepared by the Halka Patwari Bhailal Anant vide Ex.P-7. Sealed packet containing wearing apparels of both the deceased persons received from the hospital were taken into possession vide Ex.P-10. On the memorandum (Ex.P-16) of appellant Nandkumar blood stained weapon of offence, lance, was taken into possession vide Ex.P-17. Similarly, on the memorandum (Ex.P-18) of appellant Rajesh Kumar, blood stained weapon of offence, axe and plastic bag were taken into possession vide Ex.P-19. On being produced by the appellants, their wearing apparels were taken into possession vide Ex.P-20 & Ex.P-21. Plain soil, blood stained soil, pairs of slippers were taken into possession from the place of incident where deceased persons were lying vide Ex.P-22 <& Ex.P-23. Scooter bearing registration number MP24-Y-7079 stained with blood, a blood stained knife and lance lying on the place of incident were taken into possession vide Ex.P-24. Dead bodies of deceased persons were sent for autopsy to the Government Hospital, Pandariya vide Ex.P-27 <& Ex.P-29 where &r. P.L. Kurre (PW-13) conducted postmortem and gave his reports of Ex.P-28 <& Ex.P-30. 4. Appellant Rajesh was alsosent for medical examination to Primary Health Centre, Pandatarai where Dr. Ashok Singh (PW-12) examined him and gdve his medico legal examination report of Ex.P-25. 5. Articles seized during investigation were sent for examination to the Government Hospital vide Ex.P-31 <& Ex.P-33. br. Kurre (PW-13) in his opinion of Ex.P-32 opined that the articles are stained with blood like substance, however, advised for chemical examination for confirmation of "V-' ^ origin. The doctor vide his opinion of Ex.P-34 has also opined that the injuries present over the persons of deceased could be caused by the weapons sent for examination. However, he further advised that the weapons should be sent for chemical examination for confirmation of origin. The Investigating Officer, before sending the dead bodies for postmortem examination, had got the place of ihcident photographed by a photographer vide Ex.P-35 (1) to Ex.P-35 (9). Blood stained articles seized during investigation were sent for chemical examination to FSL, Raipur vide Ex.P-40 and the report of FSL is Ex.P-41. On chemical examination, wearing apparels and weapons seized from the appellants were found stained with blood. The FSL forwarded the articles found stained with blood to the Serologist for confirmation of origin and group of blood vide Ex.P-42. Report of the Serologist is Ex.P-43 and according to which, Iron lance (barchi) & lungi of appellant Nandkumar, full pant <& axe of appellant Rajesh were found stained with human blood. 6. After completing investigation, charge sheet was filed against the accused/appellants in the Court of learned Judicial Magistrote First Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur from where the learned Additional Sessions Judge received the case on transfer for trial. During trial, the prosecution in order to establish the charge against the accused/appellant examined 14 witnesses in all. Statements of accused/appellant were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case. 7. Learned trial Court after hearing the learned counsel for the respective parties, convicted & sentenced the appellant as mentioned above. 8. Homicjdal death of Parmeshwar G'\ri <& Gopai (5iri is not in dispute. Even otherwise from the evidence of Hemendra Giri (PW-4), who is eyewitness of the incident and has seen the appellants assaulting the deceased persons with axe <& lance (barchi), and further from the evidence of br. P.L. Kurre (PW-13), who has conducted postmortem over the persons of deceased and found following injuries on their persons and has further opined that deceased Gopal <& Parmehswar died as a result of excessive 'v-' bleeding from the injuries present over their neck and death of both the persons was homicidal in nature, the homicidat death of deceased Parmeshwar and Gopal is established. INJURIES SUSTAINED BY bECEASEb 60PAL GIRI; • Abrasion over right shoulder of the size 4 cm. • Abrasion over right shoulder of the size 3/4 x 1/4 inch. • Abrasion of the size 3x1/4 inch over right side of chest, • Abrasion below the injury No.3 of the size 1 x 1/4 cm. • Abrasion of the size 1x1/4 inch below the right side of chest. • Abrasion of the size 3/4 x 1/4 inch below the Injury No.5. • Incised wound of the size 4cm xi- cmx i cm left side of neck. • Incised wound of the size 6x2x3 cm below right side of eye. o Incised wound of the size 6x3x 6 i- cm over right side of neck. • Incised wound of the size 3i cm x i cm above the eyebrow of left eye. INJURIES SUSTAINED BY DECEASED PARMESHWAR GIRI; • Incised wound of the size 4cm x i- cm deep bone over left side of parietal region of head. • Incised wound of the size 4cm x 2cm x lcm over left side of chest. • Incised wound of the size 8x 3x 7cm in the middle of neck. • Incised wound of the size 9? x 3cm below the Injury No.3. Clotted blood was present. 9. Mr. Arun Kochar, learned counsel for the appellants argued that the conviction of the appellants is based on the evidence of Hemendra Giri (PW-4), who claims to be eyewitness of the incident. He also claims that he accompanied the complainant Chandra Sen Giri (PW-1) when he went to the police station and lodged the report of Ex.P-3. However, there is no explanation as to why the eyewitness himself did not lodge the report and why his statement was not recorded on the same day. Explanation of Hemendra Giri (PW-4) in this regard is falsified by the evidence of Investigating Officer Shri b.P. Tiwari (PW-14) who has admitted that he did not record the statement of Hemendra Giri(PW-4) till 12.30 in the night and he did not inform him about the incident though he was present. Conduct of Chandra Sen in not raising alarm and not informing Ravi Sen (PW-7) even after seeing the appellants proceeding towards the tank with V--1- arms falsifies his above version. The fact that eyewitness Hemendra Giri (PW-4) saw the accused persons with the headlight of scooter does not find mention in the FIR (Ex.P-3) and it is highly improbable that the above witness would have occasion to see the incident which was admittedly taking place at a distance from the road on which they were driving their scooter. Independent witness Raghav Yadav (PW-10) does not support or corroborate Hemendra Giri (PW-4) on material points and he has deposed that he did not see the incident. The trial court has also lost sight of the fact that relation between the families of the appellants and the deceased persons were strained and therefore, the appellants have been falsely implicated in the aforesaid case. There is no explanation by the Investigating Officer for not recording the statement of Hemendra Giri (PW-4) immediately as his statement was recorded on 4.7.1999 in the evening. There are material omissions and contradictions in the evidence of Chandra Sen Giri (PW-1) and report of the Serologist does not support the prosecution case. 10.0n the other hand, Mr. Shukla, learned Government Advocate for the State submitted that the appellants have been named in the promptly lodged FIR (Ex.P-3). Name of the eyewitness Hemendra Giri (PW-4) is also mentioned in the FIR. The defence could not impeach the credibility of the eyewitness. His version is further corroborated from the evidence of Raghav (PW-10) on material points. Weapon of offence, axe <& lance, as also wearing apparels seized on the memorandums of the appellants were found to be stained with human blood. Thus, the trial court was justified in relying upon the above evidence and convicting the appellants. 11. We have heard learned counsel for the parties. We have also perused the record as also the impugned judgment. 12.The trial court has convicted the appellants on the basis of evidence of eyewitness Hemendra Giri (PW-4). It has been held that there was a dispute between Parmeshwar Giri and appellant Nand Kumar because of incidentof eve-teasing by him with the daughter of Ravi Sen (PW-7) and Nandkumar was prosecuted for the aforesaid offence. There was also some 'maarpeef'between them because of the above incident and as such, '\^[- they had the motive for committing the offence. Version of Hemendra Giri (PW-4) is corroborated from the evidence of Raghav Yadav (PW-10) as also from the evidence of Chandra Sen (PW-1) <& Ravi Sen (PW-7). Appellant Rajesh sustained abrasion on his right hand but there is no explanation as to how he sustained that injury. On the contrary/he has denied that he sustained any injury and accordingly, the trial court has drawn adverse inference against the appellants. Weapons of offence <& clothing seized at the instance of the appellants contained human blood. The appellants have not offered any explanation for presence of blood in the aforesaid articles and this circumstance has also been relied upon for accepting the prosecution case. IS.Chandra Sen Giri (PW-1) has deposed that on the date of incident at about 8.00 p.m. he saw the appellants proceeding towards tank armed with weapons. He expressed his apprehension to his brother Ravi Sen (PW-7). On the same night between 9 to 9.45 p.m., Hemendra Giri (PW-4) informed him that the appellants have murdered Parmeshwar <& Gopal. They went to the spot and saw the dead bodies of both the deceased persons and thereafter, he proceeded for lodging the report to Police Out-post Pandatarai with Hemendra Giri on his scooter. However, as the Station House Officer had gone on patrolli'ng, therefore, he waited for Station House Officer, who called him inside after returning to the police station and registered his report. On being asked, he also informed him that Hemendra Giri has also come with hJm. Hemendra G'\r'\ was also interrogated but his statement was not recorded and the Station House Officer proceeded for the scene of occurrence. Minor omission regarding expressing apprehension on seeing the accused persons going towards the tank with arms has been pointed out in his statement of Ex.D-1 before the police. In reply to the question as to why Hemendra 6\n, who was accompanying him, did not lodge report, this witness has stated that the Station House Officer called him inside the police station and asked about the incident and started registering the FIR. After some time when he asked as to who is accompanying him, then he told that he is Hemendra Giri and he is eyewitness of the incident, however, by that time FIR was s-^' already recorded more than half. He has also stated that the Station House Officer orally interrogated Hemendra Giri. InParagraph No.31 of his deposition he has expressed his ignorance about love affair between the daughter of Ravi Sen and the appellant Nandkumar. However, he has accepted that there was 'maarpeet' between Nandkumar and brother of Leena but he has denied that because of above animosity he is falsely implicating the accused persons. 14. PW-2 Pusuhram <& PW-3 Sumitra Bai have not supported the case of the prosecution and they have turned hostile. 15.Hemendra G\r\ (PW-4) has deposed that on 3.7.1999 at about 9.15 in the night he was going to Village Gandai with Raghav Yadav, as his daughter was sick at Villa9e Gandai, by his scooter. On way, near Dani tank, he saw a scooter lying on the road, he also saw that two persons were lying and other two persons were assaulting them. He identified the appellants Nandkumar <& Rajesh as assailants. They were assaulting by lance <& axe. Accused persons fted towards tank and Palansari road. He identified the persons lying as Gopal <& Parmeshwar. Parmeshwar had sustained injuries on his head, whereas Gopal sustained injuries on his cheek and neck. Blood was oozin9 from their injuries and Parmeshwar was writhing with the pain. He informed about the incident to his uncle Ravi Sen and thereafter to Chandra Sen G\n and other family members. This witness has also deposed about the earlier incident of eve-teasing and quarrel because of eve teasing between Nandkumar <& Parmeshwar G\r'\. This witness has been cross-examined at length, however, he stuck to his examination-in- chief and the defence could not elicit anything which makes the version of this witness untrustworthy or unreliable. 16. Bhailal (PW-5) is Halka Patwari who has prepared the Nazri Naksha of Ex.P-7. 17. Ravi Sen (PW-7) is the father of deceased Parmeshwar Giri. This witness has corroborated the evidence of complainant Chandra Sen Giri that he saw the appellants goin9 with axe & lance towards Dashrangpur. He has further stated that on hearing this he was proceeding towards Dashrangpur when he met Raghav <& Hemendra on way who informed him about the incident. He is also the witness of earlier incident when he had reported against the appellant Nandkumar as he was involved i'n eve- teasing with his daughter Leena. He has further deposed that on his report offence was registered against Nandkumar and he was arrested. 18. Raghav (PW-10) has also deposed that on the date of incident at around 9.00 to 9.30 p.m. he was going with Hemendra Giri on his scooter to Village Gandai to see his daughter when they saw dead body of two persons in the light of scooter. After seeing the dead bodies, he could not recognize thesame and returned to village. He has further deposed that he did not see maarpeet and only on the next day he came to know that Parmeshwar Giri <& Gopal Giri have been murdered. In the cross- examination by the defence he has denied having made any statement that he saw dead bodies of Parmeshwar <& Gopal and also denied that he saw the appellants assaulting the deceased persons. 19.Ramfal Chandravanshi (PW-11) is the witness of memorandums of the appellants and seizure of weapons of offence on their memorandums. He is also a witness of seizure of wearing apparels of the appellants and he has proved the relevant documents. ZO.Investigating Officer Shri b.P. Tiwari (PW-14) after recording the report proceeded for theplace of incident and coftpleted the investigation as 'detailed in foregoing paragraphs. This witness has also proved the documents recorded by him. In the cross-examination he has admitted that Hemendra Giri (PW-4) accompanied the complainant when the report was lodged. He has also admitted that he did not interro9ate Hemendra Giri at that time as he was to proceed to the place of incident immediately. He recorded the report as per information of Chandra Sen Giri. He has further stated that he was aware at the time of recording FIR that Hemendra Giri was eyewitness and Chandra Sen did not see the incident. He recorded statement of Hemendra Giri on 4.7.1999. 21. Mr. Arun Kochar, learned counsel for the appellant vehemently argued that Hemendra Giri (PW-4) did not see the incident and he has been deliberately introduced as eyewitness in the prosecution case. Had he been the eyewitness of the incident, he would have himself lodged the report particularly when he accompanied the complainant to the police station and when the report was lodged he was present in the police station. Explanation of the complainant and eyewitness in this regard is, unconvincing and the defence of the appellants that Hemendra Giri (PW- 4) was not the eyewitness and therefore, he did not lodge the report is probable. This is also established from the evidence of Raghav (PW-10) who has categorically stated that he did not witness maarpeet and also did not identify the deod bodies when he reached the place of incident with Hemendra G\n in the night of the incident. Reliance is placed on the jud9ments in the matters of Manzoor Vs. State of Uttar Pradesh; Bollavaram Pedda Narsi Reddy and others Vs. State of Andhra Pradesh2; Balakrushna Swain Vs. The State of Orissa3; Ramesh Saburao Devaskar and others Vs. State of Maharashtra . 22.Whereas. learned counsel for the State has ptaced reliance on the judgments of the Hon'ble Supreme Court in the matters of S. Sudershan Reddy & others Vs. State of Andhra Pradesh5; Namdeo Vs. State of Maharashtra & Kedar Singh and others Vs. State of Bihar7. 23.In the matter of Manzoor Vs. State of Uttar Pradesh the accused persons were identified by the prosecution witness with the help of torch which was produced by the home guards during investigation before the Investigating Officer. However, the same was not seized and returned to the witnesses. In these circumstances, the Hon'ble Supreme Court deprecated non-seizure of relevant piece of material evidence in the case. However, in the instant case the fact that Hemendra &iri (PW-4) and Raghav Yadav (PW-10) saw two deadbodies with the help of light of the / scooter on the way while go'mg towards Villa9e Gandai has not been challenged as there is no cross-examination of Raghav (PW-10) by the defence in this regard. 11998 Cr.LR. (SC) 134 21991 SCC (Cri) 586 3 AIR 1971 SC 804 4 (2009) 1 SCC (Cri.) 212 5 2006 Cri.L.J. 4033 62007AIRSCW1835 71998SCC(Cri.)907 10 @> 24.In the matter of Bollavaram Pedda Ndrsi Reddy2 the assailants were utter strangers to the witnesses and in these circumstances it was held that credibility of the evidence relating to identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. The prevailing tight is a matter of crucial significance. The necessity to have the suspects identified by the witnesses soon after their arrest also arises. In the instant case the assailants were known to Hemendra Giri (PW-4) and facts present case are distinguishable from the facts of afore cited case. 25.In the matter of Balakrushna Swain statement of sole eyewitness was recorded after ten days of the incident and there were contradictions in his evidence and in these circumstances it was held that delayed examination of the witness would give an opportunity to him to concoct a different version than what actually took place. 26.In the matter of Ramesh Baburao Devaskar4 PW-13 informed investigating officer about the incident naming A-9 as the assaitant and mentioning PW-11 as the eyewitness. Information of the incident was given on the basis of version of PW-11. PW-11 did not lodge FIR instead he asked the Investigating Officer to visit the place of occurrence and thereafter FIR was lodged on the spot after panchanama. In the Pflnchnama it was mentioned that the deceased was assaulted with sharp edged weapons by some unknown assailants as a result of which he died. In these circumstances, the Hon'ble Supreme Court has held that FIR cannot be lodged in the murder case after inquest was held. In the instant case, name of the eyewitness is mentioned in the FIR. His statement was recorded on the very next day. Report was lodged by Chandra Sen Giri (PW-1) on the basis of information given by Hemendra G\r\, who was also present in the police station when the report was lodged and the case of Ramesh Baburao4 is entire distinguishable on facts. 27.In the matter of the S. Sudershan Reddy5 prosecution case that accused persons attacked deceased by sickles and knives while he was driving scooter who lost control and fell down. Pillion rider with the deceased and other two witnesses who were accompanying the deceased in other two / •^^ i. 11 "€: 'v... -^' wheelers were examined as eyewitnesses. Version of thepillion rider was challenged on the ground that he is a close relative and in the FIR there is absence of indication about source of light. Rejecting the arguments of the defence it was held that if the version of the witnesses is found to be truthful. it cannot be discarded on the ground that he is a close relative. Maxim 'falsus in uno falsus in omnibu^ has no application in India. boctrine merely involves question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. 28.In the matter of Namdeo6 the Hon'ble Supreme Court has held thus; UNeither the Legislature nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye-witness, therefore, has no force and must be negatived." 29.In the matter of Kedar Singh7 the Hon'ble Supreme Court has held thus:- "Criminal Trial-Identification- Identification at night- Even on a full dark night there is never total darkness- Identification is possible through shape of body. clothes, gait, manner of walking, etc. and also by voice. Incident taking place 8 p.m. near a temple whereat an electric bulb of high power was on- Witness being only 50 yards away from the temple his ability to identify the assailants cannot be questioned. That apart his evidence is supported by