A F HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, CJ. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1404 of 1994 Miri @ Ganpat (.. Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration 1 Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 €X^'T-^^—_ Sd/- Chief Justice Post for Judgment : JT705/201 1 Sd/- Sunil Kumar Sinha Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:45 +0530 HIGH COURT OF CHHATTISGARH. BILASPUR ^ CORAM: Hon'ble Shri RaieevGupta. C.J. & Hon'ble Shri SunilKumar Sinha. J. APPELLANT Criminal ApDealNo. 1404 of 1994 Miri @ Ganpat, S/o Aaytu, Caste- Halba, Aged 38 years, R/o Mahadev Ghat Para, Jagdalpur, P.S. Jagdalpur, District Bastar, M.P. (Now Chhattisgarh) RESPONDENT Versus The State of Madhya Pradesh (Now Stateof Chhattisgarh), Through P.S. Jagdalpur, District Bastar (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mrs. Savita Tiwari, Advocate forthe appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (5^.05.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. ith (1) This appeal is directed against the judgment dated 19In of August, 1994 passed in Sessions Trial No. 238/91 by the Third Additional Sessions Judge, Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. ^^^k ffciiS^'i :;i "^iP^"'^ ;^...^^^^y Criminal Appeal No. 1404 of 1994 (2) The facts, briefly stated, are as under:- Deceased- Mani was a neighbour of the accused persons. One of the accused had a pet-dog. The dog used to run behind the family members of the deceased, therefore, the deceased had warned the accused. When the accused did not take any precaution, the deceased killed the dog by a tangia. The allegations are that on this account, on 16.12.90 at about 7.30 p.m., the co-accused caught hotd of the deceased and the appellant assaulted the deceased by a pharsa {tangia} on his head. When the deceased fell down, the appellant also chopped his right leg. The deceased died on the spot. The incident was witnessed by Anju (PW-3 - niece of the deceased) and Rajeshwari (PW-2 - bhabhi of the deceased). Anju (PW-3)lodged the First Information Report (Ex.-P/2). The Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/1) on the body of the deceased. The dead body of the deceased was seht for post-mortem to Maharani Hospital, Jagdalpur, where the post-mortem examination was conduction by Dr. L.K. Nayak (PW-4). He found that there was an incised wound of 18 cmx2 cm x5 cm over the right temporal region extending to occipital bone; right leg was chopped below the knee; and it was only attached with the skin. He opined that the cause of death was shock due to massive blood loss from injury No.1 & 2 and it was homicidal in nature. The post-mortem report is Ex.-PM.In further investigation a pharsa (tangia) was seized from the possession of the appellant on 16.12.90 vide memo Ex.-P/S. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where a report (Ex.-P/1 1) was received. According to the F.S.L. report blood stains were found on pharsa (tangia) and cloths of the appellant. The articles were sent for Serologist ^?^ 4 '. . v^^. ^ ;j ^g^lpS^. 1 .sf ''^^^:ff^y' Criminal Appeal No. 1404 of 1994 (^ examination to Calcutta Laboratory, but no report regarding origin and group of blood stains could be filed. The prosecution filed charge-sheet against 2 accused persons namely Miri @ Ganpat (appellant herein) and Laxman S/o of Aaytu. The prosecution came with the case that both the accused persons participated in assaulting the deceased, therefore, thecharges were framed u/ss 302/34 IPC. The learned Sessions Judge disbelieved the case of the prosecution for accused Laxman. Laxman, therefore, was acquitted, however, the appellant was convicted u/s 302 IPC. (3) Mrs. Savita Tiwari, leanedcounsel appearing on behalf of the appellant, argued that both the eye-witnesses were close relatives of the deceased, therefore, they were interested witnesses; out of above 2 eye-witnesses, Anju (PW-3) turned hostile and she did not support the case of the prosecution; Rajeshwari (PW-2) was held to be partly unreliable and there was no corroboration to her evidence; even otherwise her evidence was not reliable; therefore, the conviction based on solitary evidence of Rajeshwari (PW-2) cannot be sustained. (4) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment & finding recorded by the Sessions Court. (5) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. 7 ^.^--^.<.»^^y£<=»^^^£:^.^^ Criminal Appeal No. 1404 of 1994 ^" (6) The learned Sessions Judge has recorded a finding, vide Para-21 of the judgment, that the evidence led by the prosecution relating to accused No.2 was not reliable as the name of accused No.2 was not mentioned in the F.1.R. (Ex.-P/2) promptly lodged by one of the eye-witness namely Anju (PW-3), who later on turned hostile. Since Rajeshwari (PW-2) had deposed that Laxman also participated in the assault of deceased as he caught hold of the deceased and then Miri @Ganpat (present appellant) assaulted him by pharsa, therefore, a positive finding was recorded that Rajeshwari (PW-2) was not reliable for accused No.2 Laxman ahd she was falsely implicating him in the present crime. After appreciating the evidence in the above manner, Laxman was acquitted by the Sessions Judge, however, the present appellant was convicted. The sole basis for conviction for the present appellant is that Rajeshwari (PW-2) deposed that he had assaulted the deceased by pharsa (tangia). (7) Rajeshwari (PW-2) deposed that on the fateful day at about 7.40 p.m., she was present in her house. hlot exchanges were going on between appellant and deceased in the gali. She saw that during the hot exchanges, accused- Laxman caught hold of the deceased- Mani and accused Miri @ Ganpat assaulted him by pharsa on the back portion of his head. Mani fell down. She immediately rushed to the place of occurrence. The accused persons went towards their house. Accused- Ganpattook pharsa with him. Mani, her brother-in- .^ea=5= ^x^ Criminal Appeal No. 1404 of 1994 law {dewar), died on the spot. Rajeshwari (PW-2) admitted in the cross-examination that she did not state to the police that co- accused- Laxman had also participated in the assault. It is on this account and also on account of omission of name of Laxman in the F.1. R. (Ex.-P/2) promptly lodged by Anju (PW-3), Rajeshwari was completely disbelieved for Laxman. (8) R.S. Panigrahi (PW-1) was also a neighbour. He immediately reached to the place of occurrence after hearing commotion. He saw that Mani was lying dead having injury on the back portion of the head. He also saw injury on the leg. Both the accused persons were going towards their house. Miri @ Ganpat was holding a pharsa. He was also a witness of inquest (Ex.-P/1). tn the cross- examination Para-9 he clearly admitted that the other villagers reached to the place of occurrence when he had already reached there, and he categorically admitted that Anju (PW-3) and Rajeshwari (PW-2) reached to the place of occurrence after reaching of the other villagers. In appreciation of evidence of Rajeshwari (PW-2) and R.S. Panigrahi (PW-1) it would be clear that Rajeshwari (PW-2) reached to the place of occurrence after R.S. Panigrahi (PW-1), who reached there after the assault was over. R.S. Panigrahi (PW-1) admitted that the incident took place near the boundary wall of his house and house of Rajeshwari (PW-2) was at a distance of 50 feet from his house. Rajeshwari (PW-2) claimed that she saw the incident from her house. The incident occurred at ..^' i:.. "'^ •••---^ '^\ tsjSSa 1 ••^e»s--|| 6 Criminal Appeal No. 1404 of 1994 about 7.30 p.m. R.S. Panigrahi (PW-1) admitted that there was darkness at the time of the incident and the electric-pole was on the main gali near the house of accused- Ganpat which is also at some distance from the place of occurrence. Therefore, we have doubt that Rajeshwari (PW-2) could see the assault from her house, and it appears, as stated by R.S. Panigrahi (PW-1), she reached to the place of occurrence after the assault was over. Therefore her testimony appears to be doubtful. (9) There is yet another reason to discard the testimony of Rajeshwari (PW-2). Rajeshwari (PW-2) claimed to see the entire incident. She had stated about the manner of assault. She only stated that accused- Laxman caught hold of the deceased and appellant gave pharsa blow on the head of the deceased. She did not depose about the second blow allegedly given by the appellant due to which the right leg ofthe deceased was completely chopped. In such cases when an eye-witness is giving complete version of the incident and is also giving detailsofthe assault, omission regarding the second assault by which the leg was chopped is material and her evidence becomes discrepant with the medical evidence. (10) In Vadivelu Thevar-Vs- The State of Madras. A.I.R. 1957 S.C. 614, the Supreme Court held that the evidence has to be weighed and not counted as Section 134 of the Evidence Act recognized that no particular number of witnesses shall, in any case, •^' / .-••:K'^. .X; Y cn€/ ^&%i^^'^' Criminal Appeal No. 1404 of 1994 be required for the proof of any fact. It issound principle of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. It was held that generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Courtshould have no difficulty in coming to itsconclusion either way—it may convict or may acquit on the testimony of asingle witness, if it is found to be above reproach or suspicion of interestedness, jncompetence or subornation. In the second category, the Court equality has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. (11) In case on hand, Rajeshwari (PW-2), the sole eye-witness, was held to be partly unreliable. Her evidence was discrepant with the medical evidence and thus she was not fully corroborated by medical evidence. Her evidence was further contradicted by the evidence of R.S. Panigrahi (PW-1), according whom she reached to the place of occurrence after the assault was over. Her evidence is atso not fully corroborated by the F.1. R. (Ex.-P/2) lodged by one of the eye-witness. Therefore, in absence of corroboration to the evidence of the above partly unreliable witness conviction based on her sole testimony cannot be sustained. We are of theview that the Criminal Appeal No. 1404 of 1994 learned Sessions Judge erred in law in resting the conviction ofthe appetlant on the solitary testimony of Rajeshwari (PW-2). (12) For the foregoing reasons, the appeal is allowed. The conviction andsentence awarded to the appellant u/s 302 IPC are set-aside. The appellant isacquitted of the charges framed against him. The appeitant was arrested on 16.12.90 and was directed to be released on bail on 22.1.2003 after about more than 12 years. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Jusdce Sd/- Sunil Kumar Sinha Judge