1 HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Ajpeal No.912 of 2003 Mohit and others I — Versus - § The State of Chhattisgarh Criminal Amal No.973‘ of 2003 ManglIJ Uraon ‘—Versus — State of Chhattisgarh AND $ a ‘Criminal Apgeal No.825 of 2004 Vijay @ Bije Uroan ahd another — Versus - State of C.G. JUDGMENT FOR CONSIDERATION Sd/— T.P. Sharma Judge /- R.L. Jhanwar Age/: ’ 26-4-201 HON’BLE MR. JUSTICE R.L. JHANWAR Post for pronouncement of iudgment on 26‘“ April, I ’ 2010 I I Sd/- VIIIEG’E 26—4—201 0 1 1 § Sd f 0 Mohit S/o Samaru Uraon, aged 33 years Janak S/o Hari Uraon aged 23 years Hari Uraon S/o Dhaniram aged 35 years Bundlgunwar aged 50 years D/o ltwar Singh Uraon All R/o Vill. Tarpali, 'P.S. Chakradhar Nagar, Tah. & Distt. Raigarh (C.G.) Versus The State of Chhattisgarh Through P.S. Chakradhar Nagar Distt. Raigarh (C.G.) RESPONDENT: w ¢ APPELLANT: (In Jail) RESPONDENT: APPELLANTS: (In Jail) RESPONDENT: {Criminat appeals under Section 374 (2) ofthe Code of Criminal Procedure; 1973} Manglu Uraon, Son of Teju Uraon, Aged 35 years R/o Village Tarpali, P.S. Chakradhar Nagar, Tehsil & Distt. Raigarh (C.G.) ' Versus State of Chhattisgarh Through PS Chakradhar Nagar Tehsrl & Dlstt Raigarh (CG) AND Vijay @ Bije Uroan, aged 33 yrs. S/o Samaru Uroan Puchhu Makardhawaja aged 45 yrs. S/o Manbodh Mahar Both R/o VIHage Tarpalr P S Chakradhara Nagar Dlstt Raigarh C G Versus State of C.G. riminal Appeal No.912 of 200 C 3 \_ Criminal Appeal No.973 of 2003 Criminal AQQeal No.825 of 2004 1‘ HIGH COURT OF CHHATTISGARH, BILASPUR Present: ‘Mr. Abhay Tiwari, counsel for the appellants in Cr.A.Nos.912/2003 & 825/2004. iMr. Roop Naik, counsel for the appellant in Cr.A.No.973/2003. ‘Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. JUDGMENT (26m April, 2010) The following iudgment ofthe Court was passed by T.P. Sharma, J: - l 1.‘ Since the aforesaid three criminal appeals are arising out of the same judgment of conviction & order of sentence‘dated 19-7-2003 passed by the (WE Additional Sessions Judge (F.T.C.), Raigarh, in Sessions Trial No.26/2003, they are being disposed of by this common judgment. ~t 2. Challenge in these three criminal appeals is to the judgment of conviction». & order of sentence dated 19-7-2003 passed. by the 4‘“ Additional Sessions Judge (F.T.C.), Raigarh, in Sessions Trial No.26/2003, whereby & whereunder learned Additional Sessions Judge after holding ' the appellants guilty for formation of unlawful assembly, armed .with deadly weapons, having its common object of culpable homicide amounting to murder of Diorilal and in furtherance of common object of. the unlawful assembly for commission of culpable homicide amounting to murder by the members of the assembly, convicted the appellants under Sections 302 read with Section 149,& 147/148 of the l.P.C. and sentenced each of them to undergo imprisonment for life & pay fine of Rs.100/-, in default of payment of fine to further undergo R.l. for fifteen a days & to undergo R.l. for two years, respectively. 3. Conviction is impUgned on the ground that without any clinching and credible evidence, the trial Court has convicted & sentenced the- appellants and thereby committed illegality. v @ Case of the prosecution, in brief, is that on account of previous enmity the appeiiants gathered at one place and formed unlawful assembiy with common object to commit the murder of Dicriial. On 9-12—2002 at about 12 rnid night when Dicriiai (since deceased) was coming from Paterapaii the: appeiiants chased him on which Dicrilai entered inside the house of Jaipal (PW-1) then the appellants called Dicrilal to come out from the house of Jaipai on the pretext that they will compromise with him wh‘ereupon Dicriiai came, then they assaulted him and caused serious injuries as of result Dicrilal died. After causing serious injuries to Dicriial, accused Vijay went to the Police Station and lodged written complaint EXP-14 mentioning therein that Dicrilal entered into his house at night while he was sleeping with his wife, then he chased Dicrilal and caused injuries with axe. The police came along with Vijay to the village where the injured body of Dicrilai was lying, nobody was present there and the Police Officer recorded the dying declaration of Dicrilai in which Dicrilai made dying declaration that accused Vijay has caused injury when he entered into his house at night. On 9-12-2002 Dicrilal has lodged report against the appellants that the appellants are in search of Dicriiai and they may kill him, vide Ex.P-13. Dicriiai was sent for medical examination & medical treatment but the doctor has reported Dicriiai as dead vide Ex.P-10. Merg was recorded vide EXP-21 and F.l.R. was registered vide EXP—22. After summoning the witnesses vide Ex.P—2A, inquest over the dead body of Dicriiai was prepared vide Ex.P—2. Dead body was sent for autopsy to K.G. Hospital, Raigarh. Dr. Anil Kumar Kushwaha (PW-14) conducted'autopsy vide Ex.P-16 and found following lnjurleSI - (1) Lacerated wound of 3.5 c.m. x 1 c.m. x 0.8 c.m. lying obliquely at junction of occipital and both parietal bones of scalp. (2) Abrasion of4 c.m. x 1.5 c.m. at maxillary area of face. i u 4 (3) Incised wound of 3 c.m. X 1 c.m. x 0.8 c.m. on dorsum of left hand joint proximal to thumb. (4) Incised wound of 7 c.m. X 4.3 c.m. x 4 c.m. on right thigh above knee. (5) Incised wound of 8.5 c.m. x 4.5 c.m. x 4.1 c.m. on right knee comprising fracture of fibula bone and dislocation of joint, artery was found cut. (6) lncised wound of 2.3 c.m. x 1 c.m. X 0.2 c.m. over right leg above ankle joint. Moge of death was syncope as a result of bleeding caused by injuries. Patwari prepared spot map vide EXP-3. Blood stainedvfull pant & shirt weraseized from accused Vijay vide EX.P—4. One axe was seized from accused Hari vide EX.P-5. One stick was sei‘Zed from accused Mohit vide EXP-6. Blood stained & plain soil were recovered from the spot ‘ vide EXP-8. One Hero cycle was seized form the spot vide EXP-9. The Investigating Officer prepared spot map vide EXP-23. One axe stained with blood was seized from the spot vide EXP—24. . Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Raigarh, who in turn, committed the case to the Court of Sessions, Raigarh, from where learned Additional Sessions Judge received the case on transfer for'trial. . In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen 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. . After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned. . § i ) . Wefhafve heard Iearned cCunse‘l for the parties, perused the "dgme‘'n ' t impugned and record of the trial Court. r 10rLeajrned counsel for the appellants vehemently argued that in the present case, the prosecution has adduced two sets of evidence relating to Confessional and non-confessional statements made by accused Vijay byllodging report/complaint vide Ex.P-14 on the basis of which dying l / deelaration of the deceased was recorded. Second set of evidence relates to eyewitnesses Jaipal (FIW-1), Mangli Bai (PW-2) & Munu (PW— 3).‘ As per their evidence while deceased Dicrilal Was coming from Pate‘Fa‘pali the appellants herein chased him and finally caused serious injuries to him. Therefore, when the prosecution itself is not sure as to $ how the appellants caused injuries to the deceased, how the deceased died, when he died and what was the cause of death, the appellants are entitled for acquittal on the ground of two stories of the prosecution case. Learned counsel further argued that even otherwise, if both the sets of evidence are believed, on the ground of medical evidence and nature of injuries, the case of the appellants does not travel beyond the scope of section 304 Part-ll ofthe l.P.C. The appellants were in custody for long r time and their custodial period is sufficient sentence for them. 11.0n the other hand, learned State counsel vehemently opposed all the criminal appeals and submitted that ‘in the present case, all the appellants, who are having enmity with the deceased, have committed the brutal murder of the deceased, but with a view to save themselves one of the accused Vijay has falsely lodged written complaint'to the Jpolice and in connivance with the police, one false dying declaration was said to have been recorded, however, when the real story was unfolded , n— * j by the evidence of Jaipal (PW-1), Mangli Bai (PW-2) & Munu (PW-3), the 1 l F.I.R. was registered and on the basis of the evidence of eyewitnesses the trial Court has convicted & sentenced the appellants. The trial Court has not committed any illegality or irregularity in convicting & sentencing the appellants. The prosecution has not adduced two sets of evidence having different stories, it has adduced only one set of evidence and virtually, the accused have tried to make new story in connivance with one police officer, from its inception which shows the grave conspiracy of the appellants. l I 12.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the material adduced on behalf of the prosecution. at a 13. in the present case, homicidal death of Dicrilai asa result of fatal injuries vk z has not$been supstantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. Anil Kumar Kushwaha (PW—14) and autopsy report Ex.P-16 that the death of Dicrilai was 4 ‘ . r homicidal innature. ‘ 14.As regards complicity of the appellants in the crime in question, as per ~ the evidence of Jaipal (PW-1) — the alleged eyewitness, on the fateful day at about 8.30 p.m. while he was going towards village, he saw that deceased Dicrilai was coming towards Paterapali, on being asked Dicrilai ' told that he is coming from village Paterapaii, at that time, the appellants were present on the spot, they were holding axe, betel axe & spear, they chased Dicrilai on which after leaving his cycle, Dicrilai entered into his (this witness) house, the appellants compelled him (this witness) to oust Dicrilai, they threatened him and demanded the key of his house, they confined him (this witness), his wife & his daughter in the house of Munu and they compelled Dicrilai to come out from the house on the pretext of compromise and when Dicrilai came from the house, they assaulted him, Dicrilai requested them not to kill him. After causing injuries they took i frk Dic.‘rilal: in a jute bag towards Society and on second day mkornihg the polfce came to their village and he came to know that they have killed Dicrilal and also came to know that on account of severe injuries caused by the appellants‘ Dicriiai died in the hospitaL 15.Mangli Bai (PW-2) — wife of Munu (PW—3) has deposed in her evidence that on the fateful day when she along with her husband Munu was i corhing from the house of Kotwar, the appeiiants were present inside the codrt yard of her house, Dicriiai was hiding in the house of Jaipai, the apbeiiants were threatening and teliing thatthey wiii beat Jaipai. After breaking lock of the house of Jaipai, the appeiiants dragged Dicriiai from house to the road and assaulted him and thrown him towards tarai. She $ has further depo‘s‘ed that Dicriiai died on the spot and the accused persons themselves have lodged the report. Munu,(PW-3) has substantially corroborated the evidence of Jaipai (PW-1) & Mangli Bai (PW—2). 16.Defence has cross-examined these witnesses at length. Jaipal (PW-1) has admitted in his cross-examination that the incident took place at about 8.30 p.m. In para 7 of his cross-examination he has admitted his dispute with appellant Hari. He has also admitted that he has lodged report against Dicriiai. Mangli Bai (PW—2) has admitted in para 3 of her cross-examination that the appellants &‘ the deceased were in inimical terms on account of dispute relating to water. She has admitted in para 4 of her cross-examination that the offence took place in the village. She has admitted in para 7 of her evidence that Dicriiai died in the hospital. ’Munu (PW-3) — husband of Mangli Bai (PW-2) has admitted in para 6 of his cross-examination that Jaipal is his brother-in-law and at the time J " when Dicrilal entered in the house ofJaipal he was not present. i fa " 1 7.0ther witnesses have not supported the case of the prosecution. Mangal (PW-10) has stated in his evidence that 'on the date of incident between 8 p.m. and 9 p.m. he heard the sound of duarrel and the poiice vehicle came to his village thrice on that night. Constable Krishna Murari (PW-12) has stated that Dicriiai was injured and was not in a position to taik, his voice was not ciear, they took him to the Police Station and aiso toithe hospital. He has admitted his signature on dying declaration Ex.P- 1i R.P. Tiwari (PW-16) has deposed in his evidence that on 9-12-2002 he‘ was on night patrolling duty. raccused Vijay informed'him relating to chasing of Dicrilal and then he went to the village along with Vijay & Kartik Ram. l-Ie has further deposed that after recording roznamcha Ex.P-1‘5A, he reached to the village at 2.20 a.m. and recorded dying declaration of Dicrilal vide EX.P-1, he .took Dicrilal to District Hospital, Raigarh where he died and he reeorded merg intimation at 5.30 a.m. vide EXP-21. ‘ /- 18.R.P. Tiwari (PW-16) is Investigating Officer who has recorded dying declaration EX.P—1 of deceased Dicrilal. The trial Court has not relied upon the dying declaration, but the prosecution has not declared this witness as hostile. The dying declaration is supported by written report made by accused Vijay vide Ex.P-14 and roznamcha recorded at 2.20 a.m. vide Ex.P—15A. Constable Krishna Murari (PW-12) has admitted that at that time Dicrilal was not in a position to talk clearly which shows that at that time, Dicrilal was alive. As per the evidence of Mangal (PW- 10), the police vehicle came to his village thrice. Jaipal (PW-1), Mangli eBai (PW-2) & Munu (PW-3) have deposed that they have seen the incident and all the appellants have assaulted Dicrilal and the ‘Police Station is 7 Kms. away from their village. As per the evidence, incident took place at 8.30—9 p.m., but they have not gone to the Police Station for r lodging the report. The deceased was shifted to the hospital he was declared dead. The dead body was not lying in the village and it was shifted by the police. As per the evidence of Mangal (PW-10), the police vehicle came to his village thrice, but the aforesaid eyewitnesses had not lodged any report to the police when the police came to their village, they haive not collected the villagers and they have not informed the incident toythe Kotwar, even they have not tried to‘ save the deceased or they l h'aive not taken any step to save the deceased. Their conduct does not appear to be natural and sumcient for rejecting the»evidence of R.P. TiWar'r (PW-16) which is corroborated by roznamcha Ex.P-15A, dying declaration Ex.P-1 and written report of Vijay EXP-14. ~$ 19.Non-confessionaL part of Ex.P-14 written by accused Vijay to the police reveals that at about 12 mid night deceased Dicrilal entered in his house while he was sleeping with his wife. Dying declaration Ex.P—1 recorded by R.P. Tiwari (PW-16) clearly reveals that the deceased'had consumed liquor and he entered in the house of Vijay on which Vijay, Janak, Manglu & Puchhu @ Makardhwaj chased him and Vijay assaultedrhim with axe. On the basis of dying declaration Ex.P—1 and merg intimation EXP-21, the investigating Officer has lodged F.l.R. against the aforesaid four accused vide EXP-22. Conduct of the alleged eyewitnesses namely, Jaipal (PW-1), Mangii Bai (PW—2) & Munu (PW-3) prior to the incident, at the time of incident and after the incident does not appear to be natural, even otherwise, the prosecution has not collected any evidence to show that the aforesaid appellants were having definite ‘ knowledge that Dicrilal had gone to Village Paterapali and will come back at 8.30 or 9 p.m., therefore, they have gathered and formed Unlawful assembly and assaulted Dicrilal. fx a '~ } :20.While convicting the appellants, the trial Court has not considered the i , ‘ ‘ ‘z conduct of the alleged eyewitnesses which is fuii of suspicion and does not inspire confidence. The triai Court has placed reliance upon the evidence of those witnesses discarding the dying declaration. Clearly, the trial Court has committed illegality by discarding the dying declaration based on Exs.P-14 & P-15A rojnamcha. The prosecution has not declared Investigating Officer R.P. Tiwari (PW-16) hostile. The projseCution itself has relied on the dying declaration. Considering the suspicious conduct of Jaipal (PW-t), Mangli Bai (PW—2).:&'Munu (PW-3), their“évidence does not inspire confidence, their evidence is not trustworthy and is not safe to rely. ~i 21.Entire evidence ‘and documents of the prosecution require re— appreciation. Evidence of R.P. Tiwari (PW-16.) relating to the dying declaration made to him by the deceased vide Ex.P-1 which is well corroborated by the report lodged by accused Vijay vide Ex.P-14 and the roznamcha recorded by him vide Ex.P—15A inspire confidence, they are trustworthy and sufficient for drawing inference that when Dicrilal entered in the house of accused Vijay at 12 mid night, appellants Vijay, Janak, Manglu & Puchhu @ Makardhwaj chased him and after surrendering him, accused Vijay assaulted him with axe and caused serious injuries. Vijay went to the Police Station and lodged report which was recorded vide Ex.P-14 and on the basis of Ex.P-14, R.P. Tiwari (PW-16) immediately rushed to the spot where he recorded dying declaration Ex.P-1 and he took injured Dicrilal to hospital where Dicrilal died. R‘.P.‘ ” Tiwari (PW-16) recorded merg vide Ex.P-21 and on the basis of merg, he recorded F.I.R. vide Ex.P-22. This evidence clearly establishes that only appellants Vijay, Janak, Manglu & Puchhu @ Makardhwaj have .g. I Vparticipated in the crime in question’and appeliant Vijay has baused injuries to Dicriiai. ‘ 22iDefinitely‘ appellant Vijay was having right to cause injury to Dicrilal in exercise of the right of private defence of person when Dicrilal entered in his house, however, in the present case, Vijay has not caused any injury inside his house or in front of his house, but after chasing Dicrilal up to sonie distance along with three persons and after surrendering Dicrilai, Vijay has caused injuries to Dicrilai which was not exercise of the right of private defence of person which was available to Vijay inside his house. When Dicrilal left the house of appellant Vijay, especially when Dicrilal l fled from the house of Vijay, the right of exercise of private defence has $ ceased its existence and was not available to the appellant. However, these four accused persons viz., Vijay; Janak,_Manglu & Puchhu @ Makardhwaj, chased Dicrilal, assaulted him and caused grievous hurt upon him. Vijay has caused injury upon Dicrilal after losing his temper, but has not caused fatal injury upon vital part which shows that he has not caused injury with intent to cause the death of Dicrilal. After Causing injury they left Dicrilal and went to the Police Station. Dicrilal died after some hours which also corroborates the fact that the appellants have not caused any injury to Dicrilal with intent to case his death, but at the time of causing such injuries and leaving him alone at the open place on the chilling night of December, they were knowing that by their act, Dicrilal may die. 23.For the foregoing reasons, conviction and sentences imposed upon ’Vijay, Janak, Manglu & Puchhu @ Makardhwaj are not sustainable under the law and on re-appreciation of evidence, we are of the view that appellant Vijay has caused culpable homicide of Dicrilal not amounting to murder in sharing common intention with other three co-accused namely, r s é ' a /&\ " Janfak, Manglu & Puchhu @ Makardhwaj. Therefore, appellant Vijay has w committed offence under Section 304 Part-ll of the l.P.C. and appellants Jartak, Mangtu & Puchhu @ Makardhwaj have committed offence under ‘ Sections 304 Part~H read with Section 34 ofthe l.P.C. .24.ln the resuit, Cr.A.Nos.912/2003, 973/2003 & 825/2004 are partly alldwed. (1)Appellants Mohit, Hari Uraon & Bundkunwar (Cr.A.No.912/2003) are acquitted of the charge under Sections 302 read with Section 149 & 147/148 of the l.P.C., they are on bail, they need not surrender to their bail bonds. Fine am‘ount, if paid, be refunded to “them. (2)Conviction & sentences of appellants Vijay, Janak, Manglu & P‘uchhu @‘Makardhwaj under Section 147/148 of the l.P.C. are hereby set aside and they are acquitted of the said charge. (3) Conviction of appellant Vijay under Section"302 read with Section 149 of the l.P.C. is altered to Section 304 Part-II of the l.P.C. Considering the facts and circumstances of the case, he is sentenced to undergo imprisonment for the custodial period of more than 7 years 4 months (since 10-12—2002 till date). He be released forthwithfif not required in any other case. (4) Conviction of appellants Janak, Manglu & Puchhu @ Makardhwaj under Section 302 read with Section 149 of the l.P.C. is altered to Section 304 Part-ll read with Section 34 of the l.P.C. Considering the fact that these appellants have sharedcommon intention but not actually assaulted deceased Dicrilal, they are hereby sentenced to undergo R.l. for five years under Section 304 Part-II read with Section 34 of the l.P.C. They are on bail, they shall surrender themselves immediately before the Court of Am Additional Sessions Judge (F.T.C.), Raigarh, in Sessions Trial No.26/2003 for serving remaining sentence imposgdJLpgi them. _ Sd/- a Sd/- V T.P. Sharma R.L. Jhanwar Judge Judge Soma