^l^ ^ .3I^T??r1?F?R? ^s?T^?N^^' '^•:. 3:5£Tr^H|<r!><4, ^Tfi'y'Ko, {s)01'y^< C75-'. ^f^.^i. n^|oz Av^.<^^9 •(TO^T .........................................................^ 200 93 an^nraq? Ci<<^<^) •^nW^feTS^T Grlmlitdi AppeUaat/ (In Jail) Versjus Respondent Critnli&a AppeUaat Vers Respondent Hon?ble Shri T.P. Slaarma. 17-3-2008 <shl^{d^i"t "RY^f ^t^St <F31tSr'< ^^tfw^n^T Apoeal No.1177 of 2003 Gulesti Soiu, S/Q Shyainlal Soni, aged about 33 years, R/o ViHage Nagari, Jangalpara, P.S. Sihava, Distt. Dhamtari (CIihattisgarh). State of Chliattisgarh,. PoHce Station Sihava, Distt. Dhamtari (Chhattisgarh). 86 Appeal N0.2199 of 1999 ds Abdul Waheed, S/o Abdul Mazeed, aged about 27 years, R/o Jan^l Para, N^ri, Teh. Dhamtari, Distt. Dhamtari, M.P. (now C.G.}. State of M.P. (aow Chliattisgarh), through Police Station Sihawa, Distt. Dhamtari, M.P. (now C.G.). (Crimiaal Appeals vixi^er Section 374 (2) ofthe Cr.P.C.) Divtsion Bencb : Hon*b!e Stel L.C. Blmdoo ;fc^ XI^ ^TiiRr^i^^ ^TS?T ^T^ST'i?1:}W 'S^ -^ 1^10^, ^»Tfi'y41<o, R)(y'»l'M^< 'W^yff '^IW W^ 200 3n^ST X[5R? ( 4C(^^) '^E<nw;Rf^f 3?n^r Smt, Meena Shastri, | Cr.A.No. 1177/2003. Sint Indira TripafhiJ Cr-A.No.2199/1999. Shri Akhil Mishra, Dy. G+vt Oral judgment dictated o|i L.C. Bhadoo, J <:ftl<lf<yl<fl<l TTF1^f ^fel3t <Rsi<$i< i73Tfim3TI^T counsel for the appeIlBat ia counsel for fhe appellaiit in bivt. Advccate for fhe State. ii dais. Crimiaal appeal No. 1177|/ 2003 filed by Gulesh Soni & criminal appeal No.2199/1999 ffled by ^bdul Waheed are being disposed ofby fhis cominon judgment, as boti|i these appeals are arisiDig out ofsame incident 8& same crime numbe|r aad are pertaiamg to fhe murder of Hiachharam alias Batwa, 2} These appeals are direct|sd ^aiast fhe judgment ofconviction 16-8-1999 ia respect of accused Abdul aad order of sentence dated 1| Waheed and 18-8-2003 in ics^ect of accused Gulesh Soni, passed by fhe Additional Sessions Jijidge, Dhamtad, ia sessi&as tdal No.405/1993 whereby and wh^re'ander tfae accused/appeUants have been convicted for commissionlofoffence under Sectioai 302 read wifh Sectiou 34 ofthe Indian Penal| Code {forshort "the JPC*) aad each of fhe accused has been sentenc€|dto undergo imprisonment for life. In fhe case ofAbdiil Waheed no fijae was imposed whereas m fhe case of Gulesh Soni fine of Rs.l,000/|- was also uaposed in addition to fhe sentence awarded to him, iii undergo RJ. for one vear, default of payment of fiiie to further .78 "^; 3?n^i>^Tl^l^ ^TSRWT^qN' ~3^ ^ii^i^, ^Tn^'ic, (si^K-i^ 'WT^T ^^i^ -^200 3n^?r ^^ (Tl?^^) ^RTTW^cT 3?TT^T 3) Case of fhe prosecutio|i Batwa (since deceased) used | shop. The owner of fhe iatervemng night of 9th & 10^ accused/appellants came s^id lt) Hiiichharam alias Datwa to chicken. When HmchharajN appeUaats started quarreUiag ofthe thela, tried to intervene,| the place otherwise, fhey willj place artd started watchio.g th^ persons started attackmg Hi^< gupti. However, DeshraJ (PW^ On the next day tnnming oiih?) Batwa, 4) Merg iiitimatioa (Ex,P/8I Station Sihavaon 10-4-1993 is fhe Sarpaiich ofGxam Panc^ when he was at his house, shoe niaker Batwa, who is fhe culvert and fhe Uquor fhe body of Batwa was lying and blood was lyiiig on fhe spcj ct)i^(<yi<fli 'wi^if ^1^Tst <Pfl^i< ^^TRiTT3T^T i, in brief, is that Hiachharam alias 1 to work on a fhela m JBront of Uquor fhela was PW-3 Deshraj. In the April, 1993 at about 10.30 p.m. the thela aad asked fhe deceased ^ive fheia fhe pieces of the left over alias Batwa diaed, tihe accused/ ^yith him< When PW-3 Deshrai, owner 1 fhey pushed him & asked hiTn to leave [beat himi also. On wtdch, he left the mcident from a distaace fhat accused Lchharam alias B^wa wifhiEL stone & i) left the place arid went to his hoiise. he saw the bodv of Hinchharam alias was lodged by PW-8 Pukraj ia PoUce ^bout 10.15 a.m. to the effect fhat Iie tayat N^ari. Today at about 7.30 a.m. Sahu came aiid iDforme-d fhat fhe as Hiachharani also, is fyiag xiear He went to the place aad saw that tlhere, There was blood on tihie clofhes 3|t. How he has died, he does not know. Ba|uda catled sholp. XI-HG—78 _^I^T^?^;?^ W^ ^l^S 5F5??^ 3=5ST ^N |<?-><4, ^Tfl^<|<o, ?s|0|^^< WRW iF?T^ ^ 200 3^?T tRR? (^tt^^T) ^wiW ^a 3T1^T repcjrt, gttpti 5) After receiviag fhis scene of occurrence. After prepared iaiquest (Ex.P/2) on] Plaa soil, blood steiaed soil,| slippers & oiie key were custody, accused Waheed ga\ place where he kept the gupti of fhat he got recovered fhe were seized under Ex.P/6, occurreace was prepared. Bo^ for postmortem exaDiiaation f^ Ex.P/10-A wherc PW-11 Dr. axid opiaed that the cause haemorrhage. Deatli was Ex.P/10. Site plan (ExJ Officer, First Infonnation articles were sent for cheml< Laboratory, Raipur, under Ex|. received, selzed 6) After completion of inve Court of Judicial Maeistrate comndtted fhe case to fhe where Additional Sessions Ji teaasfer for trial. <=i»i<if<n<ili ^w^^fe^ <(^t^l< ^3iRW 311^1 K^rt, the Investigatiag Officer left for the ^iviag iiotice (Ex,P/l) to the Ranchas, |the body of Hiachharam aMas Batwa. one scissor, one cycle, one pare of under Ex,P/3, While m police (e memoraadiim Ex.P/5 regaidiag the |.e. weapon ofoffence aad ia pursuaiice i^pti uiider Ex.P/4. Clothes of deceased Site plan (Ex.P/7) of the place of |ly of Hmchharam atias Batwa was sent Primary Healfh Ceiitre, Nagad under |Padmakar Mishra conducted autopsy bf deafh was shock due to massive hoi4icidal m nature. Postmortem report is was prcpared by the Investigating ?epc(rt (Ex.P/12) was registered. The seized lemlcal exaimnation to Forensic ScieHce .P/15 jBnom where report Bx,P/16 was -p/lll) Repc|rt (E: mve|stigation, re|stigatk>n, charge-^heet was fited in the First Class, Dhamitad, who m tum C^ourt of Sessions Judge, Raipur, from. ^dge, Dhamtad, recewed tite same on XI-HC—78 3in^i ^r '{^ri^ 'TOT^ii^r'iNaT 3:5cT ^|<4t^, «>Tfi^ll<o, (s«?'>iy'j,< wsmr ws^'' -^ 200 3^p?r ii5RF (4c(f^<^r) ^w<y< <ii^n 7) In order to estabUsh ftfe fhe prosecution examiaed l^ persons were recorded uiid^ Procediire (for short <ethe Cr.f appearmg againBt them, Th^ been falsety impUcated ia ftie| Sebsions 8) Leamed Additional fhe respective parties, convi<j persons by separate judgmei|its the accused namely, Guleshj evidence by fhe trial Court. 9) We have heard Smt. on behalf of accused Gulesl counsel appearing on behalf < Mishra, Dy, Govt. Advocate fo 10) Smt. Shastri 8& Smt. Sheikh Ahmed, has tumed| prosecution case. The convidtion PW-3 Deshraj, who has claim^d evidence is coatradictory to 161 of the Cr.P.C. Morcow testimony is not worfh relianc he ought to have todged th^ cbl^td^l'1 'HW^f ^fe^ <R»i^i< ^r 3ifip:r ^FH^F cliarge against fhe accused/appellants witoaLesses, Statements of the aceused Section 313 of the Ccde of Grimmal lC.i() ia which they deaied fhe material stated fhat they are itmocent aad have cnine, Judge after hearmg coiiasel for ;ted aad seitteacai each of the accused as meutioned earUer because one of Soni absconded after reconlmg of the M^ena Shastd, leamed counsel appearmg Soa^L & Smt Indira Tripafhi, leaaied tfaccused Abdul Waheed aad Shri Akhil ik- the State. ]ripafhi, ai^ued that m this case PW-4 hostiile aiid has not su.pported fhe is based solelv^ on the testimonv of i|sd hitnself to be fhe eyewitaesSy but his Ithe statement recorded uxider Section r^r, he is a single eyewitoaess aiid his }e, Had he witnessed the mcideiit, theri report immediately in PoMce chowki XI-HC—78 STI^T^iT^IW WT <^i^T Wlte ^, 3^cT "qMi0^, ^•y^Ko, (st0i'y^< •W^ST "R^ 200 3:(T^?T ^R^ ( <i?^^ ) '^nw^f^T 3?n^r because he has stated that outpost, Nagari was on fhe iacident, fhen why he remaia^d when his statement uader disclosed that he had witaesfee that ia fhe next day moramg| Batwa, but even then he hM about fhe iacident witnessdd Sarpanch lodged fhe report Batwa agaiast the unknown makes his evidence unreliablej ^hile goiag to his residence the PoUce Moreover, if he had witaessed fhe silent for 5 days ie. for fhe first time 161 offhie Cr.P.C. was recoxded he the mcident Eveii he has stated he saw fhe body of Hiochharam alias lodged fhe report or informed otibiers by him aa.d, in fact fhe viUs^e refearduig the death of HiachharaDi alias p|ersons, So ftie conduct of tfais witaess w|ay Sedtion icsfeed Aot Wafaeed 11) Smt, Tripafhi also argue|i instaiice of accused Abdul on fhe gupti, fherefore, ffae crfcme iii question, Moreover, was used ia attackmg the that Waheed, in. fact, scissor whereas iii fhe Cr.P.C. thiswitaess has statedl on the stoniach of fhe Gulesh attacked wifh haiid & attack^d statemlent 12) On the other hand, Shri| supported the judginente offh^ cbl^ld^l'1 *ll^l<A ^f,fecst <R^^i< ^^ifiTR^n^r fhat as far as recovery of gupti at the is concemed, no blood was found afccused cannot be connected with fhe it is also doubtful whefher tihie gupti [c|ceased, as Deshraj (PW-3) has stated Hiachharam alias Batwa with the recorded under Section 161 offhe fhat Waheed attacked with gupti Iwice aad once on fhe back whereas dcbeased, dece^sed flist. Mishra, leamed counsel for fhe State, trial Court, XI-J -s^ ^ww, ^Tn-y'Ko, {si^i^^ WffW •^ 200 ST^I^Y^N^ WT2fn^?w^ an^jT XR^ (yiF^q^) ^mWHf^T^T^ 1 'EFpqfepJh'qrq^f ^fe^ Tf^R?R ^3FifipT3n^?r 13) It is true fhat the convjiction of the accused/appellants rests on fhe testimony of PW-3 Deshr^j. Being a single witness it is necessary to scruttaize Iiis evidence wit|i great care aad circunispection ia order to ascertam as to whefher ft^e expUcit reliaace caa be placed on fhe testimony offhis witness, m <| fhat fhese accused/appeIlai|Lts were th<s aufhox^ of fhe crinie ia question. PW-3 Deshraj has | his sen^aat Hinchharain aUasl ^rder to ardve at a conclusive conclusion stated that at about 9.45 p.m, he asked LBatwa to wash & clean fhe utensils aiid take fhe thela, he wiU com|e after serviag food to the customers quickly. 5-7 miautes fhere^fter some persons came aiid mformed fhat when his person was tal|iEig fhe thela on fhe ax>ad soixie persons 1 " started beatmg him, fherefor^ that accused Waheed & Guiled ;y he rushed towards the thela aad saw h were demandiag fhe left out pieces of the chicken whereas his serv^at was rcfusmg to give the pieces offhe chicken to them aad was saylne fhat unless his owner allows him to give them he will aot give the t)ieces ofchicken, on which fhe accused persons started attackiag hpm with hand & fist and tliey also attacked him with haiid & fislt and said fhat if he waats to save his life he should leave fhe pl^cd aad they will deal with Batwa. Therefore, bemg JGdghtened. h|e left fhe place, TIie accused persons |>ag. He saw fipom a distance that what lt, He saw fhat accused Waheed fhrew took out fhe chaage fiom the fhey are doio.g with Iiis seryan Batwa on fhe gi^und, on wl|ich he raised cries. Accused Oulesh attacked liim wifh stone on hi^ back. The deceased resisted for some time. In the meantime, fhe ^ccused took out fhe scissor meaat for XI-i 3TI^l ^T "fe^ 'cW^i^T^lN' 3:CTf ^||<1|0<q, ^>Tfi<14|C, fc|01'y^< 1TTOW ^WT^ -^ 200 3n^i?r ^ra^ (^cif^^) ^«ii^R'wf^a ^TI^T cuttmg fhe vegetables and a^ scissor on his head, stonia^h Batwa succuinbed to fhe persons were also haviag about the gupti later on. fhela for his yesidence. Whefa. the moroing he went near saw that fhe people were was mfonned fhat fhe body shop. Therefore, he went to| the road. The scissor was xaeters fhe body ofBatwa wa<t gu^ti, B^mg biis sta^idiag alfeo 14} In cross-examiaation, Para. In between fhe liquor| out post, Nagan, but he did about fhe quarrel between th^ went to his house for sleep. report, The iacident occiirre4 1993 whereas his poUce cas|e first time on 15-4-1993. reasonable doubt about natural course when his persons, if he was not able have caUed ofher persons. Hji Polfce out^post Na^riy whk?|i cbl^fd^fl'1 'RPT^f ^\fe^ <Pnt$i< ^^Tfim^n^r ?cused Waheed attacked Batwawifh the j^h, chest & back, as a result of which finjunes, Most pn>bably the accused but he did not see. He came to know fiightened tie left the place wifh fhe Batwa did not tura up till 7.00 a-m. in staad where Batwa used to sleep. He near the hotel of Maluadar aad he |of his seryant was lymg near the Uquor 1 see Batwa, A lot of blood was lymg on lyiag there, At a distaace of about QQ lyiag. le has stated fhat his house is in Jaiigal shop aiad Jaagal Para there is a poUce |not report ia fhe PoUce out post Nagari deceased aad the accused persosis. He In fhe next day moramg also he did not in fhe night in between 9th & 10th Apri], diary statement was recoxded for fhe 1The conduct of fhis witness creates wit^iessing of the mcident by him. Ih fhe serfaEit was being attacked by the accused t|o even iatervene & coxitx^l, he ought to also ought to have lodged tihe report in conies on the way while goiag to his /-^ XI-HC—78 T^T <^ 1^10^1, ^Tfi'y4!^, Ri^iy^ ^, v i ^w^ -%^' ^iTT^? 3»?f^ti^ ^TSTI^T^^ "^ 200 3n^?r x^i^ (^c(1^4^r) '^nw^rf^T ^n^r fhe reasons arc best known to! <=t)H(<y1<4ll +1H<^ ^fe^ <^l^l< '^^ffim^n^T residence/but why he reniaia^d silent and did not report fhe matter him. Even he remamed sflent tUl 15th April, 1993 ao.d dM not discl(>se the names of the accused persons who, in fact, attacked the dec|eased, eveii after comitig to know fhat Batwa has been murdered, IThereforc, the conduct of this witaess makes his evidence doubtfiil. that accused Gulesh attach;ed| attacked fhe deceased wifh st<l he has stated fhat fhe scissor his fhela that was taken by th( poUce case diary statement rec his stomach aiid once on thc stated that he did not see tih came to kaow about fhe ss In fhe Coiirt evideiice, he has stated fhe deceased wifh. a stone whereas ia Police case diary statenieiit (^x.D/ 1), he has not stated that Gulesh ^ne. Apart froxa that ia Court evidence, txieaat for cutting the vegetables was on accused persons aiid accused Waheed attacked the deceased with th|it on various parts of the bc^ly, but in [Qided iiader Section 161 offhe Cr,P,C. he has stated tiiat Waheed att^cked fhe deceased twice with gupti on back, In ffae Court evidence he has ^ gupti wifh fhe accused persons, he later on. The attack made by fhese accused persons is not corrol^orated by any circumstaaatial evidence wifhout which fhe shaky evi^exice conteadictoiy to his poMce case dimv statenient camiot be b< persons guilty for commission 15) Por the forcgoiDtg reason}s the j&odiag ^of ffae tnal Court Ueved, In order to hold tihe accused ofoffence under Sectfon 302 ofthe IPC based on the evidence of tib^s witaess expUcit rcliaiice cacmot be placed. $/we are offhe considered opmion fhat t>ased on the testimony of this witness XI-HG—78 ^^^^ ^•-'.^^,/*. 3'ssr-^n^T^r, ^Tfl^^Ks, fstowy f^ ^ 1-. i / v^^ '^V^' W^ 200 3TT^r^?1^F 'TOT^R^T^RW ^ 3H^?T TRRF (licl^^) '^iTw^rf?n^n^T cannot be sustained, Therifc accused persons with fhe cribajie 16) In fhe result, > The appeals atlowed, The ffaein under ~\ fhe IPC are S^l said charge, > Accused Abdi^ bail bonds arcl before fhe triall > Accused GulesBh. be set at other case, llbei|ty 17) Copy of this judgment 1177/2003 & 2199/1999. Sd/- ! L.C. Bhadoo Judge cbl^fd^l'1 TTW^f ^fe^ <t^i«fi< ^T 3TRPT 3TI^T is no other material to comaect the ia question. pled by the acx^used persons arc ^onviction & sentence iaaiposed upon S^ction 302 read witfa Section 34 of $<|t aside. They are acquitted of fhe Waheed is already 0x1 bail, His [dischai^ed. He need not surrcaider ICourt. Soni is mjail siace 2-2-2001. He forfhwifh tf* not required ia aay be placed on (he records of Cr.A,Nos, Sd/- T.P. Sharma Judge 10