HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble ShrjRaieev Gupta, C.J. & Hon*ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT APPELLANTS CriminalAoDeal No. 146 of 1993 1 Sunder son of Dauwa Satnami, aged about 40 years 2 Maniram son of Kanhaiya Satnami, aged about 19 years 3 Titra son of Kanhaiya Satnami, aged about 26 years 4 Sahdeo son of Kanhaiya Satnami, aged about 24 years 5 Munnaram son of Kanhaiya Satnami, aged about 20 years 6 Sitaram son of Kanhaiya Satnami, aged about 22 years All residents of Village Hongra Dongri, P.S. Pandaria, District Bilaspur (M.P.) (Now State of Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh), through P.S. Pandaria, Bilaspur And Criminal Apoeal No. 419 of 1993 1 Derha son of Toran Satnami aged about 28 yrs, r/o Sanakpat, District Bilaspur, M.P. (Now C.G.) 2 Kartik son of Bhagat Satnami, aged about 48 yrs, r/o Sanakpat, District Bilaspur, M.P. (Now C.G.) 3 Sunder son of Dawya Satnami, aged about 40 yrs 4 Maniram son of Kanhaiya Satnami, aged about 19 yrs 5 Titra (wrongly mentioned as Totra) son of Kanhaiya Satnami, aged about 28 yrs BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:09 +0530 ^^^'^-^^ ^;".,^.,,4 ^^ /f''f""^ ^ t-^,. ^^^'^ j ^3%|, 5 \^^^ t Criminal Appeals No. 146 of 1993 & 419 of 1993 6 Shadeo son of Kanhaiya Satnami aged about 24 yrs 7 Munnaram (wrongly mentioned as Maniram) son of Kanhaiya Satnami, aged about 20 yrs 8 Sitraram son of Kanhaiya Satnami, aged about 22 yrs Appellants 3 to 8 are residents of village Ghongra Dongri, P.S. Pandariya, District Bilaspur, M.P. (Now State of Chhattisgarh) Versus RESPQNDENT State of M.P. (Now State of Chhattisgarh), through P.S. Pandaria, Bilaspur (Criminal Appeals under Section 374 (21 of The Code of Criminal Procedure, 19731 w Appearance: Mr. Yogeshwar Sharma, Advocate for the appellants in Cr.A. No.146/1993. Mrs. Renu Kochar, Advocate for the appellants in Cr.A. No. 419/1993. Mr. Kishore Bhaduri, Additional Advocate General for the State in both the Appeals. JUDGMENT ( JO.08.2010) Following judgment of the Court was delivered by Sunil Kum.ar Sinha, J. (1) These appeals have been directed against the judgment dated 4th Februaiy, 1993 passed in Sessions Trial No. 152/88 by the Third Additional Judge to the Court of Sessions Judge, Bilaspur. ^•'> ". ' '•':' - ^s^- Criminal Appeals No. 146 of 1993 & 419 of 1993 (2) The appellants have been convicted u/ss 147 8s 302 IPC and sentenced to undergo R.I. for 1 years & fine of Rs.100/- and imprisonment for life & fme ofRs.100/- with default sentences. ^ (3) The facts, briefly stated, are as under:- 11 persons were tried for the offences punishable u/ssl47, 302/149 & 323/149 IPC. The allegations are that on 29.1.88 at about 9.00 a.m., they formed an unlawful assembly, participated in rioting, and in prosecution of the common object of that assembly committed murder of Baba and caused injuries to Tulsi Ram (PW-8). The case of the prosecution is that on 29.1.88 at about 9.00 a.m. deceased- Baba and Tulsi Ram (PW-8) were returning from village Baghraitola to village Sanakpat. On the way, when they reached near field of Jiyaram, 11 accused persons stopped them on the way and assaulted them by adze (basula) and lathis. Mter the assault Tulsi Ram went to his village and called the villagers and his family members. Wife of the deceased Mahrin Bai (PW-12) also reached to the place of occurrence. The deceased was taken to his house. The fyrther case of the prosecution is that village Sarpanch- Janki Bai (PW-10) and her husband Laxminarayan Tiwari (PW-14) also visited the house of the deceased. Deceased- Baba and injured-Tulsi Ram both made dying declarations which were recorded by them as Ex.-P/lO and Ex.-P/ll. The matter was reported to the concerned police station by Tulsi Ram (PW-8) at about 10.30 p.m. on the same day, on which, the First Information Report (Ex.-P/6) was registered. Deceased-Baba died on the way to the hospital. All the 11 persons were named in the F.I.R. The learned Sessions Court relied on the testimony of Tulsi Ram (PW-8) and it also relied on the contents of the dying declaration given by deceased-Baba (Ex.-P/lO), in which, he took the names of 8 \ Criminal Appeals No. 146 of 1993 & 419 of 1993 accused persons (appellants herein) and convicted and sentences them as aforementioned. However, 3 accused persons, whose names were not mentioned in the dying declaration were acquitted. (4) Mr. Yogeshwar Sharma and Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that Tulsi Ram (PW-8) was not reliable witness; he named 11 persons in the F.I.R. (Ex.-P/6) but in trial he exonerated one of them. In the requisition prepared for sending injured Tulsi Ram for medical :^ examination as also in the requisition prepared for sending the/ dead body for post-mortem examination, names of only 3 accused persons i.e. Derha, Kartik and Sunder were mentioned as the assailants. This was on the basis of information given by Tulsi Ram (PW-8). This falsifies the contents of the F.I.R. and creates a doubt on his testimony. They also argued that Tulsi Ram (PW-8) had tried to involve different number of persons at different stages and his version was not consistent. About the dying declaration, they argued that on the face of evidence of Janki Bai (PW-10), Laxminarayan Tiwari (PW-14) and Gokaran (PW-16), the dying declaration becomes highly suspicious. (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. r •^ i, -•--.-.—.._. Criminal Appeals No. 146 of 1993 & 419 of 1993 (7) Admittedly, the conviction is based on the testimony ofTulsi Ram (PW-8) and the contents ofthe dying declaration (Ex.-P/lO). (8) Tulsi Ram (PW-8) is the solitary eye-witness of the incident. He deposed that on the fateful day at about 9.00 a.m. when they reached near the place of occurrence, he saw 10 accused persons. They were Sunder, Derha, Kartik, Titra, Munna, Mani, Shadeo, Sita, Swarath & Dakhin. They were sitting in the field ofJiyaram. As soon as they reached there, the above 10 accused persons started assaulting them. Accused- Kartik was holding an adze {basula} and all other accused persons were holding lathis. All of them assaulted the deceased. Thereafter, Sunder and Derha assaulted him (Tulsi). None except these persons had assaulted him. When he fell down, the accused persons ran away from the place of occurrence. According to him, he became unconscious and when he regained consciousness, he went to his house at about 11-12 a.m. leaving the deceased in the field. Thereofterhe never retumed to the field. He admitted to lodge the F.I.R. (Ex.- P/6). We note that in the F.I.R., he had mentioned the names of 11 accused persons, whereas, in his court evidence, he mentioned the names of only 10 accused persons. There are Some contradictions, relating to assault, in his court evidence, F.I.R. and 161 statement (Ex.-D/l). He admitted in Para-11 ofhis cross- examination that there are 2 groups in the village. The accused persons belong to one group and his family belongs to another group. He further admitted that proceedings u/ss 107 & 116 ^ r Criminal Aopeals No. 146 of 1993 & 419 of 1993 Cr.P.C. were drawn against the members of his family and there was a land dispute between them. The dispute was in relation to crop cutting. The accused persons used to cut their crop by engaging labours of different villages. Apart from the above, we also note that in the requisition sent for medical examination of this witness (PW-8) it has been mentioned that only 3 accused persons assaulted him by lathis. They were Derha, Kartik & Sunder. We further note that in the requisition for post-mortem examination of the deceased also, in the column meant fov- information with the police relating to the crime, again the names of only above three accused persons have been mentioned as the assailants. Even there is no whisper that they were accompanied by other persons also. This witness was asked about this ^ discrepancy in his cross-examination. He deposed vide Para-13 that when he reached to the police station, the concerned officer asked hini as to who assaulted them and he mentioned the names of all the assailants and he very specifically denied that he only, mentioned the names of above 3 persons at that time and also at the time of preparation of requisition for sending them to the hospital. He deposed that he cannot say as to how the Investigating Officer mentioned the names of only 3 persons in these documents. Admittedly, the F.I.R. (Ex.-P/6) was lodged at about 10.30 p.m. on 29.1.88 and the medical examination of this witness was conducted at 11.15 p.m. which shows that the requisition for sending him to hospital was prepared after lodging of the F.I.R. If 11 persons as alleged in the F.I.R., had ^fe^ Criminal Appeals No. 146 of 1993 & 419 of 1993 ^ participated in the assault and it was told by PW-8 to police, there was no reason with the police officer to mention the names of only 3 accused persons in the above documents. (9) In Balaka Singh and Others -Vs- The State of Punjab, AIR 1975 SC1962, out of 9 accused persons, names of 4 accused persons were missing in the body of the inquest report. This omission was not explained by the prosecution. The prosecution party was inimical to the accused party. The Supreme Court held that the omission threw doubt oncomplicity of 4 accused persons and the F.I.R. appears to have been written after the inquest report was prepared by the concerned officer. It was held that the F.I.R., thus, lost its authenticity. We find almost similar situation in the present case. It appears that the F.I.R. was not written at 10.30 p.m. and it was written at some latter stage preferably after preparation of the 2 requisition memos, one for examination of Tulsi Ram (PW-8) and other for post-mortem examination of dead body of deceased-Baba. On the one hand this throws doubt on the sanctity of the F.I.R. as also the prosecution story and highlights the conduct of PW-8 to add more and more persons as assailants by mentioning their names in the F.I.R. and making false allegations against them that they also participated in the incident having deadly weapons with them, and on the other hand, it also creates doubt against the testimony of PW-8. (10) We note that Tulsi Ram (PW-8) in the first instance at the time of sending him to hospital stated the names of 3 accused -J^^ '•^.^^:^' Criminal Appeals No. 146 of 1993 & 419 of 1993 ^ ^ persons only, then he stated the names of 11 accused persons in the F.I.R. and then in his court evidence he exonerated one of them and took the names of only 10 accused persons. (11) In Jciadish Prcisad and others -Vs- State of M.P. 8& Bawan Kumar -Vs- State of M.P.. AIR 1994 SC 12S1 the Supreme Court has taken this circumstance to be fatal for the single eye-witness who was having inimical relations with the accused. Referring to the other circumstances, the Supreme Court held the testimony of the single eye-witness clouded with grave suspicion and discrepant in material particulars who was helping acquittal of one of.the accused persons by omitting his name in his evidence. (12) After going through the entire evidence of this witness (PW- 8), we find that his testimony was not reliable. The learned Sessions Judge failed to consider that his evidence was not consistent; he made different versions at different point of time; Iie tried to implicate as many as 11 persons in the F.I.R.; however, he deliberately left one of them in his court evidence; he was inimical with the accused persons, and for the foregoing reasons his testimony ought to have been discarded. (13) Now we shall examine the dying declaration relied by the Sessions Court. (14) Ex.-P/lO is the dying declaration of deceased-Baba S/o Bhaktu. He was aged about 60 years. This dying declaration is >» Criminal Appeals No. 146 of 1993 & 419 of 1993 said to be written by Laxminarayan Tiwari (PW-14). He was the husband of village Sarpanch Janki Bai (PW-10). The case of the prosecution is that on 29.1.88, after the incident, son of the deceased went to the house of Sarpanch. Thereafter the Sarpanch and her husband visited the house of the deceased. They saw the deceased in injured condition. On this, they suo moto recorded the dying declaration. According to these witnesses, Sarpanch Janki Bai asked from Baba, who made declaration that 8 accused persons named in the dying declaration had assaulted him. After hearing from Baba, Janki Bai (PW-10) dictated the version of the dying declaration and it was reduced into writing by her husband Laxminarayan Tiwari (PW-14). The dying declaration bears thumb impressions and signatures of 7 witnesses. It also bears the signature of Laxminarayan Tiwari, writer of the dying declaration. The conduct of these witnesses, i.e. Janki Bai (PW-10) and Laxminarayan Tiwari (PW-14), appears to be unnatural. It appears to be quite unnatural that they would start recording such declaration ofthe deceased even without intervention of the police. The natural conduct of the Sarpanch in such situation would have been to get the mater reported to the police immediately; to make necessary arrangements for ti-eatment of the injured; and to see that he is immediately shifted to the nearest medical centre. They did not do all this and firstly they recorded the above dying declaration of the deceased in village Sanakpat and thereafter they suo moto went to village Jhingipara to record the dying declaration of another injured namely Tulsi Ram (PW-8). They recorded it as 1 10 Criminal Appeals No. 146 of 1993 & 419 of 1993 Ex.-P/ll. Apart from the above, the dying declaration, in the first sight, appears to be suspicious. In the dying declaration, names of the accused persons have been written with their father?s name and village also, as if full identity disclosed and there inay not be any room to commit mistake about their identification. We doubt that a person on the death-bed would give declaration in such a manner. We further note that the dying declaration does not bear signature or thumb impression of the deceased. According to Janki Bai (PW-10) the deceased was fully conscious at the time of recording the dying declaration. PW-10 deposed that she saw many injuries on the body of the deceased. The deceased hold her hands and stated about the assault given by 8 accused persons to him. If the deceased was able to hold the hands of PW-10, he must be able to put his signature or thumb impression on the dying declaration. We notice this discrepancy on the ground that as many as 7 persons have signed the dying declaration as, witnesses. Two of them have also put their thumb impressions^. This shows that there was every arrangement at the time of recording of the dying declaration and taking of signatures or thumb impression of the deceased was not an impossible task. When the witnesses could sign and put thumb impressions, why the declarant»whowas fully conscious as claimed by PW-lO^would not put his signature or thumb impression on the said document. Laxminarayan Tiwari (PW-14) has also signed the dying declaration. He deposed that he did not put his signature at the time of recording of the dying declaration. He put his signature on •-"^ "^ Criminal Appeals No. 146 ofl993 & 419 of 1993 a different date on the instance of the police officer who asked him about the document. In our opinion, this amounts to manipulation in the document. If in fact the docyment was genuine, it would have been kept in its original form and nothing should have been written on it. PW-14 has also admitted in cross- examination that he had deposed in his 161 statement (Ex.-D/3) that Baba was unable to speak and he was telling very slowly. He denied to give this statement before the police. Further in 161 statement, he stated that Baba became unconscious after recorded the dying declaration,but in the court evidence, he again denied to give such statement to the police. Another witness of the dying declaration namely Gokaran (PW-16) has also been examined. He deposed that Janki Bai (PW-10) had taken the statement of the deceased and it was reduced into writing by her husband (PW-14). He admitted in very first sentence of his cross- examination that he cannot tell , after how many days of the incident Janki Bai had recorded the statement of the deceased. This is very unnatural. According to the prosecution, the dying declaration was recorded on the same day. Everybody in the village was knowing that the deceased was assaulted in the morning. In light of the above evidence of this witness, a serious doubt is created on the authenticity of the dying declaration. In his 161 statement (Ex.-D/4), he deposed that Baba was not talking and he stated after a long period and then he became unconscious but he denied all this in the court. When he was cpnfronted with the above statement Ex.-D/4, he further denied to )1 ^--^. '^-v '^ ' 'l • ^aS®fe,l 12 Criminal Appeals No. 146 of 1993 & 419 of 1 993 ^.,?"""/:^ give such statement to the police. In the last paragraph of his cross-examination, he clearly deposed that he did not hear as to what was stated by the deceased. Laxminarayan told him that the deceased has stated in the above manner, he asked him to sign the document, therefore, he had signed the document. ^ (15) There is yet another reason which creates doubt on the genuineness of the dying declaration. Mahrin Bai (PW-12) is the wife of the deceased. She deposed that on the fateful day, Tulsi Ram (PW-8) came to her house and told that a quarrel has taken place in the field. Hearing this, she went to the field and brought her husband to her house. From her house, she took him to police station Pandaria. She was throughout with him. In fact, the dead body of her husband was taken to the police station. l in her evidence, there is no whisper about recording the dying declaration by Sarpanch or her husband. According to evidence of Mahrin Bai (PW-12), she was throughout present with her husband till his death. If the dying declaration would have been recorded, she must have seen this, but nothing has been deposed in this regard. For all these reasons we are unable to accept the dying declaration. The learned Sessions Judge failed to consider these aspects and has wrongly relied on the dying declaration. We are of the considered view that in the above facts and circumstances, the evidence of dying declaration should have been rejected. ^ 'f '. '^.. .•—••>• \-" .^ 13 Criminal Appeals No. 146 of 1993 & 419 of 1993 (16) For the above reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 147 & 302 IPC are set-aside. They are acquitted of the charges framed against thera. Appellant-Sunder is in jail on sonie default. He be set at liberty, forthwith, if not required in any other case. Other appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge ^atti