HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram : Hon’bie Shri T.P. Sharma & 'Hon’bie Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 906 of 2003 Appellants Sunder Lal and three others. V ‘r s. State of Chhattisgarh through the Police Station Dabhara Respondent $3 a JUDGMENT FOR CONSIDERATION Sdl— ‘ R.N.Chandrakar Judge Hon’ble Shri T.P. Sharma, J. Sdl- W, ,z‘rw” r’ i T. P. Sharma Judge [97201 1 POST FOR JUDGMENT ON h€ -9-2011 1 r Sd/- R.N. Chandrakar Judge aé I§I2011 ‘L M HIGH COURT OF CHHATTISGARH AT‘BILASPUR (Division Bench) Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 906 of 2003 i'Appellants 1 Sunder Lal s/o. Than Singh ‘(in jail) ‘ Gabhel, aged about 50 years. 2. Medni Kumar s/o. Prabhulal Gabel, aged about 28 years. Prabhulal s/o.-.Than Singh, Gabhel, aged about 52 years. 4. Shiv Kumar @ Dayal s/o. Prabhu Lal Gabhel, aged about 35 years. All cultivators'and residents of village Phaguram, P.S. Dabhara, Distt. Janjgir—Champa. Vs. Respondent State of C.G. through Police Dabhara. (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. B.M.K. Bajpai, counsel forthe appellants. Mr. Neeraj Mehta, Panel Lawyer for the State. JUDGMENT (Delivered on 0 é ~9-201 1) Per‘ Rangnath Chandrakar, J. 1. i, The appellants have preferred this appeal under Section 374 (2) of xx“. l the Code of Criminal Procedure against the judgment of conviction \ \ \ \ 2 @ and order of sentence dated 22—7—2003 passed in Sessions Trial No.477/2002 whereby learned Additional Sessions Judge, Sakti, Distt. Bilaspur, after holding the appellants guilty for committing jmurder of Vishram, convicted them under Section 302 read with Section 34 of the IPC and sentenced them to undergo rimprisonment for life and to pay fine of Rs.1000/— each, in default of payment of line to undergo further RI for three months. . The prosecution. started on the basis of report (EXP/5) lodged by lFlju‘red ‘Vishram in Police Station Dabhara on 2-11-2002 at 8.20 p.m., who died after sometime on the samel‘day. Initially the case ‘ $ a was registered under Sections 341, 294, 323 and 506 read with Section 34 of the IPC and subsequently after death of deceased Section 302 of the IPC was added. It was alleged in the repon that when the deceased Vishram was returning to his house from his field by a bicycle and reached near Bandhai Tank at about 6.00 p.m., appellant Sunder Lal pushed him down on the ground, all the accused persons caught his arms and legs and appellant Sunderlal assaulted on his right hand above the elbow with a lathi and appellant Prabhulal assaulted on his waist with a lathi as a result ofx which he became unconscious. When he regained consciousness, he screamed for help but nobody ‘came there and anyhow he proceeded to his house. On the way he stayed in the house of one Manohar Yadav who s‘ent information about the’inciden’t to the relatives of the deceased. Thereafter the family members of the ‘ r deceased Vishram came there, took him to their house and thereafter his son Netram Rathore (PW/2) took his injured father \\ Vishram by motorcycle to Police Station Dabhara where injured Vishram lodged first information report and while he was being taken by his son Netram Rathore to hospital at Kharsia on motor cycle, on the way injured Vishram died. 3. The information about the death of injured Vishram was given to the Police Station on the basis of which merg intimation EXP/1 was ‘recorded and offence under Section 302 read with Section 34 of ‘the IPC was registered againstthe appellants. After summoning the Witnesses vide Ex.P/2 inquest over the dead body of the deceased was prepared vide Ex.P/3 and the dead body was sent for autopsy to éommunity‘Health Centre, Dabhara vide Ex.P/22 where Doctor G.L.Miri (PW/11) conducted postmortem vide EXP/23 and found the following injuries: i) ii) iii) vi) vii) s Bruise — 8 cm x 3 cm in right deltoid portion red in colour; Bruises — swelling 7 cm X 3 cm in lateral aspect of mid portion at right arm and swelling red in colour; , Bruises (two) 11cm x 3cm and 10cm x 3cm obliquely in right scapula red black in colour; Bruise -18cmx3cm obliquely in below at right scapula in lateral direction, red back in colour; Two bruises 24cm x 3 cm & 22cm X 3 cm obliquely in mid portion of back to right lumber portion at back red black in colour' Bruise 4 5cm X 3 cm In right lumber portion just lateral aspect red in colour All the above injuries were ante mortem injuries and caused by hard and blunt object on dissection of right arm. Fracture at mid portion at right humerus bone and rupture at blood vessels and large amount of clotted blood present. \\\ Cause of death, in his opinion, was syncope due to excessive internal hemorrhage and death was homicidal in nature Spot map was prepared by Investigating Officer vide EXP/18 and also by Patwari vide EXP/19. Accused/appellants were taken into custody and lathis were seiz‘ed at their instance vide Exs.P/7, P/8, P/9 & P/10. One bicycle was seized from spot vide EXP/17, v: wearing apparels of the deceased were seized after autopsy vide Ex.§>/37. 5. Statements of‘witnesses were recorded, under Section 161 of the Cr.P.C. After completion of investigation, charge sheetwas filed against the appellants in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Court of Sessions Judge, Bilaspur, from where the case was received by learned Additional Sessions Judge, Sakti for trial who framed charges under Sections 302 read with Section 34 and 506 of the IPC against the appellant Sunderlal and under Section 302 read with Section 34 of the IPC against the other appellants. The appellants abjured the guilt. 6. ln order to prove the guilt of the appellants, prosecution examined as many as 17 witnesSes. Accused/appellants were examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances appearing against them and pleaded , innocence and false implication. e ]{7 7. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. Mr. B.M.K. Bajpai, learned counsel appearing for the appellants vehemently argued that conviction of the appellants is based on the evidence of Kalyan Singh Rathore (PW/1), cousin of the w: « deceased, Netram Rathore (PW/2),son [of the deceased, Dhangshwari Rathore (PW/4), daughter of the deceased, Ahailya Rathore (PW/7)\Nife of the deceased and Shriram Rathore (PW/9) younger brother of the deceased and the medical evidence of Dr.Gorelal Mirl (PW/11). There are material contradictions and omissions in their depositions. Learned counsel further submits that Kalyan Rathore (PW/1), Netram Rathore (PW/2), Dhaneshwari Rathore '(PW/4), Ahailya Rathore (PW/7) and Shriram Rathore (PW/9) being interested witnesses, their evidence are required to be corroborated by independent sources. In absence of corroboration from independent source, statements of the aforesaid witnesses are not safe to rely for conviction of the appellants. Manohar Yadav, in whose house injured Vishram stayed in injured condition, has not been examined by the court, Thus, non— examination of Manohar Yadav and independent witnesses creates doubt on the prosecution story. As per first information report, the j victim sustained only two injuries but as per PW/11 Dr. Gorelal Miri, ‘5 eight bruises were found on the body of the deceased and there is \ no evidence as to how and by whom those additional six injuries were caused to the deceased. Thus, the medicai report also becomes doubtfui. Learned counsel further submits that during the course of incident appellant Sunderlal also sustained injuries and was examined by the Doctor. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellants have caused death of deceased. Leaned counsel for the appellants in support of his arguments has placed reliance in the matters of Ramashish Yadav and o'thers vs. State of Bihar1, Tej Prakash vs. State of Haryanaz, Shripat Slo. Kisna Charhar vs. State of M.P3 and Sahabjan and another vs. State of u.P4. 10. Per contra Mr. Neeraj Mehta, learned Panel Lawyer appearing on behalf of the State supporting the judgment impugned submits that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the present appellants have caused homicidal death of deceased Vishram with intention and pre— meditation of mind to cause his death and the findings recorded by the Court below for convicting and sentencing the appellants are just and proper. After appreciating the evidence available on record, the court below has rightly convicted the appellants. ln order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduCed on behalf of the prosecution. ‘2000 scc (Cri) 9 2 1995 Cr.L.R.(SC) 661 3 Cr.L.R. (MP) 1987 4 1990 Cri.L.J. 980 .// In the present case, homicidal death of the deceased Vishram is not in dispute. Even otherwise, it is also established by the evidence of Kaiyan Singh Rathore (PW/1), Netram Rathore (PW/2), Dhaneshwari Rathore (PW/4), Ahaiiya Rathore (PW/7) and Shriram Rathore (PW/9) and also the evidence of Doctor Gorelal Miri (PW/11) and the autopsy report (EXP/23) that death of the deceased was homicidal in nature. ‘ 13. As regards compiicity of the appellants in the crime ‘i'n question is cohéerned, conviction of the appellants is based on the evidence of Kalyan Singh Rathore (PW/1), Netram Rathore (PW/2), £ Dhaneshwari Rathore (PW/4), Ahaiiya Rathore (PW/7) and Shriram Rathore (PW/9). 14. As per evidence of Kalyan Singh (PW/1), cousin of deceased who lodged the merg intimation Ex.P/1, corroborating the inquest EX.P/3 deposed that on the date of incident deceased had gone to irrigate his field and when he was informed by his nephew Manoharlal that the deceased was assaulted, he went to see the deceased (at that time alive in injured condition) to his house where the deceased stated out him that he was badly assaulted by the appellants Sunder, Mednl, Prabhu and Dayal near Bandhai tank. His hand was broken and there were injuries on his waist and legs. Thereafter, he was taken to police station Dabhara for lodgingthe report and when he was again brought to the village; ”he was dead. At the time of inquest, he saw marks of lathi blows over legs, ' hands, waist and back of the deceased. In his cross examination, ‘ he remain consistent to his statement and corroborating the merg intimation Ex.P/1 and inquest Ex.P/3 categoricaHy stated that he was stated out by deceased Vishram that he was assaulted by aH the accused/appellants due to dispute regarding the irrigation of fields As per evidence 0f Netram Rathor (PW/2), son of the deceased, on 2—11—2002 i.e. the date of incident at about 7 — 7.30 pm, Laxman Yadav and Sanju Yadav came to his house and informed that all the accused lappeiiants had quarreied with his father Vishram. Laxman Yadav told him that his father i.e., Vishram was lying near his house. On this, Netram Rathor‘e and his brother went to ttfe house 6f Laxman Yadav where he was stated out by his father Vishram that all the accused/appellants had assaulted him with lathis on the dispute of irrigation of land. He was brought to his house by him on a motorcycle where Shriram Rathore (PW/9), Kalyan Singh (PW/1), Ahilya Bai (PW/7) and Dhaneswari Bai (PW/4) were present. Right hand of his father Vishram was broken and he was complaining about back—ache. On being asked by his relatives, his father Vishram was taken to Police Station Dabhara , for lodging the report where lodged the FIR (Ex.P/5) and put his thumb impression of left hand as his right hand was broken. Thereafter, his father was taken to hospital at Dabhara where no doctor was found and while he was being taken to hospital at Kharsiya on a motorcycle, he died on the way. :His father was brought back to his house and his elder brotherlKalyan (PW/1) iv along with Jagnath went to Police Station Dabhara on the next day ‘ morning to give intimation of death of his father. This witness was ”éwé? a§ 9 cross-examined at length but nothing could be elicited by the defence to disbelieve this Witness. Instead in para 18 he categoricaliy stated that he was' stated out by his father that all the accused/appellants had assaulted him With lathis The eVIdence of this Witness is well corroborated by Ahilya Rathore (PW/7) Wife of the deceased and Dhaneshwari Rathore (PW/4) daughter of deceased. ‘ v On a close scrutiny of the evidence of the aforesaid Witnesses, it is u . clear that the inCident took place in the evening and the FIR was lodgegl promptly by deceased himself mentioning the names of all the accused/appellants. ln the FIR (EXP/5) it is clearly mentioned that because of the dispute about irrigation of land, the appellant Sunderlal pushed down the deceased from his bicycle, all the accused persons caught his arms and legs and appellant Sunderlal assaulted on his right hand above the elbow With a lathi and appellant Prabhulal assaulted on his waist With a lathi as a result of he became unconscious and when he regained consciousness, he screamed for help and anyhow reached the house of Manohar Yadav from where he was taken to his house by his sons. On re-appraisal of the evidence of the aforesaid Witnesses, it is found that the FIR lodged by the deceased Vishram is well corroborated by the aforesaid Witnesses which cannot be thrown out at the threshold and the evidence of the relati'Ves cannot be discarded only on the ground of non-corroboration from the r independent Sources. lt is pertinent to mention here that the story narrated by the deceased to the aforesaid Witnesses also finds 17.‘ (M corroborated by Rojnamcha Sanha (EXP/28) lodged by appellant Sunderlal on 3—1 1-2002 i.e., next day of the incident wherein it was stated that on the dispute of irrigation of Iand he was assaulted by the deceased. It was argued by Iearned counsel for the appellants that appellant Sunderlal also sustained injuries which was not explained by prosecution. On perusal of EXP/28, it is clear that the ‘time and place of both the incidents were different. The incident in which the appellant Sunderlal sustained injuries’was the field w'héreas the place of incident in which the deceased sustained injuries was near Bandhai Tank. Thus, it ca‘nnot be said that both the fncidents Were same and the possibility cannot be ignored that due to first incident which took place in the field in which appellant Sunderlal was said to be injured, gave rise to the second incident. It appears that the appellants are relatives belonging to the same family and due to the first incident they assaulted the deceased to take revenge with _pre—meditation of mind which makes their intention clear that they assaulted the deceased with intent to cause his death. As regards non-examination of Manohar Yadav by prosecution, it‘ was not the material witness. .As per the story, he would have only corroborated the fact that the deceased stayed in his house for a while after the incident but in the light of the statement made by the deceased just after the incident to his relatives, examination” or non- examination of Manohar Yadav becomes irrelevant. " So far as the other ground raised by learned counsel for the appellants that the FIR (Ex.P/5) shows only two injuries on the s '18. 11 ‘ x§' Raju person of the deceased whereas the postmortem .report shows eight injuries is concerned, it is ciearly mentioned in the FIR that due to assaults made by the appeilants Sunderlal and Prabhulai the deceased became unconscious. Thus, it cannot be expected from a person ”‘who became unconscious after receiving two assaults may be able to narrate and count all the injuries sustained ‘ > by him. That apart, the FIR is a corroborative piece of evidence and each and fact like number of injuries is not required to be every “mentioned. 20. Minute examination of the evidence of the aforesaid witnesses goes sho‘w that the has proved its case beyond ail to prosecution reasonable doubt for drawing inference that the present appellants have caused homicidal death amounting to murder of deceased Vishram and the case laws cited by learned counsel for the appellants are not applicable to the facts and circumstances of the present case. 21. On a close scrutiny of the entire evidence available on record and considering all the aspects of the matter, we are of the considered opinion that the trial Court has not committed any illegality or infirmity in the impugned judgment. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. 71" Jar”? l Sdl- l Sdl- T. P. Sharma R.N. Chandrakél‘ .F Judge Judge“