IN THE COVRT.OF CHHATTISGARH AT N@yx^ /02 £N THE OF:. L Soa @f Sferl Jhuisiuk Gaiida R/Q Nagar, Raspiir, IC.G.j 2. JONY (g}. BENAR^aged about 23 jears S@ii of SIsrs Jassaf Sessdre ^V® Nagar, I.C.G.] <y Q' VERSIJS STATEOF.CHil^YTISGARH APPLICANTS ^* IIN JAILi BESPQN'DENT CRIMINAL APPB:AL VNDER SECTION OF CBIMINAL_PROCEDUBE_CODE_19^, k/ HI6H COURT OF JUOICATURE AT BILASPUR, CHHATnS6ARH CftIMINAL APPEAL N0.819 OF 2QQ2 Ajju Mahonand and another - Versus - State of Chhattisgarh ANE> CMMINAL APPEAL N0.829 QF 2002 Kartik Sona - Versus- 5tate of Chhattisgarh AND CRIAAINAL APPEAL N0.825 OF 2002 Kuber fianda and another - Versus - State of ChhattiS9orh AND CRIMINAL APPEAL N0.869 OF 2002 Ram VishvQkarma - Versus - State of Chhattisgarh ->1 JUbGMENT FOR CONSIDERATEON HON'BLE THE CHIEF JUSTCCE ^ ^^r^- - Sd/- J U tT6 E 28-11-2003 Sd/- Chief Justice POST POR JU&6MENT ON /<</^.. OF DECEMBER, 2003 Sd/- L.C. Bhadoo Judge ^: HI6H COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH CRIMINAL APPEAL N0.819 OF 2002 Ajju Mahanand and another - Versus ~ Stat®of Chhattisgarh ANb CftIMINAL APPEAL N0.829 OF 2002 Kartik Sona - Versus - State of Chhatfisgarh ANb CRIMIN^L APPEAL N0.825 OF 2002 Kuber Ganda and another - Versus - State of Chhatt-isgarh ANb CRIMINAL APPEAL N0.869 OF 2002 Ram Vishvakarma - Versus - State af Chhattisgarh Present;- Mr. Utkarsh Verma, Advocate: Mr. L.C. bash, Advocate: For the appeliants in Criminal Appeai Nos.819/2002,829/2002 & 825/2002. For the appellant in Criminal Appeai No.869/2002. Mr. P.S. Koshy, ©overnmentAdvocate: For the State/respondent. -[ 1 0 1 &IVISION BENCH: - Hon'ble Shri K.H.N. Kuranga. C.J. and Hon'bk Shrl L.C. Bhadoo. J. JUD&MENT (Oelivered on/^_A_of becember, 2003) The followinq judqment of the Court was delivered by Jusfsce L.C. Bhadoo\ - 1. The above accused/appellants have pr'eferred these appeals under Section 374 (2) of the Cr.P.C. being aggrieved by the judgment of conviction dated 27th June, 2002, passed by the 6 Additional Sessions Judge, Raipur, in Sessions Trial No.133/2001, by which the iearned Additional Sessions Judge after holding the accused/dppellcxnts guilty of commission of the offences under Section 302 read with Section 149 of the I.P.C. and Section 148 of the I.P.C. convicted them for the said offences and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under S^ction 302 read with Section 149 of the I.P.C. and to undergo ri9orous imprisonment for three years under Section 148 of the IP.C* 2. Since these appeals are arising out of the Same incident and are filed a9ainst the same judgment, they are being disposed of by this common judgment. 3. Briefly stated facts of the prosecution co.se. are that in the morning of 31st December, 2000. a scuffle took pbce between deceased A^adhu Nirmalkar and Vinod, but they were separated. On the same day evening, at about 6.30 - 7 p.m. Nand Kumar, brother-in-law of the deceased was at his residence, at that time, Jaiswal Tailor came and informed Nand Kumar that some boys of Ja! Vihar Colony have assaulted Madhu Nirmalkar with knife <xnd he was lying in injured condition. Nouid Kumar went to the residence of Madhu and saw that the gate of the house of Madhu was broken* On enquiry, the ^ neighbourers informed him that after dragging Madhu out of hi^ residence, Vinod along with ftam Vishwakarma, Shambhoo, Ajju Arjun/ Jony ©Benar, Kartik Odiya etc., had assaulted Madhu with knife, club, belt Achain. On hearing this, Nand Kumar reached the hospital where he saw Madhu and on enquiry, by indicating towards Vinod, Madhu informed Notfid Kumar that Vinod has dssaulted him with knife, but Madhu could not speak further and he succumbed to the injuries sustdned by him. Madhu received various injuries on buttock and iliac crest region ond blood was comin9 out of the injuries. Nand Kumar reported the matter at the Police Station: Civil Lines, ftaipur. 4, On receiving the information, the case was registered <ind behati Nalishi (Ex.P-21) was recorded. Sushil Kumar (PW-9), the Head Constable, hois stated that the Dehati Nalishi (Ex-P-21) was registered by him. R.S. Tiwari (PW-4), the Assistant Sub-Inspector, has stated that at about 22:15 hours when he was on duty in the Police Station, on the report of Harendra Singh Thakur, the Constable, he registered the F.I.R. (Ex.P-16). PW-7 Diwaker Yadav. Ward Boy of the hospital gave merg intimation to the Police Statjon on 01.01.2001. The Investigating Officer after 9ivin9 notice (Ex.P-3) to the witnesses prepared the Panchanama of the dead body of Madhu Nirmalkar vide Ex.P-2. Post- mortem examination of the dead body was conducted by Dr. Ultas Gunnade on 01.01.2001 at about 12:30 Noon and after conducting the post-mortem examination, he prepared the post-mortem report Ex.P-26 and the body was honded over to Nand Kumar, brother-in-law of the deceased vide ExP-19. The weapons of offence were recovered by the Investigating Officer on the basis of memorandum given by the accused persons ond the same were sent to Forensic Science Laboratory vide Ex.P-23. The Forensic Science Laboratory report (Ex.P-29) was received. 4 /@) 5. After completion of the investigation/charge sheet was filed agalnst the accused/appellants in the Court of Chief Judicid Magi^trate, Raipur, who in turn committed the case to the Sessions Judge, Raipur, from where the 6th Additional Sessions Judge, received the case on transfer. As accused Vinod being a juvenile, the Police submitted the papers befope the Juvenile Board for proceeding against Vinod under the Juvenile Justice Act, 2000. The learned Additional Sessions Judge after hearing the arguments of the Additional Public Prosecutor and counsel for the accused persons and ofter perusal of the challan popers was of the opinion that there was material on record for framing charges for the offences punishable under Sections 148 & 302 of the I.P.C. and in alternatiye under Section 302 read with Section 149 of the I.P,C. against the accused persons, Accordingly, he framed charges against thc accused persons and read over oind explained the same to the accused persons. The accused persons denied the charges and claimed to be tried. 6, The prosecution in order to prove the offence against the accused persons examined in all 17 witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C., in which al! the accused either denied the prosecution evidence or stated that they do not know anything. They further stated that the witnesses are false and they have not comniitted any crime and they have been falsely implicated in the crime. 7. The learned Additional Sessions Judge after hearing the arguments of the Additional Public Prosecutor cmd counsel for the accussd persons and after placing reliance on the prosecution evidence, mainly on the evidence of Sanjay Mesram (PW-1), Kundan Lal Yadav (PW-2), Nand Kumar Nirmalkar (PW-8) and Investigating Officer Vikash Thakur (PW- 15), conyicted and sentenced the accused persons in the manner stated above. /© 8. We have heard the learned counsel appearing on behalf of the accused/appeliflmts and learned ^overnment Advocate for the State/respondent, 9. As far as the death of Madhu Nirmalkar being homicidal is concerned, counsel for the accused/appellants have not disputed this fact* br. Ullas Gunnade (PW-13) has stated that on lsit January, 2001, he was working in the Medical Cotlege in the Forensic Medicine Department and at about 12.30 p.m. Police Station: Civil Lines, Raipur, has sent -t+ie body of Madhu Nirmaikar for post mortem examination, He conducted the post mortem examination and found that there was indsed wound, oblique present on medial surface of left index finger at upper third^ a contusion, fresh, present on lateral surface of left arm size 4" x 3"; a graze abrasion present on left side, 3" below inferior aingle of scapula size 4" x 3 ^H, oblique, directed medially to laterally, downward to upward; a tronsverse stab incised wound elliptical, present 9 cm, Below and 3 cm. bterol to highest point of left iiiac crest, size 1,5 cm. x 0,6 cm. 3.5 cm.; a vertical, stab incised wound, present 10 cm. beiow and 9 cm. right lateral to highest point of left iliac crest, directed from ri9ht to left from upwards to down wards, size 2 cm. x 0.7 cm. x 5*5 cm., elliptical; a vertically oblique, stab incised wound, present 14 cm. betow and 4 cm- left lateral to highest point of right iliac crest, a nick present on mediaj border 1,2 cm- above lower end triangular shope nick, angle on medially <ind free bare laterally, directed upward towards right to left side, in between pierce, skin, subcutdneous tissue, muscles of perennial region, 2 cm. x 0*7 cm. x 6 cm. size; a vertical, eltiptical, stab incised wound present 23 cm- below and 4 cm. right foteral to highest point of ieft iliac crest size 1.5 x 0.5 cm. directed below upwards from lateral to medially, pierce skin, subcutameous tissue, muscles and per&nnial region; a contusion present on mid third of right thigh posteriorly; ouid a contusion present on mid third of teft thigh ,^ posteriorly. The doctor opined that the death was due to shock cxnd haemorrhage on account of injury to internal iliac vessel by injury No.(H) i.e< stab injury. He further opined that the injury No.(H) wcis caused by hard, sharp and penetrating object and the injuries were sufficient to cause death in ordinary course of circumstances o^id they are homicidal< in nature, So, in view of this evidence of the doctor, it stonds proved that the death of Madhu Nirmolkar was homicidal in nature. lO.Now coming to the involvement of th& accused/appellants in committing the murder of AAadhu Nirmalkar, the prosecution has adduced the following evidence in order to prove the crime: - a. The dying declaration made by deceased Madhu Nirmalkar before Ncind Kumar Nirmalkar (PW-8). b. The evidence of Sanjoiy Mesram (PW-1) and Kundan Lal Yadav (PW-2), the eyewitnesses. c, Recovery of weapon of offences at the instance of the accused persons, ll.&ylnqdeclaration:- As far as the evidence of Nand Kumar Nirmalkar (PW-8) is concerned, he has stated that on receiving the ^ information about the incident he reached 1+ie spot, but by tiiat time Madhu Nirmalkar wcis already taken to Mekaharo Hospital and ther&fore, he went to the X-Ray Room of the Mekahara Hospital where Madhu was present. When he enquired from him cxs to what happened, he was asking for water, but the doctor said, "do not give him water". From there, he was taken to emergency room and by that time the Police also came and Nand Kumar again enquired from Madhu, then he could only speak That quarrel Took place with Vinod Deep and beyond that he could not speak anything. Thereafter, the doctor said that the injured required blood. He gave his blood and during the treatment Madhu Nirmalkar succumbed to the injuries . sustained by him. /@) Thereafter, on askin9 by the Police, he gave Dehati Nalishi, report of the incident, Ex.P-21. 12.In view of the above evidence, it is clear that deceased Madhu NirmaJkar, on enquiry by this witness, stated that the he received the injuries on account of quarrel with Vinod. The deceased had not stated anything against the present accused/appellants to Nand Kumar, Therefore, there is no evidence agdnst the present accused/appeilants as nothing has been stated by this witness Ncxnd Kumar, against the present accused/ appellants. As far as accused Vinod is concemed, being a juvenile, against him separate proceedings have been initiatea before the Juvenile Board, 13,Evidence of PW-1 <& PW-2: - Now coming tp the evidence of Kundan Lal Yadav (PW-2), he has been examined by the prosecution as an eyewitness and he has stated that in the morning there was some quarrel between deceased Madhu and accused Vinod and he intervened and separated them. Thereafter, after some time, Vinod agdn ^tood on the way having a stick in his hand and when Madhu was riding a bicycle he assaulted Madhu with the stick, but Madhu escaped. In the evening, at about 6.30 or 7 p.m. Vinod went to the house of Madhu and v started exchanging hot words ond some quarrel also took ptace between the two and in that process Vinod received abrasipns on the left hand and chest. Vinod returned to his residence and thereafter, accused Ram Vishwakarma, Ajju, Kuber, Kartik, Shambhoo and Jony @ Benar were called by him and after seeing the injury on the body of Vinod, all of them became angry and went to the house of Madhu, entered into his house after breaking the door, dragged him out of the house dnd started assaulting him by fist and kick and with dangerous weapons iike knife and stick. As far as the evidence of this witness is concerned, . the counsel for the accused person^ argued that the statement of thi5 witness under Section 161 of the Cr.P.C. was not recorded and €' prosecution had not shown him as an eyewitness to the incident. He was shown as a v^itness to the memorandum of recovery and Panchanama of the body. Therefore/his evidence cannot be taken into consideration. H.Weare of the opinion that there is substance in the submission of the counsel for the accused persons, In the charge sheet, this witness (PW-2) has been shown as witness to The memorandum and recoveries and he has not been shown as eyewitness to the incident, nor his statement was r&corded by the Police under Section 161 of the Cr.P.C. Therefore, there is no previous statement of this witness cind for the first time, before the Court, he gave the evidence that he saw the incident of assaul+ing the deceased by all the accused persons. Therefore, we are of the opinion that the evidence of this witness as an eyewitness cannot be relied upon dnd taken into consideration for connecting the accused/appellants with the murder of deceased Madhu Nirmalkor. A similar view was taken by the Hon'ble Apex Court in the maner of Ram Lakhan Singh and others vs. The State of Uttar Pradesh reported in AIR 1977 Supreme Courl- 1936, in which the Hon'ble Apex Court held that, "In a grave charge like the present, it wiil not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge sheet* The accused who are entitled to know his eorlier version to the police are naturally deprived of an opportunit/ of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence." Therefore, in view of the above principle hid down by the Hon'ble Apex Court, we are also of the opinion that much credence cannot be given to the evidence of this witness (PW-2). Moreover, this witness has stated that br. Vijay Namdev Padukar, Vishal Pandey, 6eeta Bai, Udeshiya Bai, Smt, Saraswati and other persons had seen the incident. But, none of these persons has been produced by the prosecution. As hois been held ,/© ^-^ by the Apex Court, where there is no previous statement of a witness, the accused is deprived of his right to cross-examine the witness effectively. 15. Now, coming to the evidence of Scinjay Mesram (PW-1) who is a neighbourer of deceased Madhu Nirmalkar, this witness has also been declared hostile ond he has not supported the prosecution ccise, He has simply stated in his evidence that in the evening when he was at his residence, he saw that there was a 9roup of persons standing near the house of deceased Madhu. br. Vijay Sahu, Kundan Yadav and neighbour Kankar were stonding there. At that time, accused Kuber came and started hurling abuses on Madhu by soying that Madhu has assaulted his nephew, he will not leave him alive, he will murder him and for that he was prepared to go to jail. There were two other persons with accused Kuber and they started pushing and banging the door of the house of the deceased. Dr. Vijoy Sdiu tried to intervene, but accused Kuber did not pay ony heed to -Hie request of Dr. Vijay Sahu. Accu^d Kuber asked Jony @ Benar to bring the weapon ond on this accused Jony ran for bringing the weapon. PW-1 Sanjay Mesram has further sfated that he could not identify the other two boys who were with accused Kuber. He stated that Kundan was also present there and at that time Jony @ Benar assaulted Madhu Nirmalkar with stick on his neck and on account of that Madhu fell down in the drain. Kuber came and assaulted with a lump/clod of earth (a stone weighing 2 Kgs.) on the back of the deceased. At that time, accused Ajju Mahanond, Kartik and Shambhoo were also present there. They lifted Madhu from the drain Gaid took him towards Sudama Street and for some time, this witness (PW-1) stayed there and these persons alreody left that place, Therefore, the only evidence giveh by this witness is that, accused Jony assaulted with hockey stick on the neck of the deceased and accused Kuber hit him with a lump/ciod of earth (weighing 2 Kgs.). Therefore, virtually there is no evidence to show who inflicted the 10 €) incised fatal injuries/wounds on i!iac crest which were received by the deceased by which internal iliac vessel was cut and on account of which blood started oozing out of it and on account of excessive bleeding, the deceased ^uccumbed to the injuries. The only evidence is that Jony assaulted with hockey stick and Kuber assaulted with a stone and as per the post-mortem report oind the evidence of &r. Uilas Gunnade (PW-13) that 3" below inferior scapulo region there was an injury of the size of 4" x 3 i" oblique in nature and in the formof abrasion. It seems that this injury was caused by the assaujt mode by accused Kuber with a lump/clod of eorth or stone of 2 Kgs. weight. As far as assaulting on the neck by accused Jony is concemed, there is no corresponding injury on the neck of the deceased as per the medical evidence, therefore, as fards these two accused persons are concerned, against them oniy offence under Section 323 of the I.P.C. is made out. As far- as the question of assault by the other accu^d persons, and by these two accused persons with knife and causing fatal injuries on JJiac crest is concerned, there is no evidence a9dnst the accused persons. Therefore, they comnot be h^ld liable for causing the fatal injuries. 16. Recover/ of weapons of offence: - As far as the recovery of knife and other weapons of offence are concerned, in the first instance, as discussed above, there is no eyewilness who states that he saw the accused cissaulting the deceased with knife. Moreover. the f.S.L. report simply says that on the knife Article-T which was recovered at the instance of accused Kart-ik; on knife Article-'G' recovered at the instance of accused Ram Vishwakarma; on hockey stick Articie-'H' recovered at the instance of Ajju MahGmand; on shirt Article-T recovered at the instance of accused Kartik; on shirt Article-'K' recovered at the instance of accused Ram Vishwakarma; cmd on knife Article-V recovered at the instance of accused Vinod beep, blood wois found, but there is no report that this blood wois humou^ blood and was of the btood group of the deceased. Therefore.on the basis of these 11 ^ ^»» recoveries, the accused persons cannot be connected with the murder of deceased AAadhu. 17. Therefore, the conviction recorded by the learned Additional Sessions Judge against the accused/appellants and finding to the effect that the accused/appellants cissaulted the deceased with knife and other weapons and ccujsed fatal injuries ond are responsible for the murder of Madhu Nirmalkar and were carrying deadly weopons and were members of unlawful assembly, cannot be sustained for the reasons recorded above, as the same are not based on any reliable and cogent evidence, However, the offence under Section 323 is proved against accused/appellcxnts Jony © Benar ond Kuber. 18.In the result, the oippeals of accused/appellants Ajju Mahanand, Jony Benar Sendre, Kartik Sona, Shambhoo Sona, Kuber 6anda and Kam Vishwakarma succeed and the same are allowed. They are acquitted of the char9es under Sections 148 and 302 read with Section 149 of the I.P.C. However accused/appellants Jony @ Benar Sendre and Kuber fianda are concerned the judgment of conviction and sentence are modified and they are convicted for the commission of the offence under Section 323 of the I.P,C. and are sentenced to undergo RJ. forK one year and pay a fine of fts.2,000/- each, in default of payment of fine to further undergo R.I. for three months. These two accused/appellants have already undergone the sentences. Therefore, all the accused/ appellants are directed to be released forthwith, if not required in any other case. — Sd/- Chief Justice Sd/- L.C. Bhadoo Judge l^ft^-2003 Soma