Ite HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 77 of 1990 Sahatru Vs. State of Madhya Pradesh (Now State of Chhattisgarh) & (And connected Cr.A. No. 137 of 1990 and Cr.A. No. 211 of1990) JUDGMENT For consideration Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^ a^rp^^ a"'ef Justia Post for JudgmenLjl^Q4/2(Ufl_ Sd/- 2-9/04/2010 'll 0 HIGH COURT OF CHHATTISGARH. BILASPUR C^RAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'bje Shri Sunil Kumar Sinha, J. APPELLANT Criminal Appeal No. 77 of 1990 Sahatru S/o Shri Pyariram Parthi, aged about 32 years, Occupation- Tooth Brush Seller, R/o Village- Sikari Bhata, Rajanandgaon Versus RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) ofThe Code of Criminal Procedurel APPELLANT Criminal Appeal No. 137 of 1990 State of Madhya Pradesh (Now State of Chhattisgarh) Versus RESPONDENT Sahatru S/o Shri Pyariram Parthi, aged about 32 years, Occupation- Tooth Brush Seller, R/o Village- Sikari Bhata, Rajanandgaon (Criminal Appeal under Section 377 (1) ofThe Code of Criminal Procedure) APPELLANT RESPONDENTS And Criminal ARpeal No. 211 of 1990 State of Madhya Pradesh (Now State of Chhattisgarh) Versus 1 Mehtru S/o Shri Payariram Parthi, aged about 35 years, Occupation- Tooth Brush Seller, R/o Village- Sikari Bhata, Rajnandgaon >^:^. ^fe-i. Cr.A. No. 77/90; Cr. A. No. 137/90 & Cr.A. No. 211/90 2 Sahatru S/o Shri Pyariram Parthi, aged about 32 years, Occupation- Tooth Brush Seller, R/o Village- Sikari Bhata, Rajanandgaon 3 Pyariram S/o Shri Ramcharan Parthi, aged about 75 years, Occupation- Tooth Brush Seller, R/o Village- Sikari Bhata, Rajanandgaon (Dead- Name deleted, appeal abated as per Court order datedl 2.10.2006) (Criminal Appeal under Section 378 (1) ofThe Code ofCriminal Procedure) Appearance: Mr. Kishore Bhaduri, Additional Advocate General for the State. Mrs. Renu Kochar, Advocate for the Accused persons. JUDGMENT (30.04.2010) Following judgment of the Court wasdelivered by Sunil Kumar Sinha. J. (1) These appeals have been directed against the judgment and order dated 30th November, 1989 passed in Sessions Trial No. 59/88 by the FirstAdditional Sessions Judge, Rajnandgaon. (2) Cr.A. No. 77/90 has been filed by accused-Sahatru for setting- aside the conviction and sentences awarded to him u/ss 304 Part-11 & 326 IPC. Cr.A. No. 137/90 has been filed by the State for enhancement of sentences awarded to accused-Sahatru and Cr.A. No. 211/90 has also been filed by the State against the acquittal of accused persons under various charges framed against them. The facts, briefly stated, are as under:- The three accused persons namely- Sahatru, Mehtru & Pyariram,were charged u/ss 302, 307 & 324 all read with Section ^ Cr.A. No. 77/90; Cr. A. No. 137/90 & Cr.A. No. 211/90 ^' 34 of the IPC. The allegations are that on 8.2.88 at about 9.00 p.m., they committed murder of deceased-Rajkumari; attempted the life of her brother-Raj Kumar; and caused injuries to Ramdulari by giving knifes blows to them and for that they shared common intention. HirwantinBai (PW-11) is mother of Rajkumari, since deceased, and Raj Kumar (PW-12). They were issues from herfirst husband. She re-married accused-Mehtru. Rajkumari was married to Chandramani, who belongs to different community. This was not acceptable to the accused persons. It is on this account, a quarrel took place in the family and the accused persons allegedly assaulted the deceased and victims by knife. According to the prosecution, there are 3 eye-witnesses namely Hirwantin Bai (PW- 11), Raj Kumar (PW-12) and Ramdulari. Ramdulari has not been examined. The First Information Report (Ex.-P/22) was immediately lodged by Hirwantin Bai (PW11). In the F.I.R., she made allegations that the deceased and injured persons were assaulted by knife by accused-Mehtru. However, in the Court evidence, she deposed that Sahatru assaulted the deceased and victims by knife. Raj Kumar (PW-12) also supported her version that Sahatru made assault by knife. The learned Sessions Judge, on due scrutiny of the evidence led by the prosecution, convicted accused-Sahatru u/s 304 Part-11 and 326 IPC and sentenced to undergo R.l. for 5 years and R.l. for 3 years with a further direction to run the sentences concurrently. Other two co-accused persons namely- Mehtru & Pyariram i.e. real brother and father of Sahatru were acquitted. Accused-Pyariram i.e. father of co-accused Sahatru and Mehtru died during the pendency of this appeal. His name was deleted vide order dated 12.10.2006. Therefore, Cr.A. No. 211/90, so far as it relates to accused/respondent No.3 stands abated. (4) The conviction of accused-Sahatru is based on the testimonies of Hirwantin Bai (PW-11) and Raj Kumar (PW-12). The Sessions Judge ^ Cr.A. No.^7/90; Cr. A. No. 137/90 & Cr.A. No. 21 1/90 relied on their evidence and held that Sahatru alone assaulted the deceased and the two victims, and it was not a case in which all the accused persons shared their common intention. (5) Mrs. Renu Kochar, learned counsel appearing on behalf of the accused persons, argued that the Sessions Judge erred in law in relying on the testimonies of Hirwantin Bai (PW-11) and Raj Kumar (PW-12). They are wholly unreliable witnesses. Therefore, conviction based on the testimonies of these twowitnesses cannot be sustained and for the said reason they cannot be relied on even for the purpose of conviction of other accused persons. (6) Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments. He argued that the 2 eye-witnesses are fully reliable, it was a case of sharing of common intention, therefore, the accused persons should be convicted under the charges framed against them. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. Hirwantin Bai (PW-11) deposed that "She was having 3 children from her first husband. They were Bilwa, Raj Kumar @ Guddu (PW-12) and Rajkumari, since deceased. She was re-married to accused-Mehtru. Rajkumari was married with Chandramani. On this account Mehtru used to quarrel with her. On the date of incident, when Mehtru was quarreling with her, her son and daughter also came there. They tried to intervene. Accused-Mehtru and his father caught Rajkumari. Accused-Sahatru assaulted her son-Guddu (Raj Kumar) by a knife. Rajkumari was also I /f^ ! "S vxvKssy Cr.A. No. 77/90; Cr. A. No. 137/90 & Cr.A. No. 211/90 €) assaulted by the same knife by all the 3 accused persons. She received 3-4 stab wounds. Guddu received 5 stab wounds. Chandramani reached to thescene of occurrence after the assault was over". (9) In the F.1.R. (Ex.-P/22), Hirwantin Bai (PW-11) mentioned that "Rajkumari and Raj Kumar came there when the quarrel was going on between this witness and her husband Mehtru. They tried to intervene, on which, Mehtru called his brother Sahatru and father Pyariram. All participated in assault by hands and fist. It is at this time Mehtru gave knife blows to her daughter and son (Rajkumari & Raj Kumar)". The F.1.R. was lodged within one hour of the incident. When she was confronted with the contents of the F.1.R., she could not explain it and stjck to her version that her daughter was caught by accused-Mehtru and his father and accused-Sahatru gave knife blows to her.,The contradictions in the court evidence and the F.1.R. have been marked as 'A to A' - 'B to B' & 'C to C'. In the couri: evidence, she is giving entirely different version which does not find place in the F.1.R. The contradiction is that according to her court evidence, Sahatru gave knife blows to the deceased and the victims, whereas, according to the F.1.R. the knife blows were given by Mehtru. The above contradiction in the evidence of this witness is a materialcontradiction which makes her evidence unreliable. In her 161 statement (Ex.-D/3), she stated that Mehtru and Sahatru had assaulted her daughter and son. This was also confronted by her but she could not offer any reasonable explanation for the same. It was a material issue before the Sessions Judge as to who gave the knife blows. If an eye- witness changes the version relating to the said issue i.e. at one point of time, she states that the blows were given by her husband Mehtru and at 'w-s%, ^. ^4/ ":'3B:;, £?;;''•- CrA. No. 77/90i_CLA^No. 137/90 & Cr.A. No. 211/90 a later point of time, she deposed that it was given by her brother-in-law Sahatru, then it creates a doubt on her testimony and it was quite unsafe to rely on the testimony of such witness. (10) Raj Kumar @ Guddu (PW-12) deposed that at the time of quarrel, accused-Pyariram was holding the neck of Rajkumari and accused- Mehtru was holding her by hairs. When he tried to intervene, Sahatru came there and assaulted him by knife. He further deposed that Sahatru also assaulted Rajkumari by knife. We find that a dying declaration (Ex.- D/4) of this witness was recorded by the Executive Magistrate on 8.2.88 itself at about 11.00 p.m. In his dying declaration, he had stated that Rajkumari was assaulted by Mehtru and he was assaulted by Sahatru and Pyariram by an article like sword. It comes in Para-6 of his cross- examination that his 161 statement was not recorded. The version of this witness also goes against the contents of the F.1.R. (Ex.-P/22) and his own dying declaration. (11) On due consideration of the evidence of these 2 witnesses, it is apparent that these witnesses have entirely changed their version so far as giving of knife blows to the deceased and the victims is concerned. The case of the prosecution, according to the F.1.R. (Ex.-P/22), was that the knife blows were given by Mehtru, whereas, the 2 eye-witnesses of the prosecution, including the victim, changed their version and brought a new case before the court that the knife blows to the deceased and the victims were given by accused-Sahatru. This is material discrepancy in the evidence of these 2 witnesses which render their evidence wholly unreliable. The learned Sessions Judge erred in law in relying on the Cr.A. No. 77/90; Cr. A. No. 137/90 & Cr.A. No. 211/90 'r testimonies of these 2 witnesses and the conviction based on their testimonies, in our considered view, cannot be sustained and accused- Sahatru becomes entitled for benefit of doubt. (12) For the foregoing reasons, Cr.A. No. 77/1990, filed by accused- Sahatru, is allowed. The conviction and sentences imposed against him are set-aside. He is acquitted of the charges framed against him. The 2 appeals filed by the State i.e. Cr.A. No. 137/1990 & Cr.A. No. 211/1990 deserve to be dismissed and are accordingly dismissed. Sd/- Chief Justice Sd/- SunU Kumar Sinha Judge vatti