g1» HIGHW COURT OF CHHATTIsG-ARH AT BILASPUR Criminal Appeal No. 2425 of 1999 Division Bench : Hon’ble Shri L.C. Bhadoo & Hon’ble Shri Dhirendra Mishra, JJ APPELLANTS : Dham'ram 811d others. Versus RESPONDENT : The State of Madhya Pradesh J JUD\ GMENT FOR CONSIDERATION #J \— Sd/T’ ’ 1 DHIRENDRA ISA Judge HON’BLE SHRI L C BHADOO J 7W POST FOR JUDGMENT ON O APRIL 2007 Sci/- L C BHA DOO Jud ge MHR ‘ N Division Bench APPELLANTS RESPONDENT : The State of Madhya Pradesh Present 9mt Renu Kochar learned counsel for the appellants Shr1 Aktnl Nhshra, learned P L for the State] respondent Per Dhirendra Mishra, J Appellants @ HIGH COURT OF CHHATTISGARH AT BILASPUR V CriminaIAppeai No 2425 or 1999 " Hon’ble Shri L.C. Bhadoo & Hon’ble shri Dhirendra Mishra, JJ 1. Dham'ram, aged 45 years; Son of Panchram Patel, 2. Anandram, aged 25 years; 3. Rémdulare, aged 23 years; Nos. 2 85 3 both sons of Dham'ram Patel 4. Ramg‘las alias s Ramvilas, aged 21 years, son of Dhaniram Patel; All res1dents ofmllage Tunda P S Bilalgarh D1strict Ralpur M P Versus JUDGMEN; (Delivered on "> I04] 2007) Dhanjram, Anandram, Ramdulari and Ramg'las have preferred this criminal appeal under Section 374(2) of the Cr.P.C. against the impugned judgnent dated 12th August 1999 passed in S.T.No. 134] 90 by learned 15* Additional Sessions Judge, Baloda Bazar, District Raipur whereby they have been convicted under Section 302/ 149, 307] 149 of the Indian Penal Code and sentenced them to undergo imprisonment for life and pay a nne of Rs. 5,000l— each and to undergo R.I. for 10 years and pay a nne of Rs. Loom-each, in default of payment of iine to further undergo R.I. for live months and one month respectively. 2. Case of the prosecution in brief is that Anjorwa Prasad gave first information (EX,P/ 16—A) in police station Bilaigarh on 13.7. 1989 at about 23.30 h'ours, on the basis of which crime No. 112,’ 89 was reg'stered for the oEence punishable u/s 302, 307, 147, 148] 149 0f the IPC against the accused Dhaniram and his sons Anandram, Ramdulari, Ramg'las and Ramkumar. As per First Information Report, thra‘shing odd of Anjorwadas is adjacent to the \&eld of accueecl Dham'ram. Today i.e.' 13.7.1989, Dukhiram, father of complainant, erected boundary of his deld just in &ont of the house of the complainant. His father Dukhiram (since deceased) asked Dhaniram to straighten his boundary, however, Dhanjram’ denied and challenged the father of the complainant to come near the boundary and when he said, if he goes, What he will do, on which he {x ‘ (Dham‘ram) replied that he shall beat him. However, father of the complainant Went on the boundary, whereupon Dhaniram with axe and his sons Ramdulari, Ramg'las, Ramkumar alias Chhutti and Anandram with lathi came there and assaulted his father with axe and lathi. He became unconscious and fell on the ,g‘ound, even then they continued assaulting. His brother Manharan went there to intervene, however, Dhaniram Patel with axe and Anandram, Ramdulari and Ramgilas @ Chhutti with lathis assaulted him saying that he has come here to save him (Dukhiram) and killed him. When his mother Bodhin Bai went to save them, the accused persons also assaulted her with axe and lathis shouting “kill her” and all the hve killed her. When the complainant went to intervene, Dhaniram shouted “kill him also” and assaulted him on his head with axe and his sons Anandram, Ramdulari, Ramgilas and Ramkumar assaulted on both arms, right ribs and buttocks with axe and lathi, as a result of which blood started oozing and he fell on the held. The accused persons thinking that all the four are dead, fled from there. After their departure, he saw that his mother Bodhin Bai and brother Manharan were dead and there was a cut injury on the head of his father and there were other injuries caused by lathis on his body. Sonu and Dilharan lifted and brought him. 3. During investigation merg intimation of EX.P/ l7, P] 18 8r. P/ 36 with reference to unnatural death of Bodhin Bai, Manharan and ' Dukhiram was registered. Spot map (Ex.P/ l) was prepared. Inquest over the body of deceased Manharan, Bodhin Bai and Dukhiram was prepared vide EXP] 13, P] 14 and P] 16 in the presence of the witnesses. All the three dead bodies were sent for autopsy and// / postmortam examination reports are Ex.P] 5, P/6 8s P]7. On the memarandums of the accused persons {EXP} 19 to P] 23 dated 14.7. 1989) weapons of oomce i.e. axe from Dhaniram and lathi from rest of the accused persons, were taken into possession vide EX.P] 24 to 13/28. Wearing apparels worn by the accused at the time of incident were seized vide EXP] 29 to P] 34. 4. Seized weapons of offence Were sent to the doctor for examination and his opinion vide Ex.P,’ 36B, P/37, P138, W 39 and P] 40, Whether the injuries present on the body. of the deceased persons and injured, could be caused by the above Weapons. Investigating Odicer also sent a query to the B.M.O., PHC, Bilaigarh seeking his opinion Whether the injuries sustained by injured Anjorwa were caused on the vital parts and whether the injuries were suEcient to cause death in the absence of treatment. In reply to the above query, the doctor opined (EX.P[ 4 1) that the injuries were grievous in nature and on the vital parts of the body and death could occur from the above injury in the absence of treatment. All the seized articles were sent for chemical examination and as per opinion of the Forensic Science Laboratory the axe and lathis, clothing of Dhaniram i.e. Lung and underwear, Baniyan, Shirt and Lung of Anandrarn, Shirt and Lung of Ramkumar contained blood. 5. After completing investigation charge sheet was hled against Dhaniram, Anandram, Ramdulari and Ramg'las in the Court of Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions Judge, Raipur nom where learned trial Court received the same on transfer for trial. However, charge sheet against the juvenile delinquent Ramkumar was iiled before the Juvenile Court. Learned Additional Sessions Judge framed charges against all theaccused persons under Sections 148, 302 in the alternative 302/ 149 of the IPC, separately for causing death of Dukhiram, Bodhin Bai and Manharan and charge under Section 307 or in the alternative 307] 149 of the IPC for attempting to cause death of Anjorwadas. The accused persons abjured their guilt. Prosecution in order to establish the charge against the accused persons examined 18 Witnesses in all. Thereafter, statements of the accused were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in dig/K/x. /V/ / w" ’ ./V proS'ecution evidenec and pleaded innocence and false implication in the offence. They furthex submitted that Anjorwadas wanted to keep Mankibai, wife of Manharan, as his wife, his family members objected to it, however, Anjorwadas was determined irrespective of the consequences, as a result of which they quarreled with each other. Learned trial court after hearing counsel for the respective parties, convicted and sentenced the ac cused as mentioned above. 6. Homicidal death of Dukhiram, Bodhin Bai and Manharan is not in dispute. Similarly, injuries present over the person of Anjorwadas are also not in dispute. ENen otherwise from the statements of Witnesses namely FW—lO Anjorwadas, PW-l3 Sahatrinbai and P‘W-IS Bhukhinbai who were eyewitnesses of the incident and from the statement of PW—S Dr. Chandrashekhar Patel, who conducted postmortem on the body of deceased persons and submitted his report of Ex.P15, P16 and P/7 and found following injuries, the homicidal death of deceased Dukhiram, Bodhin Bai and Manharan and attempt on the life of injured Anjorwa, is established. Manharan 1. An incised injury on the left lateral parietal head, 1" above to left ear pinna obliquely transverse and downwards direction in the size of 2 .5” x 1.3” x 2.2” (deep up to brain cavity] fracture of skull. Bone seen and few discharge of barin material. 2. An lacerated injury on the left lateral posterior head 2 V2 " below the injury No. 1, transverse-doumwards size 2.4” x 1" x 1". 3. An incised injury on the right upper parietal reg'on 2.5” lateral to middle line size 2.5” x 1.2” x Bone skull cavity. Discharge of brain material seen. 4. An incised penetrated injury on the back of right chest near rib bone inthe size of 1.4 x .5 x 2.3 cm. On internal examination the head bone of injury No. 1 and 3 was found fractured. In his opinion the cause of death is shock due to excessive hemorrhage and the death was homicidal in nature. Bodhin Bai l. An incised injury and lacerated related to each other over right upper parietal of head 1 V2” lateral to middle line~obliquely -. vertex and downwards 6.8” x 1.8" up to cavity. The nearby bone was broken and brain material had come out. / 2. Bone below the above injury was also broken. The cause of death was shock due to excessive hemorrhage and the death was homicidal in nature. Dukhiram 1. An incised lacerated injury on the top upper part of head 4" above to Bindi point obliquely txansvexse downwaxda eize 3 V4” x 1" x 1". The skull bone near the above injury was broken and two pieces were visible. 2. Three incised injuries on the parietal region near each other and obliquely transverse downwards of size 2.5 x .5 x .5 cm., 2 1/4 x .5 x V4 cm., 2 3/4 x V4 x V4 cm. Bone near the hrst injury was found broken. The cause of death was shock due to excessive hemorrhage as a result of above injuries and death was homicidal in nature. Anjorwadas 1. 'IWo incised injuries on the top upper parietal left head — obliquely downward of size 2.5 X V2 ‘A , 2 V4 x 1/2 x 1/2 can. 2. An incised injury on the lower parietal head obliquely in the size of 2 ‘/2'x V4 c.m. 3. Two bruises with diEused swelling near each other on theleft arm inthe size of2.5 x 1 cm., 2 X 1 cm. 4. Dimlsed swelling on the right middle arm of size 2 x 1.5 cm. 5. DiEused swelling on the right lower lateral chest, tenderness present, size 2 3/4 x ‘1 3/4 cm. 6. An lacerated incised injury above thigh in the size of2 1/4 X V2 x 1/2 c.m. The patient was advised X—ray. In his opinion, Injury No. l 85 2 could be caused by hard and blunt object. In reply to the query of police, he opined that injuries present over the person of Anjorwa were grievous in nature and were suEcient to cause death in the absence of proper treatment. ‘ 7. Learned counsel for the accused] appellant submitted that the learned trial Court was not justihed in relying upon (i) the testimony of solitary eyewitness Anjorwadas who is highly interested and partisan witness being closely related with the deceased persons, (ii) the recovery of weapons of ohence from the possession of the appellants as the independent witnesses of recovery have not supported the case of the prosecution and independent witnesses who were present there, have not been examined, (iii) the ELR. of Ex.P[ l6-A lodged by Rajaram as the same is in complete variance with the account g‘ven by Anjorwa and the learned trial Court was /_ / also not just$ed in relying upon the statement of Sahatrin Bai (PW- 13), as she is also highly interested and partisan Witnes$ being close relative of the deceased persons. She further submitted that there is n0 evidence of formation of unlawful assembly with the purpose of common obj ect of murdering the deceased persons and attempting to cause death of injured Anjorwadas and lastly that, the injuries sustained by the deceased persons were incised injures which could be caused by hard and sharp object as per opinion of the doctor performing autopsy, however, except accused Dhaniram nom all other accused persons only lathi has been seized. Moreover, in his Court statement PW—lO Anjorwa has stated that Dhaniram was carrying lathi Whereas Anandram, Ramdulari and Rambilas were holding axe, thus the account given by injured eyewitness is in complete variance with the case of the prosecution and in the aforesaid circumstances, the Court below ought to have extended beneht of doubt to the accused persons. 8.. Learned counsel for the accused} appellant placed reliance on the judgment delivered in the matter of Bhola Singh Vs. State of Punjab, reported in 1999 Cri.L.J. 1132, in the matter of State of Rajasthan Vs. Bhanwar Singh, reported in IV [2004-1 CCR 8 180}, in the matter of Suresh Choudhary Vs. State of Bihar reported in 2003 8C0 [Cri.] 801, in the matter of Vijay Kumar Vs. State of Bihar reported in 2005(2) AC 4O [Pat] and the judgment in the matter of Patel Chela Viram Vs. State of Gujarat reported in AIR 1994 SC 1250.‘ e- 9. On the other hand, learned counsel for the State/respondent supported the impugned judgment of the trial Court. 10. We have heard learned counsel for the respective parties and perused the impugned judgment of the trial Court as also the material available on record. 11. Conviction of the accused/ appellants is based on the evidence of eyewitnesses PW— 10 Anjorwa, PW~13 Sahatrinbai, PW~15 Bhukhin Bai. Reliance has also been placed on the recovery of weapons of oEence on the memorandums of the appellants as also the recovery of bloodstained clothes worn by the appellants at the time of incident. @ It has been hdd that the eyewitnesses account is duly corraborated by the postmortem 85 injury report of Dr. C.S. Patel (PW-6) and accordingly, the appellants have been convicted under Section 302, 307 with the aid of Section 149 ofthe I.P.C. 12. PW—l Soncharan Sahu has prepared the site plan of Ex.P/ 1. PW—2 Haricharan, PW—4 Dhananjay, PW—5 Firat, PW— 11 Baijnath and PW—12 Nom‘bai, have turned hostile Whereas PW—7 Vishram Prasad and PW—8 Kholbahara are the Witnesses of inquest. PW—14 Chelaram and PW— 17 Shivshankar are the Witnesses of memorandums of recovery. PW-14 Chelaram has stated, “he does not know the deceased persons, though he recognzes Shivshankar of village Gidhouri. Accused persons were not interrogated before him by the police. Dhaniram was also not interrogated. On being asked by the police, he signed the papers. He was declared hostile and cross- examined by the prosecution. In the cross-examination also except the fact that he had gone to village Tundra with police, he has denied all the suggestion put to him by the prosecution such as, the police interrogated Dhaniram inhis presence, at the instance of accused Dhaniram the axe was discovered etc. PW-l7 Shivshankar has admitted his signature in the memorandums of EXP] 19 to Pj23, however, he has stated, .“he does not recollect Whether the accused persons were interrogated before him or not. Though he admitted that clothes were seized before him but he does not know What was seized horn Dhaniram. After declaring him hostile he “(as cross‘ examined, in which he stated that axe, weapon of offence, was seized on the basis of disclosure statement of Dhaniram, lathies were seized on the basis of statements given by Anandram, Ramdulari, Ramg’las and Ramkumar. He has further stated that clothing of Anandram, Ramdulari, Ramg'las and Ramkumar were seized from them in his presence. However, he further stated that since long time has elapsed (as he was examined on 22. 12. 1998 i.e. more than 9 years after the incident), he does not recollect whether the accused persons gave the above information or not. In the cross-examination by the ' defence he has stuck to his claim that the seized axe and lathies were estained with blood and that clothing worn by the appellants were seized in his presence in the Dudhadhari Math. \p\\ / @ 13. PW— 10 Anjorwa is an injured eyewitness and hc‘has lodged the FIR of Ex.P[ 16~A in which he has stated that theincident is of some seven years back when he wag present in his houee. His father Dukhiram was raising a wall when accused persons came there and abused Dukhiram using hlthy language for 1jaising wall. His father asked them not to abuse and convene the Panchayat of heads of the village. He has further stated that thereafter Dhaniram exhorted the other accused persons to assault Dukhiram, at that time Dham‘ram was holding lathi, Anandram axe, Ramdulari axe and Rambilas was holding Kudali (spade). All the accused persons together started assaulting his father, at that time his mother Bodhjnbai came and asked them not to assault, whereupon the accused persons challenged her to come there and thereader, started assaulting her also. Manharan, his brother, reached the place of incident thereafter and the accused persons started assaulting him by axe, lathi and Kudali. He also went there to intervene, upon which the accused persons told him, “you’re also coming, we shall not leave you alive”, and started assaulting him on his head, hand, buttocks, as a result of which he fell unconscious. His elder brother Rajaram took him to police station Where he lodged the repot of EX.Pj 16-A. He also gave merg intimation Ex/ P/ 17 and EXP] 18 regarding death of his brother Manharan and mother Bodhin Bai. 14. Initially this Witness Was not cross-examined by the defence. This Court vide order dated 14. l 1.2006 directed the Registry of this Court to send the record immediately to the trial Court and further directed the learned l“ Additional Sessions Judge, Baloda Bazar to summon PW—lo Anjorwa and allow the counsel for the accused persons to cross-examine him and after such cross-examination send back the record to this Court for disposal of this appeal on merits, as per provisions of Section 391 of the Cr.P.C. Accordingly, this Witness was subjected to further cross-examination on l9. 1.2007. l5. In the cross-examination he has stuck to his examination—in— chief regarding weapon of ohence the accused persons were holding at the time of incident. Apart from above contradiction, omission regarding raising of wall, use of hlthy language have also been pointed out in his report and diary statement. He has admitted that he kept Manldbai, as his Wife after the death of her husband mm Manharan. H6 has also stated that Manhara11 resided in another house Whereas he resided with hi$ father Dukhjram and mother Bodhin Bai and the distance of the house where Manldbai resided and. the house of Dukhiram, is about 200-250 meter. On the date of incident he did not see mother of Mankibai on the place of incident. He has further stated that after the death of husband of Mankibai, he went to the maternal house of Mankibai and made her his Chudi Wife and he had Chudi marriage some 13—14 years before. He has denied the suggestion that at the time of incident Manharan himself was present in the house of Dukhiram along with Dukhiram and his V; mother and stated that Manharan was present in his own house. When Dhaniram and Dukhiram were talking, at that time Manharan came to thrashing held of Dukhjram. He has further denied the suggestion that Manharan came and alleged that ‘you have illicit relationship with Mankibai", and asked him to discontinue illicit relationship. He has further denied the suggestion that at that time, he was armed with axe and assaulted Manharan with axe. The suggestion that her mother also objected to his illicit relationship with Mankibai, is also denied. .He also denied that because of the above allegation, he assaulted his father and mother with axe and stated that it is incorrect to say that he had stated, “he shall not leave Mankibai even if he is required to kill Manharan etc.”. He has further denied the suggestion that Manharan, Dukhiram assaulted him with lathi in their self defence and quarrel started inside the house and it continued till they reached their kitchen garden and further to the place of the incident Med (boundary). 16. PW—13 Sahatrinbai, mother—in—law of deceased Manharan, has stated that she knew Manharan, Bodhim and Dukhiram who died some eight years back. At about 5.00 p.111. she was proceedings towards the house of Dukhiram hom the house of her son-in—law Marmaran. When she reached near the place of incident, she saw Ramdulari was holding axe and rest of the accused persons were holding lathi mid they were assaulting Manharan, Dukhiram and ' Bodhin Bai. First they assaulted Dukhiram with lathi and thereafter esthey assaulted Bodhin Bai and her son—in—law Manharan. When Anjorwa came there they also assaulted him with lathi and axe on his head, hand, waist, as a resultof which he fell down. After assaulting them all of the accused persons fled toward the thrashing fleld of Mati. In the cross-examination she has denied the suggestion that she heard Maharan blaming Anjorvva that he had developed illicit relationship with his Wife Mankibai, as a result of which Marpeet took place between them, Anjorvva brought axe and assaulted Manharan. She has also denied the suggestion that Dukhiram and Bodhin Bai assaulted Anjorwa because he had illicit relationship with Manldbai and thereafter, Anjorwa assaulted Dukhiram and Bodhin with axe. She has denied the suggestion that at the time of Marpeet, the cw.) accused persons were not present. She has stated that when she \‘. heard the noise she rushed from the place of Rathyatra and saw the accused persons assaulting. At that time she did not see any outsider in the house of Dukhiram. The only omission in her diary statement of EX.D} 1 regarding the fact that she saw accused persons and others going towards the thrashing held of Mati has been pointed out to this Witness. l7. PW— 15 Bhukhinbai, Wife of Rajaram s/ o Dukhiram, has stated that at the time of incident at about 4.00-5.00 p.m. she was present in her house. At that time her father-in—law Dukhiram was also -present he asked Anandram as to Why he had dug pit near his wall whereupon Anandram dragged him by catching hold of his hand and took him to his held. His father-in~law fell there, thereafter, all the hve accused persons who were present there, on being exhorted by Anandram started assaulting Dukhiram. At that time Anandram Was holding Kudah' , Ramdulari axe and Ramgilas and other two accused persons Were holding lathi. Thereafter, Bodhin Bai also came there t\ and asked them not to beat Dukhiram, whereupon she was also assaulted on her head by Ramdulari with axe and other accused persons assaulted her by lathi. When Manharan reached there, he was also assaultedby the accused persons. At that time her younger brother-in—law Anjorwa came there and stopped them, however, he was also assaulted by them, as a result of which the brain material of Manharan had come out, there were injuries on the head of her father-imlaw and face of her mother-in—law and there was incised cut wound on her head. She had seen the incident with a distance of hve feet. V After seeing the Marpeet, she fled h‘om there. She had witnessed the incident from the other side of wall. The accused \\\L _\\ / / ,7," l 7 persons scaled the wall and came in ha courtyard and threatened her husband Rajaxam to run away otharwise they will kill hjm also. Thereafter, the accused persons fled Eom there.\ In the cress- examination, she has denied the suggestion that there are three other houses in between her house and the house of Dukhjram. She has denied the suggestion that Anjorwa lives in Basti. She has admitted the suggestion that Mankibai and Sahatrinbai lives in the house of Dukhiram and Mankibai was the wife of Manharan and after the death of Manharan, she was