ssssff' HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, JJ Appellant Criminal Appeal No. 879 of 1994 Gatpalli Dharma @ Dharmaiyya S/o Malla Dorla, aged about 25 years, Wo Lankapalli, P.S. Usoor, Distt. Bastar (CG) Versus Respondent : State of Chhattisgarh, Through Police Station - Usoor, Distt. Bastar (CG) Appeljant Criminal Appeal No.882 of 1994 Manimara S/o Meetu Gadva, aged about 25 years, R/o Lankapalli, P.S. Usoor, Distt. Bastar (CG) Versus Respondent State of Chhattisgarh, Through Police Station - Usoor, Distt. Bastar (CG) Appellant Criminal Appeal No. 881 of 1994 Maninaga S/o Mittu Gadva, aged about 30 years, R/o Lankapalli, P.S. Usoor, Distt. Bastar (CG) Versus Respondent : State of Chhattisgarh, Through Police Station - Usoor, Distt. Bastar (CG) Appellant And Criminal Appeal No. 880 of 1994 Mudiyam Samaiyya S/o Mara Dorla, aged about 30 years, R/o Lankapalli, P.S. Usoor, Distt. Bastar (CG) Versus Respondent : State ofChhattisgarh, Through Police Station - Usoor, Distt. Bastar (CG) Present Smt. Kiran Jain, counsel forthe appellants. \ Shri Ashish Shukla, Govt. Advocate for the State. t i 1 .'""•% ,fr JUDGM.ENT (Delivered onK'3une, 2010) Per Dhirendra Mishra, J 01. The aforesaid criminal appeals are being disposed by this common judgment as all these appeals are directed against the judgment of conviction and order of sentence dated 19 Apri!, 1994 passed in S.T.No.343/92 whereby learned II Additional Sessions Judge, Bastar at Jagdalpur, after holding appellant - Maninaga guilty under Sections 302 and rest of the appellants under Section 302/34 of the IPC, sentenced each of them to undergo imprisonment for life. Atl the appellants have also been convicted under Sections 452 & 323 of the IPC and sentenced to undergo rigorous imprisonnrient for three years and rigorous imprisonment for one year respecth/ely. 02. Briefly stated, case of the prosecution is that there was animosity between Sodi Lachchmaiya and appellant Maninaga since 5-7 years. On the date of incident i.e. 15.8.1992, the deceased and appellant Maninaga quarreled as the deceased suspected that he has stolen his hen. Appellant Maninaga in association with other appellants went to the house of the deceased with a common intention at about 10 pm in the night, armed with axe and hamboo stick (cfancfa) and Maninaga called the deceased. When the deceased opened the door and came out in the courtyard, appellants greeted him with "Lal Sa/am" and attacked him by ""3 on right side of his head, as a result, he fell on the ground. Thereafter, all the accused persons assaulted him with axe and cycle chain, as a result, he died. Thereafter, all of them armed with club and axe entered inside his house and beat his wife Sodi Lachchi on her head and rightthigh, as a result, she also gotfainted. 03. Report of the incident was lodged by Sodi Arjun (RW-1) nephew of the deceased on 16.8.1992 at 18:30 hours naming all the accussd persons vide FIR of Ex.P/7. The police proceeded for the scene of occurrence, performed inquest over the dead body of deceased in the presence of witnesses vide Ex.P/8. Thereafter, fte dead body was sent for autopsy to Mini Primary Health Center, llmidi, where DrJ.P. Sonkar (PW-6) conducted postmortem and gave his report of Ex.P/2. Injured Sodi Lachchhi was atso sent for medicst examination and her medico legal examination report is Ex.P/6. On memorandum of appellant Maninaga, weapon of offence - --1\ /' -i'7 bloodstained axe - was taken into possession vide Ex.P/10. Site plan was got prepared from Halka Patwari vide Ex.P/1. Bamboo stick; clubs, four in number; broken wooden butt of fake gun and the cycle chain lying on the place of incident were taken into possession vide Ex.P/12. The articles seized during investigation were sent for examination to the doctor and his report is Ex.P/5. Bloodstained shirt worn by appellant Maninaga was taken into possession vide Ex.P/13. Similarly, bloodstained towel and bloodstained scarf ofthe deceased were taken into possession vide Ex.P/14. 04. After completing investigation, charge sheet was filed in the Court of Additional Chief Judiciat Magistrate, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge, Jagdalpur, and the same was received on transfer by the learned Additional Sessions Judge for trial. Learned Additional Sessions Judge framed charges under Sections 302, 302/34, 452 and 323 of the IPC against all the accused persons, who abjured their guilt. 05. The prosecution in order to establish charges against the accused/appellants, examined 9 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of Cr.P.C., in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. 06. Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in para-1 of this judgment. 07. Homicidal death of the deceased is not in dispute. Even otherwise, from the evidence of injured eyewitness Sodi Lachchi (PW-2) and Sodi Rammurty (R/V-3) and also on the basis of evidence of Dr. J.P. Sonkar (PW-6), who conducted postmortem and found following injuries over the person of the deceased and has further opined that the deceased died as a result of shock due to excessive bleedings on account of injury of the brain and death is homicidal in nature as injuries sustained by the deceased were sufficient to cause his death in the ordinary course of nature, homicidal death of deceased Sodi Lachchmaiyya is established. u Iniuries on external examination: (i) one defused incised wound of size 13 x4 x5 cm horizontally in the right ear extending from right temporal to occipital region. (ii) incised wound of size 5 x2 x2 cm above the left eye; (iii) incised wound of size 3x2x1 cm below the right knee. A!l injuries are caused by hard and sharp cutting object. (iv)Muttiple contusions on the back caused by hard and blunt object and simple in nature. Numerous fractures of skull bone. Injuries on internal examination: 10 x 3 cm incised wound on brain membrane and 10x3 x 2 cm incised wound on brain material. 08. Smt. Kiran Jain, learned counsel for the appellants argued that conviction of the apoellants is based on the evidence of Sodi Lachchi and Sodi Rammurty, wife and son of the deceased. They being the near relatives of the deceased, their evidence cannot be believed. It was further argued that the fatal assault is attributed to appellant Maninaga and there is no specific allegation against the other appeilants that they also assaulted the deceased and therefore, conviction of accused Nos. 2 to 4 is without any evidence. There is material discrepancy in the version given by PW-2 Sodi Lachchi and PW-3 Sodi Rammurty, where PW-2 has stated that when the accused persons came, they were inside the home; PW-3 has deposed that when the accused persons came, they were sleeping inside the home and he woke on hearing the sound of assautt. Both the witnesses have admitted that the incident occurred in the night and it was a dark and stormy night. PW-2 has also stated that she was not able to properly recognize the assailants due to night. Thus, identification of the appellants by these witnesses is doubtful in the absence of source of light. The crime, it appears, has been committed by the naxalites, The appeltants have been framed in due to previous animositv. 09. On the other hand, learned counsel for the State has supported the impugned judgment. , 5 10. We have heard learned counsel for the parties and perused the record as also the impugned judgment. 11. Conviction of the appellants is based on the evidence of PW-2 Sodi Lachchi and her son PW-3 Sodi Rammurty. Sodi Lachhi was also assaulted in the same incident. She was referred for medical examination and Dr. Sonkar (PW-6), who examined her and gave her medico legal injury report (Ex.P/6) has found the following injuries on her person:- (i) One lacerated wound of size 7x 1.5 x 1 cm posterior and upper part of left parietal bone, (ii) One lacerated wound of size 5 x 1.5 x 1 cm posterior lower part of left parietal bone, (iii) One lacerated wound of size 4x 1.5 x 1 cm lower part of occipital bone; (iv) One lacerated wound of size 1 x 1.5 x 1 cm above the left eyebrow; (v) One contusion of size 8 x4 cm in lower end of left upper arm; (vi) One incised wound of size 3.5 x2 x 1 cm just above the left lateral angle of mouth; (vii) One incised wound of size 6x3x 2 em at lower 1/3 of right thigh; Dr. Sonkar.phas also opined that the injuries No. 6 & 7 were caused by sharp edged weapon whereas injuries No. 1 to 5 were caused by hard and bluntweapon. 12. Sodi Lachchi has deposed that it was night time; they were sleeping inside the house. On hearing dog barking, they woke up. At that time, they were inside the house. All the accused persons assaulted her husband with axe. He sustained injuries on his head. The first assault was given by Maninaga by axe. Thereafter, other accused persons also assaulted him by axe, she feil and teinted. Her husband died instantaneously. Thereafter, the accused persons assaulted her with lathi, hand and fists. She was also assaulted on her thigh by sickle and axe. At that time, her children Rammuriy and Neelabai were also present in the house. Thereafter, Rammurty went towards Ramaiyya's house. In the cross-examination, she has denied that the accused persons were wearing khaki clothes. It was dark night. It was storming and raining. In the night, she was not J 9Sasx r^^i 'Ste-. "•^.—^^1"' fe..-:3^^^ EB- able to properly identify. She has denied the suggestion that by the time she came out, her husband had already falten. She has further denied that after assaulting her husband, the assailants fied from there and has reiterated that after assaulting her husband, the accused persons came inside the house. Though she has stated that she cannot tell as to who assaulted the deceased and how many blows each ofthem gave to her husband. 13. PW-3Sodi Rammurtyisa 13year-old boy. His statement has been recorded without administering oath. He has deposed that the incident is of night, at that time, they were sleeping; he woke up on hearing the sound of assault and saw that the accused p'lrsons were assaulting his father. Appellant Naga assaulted with axe on his head, whereas other three accused persons assaulted his father by lathi, as a result, his father died. At that time, his father was inside the house. After assaulting his father the accused persons came inside the house and assaulted his mother and thereafter, they went away. He narrated about the incident to Sodi Rama - elder brother of his father - and in the moming, he narrated the incident to Sodi Arjun. In the cross-examination, he has stated that on hearing dog barking, his father went out. It was a dar.c and raining night, due to darkness the accused persons were not identifiable. 14. The question for our consideration is - whether the triat Court was justified in relying upon the evidence of eyewitnesses Sodi Lachchi and Sodi Rammurty? 15. On close scrutiny of the above hwo wifnesses, we are of the opinion that their evidence before the Court is not reliable for the following reasons: (i) that injured eyewitness Sodi Lachchi has stated .that all the accused persons assaulted her husband/deceased with axe. She has further stated that she cannot tell as to how many axe blows were gwen to her husband by each of the accused persons as she was inside the house when her husband was being assaulted, her children were sleeping inside the house and she also got fainted. However, PW-3 Rammurty, has deposed that accused Naga assaulted his father with axe on n^BBB •'' ^ .' his head, whereas other accused persons assaulted him by lathi. He has further deposed that when his father was being assaulted, he was inside the house. Thus, there is a material discrepancy in the evidence of these two witnesses with regard to weapon of offence, each of the accused persons was holding, and the place where the deceased was assaulted by the accused persons. (ii) that both the above witnesses have deposed that it was a dark and stormy night and it was raining. Due to darkness they were not able to recognize the persons. PW-1 Sodi Arjun, who has lodged the report on the basis of information given by eyewitness Sodi Rammurty, has deposed that all the accused persons were putting on Khaki dress; they called the deceased and greeted him with "La/ Salam". One of the four accused persons dealt an axe blow on the deceased and thereafter, all the four persons fled from the place of incident. Whereas Sodi Lachchi has denied the suggestion that the accused persons were putting on Khaki dress. Sodi Rammurty has deposed that after the incident, he went to the house of his uncle Sodi Rama in the night itself and narrated about the incident and slept in his house. Thereafter, he returned in the morning and narrated about the incident to Sodi Arjun. In the cross-examination, he has stated that in the night, he did not disclose the names of assailants to Rama and only disctosed that four persons assaulted his father and went away. To Sodi Arjun also, he only disclosed that four persons have murdered his father. PW-4 Sodi Rama has also admitted in his cross-examination that Rammurty told him that four persons have assaulted his father and he did not tell their names. On the next day, he went to their house when Sodi Lachchi was sleeping and therefore, he did nottalkto her. 16. Thus, there is material discrepancies in the evidence of the above two witnesses about the weapon of offence and the place where the assault was made. Learned trial Court while observing the discrepancy in the description of weapon of offence by PW-2 and relying upon the evidence of PW-3 in this regard, has not at all deatt with respect to fatal discrepancy in the evidence of the above two ^ ~-r" / witnesses that due to darkness thev were not able to recognize the persons and the fact that PW-3 did not disclose the names of assailants to Sodi Rama as also to Sodi Arjun in the next morning. 17. It is true that even in the darkness known oersons can be identified from the manner of speech, style of walking and several other particular features, but the evidence of PW-2 & PW-3 to the effect that because of darkness, the persons were not recognizable and non-mentioning of names of the assailants by PW-3 immediately after the incident, make the identification of accused persons by these witnesses doubtful. The evidence that the accused persons were putting on Khaki clothes and greeted the deceased with "Lal Salam", makes the defence of the appellants probabte t' gt the offence was committed by some unknown naxaljtes ar:d the appellants have been subseauentfv imDlicated in this offence on account of previous animosity. The other evidence i.e. recovery of bloodstained axe on the memorandum of appellant Maninaga as also recovery of bloodstained clothing allegedly worn by him at the time of incident, is of no avait in the absence of any scientific evidence to establish that the btood found on the axe and clothes was human blood and that too, of the group of deceased or the appellant. 18. On the basis of aforesaid discussions, we are of the opinion that the trial Court was not justified in relying upon the evidehce of PW-2 Sodi Lachchi and PW-3 Sodi Rammurty for convicting the appellants under Sections 302, 302/34, 452 and 323 of the IPC, and th& trial Court ought to have extended them benefit of doubt. 19. In the result, all the apoeals are allowed. Conviction of the appellants under Sections 302, 302/34, 452 and 323 of the IPC and sentence imposed thereunder are set aside. The appellants are on bail, therefore, their bail bonds stand discharged and they are acquitted ofthe aforesaid charges. sd/-.... 1 _ ~ SdA"" Dhirendra Mishra j R.N. Chandrakar JlKlSe— =— L_Sudge ^