ffl" m THE HIGH COURT OF JUDICATURE ATBILASPUR rc.c.1 Q^nm-/7a2,APPEAL t?"^ OF. ^ ^001 APPELLANT CZN JMXC^ sf ) ^ ^/ /^j ^^'j" / ^ "/na~~ ••" V '^ /!^<^ ./ ^-° n'. /' -f <y ^ ^"y/ ^y/ .-.• s?" / / "^ / ,";" -o" lt"^ / •^r' / RESPONDENT Dholaram alias Amareshwar, s/o Shiv Prasad Kanwar, aged about 38 years, R/o Village-Podi, P.S. Lakhanpur,Distt. Surguja {Chhatisgarh} VERSUS State of Chhatisgarh through Station House Officer, P.S.Lakhanpur,Dist.Surguja {CG} APPEAL UNDER SECTION 37AC8FCODE OF CRIMINAL PROCEDURE '~f»ay. XI-HC-22 •yss ^[pn^ra', srnwre, (tc'iiyy . (O.A.S33 wqc'ir^sTrai '^ 2001 3TC?T5RT R^sn^r sr>l flf?(T sn^TWcnwTifgCT ^wld'ifl-l t<14ctTfffei^t'<f4^K ^srf^Tan^T t)r. N.K. Shukla, Senior ^dvocate with Miss Snigdha Dixil', Advocate for the appeilant. Mr. Akhil AAishra, Panel l-awyer for th.e State/respondent. Today, the matter was| listed for orders oi'i A'li.(Cri.)P. No.991/2005, application fo" susj^ension of sentence and gran* of bail. When the matter was taKen up, learned Senior Advocate appearing for the accused/appeilant subrn tted that whole case hinges on d single eyewitness, ther'efore, it i^iay bs finally heard and he is ready to argue the matter finaily to h/hich learned Ponel Lawyer hcs no .cccused is in custody about last fi objection. On this, the matter vifis taken up for final hearing as the ,'e yeaps. The accused/appellcmt by w|ay.of this appeal has questiorsed the Isgality of judgment dated 19 Judge, Surguja, in Sessions Trial Sessions Judge after holding th ^cy, 2001, pa&sed by the Sessions No.318/2000, whereby the leurned e accused/appeiiant guilty' for the iife. comm'ssion of offence under Secltion 302 of the I.P.C. for committinc the murder of Baljeet, sentence^ him to undergo irnprisonment for 2sB» (7^!?^) T ,TST^||l||c);T, tSiTfli-1'IS, fiflKty STT^T'^"^ qitlt-ilshKI'* '•"••fe^ fa 200] 3T^?T«RT i3=IRi3TI^r shHi^i ^lfsfl wrfri^-i Kiti^rffte^rfsrKK 3I1^T?T?nWElf®T --2_^ """"""^^ g^. Ti-,A pi'OdriLUiiun i-use in br^ier necessary tor the disposal of this d is that in the morning of 31 August, 2QOO, deceased Baljest along with Kaushaiya, Brijendra ^, Bajariya u/ent to 'Rad' river for the I purpose of fishing, and after fi^hing they stnrted returning +o their 1 ' • - 1 - • . ; . ! homs at about 11. a.m., on the wlyy they distributed the fishes w.hich , were collected by them f"om thd river. Brijendra & Knushaiya left to j other side, whereas deceased ^aljset & Sajariya started going to their home togethe", on the way, met them. On account of old en ialjeet and with intention to i yne accused having sm axe in his hand ^nity, the accused itarted taiking to 4:ommit the murder of Bal.jeet, he attacked Baljeet with axe whic^i he was carrying. When Bajariya looked behind he saw that the o|ccused attacked Baljeet four times jeet died instantaneously. Bajariya reaching his residence he disciosed 1 witti axe as a result of which Bc left for his residence and cfter ?his fact to his wife and brother^. The son of the deceased namely, ' Parmeshwar (PW-5) returned fj 1 residence at about 12 noon, th^ about the death of his father. O of occurrence and saw that his f4 house of RatL He saw injuries •om the ogricuitural field to his n, Brijendra (PW-3) informed him p hearing thls he left for the scene ther was iying dead in front of ths >n the neck A hand of his father, immeaiately went to Poiice Stati^n: Lakhanpur and lodged the F.I.R Ex.P-9. (q^sf^t). ^'v^^s^^ ^- p ^•ft-J Iffl tlilllil ; *& : ^-A;-'::: I"® ... ^:^±-s\ XI-HC--22 •3^( '<ll<llcl<<, -S^WTS, RrtKfy sn^r^r^ ..Gs>....A....5^^ 200) l^s sn^T'Rr 1^:TffiW^?I sh^l»nW?n' <»WM'ifl-<*<mci'i'^''tecA<l»iwi< ^i3l1^H3n^T After "egisfratson of th^ case and merg intimation Ex.P-10, PVV-6 6.5. Pandey, Sub-Inspectc^r, teft for the scene of occurrence, inspected the body and aft^r 9:iving notice Ex.P-2 prepared [ Psnchanoma of the body Ex.P-3, bnd sent the body to Primary' Health ; Centr'e, Lakhanpur for post-mop^em examtnation under Ex.P-12. He also prepared the site plan Ex|P-4 and took into possession blooa' stained soii as well plain soi! fotlm the piace of occus'rence. He a!so took into possession the spade o^ the deceased which was iying nearby under Ex.P-7. On the next day i.e. 1-9-2000 he ir.ade 'enquiry from accused Dholaram after taking him into custody. Ciuring the custody, he gave information under Secti^n 27 of the Evid'ence Act, regarding . the axe, 'weapon of offence, tl^at he has concealed tne oxe in the bushes on the bank of Sonsai l^anwar pond. At the Instance of the accused, he recovered the said 4<e and took the so.me into possession unds" Ex.P-6. Thereafter, he |took into possession ciothes of the , deceased under Ex.P-14, which i^ere brought from the hospitai. The axe, weopon of offence, was ser^t to the doctor for nis opinion. The doctor gave his opinion Ex.P-15. After completion of inv^stigation, charge sheet was fiied aciainst the accused/aoDellant! Mcgistrate, Ambiknpur, who in 1 the Sessions Judge, Ambikapur. in the Court of Chief Judiciui urn, committed the cuse fo" trial to (•tesjwt) .1 i ll> ! U XI-HC-22 SI^TT'lir fs^sn^r gwRiTiisa' s^ ^rraicra', STfftpT?, (qiiiyy •(iTO^gTOra? •>-i'"- •'•'•"••~J- •"'•'^/ TH; 200 ? far^ -3I1^?T ??gTW ^lfef - ^ Learned 5essions Judge lafter hearinq the Pubiic Prosecutor and out o.gainst the accus' e +i'tilci-'fl-i tii*4<iT^''te'^t<Ri<-4i< ^3lf^IT3T!<pT counse! for the accused and p^rusal of the record, was of the opinion thct prirna facie, offence und^r Section 302 of the I.P.C. was made lant. Accordingly, he framed chargs. However, the accused denied charqe and ciaimed to be tried. The prosecution in ord^r to prove the offence against the aecused/appeilanl- examined ds many as seven witnesses. Learned •irt ^ AL ^ -3-1 Ssssions Judge recorded th^ s'tutement ot the accused/(^3pet!an" \ , . • under Section 313 of the (fr.P.C. in which the accused pieaded innocence about the crime 4nd said he does not know why the witnesses have deposed agains)!' him and said that he has been falsely implicated in the crime. Thd accused has produced two witnesses nameiy, Saran Sai & Punidas in |iis defence. Learned Sessions Judge after.hearing arguments of t'ne Public Prosecutor and counsel for |the accused, and after holdinq ths * accused/appeliant guilt'/ for thje commission of offence under Section 302 of the I.P.C. sentenced 'hint to undergo impnsonmenl' for iife. Vi/'e have heard iearned c^ounsei for the parties. As far as the question of nature of death of Baljeet being homicidal is concerned, leamey Senior Advocate &r. S'nukla did not dispul-e this fact. PW-7 t)r. MjH. Parmar hois stal-ed that on 1-9-2000 he was working as Assist(in't Surgeon in Pr'imary Health Centre, Lakhanpur, on that day he cqnducted post-mortem on the bodY_of ^ ^^} ^o XI-HC-22 3^'alrai?FT, ®TT|<4'|!S,(sK'liyy Hi'-RTraiHich 3TT^Tq^W .<&...A...?:.S3,WS, 200 f f^s 3n^?TSBT f?IR;3TI^T ainN;gf?cr sn^T^araTgfsCT -5 +w(t-f''fl-< tiWt-Ti'^'te'^r<.Ri^i< ^; 3iKi*< 3n^?r ialjeet and no+iced seven cut injuries on his hond, neck and occipitai region which were deep up to t^e bone. On dissection, he n.oticed that right carotid arter/ was founc^ cut, muscles & vein of the neck were also found cut, trachea was culj, and 3 & 4 cervical bones were aiso found cut. In his opinion, injut'ies were sufficient to cause death in the or-dinary course of nature e^nd were homicidal in nature. The cau.se of death was sudden blood los^ "esuitjng into shock. In view of the above evidence, it stands proy^d that nature of death of Beljest. was homicidal. Now, coming to the invd ivement of the accused In committlnq t'ne murder of Bcijeet, the pro^secution case rests on the evidence of eyewitness PW-1 Bajariya and j:ircumstantial evt'dence i.e. recovery. of the axe, weapon of offence, at As far as the first poin^ 1-he instance of the accused. is concerned, learned Senior Advocate br. Shukla argued that perusa of F.I.R. shows that. it was iodged by son of the deceased Parmeshl unknown person ho.s committ^ Conduct of PW-1 Baiar'iva. wh| beycnd the shadow of doubt f\ \uar in which he mentioned thnt some |d the murder of his father Balieet. |o is said to be the evewitness. is not |or the reason that he has stated that he viiitnessed the crirriS, the"e4fter, he left for his residence and only to his wife & brother at the risidence he disclosed this fact. and did not disctose to anybody.else Learned Senior Counsel urged th.at lookinq to such.-a serious crim^ this condyct orthe witness can'iot be _-^a^^^) p-0 XI-HC-22 73t •<ii<iid'q, aTTK-1'KS, Isinwy .^&;l5^^ ^ f^s' WRCfTStlllW sn^r^r R.-ii'* an^TT St"< gf?(T 3)1^1 gWIWtrfSCT 4>Htd4]FT nTtRff^ fe^ <^t«i< ^aif^iTsn^r considered to be natural and nd same day this person was taken before that he d'd not disclil 'maS. He submitted tliat on the vsry |3y the l-'olice to the Pol'ce 5tati bse this fact to anybody, whereas, Investigating Office" (PVV-6) ($.5. Pandey states that Bajariya was brouqht to the Poiice Station on y on the next day. &r. Shukla further SubmittBd that in view of this e'j'idence of solitary witnsss and look;ni to the conduct of the wiTness } have produced witnesses of the as that picce was surrounded t^ was committed durinq the day li •r was the duty of the prosecution to vicinity where the offence took pbce y number of hou.ses and the offence iqht i.e. in betwsen 11-12 O' C!ocl<. In the above circumstances, &r-. 'Sliukia aiso submitted that this wi'hiess cannot bs considered to be who|iy reliable and it is unsafe to hold the ttiscused/appeilant gui'ty based o|i the evidence of the solitary witness. C'n the othe" hcnd, AAr. M|ishra, iearnec! Panei Lcwyer subrr.itted that narne of'this person (PW-1)| Bajariya finds place in the F.I.R. that he was accornpanying the decea^ed, therefore, his presence cannot be doubted on the scene of occurrjence. He aiso argued that It is trus that this witness did not dis41ose about tne incident to anybody outsider or the Poiice, or family members of the deceased, but it depends from person to pers^n how he behayes. AAerely on this ground the testimony of this wi^ness cannot be rejected. 1-ie further .submitted that eyen the weapo^i of offence (axe) was recovered at the ins+an<:e of the accusad as siirh finrlinq n-f +hff +finl ("our't reJyiai {ia??f^)' litt XI-HC-22 7SI ^|t||c|q, ®TTt?TTO,fslctltiy '^ K11WI Sh1iq> sn^T^rsF _.0)..A.?^^ ?R; 2001 fSR% SD^TSCT R-fjct, SfT^T gBlRitlfef aii^n g'wiwtifsa' ~r7 «tii<<(ci<(l-iKwi?iTifte^<(ai<^i< ^.a^iTW^T on the evidence of this w'.tnesl^ is iega! and requires no interferencs bv this Court. Having heard learned.co(jnsei for the parties, we have perused the evidence and judginent of •tjhe trial Cour't. There are cei'tain facts which require to be noted dow(n. PW-5 Parmeshwar has stated that when he returned from the fied at about 12 noon, Brijendra informed him that "your father hns been murdered", thereafte", he left for the scene of occurrence and aft^r seeing the body, he reported the matter to the Poiice. Howeve that he infor'med Parmsshwar stated thnt he came to. know ', PW-3 Brijendra has nowherestated and in para 3 of his evidence, he has about the murder of Baljeet through Deepa" Chowkidar when he wen|t to call his materhal qrand-father. . Now coming to the evid eyewitness, he has stated tha^ lence of PW-1 who is said to be the after fishing he a'iong with deceased Baljeet, Kaushaiya & Brijendro^ returned from 'Rad' river, on the way at about 11 a.m. they distribute^d tne fishes which were collected from the river. 'Kaushalya &. Brijer^dra left for their residence, he along with Baljeet went to tne house of Charan Sai for chewing tobacco and after chewin9 tobacco they left for the residence. On the wny, the accused came, Bajariya (PW-1] was ahead of Baljeet, he heard some sound a'nd when h.e turned Behind lie saw that the accused was attacking Baljeet with axe, after first attack Baijeet fe!! down on ^Qy^L^b^^sS^t^y- _ th^. ^cci'^d -o.ci&in- Q's^^ulte^i ^Bal ifss4—4^..i44;£—with -\ ^s^) j XI-HC-22 3sr .<<i<iici<i, tsiai<.4'i<s, Roiuy Hiiiti aiKiw 3^TCR'q7 ^.^.:A:5^. W( 200 ( t^s 3n^?T°CT ^lt^SnSRT ywv (rf?(T Poiice co.me in jeep, and »kw{<-f4)-itiw<-iT?:te]^'<Rfwi<. ^i'sTi^rs^sT axe. In cross-examination, this Iwitness has admitted that he came to hiS residence without disclosing this fact to (aiybcdy, in the evening took him in jeep to tha place cf occurrence, anei enquired from ^iim aboyt 1 k hours, 1'hersafter, fiiey took him to Poiice Stsl'ion; Lakh^npur. PW-5 Parn<eshwa" in his cross- sxciTiinc'i'ion has STOted' that Wifien he rsported the matte" to the I Poiice then, the Police came in Ijeep, when Poiice reachsd the viiiaqe they cailed Bajariya and he w4s made tc sit in the jeep -and •I'cok Bo.jariya to the Police Station, i'C u O e c{ pnnn^v /PW-61 in t •-„/.< i.'U''.^ ^rf.*^. I Utl 1 liul Cu'^' ^i ¥y ~—i^!E 1 on 31-8-2000 he catTie to know whareas, the IiT»'esti9ating Officer bra 19 of his evidence has stated •t'ha" Ithat viiho has comn'itted the mi-irder. I* is incorrect to say that Baj<<riya was called by Poiice or. the sa.me. day', he was cailed on the ipext day, Therefor®, there i.s a contradiction about taking ir^to custody of Bajariya re9ardlng investigation. On -t+ie one hand, the 1.0. says that Bajariya iiiws eatSed on the next day i.e. 1-9-2000, whereas, Bajar.iya snd other witness (compiainant) have stated that ^ajariya was taken by the Poiice to the Pollce Stat'ion on the same day. No'doubt, the conduct of 1+iis witness (PW-1) Bajariya ccnnot be said to be natura! 'and norm4'i in t'ne circijmstances, when he went aion9 with deceased Baijeet f^ir fishing and Baljeet's murcter waSj coiTimitted in day l'i9'nt in 'his pi^esence, then in norrnal course it was expected of .him to inform dbout the incident either to famliy (T^^r) 1 1 VI -»aMM^' XI-HC-22 J^ •<<1<IICI<<, »Tfl<-l'l<S, Rctl'My <<i*icfTa»ii«<i W^?Tq^W ,.^^:.s^/ V^ 200 ( R<?< sn^r^ feRrasn^T ^W^ <-)f?fl <<>i'i|{rf41-< «iiciT^''te^t<Riwi< ^3(1^T3i^?r rnembers of Baljeet or to tlfe Police wh'.ch was not done by him. Therefore, he cannot be consi(pered to be whoily reliable witness. It is admiti-ed fact that the place of occurrence was . surrounded by houses and the offence was comwitted during the day light. As such, the prosecutio \i could have produced witness from the locality who witnessed the crir^e. There was every possibility thal- the crime must have been witness^d by persons of that yicinity. We are of the consider^d opinion that it is not safe, looking to tiie facts and circumstances |sf the case, to base conviction on the sole testimony of suc'n a witne$s without any corroboration from other materia! including circumstan-tiai evidence. In this connection, this witness has stated that he a|ong with Baljeet went to the house of Cnaran Sai for the purpose of chewing tobacco. Even that Charcwi Sai 'nas not been produced in or^er to establish that just before the incident, fhe deceosed and th|s witness were together to witness the incident. T'nerefore, the pro^ecution hiis no.t been able.to establish the presence of PW-1 on the ^cehejof occurrence beyond reasonabie It is true that in evel prove rnotiye of the accused 'y case. it is not possibie to establish motive of the accused, it is ai^o, not necessary for the prosecution to in eyery case, but motive plays yery important role, particularly i^hsn ciinching, reliable and trustworthy evidence is not comina forward in a case. in thal' situation, if m.oJJue is (^gfa^) gys XI-HC-22 •T^ "Mlllcl^, ®fli<d'l<i,Rdl«y< sn^r'^w ll*l?ll (niich •••••••••••••••••—200 r i^s 3:[R5T5FiT fe:TN?sn^T a"<iq>Bf?tr sn^r SRIIW sf??r fo established then that ccn be tak^n as one of important circumstances in order to connect the accused t- nothing nas come on record, why; of the -accused in coinmitting the •*l<llfl4)4tm?ffffte'^ ^sri^trw^T ^ith the crime. Simiiorly, in this case the accused, ai! of c sudden without any rhyme or reason has comiriifted such a heinous crime. Had ths prosecution brought on record s^me evidence throwing light on motive crime that would have provided a link the chain of circumstantial e^idence. But unfortunately. nothin'- m.s been brouqht on i-ecord regai \ - Mow, coming to the cirdumstantia! evidsnce t.hat t.he cxe. weapon ot orfence, was recoverey at the Instance of the accused,the Pcndey, Sub-Inspecto", has co.*e<. accused was taken into custody ding wotive. "ecovery witness of axe has ^urned hostile, but PW-6 1.0. 6.5. ioricaliy stated thq.ton 1-9-2000 the and he qav'e information Ex.P-5, in pursuance of that he got reco|/ered the axe, weapon of offence. &hoti of the accused was aiso tpken jnto possessicin. Unfortunately, Seroiogist's "eport Ex.P-21 disintegrated, opinion could not Even though, the F5L report is t'here in which it has been mentioned that b'ood wss.found on the cd meritions thaf since biood was be given regai-ding orlgin of blood. s, but it is settled law that uniess Seroiogist's "eport is there +o ^how that human blood was found on the weapon of offence and ti^at too of the blood group of the deceased, it is not safe to conne^t the accused with the crime merely on the 'oasis of recoverv c>f wedioon of offence. axe. .Axe is such a ,^-- ('fri^fa^) ^ XI-HC-22 -?ST •<ii<ii<-t<i, aTily'i's, Rciiyy w^r'T?^ •f"^ 200] *im<»f(aiHrai fa^s: sn^i^r t3^Ri3I1^T aWq;trf^cr sfiWi; sii^igwiigTdfsg' I! «t)l<lFc]<(1-f HIHclT^'te'^'<ral<-&l< i?3ri^i'3:n^?T Som; w-s7 -?.>< ^ y thing whlch is normally kept in axs cannot bs connected with mur-der of Bat every house. Therefore, recovery of I'he invoivement of 1+ie accused in the In the circumstances, e^cept the evidence of PW-1 Bajariya i there is no other evidence, cirlcurriStantial or direct evidence, vifhich corroborates the evidence of Ssjariya, and in view of the evidence of iajariya, as 'nas been mentione^d above, he is not the whoily reiiable witness. Therefore, holding t|ie cccused/appeltant guil-"/ on such a testimony, which lacks in many (sreas, was not safe; Hence, we are of tne opinion that finding of t'nfe trial Court convicting the accused/ appellant for the commission of for the reasons mentioned abo'/i In the result, the oppeal accused/appellant is acquitted the I.P.C. He be set at iiberty :ase. In view of this order, A'\.! 1 1188/2005 stand disposed 4f. Parties are entitled for c^rtified copy ofthis order. Sd/- L.C.BHADOO Judge murder of Baljeet cannot be sustained e> - bucceeds and the same is ailowed. Tne of the charge under Section 302 of forthwith, if not required in cny other * ;i-i.)P.No.991/2005,I.A.Nos.298/2004 -M- Sd/- Dilip Raosaheb Deshmukh Judge (>i^<?fe^)