fy^^' £> HIGH COURT OF CHHATnSOARH AT BILJ^PUR &. App.No. 87/1992 SB: Hon'ble Shri Justice R.L. Jhanwar APPELLANTS Awdhendra alias Awdhen & 2 others Versus Ea RESPONDBNTS State ofMadhya Pradesh (now C.G.) JUDGMBNT Post forjudgment on 3 .10.2009 Sd/- R.L. Jhaawar Judge i*-^r"""4;^ ^ ^ ^ 8' S / '/ ^// HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No. 87 of 1992 SB: Hon'ble Shri Justice R.L. Jhanwar APPBLLANT8 RESPONDENT Awdbeudra alias Awdhen son of Parmanand Singh Kaawar, aged 34 years, resident of J^mala, District Sarguja. Bahadur Ram, son of Gaugharaiu Katiwar, aged 34 years, resident of Jagiaala, District Sarguja. Devna alias Deviiarayau, sou of Nanlca Gasiya, aged 45 years, resident of Jaginala, District Sarguja. Versus State of Madhya Pradesh (Now CG) Appearance: Shri Auand Verma and Smt Smita Ohai, counsel for fhe appeUaats. Shri R.R.Sinha, Panel Lawyer for the State. JUDGMENT (Delivered on 3 .10.2009) (1) This Crimiaal Appeal is directed against fhe judginent of conviction and order of sentence dated 19.12.1991, deUvered in Sessions Trial No. 159/90, whereby, fhe leamed Sessions Judge, Ainbikapur, S^rguja had convicted the appellants under Section 304 (Part1I}/offhe IPC aud sentenced each of them to undei^o R.I. for6 nionfhs. (2) Prosecution stoiy iu brief is that Shivnath @ Dalpati was inarried to Maauiati, daughter of Bokhi (PW-2). Shivnath @ .^' •-"-:^*^-. 1/ •y\// Cr.AppealNo. 87/92 l:^;,;ji Dalpati was living wifh Bokhi ia her house, There was a eontract between Shivnath @ Dalpati. aad appeUaiit No. 1-Awadhendra @ Awdhen that Sbivnath @ Dalpati would work ia the house of Awadhendra @ Awdhcn. On the date of iacident, ia tfae evening at about 7.00 pni, appeUants- Awdhendra @ Awdhen, Bahadur Ram aud Devna @ Deviiarayaa came to the house of Shivnath @ Dalpati. aad asked Tiim to go for work. Shivnath @ Dalpati refused to go aud toM theni that he has coiupleted his work and wages fhereof were uot paid to him. On this, atl the three appeUaats beaten Shivnath @ Dalpati with hands aad fists. This incident was witaessed by Bokhi (PW-2), who was preparmg food ia her house. Thereafler, Shivnath @ Dalpati died due to iajuries sustauied by him and he was buried by the viUagers on 31.01.1990. On 1.2.1990, PoUce was mformed about fhe iucident. After taking legal permission fix>m the concemed aufhorides, the dead body was exhumed by fhe Police and it was sent for postmortein. Dr. Pooraa Siagh Solaxiki (PW-6) conducted postaiorteiu and gave his report Ex.P/6, in which, he stated that the iajuries were ante-m.ortein iu uature and the death was hoinicidal in nature. Thereafter, F.I.R. Ex.P/1 was registered by Jwala F'rasad (PW-1). According to fhe report, on 31.1.1990, Jwala Prasad (PW-1) was retunuug fix>ni his fields, at that tLme Maumati (PW-8) told him fhat her husband Shivnath @ Dalpati is ill aad she told TiiTn to caU fhe Doctor. On fhis, Jwala Prasad (PW-1) went to Gram Sahayak- Kashiaath (PW-5), who went to catl the Doctor. When Kastunath (PW-5) was coining, he got uifomiation that Shivnath @ Dalpati died. He also came to know that ^Ayydhendra @ Awdhen, Bahadur Ram and Devna @ Devnarayan had beaten Shivnath @ Dalpati, due to which he died. Then he went inside the room and saw that SIuvnath @ Dalpati was dead. Thereafter, the report was lodged. Statements Cr.AppealNo. 87/92 4 under Section 161 Cr.P.C. were recorded, necessajy seizures were made and investigation took place. (3) After completion. of fhe iuvestigation, chai^e sheet was filcd before the Judicial Magistrate First Class, Ambikapur, who in due course coiiunitted the case to fhe Court of Sessions, Ambikapiir. (4) The leamed Sessions Judge framed charge agaiast fhe appeUants under Section 302 read with Section 34 ofthe IPC and read over and explamed it to fhem.. The appeUants abjured the guUt and stated fhat they are inuocent aad have been falsely implicated in fhe case. (5) Prosecution examiaed as maay as 20 witnesses aad ia defense, the appeUants exanuned two witnesses. (6) After heariug the aiyunents of bofh the parties and perusal of evidence on record, the learaed trial Court acquitted fhe accused persons of fhe chai^e Tuider Section 302 read with Section 34 of the IPC and iastead convicted theni under Section 304 (part II) of fhe IPC aad sentenced each of the appeUant to undei^o R.I. for six inonths. (7) I have heard leamed counsel for the parties at lengfh aad have perused fb.e record of the Sessions Trial. (8)- The learaed trial Court, relying upon the testuaouy of the single eyewitness-Bokhi (PW-2), convicted and sentenced thc appeUaat^ ^s above. (9) Jwala Prasad (PW-1) afeposed fhat wheu he was retuming tp his house fi-oin the Badi, he inet Maumati (PW-8) and saw her weeping. Shc told Tiim that her husband is sufifering 6x>w. fever. She requested hini to call the Doctor. On fhis, he went iaside the .j:?'lfaE»«!| ^.atS ^i^^i^. .1 :"^J] t,-^.£ Cr. ^ppeal No. 87/92 8;i':i:»E. •?;i- house aad saw that SIuvnafh @ Dalpati. was siiffering fi-oin fever, ftierefore, he went to Kashmafh. (FW-5) aud told TiiTD to caU. the Doctor. The Doctor could not come and Shivnath @ Dalpati died at 4.00 pm. On the next moruiag, 50-60 people of vfllage buried the dead body of Shivnath @ Dalpati aad thereafter, he reported the matter to the Police vide Ex.P/1. (10) It is evident fix>ia flie stateiaent of Jwala Prasad (PW-1) that nobody has toM him about the assault by the appeBants. Eveii Maniuati. (PW-8), wife of the deceased, broftier named Vishwanatti (PW-9) and Bokhi (PW-2), mofher-iu-law of the deceased had not infonaed hlin about the assault on the deceased. He also stated that after cretnation, Town Iiispector of Lakhanpur came to him and wlule abusing had threatened him. He s^ned the report Ex.P/ l. (11) Bokhi (PW-2) deposed that Mamaati (PW-8) is her daughter and fhe deceased Shivaath @ Dalpati. was her son-in-laiw, who was working in fhe house of appeHaut No.l- Awdhendra @ Awdhen. On fhe date of iacident, at noon she was cookiag food aud Maainati went to fhe niarket of Lakhaapur, at fhat tiine, appeUauts Awdhendra. @ Awdhen, Bahadur Ram and Devaa @ Devnarayaa cainie over there and asked ftie deceased to go for work iu fhe house of Awdhendra @ Awdfaen. The deceased refused. On this, the appeUants assaulted him with hauds and fists. Slte requested, but they did not hear her aad beaten the deceased aad after beating hini, they lefit the place. Sbivnath @ Dalpafr died on the same day. Maiuaati came to aieet her in fhe iiight. On fhe next day moming, 50-60 people of viUage buried the dead bodty of Shivaafh @ Dalpati. In cross-examination, she accepted fhat the deceased was suflering &om. fever for fhe last 15 days. -^-•—<-. ;.'•"• j, Cr.AppealNo. 87/92 (12) It is evident froni her statemeut that she did not report fhe aiatter of assault on the deceased by the appeUaats to anybody. Even it is also evident ttiat'she did uot state ttie iacident to Jagan Ram (PW-3), Manlsunwar (PW-7), Vishwanath (PW-9), brofher of the deceased, Jagpal (PW-10) and Jagdish Prasad(PW-13). (13) Jagan Ram (PW-3) deposed fhat he did not know fhe marmer ia wbich Shivnath @ Dalpati died. He has been. declared hostile. (14) Kashinath (PW-5) only stated fhat he went to caU fhe Doctor aad when he was coming wifh Doctor, he was uiformed fb.at Shivnath @ Dalpati died. He also stated that he asked the inother-ia-law about fh.e inanner ia which Shivnath has died. On fhis, she stated fhat due to iUness he died. He stated fhat nobody told hiTn about fhe assault by fhe appeUants. (15) Maakuhwar (PW-7) stated that on flie date ofincident, she was ia her house at viUage Mahua Tikra, Thaaa- Lakhaapur and her hustoand went to village Jagniala. Thc deceased was her brother-ia-law (Jeth). Sbe stafed tbat fhe appeUants beaten fhe deceased. Sbe stated that her husband Vishwanath (PW-9) has seen the incident aud she also went to see the deceased. She also stated that her husbaud told her fhat the appeBants had beaten his brofher, due to which, he died. She further stated fSat when she went to fhe house of Shivnath @ Dalpati, he was iu conscious aud told her husband that Awdhendra @ Awdhen, Bahadur Rain aad Devna @ Devnarayan had beaten Wm and after sayiag these words,-J^e died. She stated fhat Jagaa Ram (PW-3), Jagdish Prasad (PW-13) and Jwala Prasad (F'W-1) were also preseut there and they were sayiag for compromise, 6 Cr.AppealNo. 87/92 fherefore, they did not report fhe inatter to the police. She stated that Vishwanath (PW-9) and the deceased were the brothcrs. Maakiuiwar (PW-7) was contradictiag wifh her stateinent given to the poUce under Section 1^1 Cr.P.C. in Ex.D.2. In Ex.D.2 she stated fhat when she went to the house of fhe deceased, he was not speakiag and according to her stateinent under Section 161 Cr.P.C., his inofhLer-iit-law stated about the incident In Ex.D.2 she not stated about Jagan Ram (PW-3), J^dish Piasad(PW-13) and Jwala Prasad (PW-1) regarding conipromise. She also stated fhat what she had deposed ia Court was never disclosing this fact earlier to aaybody. Thus, her stateinent beconies doubtful. (16) Marunati. (FW-8), wife of ftie deceased stated that the deceased was working ia the house of appeUant Awadhendra @ Awdhen. Awadhendra @ Awdhen had not paid fhe amount of wages to her husband and he kiUed him. She stated that on the date of incident, she was not in fhe house; she had gone to fhe inarket. When she returued back, her inother narrated the incident. Afler the death of Shivnath @ Dalpati, viUagers buried him. It is evident froia her evidence that she has never deposed or stated a&ythiug about the incident to anybody. Therefore, fhe testimony of this witaess did ' not corroborate ber stateiaent Ex.D.3 under Section 161 Cr.P.C. (17) Vishwanath (PW-9) stated fhat he was not present ia the house at fhe time of occurrence. When he reached fhe house of Shwnafh @ Dalpati, be saw appellaats Awdhendra @ Awdhen, Bahadur Ram aad Devna @ Devnarayaa were comiag out fisom his house. / His inother-ui-law stated that the appeUaats assaulted the deceased aad told him to iaquire about his condition, on which, he went iuside fhe house, where his brofher stated Tiim that the appeUaate had severely beaten hita. The reason stated by the deceased is fhat the appellaats asked him to i!!;:;: '-;:!"'8I»». ^^^?'1. ^ r-s Cr.AppealNo. 87/92 work ia his house, whereupou he refused to go, thercfore, fhey had beaten Tiim. After speaking about assault, fhe deceased stopped speakiag. At ttiat time, inany people came to his house froin the village. Jagau Ram., Budhau Ram stopped them not to speak about the ^sault. He went to fhe Sarpaach who told him to report the matter to the police aad when fhey were going to rcport the niatter, the vfflagers stopped fhem. In cross examination ia para 5, he stated that "^I ^ ^gqfif ulX IR 7Pn aft^ •g^ cf?H ten c^ 1^ gf^ Tipft TI^ c^ sra^fT ^ f^ 4 ^rar ani ?fl^ q?^ ^ ^ lm ajT cpjffip iJtcliT •.T^T ptc.Tr |" He also deposed that "^ TR c^4?f ^cp sTRl ^qfcf -^T •((1^ qigT ^t> 4 -i^ 6[Nt chg*'< 'tR ^Pn 1 ^s^ siK'iRcw ^? 7i€f sfta ^ipn i" (18) According to fhis statement, fhe statement given by Vishwaaath (PW-9) in examination in cluefbecoiaes doubtful that his deceased brothcr stated him about assault by fhe appellants. (19) Jagpal (PW-10) stated fhat when he came to know about the death of Shiynath @ Dalpati, he told Vishwanath (PW-9) to report the matter. (20) Jagdish Prasad (PW-13) stated ttiat after hearfng the death of Shivnath @ Dalpati, he went aad asked fhe mother of Manmati, on which, Mauinati told hiTn that due to fever Shivnaffa @ Dalpati died. He has also been declared hostile. (2^1) After perusal of the above evidence, it is clear that Jwala Prasad (PW-1) -did not state about the incident that the appeUaats/liave beaten fhe deceased. It is evident froiai the st&tement of Bokhi (PW-2).fhat she did not state aaything about assault on fhe deceased to aaybody by the appeUants and she did not report fhe matter to the poUce. ^BS Cr. AppealNo. 87/92 (22) According MaQkunwar (PW-7), on one side she stated fhat fh.e deceased iafonned about the assault, but none had supported her. Even inofher-in-law of thc deceased Shivnafh @ Dalpati, and Manmati (FW-8) did not support the statenient of Maakiiuwar (PW-7), therefore, her statement is not credible. Manmati (PW-8) was not aa eyewitness. (23) Vishwanath (PW-9) stated tbat he asked from the deceased as to who has assaulted hiin, then he narrated fhe incident to Tiim. But in. cross-examination, he stated fhat when he reached, his brofher only told that "fl ^€f ?NT aad thereafter he died, therefore, his statement rcgardiag assault also becom.es doubtftd. (24) In fhis way, it is clear froia the above evidence fhat nobody reported fhe laatter about assault imm.ediately aad Jwala Prasad (PW-1), who reported fhe inatter to fhe Police, only stated that fhe report bore his signature, but what was written ia fhc report he did not kiiow. FIR was also not lodged iiamediately. There were contradictions in the stateiaents ofwitnesses Jwala Prasad(PW-l) Bokhi(PW-2), Mankunwar(PW-7), Vishwanafh(PW-9) aad Maniaati(PW-8), due to which, fhe incident becomes doubtful. (25) The leamed trial Court has relied only on the evidence of siagle eyewitaess Bokhi (PW-2). But Bokhi (PW-2) was not a reliable witaess as she has not stated fhe iucident to aaybody except her daughter aud also she did not report the matter iauaediately to fhe police and wifhout reporting, ftie dead body was cremated, fherefore, the testmiony of Boldii (P.W.2) is not trustwoi^hy. (26) Considering the facty and circuinstatices of the case, I am •of the opinion that the learaed Sessions Judge was not justified in convictitig and sentenciug the appeUauts on fhe basis of y^.sast^ i:'rl-3t. ""^. ' •PK8:il8t 1 Cr.AppealNo. 87/92 evidence adduced by the prosecution. The evidence must be free of any blemish or suspicion, must impress the court as whoUy truthful, uiust appcar to be natural and so conviacuig fhat the court has no hesitaUon. in. recording a conviction sotely on the basis of the testimony of a siagle witaess. (27) For fhe foregoiug reasons, fhe appeal is aUowed. The conviction. offhe appeUants under Section 304 (Part II) ofthe IPC and seiitence awarded fhereunder are liable to be set aside aud are hereby set aside. The appeUants are acquitted of fhe above charge fi-amed agsanat thcm. They shaU be set at liberty forthwifh, ifnot required ia auy ofher case. Sd/- R.L. Jhasswar Judge iunlta.