HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. SHRI DHIRENDRA MISHRA 8n HGN. SHRI T.P. SHARMA, JJ CRIMINAL APPEAL NO. 1334 OF 2003 APPELLANTS Shash NaIaVan and others I“ InH Lu um; Versus x v ‘ R€spondent State of Chhattisgafh $f £ a JUDGMENT FOR CONSIDERATION ‘ ’ Sdl- RA WSHRIA D Judge HON’BLE SHM T.P. SHARMA, J 13% ‘ A HIGH COURT OF CHHATTISGAMI AT BILASPUR DIVISION BENCH: HON. SHRI DHIRENDRA MISHRA E5 HON. SHPJ T.P. SHARMA, JJ CRIMINAL APPEAL NO. 1334 OF 2003 Vorsus z State Dishict of Magistratc, Chhattisgarh, Mahasamimd, through Rospondont Distt. Raipur (CG) Presont: Smt. Indira Tripathi, counsel for appollant No. 1. Smt. Fouzia Mina, counscl for appcllant No. 2; Shri I. Lakra counsol 1or appellant No 3 Shri S.C. Vsr’ma, counsol for appeilzmt No 4. bun Akhil Mishra, Panei Lawycr for tho State. JUDGMENT {Delivered on )311‘Februa1y 2008} Dhirendra Mishra, J This criminal appeal is directed againSt the judgment of conviction and order of sentence dated 12th November 2603 passed in S.T.No.384l2001 whereby the learned IX Additional Sessions Judge (FTC), Raipur has convicted each of the appellants under Section 302/34 of IPC and sentenced them to undergo life imprisonment, pay a fine of R5500] -each and in default thereof to undergo'additional RI for six months each. Appellants Shesh Narayan, Surya Narayan and a.) Omprakash have also been convicted under Sections 25 65 27 of the Arms Act and sentenced to undergo RI for one year each, pay a fine of Rs. 100! - each and in default thereof to undergo additional RI for three months each. All the sentences have been directed to run concurrentlv. \ \ APPELLANTS 1) ‘ S116sh Naravan, S] o Laxmi 111 Jail Narayan, agéddabout 25 years, ‘2) Ganesh, S/o Laxmi Narayan, aged about 23 Veaxs, Both are R/o Puranj Basti, Thana— ‘v Purani Basti, Raipur, Distt. Raipur. 3) Surya Narayan S/o Gajanand u f D€ varIgaa, agad about 22 y€ars, Rio Mahoba Bazar, ’l‘hana- Amanaka, Raipur (CG) 4) Omprakash, Sfo Laxmi Narayan, 4 aged about 20 years, R/o Purani BaSti, Raipur (CG) @ 2. Case of the prosecution 1’11 nutsholl is that on 13.4.2001 at about 9.30 p.131. Dhiraj Dubéy (PW—2) gavs information in RS. - City KotwaJi, Raipur to the eifoct that at about 8.30 p.131. when ho had gone to bathroom, the appellants armed with sword 8r. knife chased him. Ganesh Dewangan attacked with sword, which hit his right elbow, he called his cousin Balwant, whereupon the accused persons attacked him also with knife and sword. Balwant sustained numerous injuries’ he has been admitted in the hospital and is undergoing treatment. The incident Was witnessed by Adarsh Rao, Kamlesh Thakur, Vinod Rao, ‘ Gopal Vyas, Ashish Vyas @ Deepak, who tried to‘HntetVene and they Igiege also tlueatened. Initially, the offence was registered under Sections 30]. 506B/34 and 323 of IPC. However, after the death of i Balram @ Balwant during treatment, Secuon 302 of IPC was added. a 3. During investigation site plan (EXP/5} was prepared. Inquest over the dead body of the deceased was prepared in the piesence of Witnesses vide EXP] 26. Medico Legal Examination Report of deceased Balwant Rao was requisitioned Vide EX.P/ 29 and report of the doctor is EXP/29A. The dead body of Balwant was sent for autopsy to Medical College Hospital Raipur vide Ex.P_/ 27 where postmortem was conducted by Dr. Arvind Nerulwar (PW- 1) and his report is EXP] 1. On the basis of intimation received from Medical College Hospital Raipur, Merg intimation of EXP/30 was registered. Complainant Dhiraj Dubey was also sent for medico legal examination vide EXP] 28 to M.C.H.R. where Dr. Rajiv Pandey (PW- 15) examined him and gave his report of EXP] 28A. Sealed packet containing clothing of; the deceased was taken into possession vide EXP/9. Bloodstained and plain soil were taken into possession from the place of occurrence vide Ex.P/12. Memorandums of accused Suryanarayan @ Narayan, Sheshnarayan, Om Dewangan were recorded under EXP] 14, P] 17 and W30, respectively and in pursuance thereof, Weapon of odence sword, gupii (sword—stick) and knife were taken into possession vide EXP] 15, P] 18 and P131 respectively. Bloodstained Clothing of accused Sheshnarayan and Suryanarayan @ Naravan were taken into possession Vide EXP/2O and P]21 respectively. Spot map was got prepared by Halka Patwari Bhikhan Prasad Soni (PW—3) vide EXP/8. The articles seized during investigation were sent for chemical xamination to Forensic Science Laboratory, Raipur vide EXP] 32 and \ to a2 \\\ e 3 report of the F.S.L. is Ex.Pj35. The articles were further forwarded to serologist amd repoxt of the serologist is EX.P]4O. 4, After comp1et'u1'g investigation charge sheet was filed in the Court of Chief Judicial Magistrate; Raipur, who in tum committed the case to the Court of Sessions Judge, Raipur and the same was l received on transfer for trial by the learned Additional Sessions Judge. 5. During trial the prosecution examined 16 witnesses in all. 1 Thereafter, statements of the, accused] appellants were recorded under Section 313 of Cr.P.C. in which they denied the evidence appearing ngainst them in the prosecution case and pleaded innocence and false implication. They examined in their defence Samir Sinde (DW— 1), Rajendra Verma (DW—2) and Shivxam Verma (DW-3). 3 6. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused/ appellants as mentioned in paragraph one of this judgment. 7 . Homicidal death of Balwant is not in dispute. Even otherwise, from the evidence of PW—7 T. Adarsh Rao and the evidence of PW-l Dr. Arvind Nerulwar, Asstt. Professor, Micro Biology, Medical College Hospital Raipur, who conducted postmortem and proved his report of EXP] 1 in which he noticed following injuries over person of the deceased and opined that cause of death is syncope due to shock and haemorrhage on account of excessive bleeding due to multiple injuries and the death Was homicidal in nature, it has been established that death of Balwant Rao was homicidal in nature. On external examination: (i) stab wound, 2.5 X 1 X 3 cm over right thigh, (ii) stab wound, 2.5 X 1 X 3 cm over left thing, ' (iii) stab wound, 3 X 1 cm penetrating the abdomen and just above umbilicus, (ivl two stab wounds, 2.5 X 1 cm over right side of the abdomen, (vl stab wound, 3 X 1 cm just blow ribs and at the right side of the abdomen, two stab wounds, 2.5 X 1 X 2 cm on lateral side of the \ ‘ abdomen. io (vii) stab wound, 2.5 X 1 X 3 cm 3 cm over right to right nipple penetrating into the thoracic cavity, (viii) stab wound 2.5 X 1 X 3 cm over left to right nipple, (ix) stab wound, 2 X 1 X 1‘5 cm between 8th and 9th rib on the Chest, x (X) stab Wound, 3 cm left to umbilicus, (Xi) stab Wound, 3 X 1 X 1.5 cm over left auxiliary line, (xii) two stab wound, 2.5 X 1 penetrating the abdomen cavity, (xiii) stab wound, 2 X l X 3 cm over left waist side, (xiv) stab wound, 3 X 1T5 X 3 em over left, (xv) two stab Wounds, 2 X 1 X 3 cm over left arm, (xvi) stab Wound, 3 X 1 X 3 cm between left fingers, (xvii) two superlicial injun'es over neck of 3 c111 length skin deep. u On internal examination: 250 ml blood was there in the cavity of chest, there was one injury of 1 x 1 x 1 cm over left lung, insunlcient blood was there in both the chambers of the heart, 500 ml blood was there in the abdomen cavity, two injuries of 2 x l om were present over small intestines and there was one injury in the size of 2 x 1 x 1:5 cm over right liver. 8. Learned counsel for the appellants submitted that according to case of the prosecution Dhiraj Dubey is the injured eyewitness. As per evidence of Dhiraj Dubey at the time of incident apart from deceased Balwant, Deepak Jetwa, Kamlesh Thakur and Ganpat I-Iizda weie j consuming liquor. They all have been examined during trial and have i not supported the prosecution case. PW-2 Dhiraj Dubey, Ganpat (PW— ,5), Kamlesh Thakur (PW-6) and Deepak Jetwa (PW-9) have categorically stated that at the time of incident deceased Ballu @ ‘Balwant was with them, they all had consumed liipior, Balwant and 'Dhiraj had gone with Ganpat for messaging and at that time some persons started assaulting Balwant. However, because of darkness they could not see the Weapon of oii'ence, by which the assaults were imade. These witnesses have not stated a single word against the appellants land have been declared hostile by the prosecution and écrossexammed. In their cross—examination also, the prosecun'on has \_ \\im)t been able to elicit \ ~ any thing against the appellants. Dhiraj Dubey Lei .5: \ has further stated that ht: informal T. Adarsh Rao and his frisnds about the incident that some n6rsons are beating Balwant and when they returned to t11€ ground, thay saw that Balwant has been taken to hospital on a motorcycle. 9. It is further‘submitted that conviction of the appellants is based on the statements of T. Adarsh Rao (PW-7} who is bmther of the deceased and Ashish Vyas (PW-8). Adarsh Rao has admitted i paragraph ~9 that there is no arrangement of light in the sports ‘ complex and it was dark at the time of incident. In paragraph 1 1 this Witness has admitted that he tried to ask his brother as to who has assaulted him, however, he was not in a position to speak. This shows i that the witnesses are not aware of the identity of the assailants In parpgraph 17‘ he has stated that Patwari prepared the spot map in his presence, however, he was not able to tell the Patwari the place from Where he saw the incident. This also reveals that he is not a witness of the incident. PW-8 Ashish Vyas claims that he went to the place of incident with Adarsh Rao on being informed by Dhiraj and Kamlesh and found Balwant lying in an injured condition and saw the appellants running away towards Minimata Nagar. Thus, there is variance in the version of Adarsh Rao and Ashish Vvas. who reached the spot together. .This witness has also admitted in the cross- examination that it was already dark and when they reached the spot, the assailants had run away towards Minimata Nagar. In paragraph-9 also he has admitted that it is correct to say that after the assailants hadrhed, he and Adarsh Ram were first to reach near Balwant. There is evidence available on record that the deceased and Adarsh Rao had recent quarrel with the appellants and because of the above animosity, the appellants have been framed in the present case. All the prosecution witnesses, on whose testimony the conviction has been based bv the trial Court‘ have admitted that there wasno source of light and it was dark in the night. Even PW-3 Bhikham Soni, Halka Patwari has admitted that near the place of incident there was no light. This witness has also admitted that he prepaied the spot map on the basis of information given by Adarsh Rao and he did not tell the position of the witnesses. 10. On the other hand. learned counsel for the State supported impugned judgment of the trial Court. \\‘\ \ \ arm n ¥ l a y_ ymmmm nmwa‘ta 11. We have heald léarned counsel for both the nartiss and havs peruS€d the record as also tho impugned judgment. 12. Report of the incident was lodged by Dhiraj Dubey (PW-2) who is an injured wimess. However, he has not supported the prosecution case. The other Drosecuh'on witnesses, who have been examined as eyewitnesses namely Kamlesh Thakur, Ganpat and Deepak Jetwa have also not supported the prosecution case and they have turned hostile Conviction of the appellants is based on the statements of T. Adarsh Rao (PW-7), Ashish Vyas (PW~8), Gopal Vyas (PW- 10) and Mnod Rao (PW—14). 13. PW—7 Adarsh Rao has deposed that on the date of incident he ‘r mars ’V along with Ashish Vyas and two other friends was present in the chaat shop near sports complex and Shyam Talkies. At that time Dhhaj and Kamlesh came there running and informed him that the appellants are assaulting Balwant with knife, sword and gupti whereupon he along with Vinod, Ashish Vyas, Samir Sinde and several other persons of the vicinity rushed towards sports complex and saw the appellants assaulting the deceased. His brother was lying on the ground. On being challenged, the accused persons ran away. The deceased was taken to Dr. Sandip Dave’s clinic,. from where he was taken to M.C.H.R. on the motorcvcle. However, he died during treatment. This witness has been cross-examined at length. In paragraph—1 he has categorically stated that he identified the accused persons in the street light and moon light. Though he had admitted in paragraph-9 that there is no light arrangement in the sports complex, however, he has stated that there are 6-7 electiiC‘polls adjacent to Buda Talab and there is an electric poll in front of the sports complex also, which is titted with mercury light. His presence on the spot is further established from the First Information Report lodged by injured witness Dhiraj Dubey, in which it has been mentioned that the J incident was witnessed by Adarsh Rao. Even Dhiraj Dubey has stated in paragraph-2 that he ran to Shyam Talkies and told about the incident to Adarsh Rao and his friends and returned to the playground with Adaish and his friends. In his crossexamination he has admitted that the sports complex is adjacent to main road and there is light in the road. Though Halka Patwan' Bhikham Soni has admitted lL that there was no light al'rang6m6nt near th€ place of incident. however, in paragraph-4 he has categon‘cally stated that distance of the place of incident from the electric poll is 4O feet and he had measured the same by tape. 14. PW—8 Ashish Vyas had also gone to the place of incident with Adarsh Rao and he is a witness of the fact that when theV reached near the place of incident, they found Balwant in the injured condition and the appellants were running away towards Minimata Nagar. They chased them for 10- 15 paces; This witness has also stated that it was a moonlit night and he has denied that he had giVen statement to the police that it was a dark night. i 15. PW— 10 Gopal Vyas, is also a Witness-hf the fact that immediately after the incident he reached the spot and saw the appellants fleeing from the place of incident. They were holding sword or rod like thing, which he could not conectly see. Thereafter, he along with his brother took Balwant to Dr. Sandip’s clinic and from there to M.C.H.R. He has also proved the memorandum statements of Snryanarayan and Sheshnarayan and recovery of gupti and sword on the basis of their memorandums. He is also the witness of seizure of bloodstained full pants and shirts of accused Sheshnarayan and Smyanarayan. In the cross—examination, his version that he saw the appellants running away from the place of incident holding sword like object in their hands, has not been challenged and he has stuck to his claim that the appellants gave memorandum statements. on the basis of which weapon of on‘ence sword and gupti were seized from them. E 16. PW— 12 Shiv Knmar Yadav, SHO, Investigating Cmcer, is also a "" witness of the memorandum and the seizure. He has stated that on the basis of memorandum of Sheshnarayan, gupti was recovered from the bush Similarly, on the basis of memorandum statement of Suryanarayan, weapon of offence sword was seized from the nearby a . bush. He is also a witness of seizure of bloodstained wearing apparels of the appellants. He has proved the memorandum of and seizure from appellant Om Dewangan. 17. PW-14 Vinod Rao has corroborated the version of Adarsh Rao ~\\;\ and has stated that they were sitting in the cycle stand of Shvam WW \ \ ”Fami/ @ Talkies} which is near the sports complex, with Mohan Sinde, Balram Yadav and 3-4 other persons. At that 11'me Deepak Jetwa and Kamlesh Thakur came there running and infomed that the appellants are assaulting his brother Ballu, whereupon they rushed towards the spot and saw that his brother Balm (a) Balram was lying on the tloor and the appellants were assaulting him. They challenged and chased the accused persons, however, they managed to flee under the cover of darkness He has been cross—examined at length by the defence, 3 however, he has stuck to his claim that he witnessed the incident and also saw the appellants fleeing from the place of incident. 316? The seized articles were sent for chemical examination to Forensic Science Laboratory and according to the F.S.L. report the weapon of ohe‘nce gupti seized from accused Sheshnarayan and sword seized from accused Suryanarayan were found stained with blood. Similarly, the knife seized from accused Om Dewangan was also found stained with blood. However, origin of the blood could not be confirmed by the serologist. 8 3 19 The appellants have pleaded innocence and false implication. Thev have also examined defence witnesses. DW-l Samir Sinde is a Witness of the fact that at the time of incident Dhiraj Dubey came running towards Shyam Talkies, he was shouting that Ballu @ Balwant was being beaten by someone, whereupon they went towards the sports complex, however, there was darkness and nothing was visible. The vehicle of Nilesh Shah was standing inside the sports complex and in the light of that vehicle, they saw injured Batwant lying on the ground. Thereafter, they took the injured to M.C.H.R. DW-2 Rajendra Verma is also a witness of the fact that the sports Complex remains dark in the night. DW-3 Shivram Verma was Head Constable in Police Station Purani Basti at the relevant time. He has proved Rojnaincha of EX.D,(4, according to ‘which oh‘ence was registered against Ballu @ Balwant, Vinod, Adarsh Rao and Sourabh Tiwari on the report of appellant Sheshnarayan. Thus, from the above evidence it is clear that:- 1 til T. Adarsh Rao, Vinod Rao and Ashish Vyas were present . in the vicinity at the time of incident, they were informed by Kamlesh Thakur, injured Dhiram Dubey and Deepak XI“. Jetwa immediately aftar the incident whereupon they rushed towards the spot, Adarsh Rao and Vinod Rao have deposed that they saw the appellants assaulting the deceased Whereas Ashish Vyaseand Gopal Vyas, who reached the spot have seen the appellants running away from the place of incident. The version of Gopal Vyas in this regard remains umebutted. The version of the above witnesses further finds comboration hhm the statement of injured Witness Dhiraj Dubey, who has admitted in his examination~in~chief that he went to the place Where Adarsh Rao, and his friends were present and informed them about the incident and thereafter all of them retuxned to the place of incident, (iii) There version is also corroborated form the First Information Report, in which the complainant ha mentioned that the incident was witnessed by Adarsh Rao and Ashish Vvas, (iv) The memorandums of the appellants Sheslmarayan, Suryanarayan and Om Dewangan and in pursuance thereof; recoverv of sword, gupti and knife, have been proved by Gopal Vyas (PW-10) and Shiv Kumar Yadav (PW12), who is the investigating oilicer. The F‘.S.L. report has confirmed the presence of blood on the weapon of offence seized from the appellants. (v) So far as defence of the appellants that it was a dark night, there was no source of light in the sports complex and therefore. the so—called eyewitness are cooked up witnesses as they could not have seen the appellants, is concerned, the same is not acceptable because the i appellants have been named by the complainant in the promptly lodged F.I.R., which also corroborates the version of the above witnesses in material particulars. Apait from that, there is sufficient evidence available on record that the sports complex is adjacent to the main road passing in front of Shyam Talkies and there are ‘ electric polls on the Buda Talab side. The eyewitnesses x s t\ have also stat€d mat it was a moonlit night élld they could. identify the accused persons in the moonlight. 10 20. The minor discmpancies in the statements of the above Witnesses regarding the direction‘in which the accused persons ned, are not so important on the basis of which the testimony of eyewitnesses can be discarded. So far as defence of the appeliants that on the report of Sheshnarayan, offence was Iegistered against the complainant patty, therefore, they have falsely implicated them in the above offence, is concerned, in View of the oral and documentary evidence available on record, this defence does not appear to be teasonable and as such, not accentable. 21. For the foregoing reasons, we are of the considered opinion that thé prosecution has proved its case beyond reasonable doubt, though injured witness Dhiraj Dubey has not supported the prosecution case, but it does not ah‘ect case of the prosecution as involvement of the accused] appellants in crime in question has been duly established by the prosecution from the evidence of T. Adarsh Rao (PW~7), Ashish Vyas (PW-8), Gopal Vyas (PW— 10) and Vinod Rao (PW-14), which is also corroborated from the medical evidence of Dr. Alvind Nerulwar (PW— 1). 22. In the result,'t11e appeal being devoid of substance fails and is ;? 7 km. 71 accordingly dismissed. _n’/ Sd/- ' I Sd/— DHJRENDRA MISEEA T.P. Sharma 7 Judge Judge