HIGH COURT OF CHHAT’I‘ISGARH AT BILASPUR ‘DIVISION BENCH) OORAM: Han’ble Shti V.K. SHRIVASTAVA k Hon’ble Shti S.K. AGNIHOTRI, J J. CRIMHIAL APPEAL No.804l 1989 State of Chhattisyrh Vs Dhaxmendra Mourya and another. JUDGMEWI‘ FOR CONSIDERATION Sd//- i Judge V.K.Shrvastava J \ \ ‘ / / Hon’ble Shti S. . Mihotrl, J. _ K ’ < W ‘ Sd/. Saush K. Agm'hom x (I, t1 j :7 a‘ Judge 1,1 /igy/ 1212005 // / / / “ / HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) CORAM : Hon’ble Shri Vijay Kama: Shrivastava an Hon’ble Shri Saash KunarApihotrl, JJ. Criminal Appeal No.804 of 1989 Aypellant State of Chhattisgarh Versus : 1. Dharmendra Mourya, aged 23 years, s/o Inder Kachhi 2. Manna Lohar alias Devendta Kumnr, aged 26 years, s/o Sumndra Knmar Vishvakarma Both are r/ o Diprapara, Bilaspur, Police StatiOn City Kotwali, Bilaspur (MR) Mr. Akhil Mishra with Mr, Ravindra Agxwal, Panel Lawyers for the appellant] State. Mr. Arun Kochar, counsel for the respondents. JUDGMENT 1Deuvered on a?) [12/2005) Per Vijay Kumar Shrivastava, J. This appeal has been‘dimcted against the judgment ‘ § ated 25—8-1988 passed by “mi. Addiu'onal 7,,,,.,,,, Sessions L ,,,,,,, Judge, d \ x :X 2 Bilaspur in Sessions Trial No.30/88, whemby learned 11nd Additional Sessions Judge has acquitted the accused/mspondent No.1 with the asence punishable under Sections 302 of IPC for committing mmder of Balwant Singh and acquitted the accuso‘d/respondent No.2 for the commission of ooence of minder of Balwant Singh punishable under Section 302 read With Section 34 of the Indian Penal Code. 2. Facts essentially required for disposal of this appeal in bn'ef compass am that, Jai Singh and SmtGyan Kaur, who are the father and mother of the deceased Balwant Singh, were living in a rented accommodation owned by Kalicharan, who is the grand father of respondent No. 1, Dharmendra Momya. The relationship of landlord and tenant was old but for the last 4 years there was X? dispute between landlord and tenant and as a result thereof various proceedings were inih'ated against both the pariies. Owing t to this, respondent No. 1, Dhannendra Mourya developed ill—Will and enmity against Balwant Singh. On 18-6— 1987, Balwant Singh along with his father and mother was in the house. At about 4.30 P.M. Balwant Singh came out of the house for collecting dried cowdung. i Smt. Gyan Kaur and Jai Singh were remained inside the house. When Balwant Singh hardly had moved few steps from his house, he was intercepted and got encircled by the respondents. Respondent No.2, Munna Lohar'alias Devendra Kumar caught hold of Balwant Singh n‘om back and respondent No.1, Dharmendra Mourya stabbed him with a sharp edged weapon Gupti (one of the kinds of knife). Balwant Singh raised alarm. On hearing the cries, Smt. Gyan Kaur followed by her husband Jai Singh reached to the place of occurrence. Smt. Gyan Kaur and Jai Singh saw the ”L 3 mspondents running away mm the plac¢ of incident. Balwant Singh, who was injmed but alive, stated that Dharmcmira Mourya and Munna Lohar alias Devendra Kumar have assaulted him by means of a Gupti. Smt. Gyan Kaur took Balwant Singh to Government Hospital in a Rickshaw. The doctor, $er examining Balwant Singh, declared him deadv 3. Medical OEcer sent information to Station House O$cer, City Kotwali, Bilaspur about the death of Balwant Singh at 7.45 RM. On basis of that informah'on, Merg intimah'on was recorded and N.R.Arya, Sub-Inspector of Police went to Government Hospital, Bilaspur, Where Smt. Gyan Kaur was ptesent, who lodged an F.I.R. N.R.Arya, Sub-Inspector recorded the same as Dehati Nalisi. On 19-6-1987, Town-Inspector Ratan Singh Thakur prepared a Panchnama of the dead body and sent the dead body for autopsy. Dr. S.K.'I‘iwari conducted post mortem on the body of the deceased Balwant Singh. On examination, he found one stab wound of the size of 3 ems. X 1 cm. X 6 cms deep present on right side of liver. Internal examination was also done by him. He opined that the deceased Balwant Singh died as a result of intensive bleeding and shock due to stab wound on abdomen wall resulting a; into liver injury. 0n memorandum statement and at the instance of respondent No.1, Dharmendra Mom-ya, Gupti and one Bushirt were recovered and seized nom him. Fullpant from the body of respondent No.1, Dharmendra Mourya was removed and seized along with shoes, socks and his nnger nail. The seized Gupti was sent to Medical omcer for examinah'on and opinion. Dr. S.K.'I‘iwari, after examining the Gupti (Knife) opined that the injury found on the body of the deceasewgh could have been caused by a? @ 4 the seizsd Gupti. To support the factum of ill-Will and animosity, copies of various reports and judgment of Civil Court were collected and seized and also olifained site plan prepared by Patwari. l Witnesses were examined under Section 161 of the Code of Criminal Ploceduie. Ader completion of the investigan‘on, a charge-sheet against the respondents was led in the Conn of Chief Judicial Magistrate, Bilaspur, who committed the case to the Court of Session for trial 4. Learned trial Court named charges under Section 302 a: * of the Indian Penal Code against mspondent No.1, Dharmendra cu Mouxya and Section 302 read with Section 34 of the Indian Pena Code against mspondent No.2, Munna Lohar alias Devendra Kumar. Changes were Iead over and explained to the respondents, who gxa abjuled the guilt. Theixj defence is that they are innocent. They have been falsely implicated in the case. 5. Learned tn'al Court disbelieved the statement of P.W.—1, Smt. Gyan Kaur and P.W.-2, Jai Singh, and held that the incident was not reported immediately, distance shown by the Patwari in spot map cast doubt on the version of Smt. Gyan Kaur and Jai Singh who Wimessed the respondents running away &om the spot, articles seized have been found in open compound, respondents have not been arrested in the night but were arrested on the next date. On the aforesaid grounds, the trial Court acquitted both the respondents hem the od‘ences charged against them. a 6. The scope of appeal against acquittal has been considered by Hon’ble the Apex Courtpin the casAeiiofMStaite 0f m l 5 mob vs. Ajaib Singn and athers, reported in 2004 (7) s31: 145, Hemraj and another us. st t ofPwqab, reported in 2003 (11-12) SBR 378, Prectamnath and others os. State of Punjab, reported in 2002 (9] SBR 345, Thanedar Singh vs. state of M.P., reported in 2002 (2) 531,2 368, summon Pratap‘ and another vs. State of U.P., reported in 2003 (1) SBR 634, Rajeeoan and another os. state of Kerala, reported in 2003 (4) SBR 41 7, Bhimsingh vs. Stat: of Haryana, reported in 2003 (2) SBR 367. 7. In a nutshell, the law laid down by the Apex Court is that in appeal against acquittal appsllatt Court can 1e appreciate the evidence to ascertain Whether the View taken by the nial Coult’ is plausible and based on good and weighty reason or the same sun‘ers from voice of perversity and in case the appellate Court icon/16s to conclusion that the View taken by the trial Court is perverse or is not based on record, it can disturb rthe order of acquittal and substitute its own view‘ 8. Learned Court below considering the evidence of PW/8 Dr. SK. ’I‘iwari, Medical ohicer and other witnesses held that Balwant Sing]: was dead, however, did not care to decide as to whether the death was homicidal, accidental or natural. PW/8 Dr. S.K. ’I‘iwari in his statement has deposed that on 19/06] 1984 he conducted the postmortem on the body of Balwant Singh. He found one stab Wound 3 cm x 1 cm on the anterior abdomen just below costal margin, 4 cm lateral to mid line. On internal examination, he also found stab wound 3 cm x 1 cm x 6 cm deep on the right lobe of liver. He has further depoged that injury was 6 anti mortem Which was suEmicnt to cause death. In his opinion the cause of death was internal bleeding and shock due to stab wound on abdomen wall resulu'ng into liver injury. His report is Ex.P/ 18. His evidence has not been challenged in cross-examinan‘on and nothing has been brought to discredit his evidence. Thexefoxe, mm his evidence and his report Ex.P/ 18, it was proved that the death of Balwant Singh was homicidal in natute. 9. Leanaed tial Court having found the fact proved that the respondents and parents of the deceased were in inimical terms has held that due to that animosity the plausibility of false implication cannot be ruled out. EXP/2 is the report lodged by Smt. Gyan Kaur (PW/ 1) on 30/01] 1985 at Police Station City Koiwali, Bilaspur. She has lodged report against Prakash, Kah'charan and Paiwati to the edect that they assaulted her with Chappals. Report (Ex.P.3) was lodged by Jaisingh, father of the deceased on 14/ 09/ 1983 at Police Station City Kotwali, Bilaspur, against Kalicharan, his son and other family members. In this report, complaint has been made that Kalichaian, in order to recover possession horn Jaisingh had quarreled against him and had thrown his domestic‘ goods hum his house. EXP/4 is the report lodged by Jaisingh (PW/2) at Police Station City Kotwali, Bilaspur on 29/01] 1983 against Anoop, Inder and Dharmendra Momya stating that in order to evict him from the house they quarreled and threatened. Ex.P/S is the copy of judgment in Civil Suit No. 68- A/83 (Kalicharan Vs. Jaisingh), passed on 21/07] 1983 whereby o ex parte decree of eviction has been passed against Jaisingh. Ex.P/ 10, P/ 1 1 and P/ 12 are the cepies of Sanha entries in support of reports EXP/2, P/3 and P/4. These reports were proved by the «w [ @ 7 WitnEsses PW/l — Gyan Kaur and MAI/2 — Jaisingh and Sanha entries EX.P/ 10 to P/ 12 have been proved by Radheshyam (PW/5). From these repoxts it was established that before the incident the mlation between Gnayn Kaur, Jaisingh (tenants) and Kalicharan (landlord) and his grandson Dhalmendra Mourya was inimical. PW/ 1 Gyan Kaur and PW/2 Jaisingh axe the-parents of Balwant Singh and Dhannendra Momya is the grand son of Kalicharan. Although plea of enmity is a double edged weapon, but nom totality o the evidence it has to be determined Whether the incident took place as a result of enmity or due to enmity respondents have been falsely implicated. 10) Ex.P/ 13 is the memorandum statement of respondent-I Dhatmdendra Mouiya. Ratansingh Thakur (PW/ 17) in his statement has deposed that on 19/06] 1987 Iespodnt ne harmendr ourya who was in custody gave a memorandum Da M statement tha he has concealed Gupti underground earth in t vegetable ld of Krishna Kumar Verma an has concealed his fie d Bushiit in water in the ge. His stateent is EXP] 13. draina m Salim Khan (PW/6) and Sudhjr Kr Tapami (PW/7) are the witnesses in whose piesence the memorandum statement (Ex.P/ 13) of respondent Dharmedra Mouxya was recorded, but n both these witnesses have although admitted their signatures n i EX.P[ 13, but denied the contents therein. Both th witnesses have e been declared hostile. Both thes witnesses in their cmss e examination have admitted tat they have not signed on any b paper. Therefore, it will be presumed that the memorandum staement was recorded in' their presence, but due to some t unknown reasons they did nt corroborat the stement. In cross o e ag f nma h lank 8 examination of witness PW/ 17 Ratansingh Thakur nothing has been elicited so as to disbelieve his statement. Therefote, the statement of PW/ 17 Ratansingh Thakm‘ is acceptable and it was proved that the respondent Dharmendra Mouxya in his memorandum statement stated. that he has concealed the‘Gupt'l under earth in vegetable held of Kxishna Kumar Verma and concealed his Bushirt underwater in drainage. Ratansingh Thakur (PW/ 17) in his statement has deposed that the Respondent Dharmendra Mourya took them to place Where he concealed Gupti and h‘om that place he discovered Gupti. He seized Gupti and earth vide EXP] 1'4.‘ r Respondent Dhannendra Mourya also recovered Bushirt and the same was/ seized vide EXP] 15. In his cross examinan'on nothing substantial has been brought so as to disbelieve his Version although PW/6 ‘Saiiin Khan and Pw17 Sudhjr Knmar Tripathi who were the Witnesses of the recovery did not support the same. 7 Both these Witnesses were declared hosn'le. They admitted that they have signed those documents and they have not signed on any blank paper. Therefore, it will be presumed that both these witnesses were present when the recovery took place and in their presence Gupti at. Bushirt were recovered and documents have been prepared, but due to some unknown reasons they have willfully suppressed the truth. 11. l2. ' From Ex.P/ 14 and P/15, it is established that on memorandum statement of Respondent Dhai‘mendra Mourya, Gupti (knife) has been recovered which was concealed in ground where creepers of “Dotka” vegetables was grown, knife vgis inside 9 the earth and only its handle was visible above the ground and Bushirt of the appellant was mcovered mm the water of drainage ‘ near Bashxambush. Ratansingh Thakur (PW/ 17) in his cmss examination admitted that fmm where Gupti has been recovexed " that vegetable Badi is fenced from all the sides. There is a‘way mm the Badi which leads to the house of the owner of the Badi. Although Badi is a open ground, but it is surrounded by fencing all axound and Gupij was not lying there in visible condih'on, but was concealed under earth keeping edged portion inside the earth, Therefore, it cannot be kept by any one as it was concealed by respondent Dharmendra Mourya, therefoxe, soon after the incident he got it recovered from the Badi. Apart h‘om’ that, the said vegetable Badi was not an open place, accessible for a]1 but a place fenced from all sides. The articles Weie not lying openly but were found concealed. i 13. The incident took place at 4.30 p.111. on 18/06] 1984. Oveiwhelming evidence is on record that soon after the incident, deceased Balwant Singh was taken directly to District Hospital by where Medical Ohicer examined Balwant Singh and declared him dead. Report (EX.P/ 26) has been pmved by PW/ 14 M.A. Khan, sent by Medical omcer to Station House Odicer, City Kotwali, Bilaspur. The said intimation was sent on 18/06I 1984 at 7.45 p.m. Dehati Nalsi (Ex.Pl 1) was lodged by Smt. Gyan Kaur (PW/ 1) to Police at District Hospital, Bilaspur which was proved by PW] 16 N.R. Arya, Sub Inspector. The report was lodged on 18/06] 1984 at 20.30 hours. It means the report was lodged around four hours after the incident. When Balwant §ingh received injury he was taken to Dishict gospital by his her mother Smt. Gyan Kaur ox 10 mother and Medical O$cer declared him dead alter examining the injured and sent intimation to that eEect to Police Station. Sub Inspector of Police Station came to Dist. Hospital, Bilaspur and obtained mport dom Smt. Gyan Kaur. Themfote, the report was lodged promptly and‘ no delay has been caused in lodging the report. Gyan Kaur (PW/ 1) in her statement has deposed that her husband brought Rickshaw and they put the deceased Balwant Singh in Rickshaw they took him to Dist. Hospital. Although PW/ 1 Gyan Kaur in her cross-examination has stated that she alone took Balwant Singh to hospital that does not mean that her husband had not gone to hospital to attend his injured son. From the above evidence it was proved that Ieport was lodged promptly and on the basis of surmises and conjectures such report cannot be said to be belated one. 14. PW] 1 Gyan Kaur has deposed in her statement that she heard noise raised by her son Balwant Singh that " Ma — Mardala” and on hearing she and her husband rushed to the spot and saw the respondents Dharmendra Mourya and Munna who were after assaulting running from the place of occurrence. They reached Balwant Singh Who told them that Dharmendra Mourya and Munna assaulted him and also told them that by Gupti he was assaulted. Soon after the incident she lodged the report i.e., EX.P/ 1 wherein she has reported that her son Balwant Siugh raised cry Maxdala, on hearing the noise she and her husband came out of the house and saw respondents Dharmendra Mourya and Munna running from the place of occurrence. Balwant Singh told them Dharmendra Mourya and Munna stabbed Gupti on his stomach. In EXP] 1 the word “Ma” is missing andihe word “Chaku” (knife) in 11 place of Gupti (one kind of knife) has been used. Very often people mfermd Gupti as knife, therefore, the contradiction and omission brought by the respondents is only formal in nature. ( 15. In cmss examination Smt. Gyan Kaur PW/ 1)>‘vely specincally denied that Balwant Singh pressing his injuxy by both the hands came and stated that Dhannendra Moulya and Munna came together and after he was caught by Muma, Dharmendra Mouxya stabbed knife in his stomach. She has denied portion A to A of Ex.D/ 1 containing such statement. Ex.D/ 1 was proved by PW/ 17 Ratansingh Thakur. In natural course when the said statement was not stated in EXP] 1, how such a statement could be given by PW/l Gyan Kaur to Police under Section 161 of the , Cr.P.C. Themfoxe, her denial was true and could not have been r disbelieved, if Police in statement under Section 161 of the Cr.P.C., has written such a statement which she has not given for that statement she cannot be held xesponsible. Apart from that, in that statement also this fact is implicit that both the respondents assaulted Balwant Singh by stabbing knife on his stomach. wt , 16) Jaisingh (PW/2) in his statement has stated that on hearing the noise of his son when he came out of the house, he saw Dharmendra Mourya and Munna running hom the place of occurrence and Balwant Singh told him that Dharmendra Mourya and Munna had assaulted him. Ex.D/2 is the statement under Section 161 of the Cr.P.C. proved by PW/ 17 Ratansingh Thakur. In Ex.D]2 Police has recorded his evidence wherein it has been mentioned that Balwant Singh pressing his injury by both the hands came and stated that Dharmendra Mourya and Munna , At 12 together came and after he was caught by Munna, Dhatmendra Moulya stabb€d knife in his stomach. The wimess has spsciiically namated in Court that Balwant Singh told him that Dharmendra Moutya and. Munna had stabbed him with Gupti. in statement (Ex.DI2) in so many words he did not narrate the said fact, ‘but in his statement this fact is them that Balwant Singh told him regarding causing injuxy by both the respondents. 17. Upon raising alarm by Balwant Singh and thereaiter on hearing the voice, PW/ 1 Gyan Kaur and PW/2 Jaisingh came out of the house and saw that both the respondents running n‘orn the spot is concerned, no contradiction or omission is found in their previous statements. Although the detailed statement wn'tten in' EX.D/ 1 and D/2, wele denied by both the Witnesses, but both of them have stated that Balwant Singh told that Dharmendra ‘Mourya and Munna assaulted him. PW/l Gnyan Kuar has also stated that Balwant Singh told her that both the respondents stabbed him by Gupti (knife). Ex.P/ 1 Dehati Nalsi (FIR) is virtually her previous statement. In that report Smt. Gyan Kaur {PW} 1) only reported that Balwant Singh told that Dhamiendra Mourya and Munna stabbed knife on his stomach. Therefore, h‘om the above discussion, it is clear that So far as decimation made by Balwant 'Singh is concerned, substantial narration is available in previous statements of the witnesses. 18, Hon’hle the Apex Court in Rizan Vs. State of Chhatusgarh, reported in (2003) 2 Supreme aourt Cases 661, has held that relationship is not a factor to aEect credibility of a Witness, It is more often than not that a relation would not conceal 13 the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to dud out Whether it is cogent and credible. Normal discrepancies in evidence are those which are due to normal errors of observations, normal ermrs of memoxy due to lapse of time, due to mental disposition such as shock and honor at the time of occurrence and those are always there, however, honest and truthful a Witness may he. Material discrepancies are those which are not expected of a normal person. Courts have to label the category into which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do. 19. In the instant case, both the witnesses PW/l Gyan Kaur and PW/2 Jaisingh are mother and father of the deceased. Soon after the incident, report was lodged by mother alleging both the respondents were authors of the injuries inflicted on Balwant Singh. No doubt, parties were in inimical terms with regard to land lord and tenancy dispute, but that dispute is not so grave which may lead the parents to leave actual culprit and implicate falsely both the respondents in this case. Apart from that Gyan Kaur (PW/ 1) in her evidence without exaggeration only stated that Balwant Singh told that Dharmendra Mourya and Munna assaulted him with Gupti (knife). Virtually her previous statement is EXP] l which is Dehati Nalsi (FIR). In that report also she reported that Balwant Singh told that Dharmedra Mourya and Munna stabbed knife on his stomach, theiefore, she is not contradicting or exaggerating her statement in pourt. So far omission with reference a 14 to her evidence EX.D/ 1 i.e., statement recorded under Seciion 161 of the Cr.P.C., is concemed, her explanation was correct and acceptable looking to her report EXP] 1. So far as the evidence of Jaisingh PW/2 is concerned, omission with reference to Ex.D/ 2, his explanation is also true and acceptable considering the statement of his wife Gyan Kaur (PW/ 1). EXP/21 is the map proved by PW] 10. The distance &om the scene of occurrence and the witnesses were 65ft and 68 ft, respectively, therefore, the distance was not tar so as to prove that they cannot see the respondents heeing nom there. Therefore, the whole evidence of Gyan Kaur PW] 1 and Jaisiugh PW/2 Was not liable to be discarded on normal discrepancy and omission duly explained by the witnesses 20. Learned Court below in its judgment took also a ground for disbelieving the witnesses that at the place of Occurrence when people gathered they did not tell anything to those persons. In the instant case, both the Wimesses are mother and fathervof the deceased Balwant Singh and their son was badly injured, therefore, they Were in hurry to take the injured to hospital, in these circumstances the natural course is that they will look for transport and immediately shift the injured to hospital and they did so, instead ofwasting their time. 21. Dr. S.K. Tiwari (PW/8) also deposed that he examined the knife and gave his report (Ex.P/ 19-A) stating that the injury on the stomach of deceased had been caused by the knife sent for examination along with EXP} 19. His evidence has not been . challenged by the respondents. PW] 17 Ratansingh Thikur in his 15 evidence proved that the knife at the instance of the respondent Dharmendra Mourya was seized and sent to Medical 0&cer for examination vide Ex.P/ 19. 22. concerned, following proved cimnmstances am existing. So far as accused/mspondent Dharmendra Mourya is 1) He had inimical terms with pamnts of Balwant Singh. 2) He was found running mam