1 ¥; h ‘ /_¥ HEGH €0URT OF CHHATTISGARH AT BIEASPUR (Division Bencm cam a Hon’bie Shiri Lal Chamé Bhadoo, J and. ta Iim’ble' smi Vijay Kama: Shriméava, g3. ai'iminal Appeal No.345 of 2003 Khorbahra Verma and othexs Vemus State of Chhattisgaxb JUDGMENT FOR CONSIDERATION \ \ 5d!— » V_K_shr'wastava Judge z HQN’BLE SHRI JusTICE LAL CHAIM) BHAnnn Sdl- El x L.c.BHADOO Judge w L , Pcs'r FOR O?l£2}209¢5 A Sd/— 1! ‘. J U D G E 9¥10g2006 ‘A Q (3:19 HEGH CQURT GF CHHATTIgGARE-I AT BILASPUR (Dimion Bench} CQLRLAM : Eeg’ble 511:: Lal ghaml Ehadoo; J. and . Hon’ble $hri Vijay Kumar Shrivastava, J. Criminai Apnea! No.345 of 2G03 v r Appeilamts : 1. Khorbahra Verma, {EniJain S/o Babulal, ag€d 50 years, ‘ u f Taneshwar Verma. S/o Khorbahra, lag6d 26 years 3. Daleshwar Verma, S/o Khorbahra, aged 20 years A11 the above appellants are R/ o Village Jhabdi, Poiice Station Kasdol, District Raipur (C.G.) Versus Resnondent State of Chhattisgarh: through Station House Officer, Poh'ce Station, Kasdol, District Raipur (C.G.)’ Mr. Rajeev Shrivastava with Mr‘ Shiv Kumar Guha, counsel for the appellants. Mr, Ashish Shukla, Additional Public Prosecutor with Mr. Akhil Mishra, Panel Lawyer for the respondent] State. JUDGMENT (Delivered on 0’171u2l -2006) Per Viiav Kama: Shrivastava, J. This sapyeal has been directed against the udgment of j conviction and order of senWQ-Q-QOOLB passed by 11nd A Additional S6ssions Judge, Baloda Bazar, District Raipur 1'11 S€ssion$ Trial No.319/02, whereby learned Additional Sessions Judge held the appeilants guilty for committing the offence of murder in fuxfherance of common intention puniehable under Section 302 read with Section 34 of the Indian Penal Code and eentencing each of them to undergo imprisonment for life and to pay a fine of Rs,1,0DO/-, in default of payment of fine, to undergo additional iigorous imprisonment for 6 months. r 2' u f ‘Facts essential for disposal of this appeal in brief compass are that, Lalji and others filed a civil suit for declaration of title and permaneilt injunction over disputed land bearing Khasra No,777 area 0.316 hectare against appellants Tileshwar, Daleshwar and others in the Court of Hnd Additional District Judge, Baloda Bazar. The civil suit was registered as Civil Suit No. 1A] 2000 and was decided on 10—12—2001. The Court dismissed the suit holding appellants Tileshwar and Daleshwar owners, who are in possession of the suit land. On 25—8—2002, Deceased'Ramkirl‘an had gone to the spot that is known as Granary (Bjv'ara) to keep the Thorns cut by appellants and his companion in the Byara. Golu and his grand mother were also there to help Ramkirtan in his work. Around 9.30 A.M., appellants accompanied with Mukteshwar and Tileshwar carrying'Axe, Stick and Knife came there and with intent to kill Ramkirtan attacked him with the Weapons carried by them. Ramkirtan received serious injuries and died on the spot. Surendra alias Golu saw the incident and rushed to his house to call his father. Ramkumar, having learnt about the incident, rushed up t‘o the Granaly, where he saw the dead body of his brother Ramkirtan having various injuries on. his head and neck caused by Axe The « x; 3 dEad body was lying in p001 of blood. He wént to Kotwar and appm'sed tha incident to Bhuneshwar. Govind, Ramsharan, Bhuneshwar and others came and saw the déad bOdy. They accompanied Ramkumar‘to Police Station Kasdol. 3. Ramkumar lodged RIVR, and Merg Intimation. M.R.Sinha, AsSistant Sub—Inspector of Police reccrded Merg Intimation and F.I.R. M.R.Sinha, after recording ELR. and Merg Intimation, went to place of incident, Where he found the dead body of dakkutan After calling Panch witnesses, he. prepared a. Panchnama of dead body and Sent the dead body for autopsy. He é collected plain earth, blood stained earth, prepared spot map and. recorded statement of some of the witnesses. Fulther investigation was taken up by Lambodar’Patel, Sub-Inspector of Police? who reconied memorandum statements of Taneshwar, Daleshwar and Khorbahra and on their discoverv statements recovered one Axe from accused Taneshwar, one Club from accused Daleshwar and one. another Axe from accused Khorbalira and seized all these articles Both the Axes were sent bV him to Medical Officer for examination and opinion. He also recorded statements of some of the witnesses. 4. Dr. Y.K.Sharma conducted autopsy on the body of deceased Ramkirtan. He found various injuries on his body, described all those injuries in his report. In his opinion, the cause “of death was cardio respiratory arrest. due to spinal and vascular injury. The death was homicidal in nature. He also examined both the Axes and returned both these Axes under sealed condition along with his report. He. also collected the blood stained Baniyan of @ L\» demased and full pant from thE dead body and ssnt th€$e articles £0 P01iC€ Stafion, Kasdol‘ Bofh tha Axes r€covsred and seizsd from appellants Kherbahra and Talmshwar. Contr011€d camh, blood stained earth and blood stainsd Baniyan of me decaased wem San to Forensic Sci€nce Laboratoxy, Raipur for examination. Assistant Chemical Examiner, after examining the$e articlee repofted that except controlled earth, all other articles were stained with blood. After completing the invmtigation, Station House Officer, Kasdol led charge~sheet against Kho‘rbahra, Taneshwar, Tiléshwai” and Dale§lfwar in the Court of Judicial Magistrate Firet Clams, Baloda Bazar and case against Mukteshwar was led before. Juvenile Justice i Board. o 5. Both the cases were committed to the Court of Session for trial. As both the cases arose out of same incident, therefore, they have been tried jointly, Charges under Section 302 read with Section 34 of the Indian Penal Code were framed, read over and explained to aypellants, who abjured the guilt and took the defence that due to land dispute, they have been falsely implicated in this case. Learned Additional Sessions Judge, after due appreciation of the evidence, held the charge against Tileshwar and Mukteshwar not proved beyond doubt, therefore, acquitted both these accused of the charge under Section 802 read with Section 34 of the Indian Penal Code but held appellants guilty for committing the murder of Ramkirtan in furtherance of their common intention punishable yunder Section 302 read with Section 34 of the Indian Penal. Code and, therefore, sentenced them as afore mentioned. M-a ! 5 6. Dr. \YKSharma has conductxid post mortém on the i x body of deceased Ramkirfan and has proved his réport EXP—27. From his statement 011 oath before the Court and his report. EXP- 27, it is proved that, following ante moxtem extemal injuries were found on the body of deceaSed Ramkirtan : — External Ante Mortem Wounds : 1. “Soft tissue swemng, deformity in posterior lateral aspect of middle third of left forearm about 4" above elbow. InciSed ut‘ wound size 1”x 1/2"Xl/2” in posterior lateral aSpect of left forearm ahout 4" above elbow. Fracture of shaft humerus left Clots present in muscles. a « 2. lncised wound 2"x 1/2"X1” present 21/2” above sternal notch transverselv present across midline, blood clots in across present. wound. 3. Incised wound 2"x1/2"x1” below right angle of mandible about 2" below right ear. 4. Incised wound size 3”x1/2”X‘/2” trahsversely placed in plost triangle of neck on left side, about 3" below lobule of left. '\ ear. Underlying muscles are out. 5. Lacerated wound size 1”X1;’2"x1” about 11/2” below lateral half of left eye vertically placed. 6. Incised wound 2"X1"X1‘/2” verticallv situated in neck in posterior aspect of neck about 3" posterior to left ear. At site of injury No.2 muscle, trachea, oesophagus are cutf within the line. Collected blood present in trachea. At site of No.3 cut. Cervical of injury No.3 lanjue, carww vertebra is also cu ." @ 7. From the oral avidsnce of Dr. Y.K.Sharma, P.W.—1 1 and his pOSt mortam report, EXP—27, it is also proved that on internal oxamination, third csrvical veltebra waS found cut in tho line of injury No.3, muscles of heck wors cut in tho line of wound of neck, central vertebra cut and fracture on shaft of humorous was, present. The cause of death was cardio respiratory arrest due. to spinal and vascular injury. The death was homicidal in nature. 6 8. ' Taking into consideration the injuries found on the bod? Bf deceased Ramkiltan, its gravity and the oral evidence of Dr. Y.K.Sharma which is found to be credible, it has been proved that the death of Ralnkirtan Was homicidal and as a result of injuries caused to him he succumbed to injuries. 4 9. To hold the appellants guilty’for committing the. murder of Ramkirtan in furtherance of common intention, learned trial Court has relied on the oral evidence of Surendra alias Golu, PW.- 10, Bhuvan’ P.W.—5, Ramkumar, P.W.:1 and has also placed \vx reliance on F.I.R., EXP—1, memorandum, EXP-4, P-6 and P—8 and recovery of Axe, small Axe containing blood stain over it. 16. Learned counsel for the appellants contended that F.I,R. has been lodged against appellant Khorbahra. Name of other appellants do not find place in the F.l.R. Due to animosity, rooted -¢ out. of land dispute, Whole family has been falsely implicated in this acaSE. The evidence of Surendra alias Golu, P.W.—1O has been exaggerated from time to time. His Court statement is contradictbry’ to his previous statement. Police recorded his statement several n'mes. Ramkumar, P.W.-1 was not an eye—Witness and Bhuvan, L g)o ,1 / P.W.-5 also did not Witness the incidtant. Th6r€for6, th6 oral evidance to support the prOS€c11Ti011 story wa5 not reliab1€ and the blood stain found ovar both tho Axos have no relevancy to support the prosecution case becauso in village such weapon are found in every house for their domestic Work and without discovexy of om'gin 1 \ of blood, the presence of blood stains on these Axes does not create 1 any evidence against the appeHants. Per contra, learned counsel for / the State submitted that although some discrepancy has been brought in the evidence of Surendra alias Golu, P,W.-10, a child witnhs‘s, but that itself is not sufhcient to discard his Whole testimony when the same is duly con‘oborated by the evidence of i Bhuvan, P.W.—5: Ramkumar, P.W,-1 and document, EX‘P'l. Memorandum and seizure of two Axes containing blood stains have been proved and as coxroborative piece of evidence the seizure has corroborative value in this case. Learned counsel for the State supported the reasonings and finding of the trial Court. 1 1. Surendra alias Golu, P.W,-10 i’s‘ an eye—Witness. i He has stated in his statement that Khorbahra and his four sons have killed Ramkirtan. In the morning around 8.30 A.M., he, his grand mother and uncle Ramkirtan were in Badi. Ramkiitan was fencing Badi and he and his grand mother were assisting him by bringing Thorn Bush near Ramkirtan. At that time, Khorbahra, along with \ all his sons, canying Axe, Knife and Club came there and all the accused attacked over Ranlkirtan. They assaulted and caused , sinjuries on the neck, back and left hand of Ramkirtan. Blood started oozing out of the injuries. Both he and his grand mother raised an alarm and rushed towards his father to call him. His father was over the wall, who, after hearing about the incident, went. @ ’io thE spot, A11 The accu$6d saw, Ramkmnar was commg, themfore, thev fled away from there. 8 12. Statemcnt of ,Sumndra alias Golu r€carded by Police is Ex.D—3, Thf: said stamment has b€en r6corded by ths Police on 25— 4-»20G2 Le, the date of incident. Surendra alias Golu, PAM—10 has stated in his cross—examixlafion that Police recorded his statemeilt on the date when his mole Ramkirtan died. Although Surendra alias Golu, P‘WslO admits iii hisrcross examination That'again after 10—1Qiiays later, his statement was taken by Police but on record. 110 such statenient is there. Lambodar Patel, PAM—9 who is the Investigating Oftieer has statecl in his statement that on 11—6-2002 « additional statement of Golu alias Surendra has been recorded by him ie. Ex,D—4. It appears that EX.D-4 recorded by Police on 11—6— 2004 is the statement referred by Surendra alias Golu, to be recorded again by the Police. Surendra alias Golu, P.W.-10 has stated in his cross examination that in his statement he had stated that all the accused persons were carryingwknife. lie further stated that he was not knowing the name of elder son of Khorbahi‘a, therefore, he did not tell his name to the Police. He also stated that when they raised alarm, accused persons did not run away but after anival of his grand father, uncle and father appellants ran away. Regarding timing also, the witness stated'that they were in granary around 8.30. ' All these facts either by omission or contradiction has been brought to discredit his evidence. ‘ l3. There are three categories of witnesses; first- wholly reliable, second- partly reliable and third— wholly unreliable. No parameter can be fixed to categorize the witness in these categories. (£9 ‘ From the facts and circumstances 0f the case; witnesses are to be 9 categorized. A witness who is whoily reliabie can be relied-on far convictian or acquittal. A witness who is partly reliabie and the part 0f his evidence which can be relied on: is required to be corroborated by other pieces of evidence and circumstances and such pait, if relied on) can be utilised for recording conviction or acquittal. A witness who is unreliable, at the threshold, cannot be relied on for holding conviction or acquittal, 14. inf ‘ Herc in the. instant case, witness Surcndra alias Golu has been produced by the prosecution as an eye—witness. Undoubtedly, he was present at the time of incident and witnessed the occurrence. and had thereafter also narrated the story to his father. From the aforesaid discussion, it is evident that his evidence on some part is contradictory to his previous statement as also he has exaggerated his statement in Court. Therefore, taking into consideration these contradictions the evidence of Surendra alias Golu as a whole is not rehable and how much of his evidence can be relied on has to be determined by other corroborating piece of evidences and circumstances. A a \‘L’ ‘x‘ 15‘ Ramkumar, P.W.—1 has deposed in his statement, he was doing some repair work over his house. At that time, his son Golu shouted that “W w 1111’ E1? d”. Ramkirtan is uncle of Golu. Hearing that, he rushed towards the granary and saw all th "Jappellants, who, after assaulting Ramkirtan, were fleeing away. They were carrying axe, club and knife. A number of injuries over his neck, cheek and hand were found from where blood was coming out. In cross-examination, he has admri‘tted that, when he was e ) l- informad that Ramkixtan is lying dead on the spot then 116 went to ths spot, H6 further says that Golu raised voice from the spot and hearing that voice he went to the spot, Further in his cross- examinafion he has admitted that when Golu cried out then he rushed to the spot and saw Ramkirtan lying dead there, From his admissions in cross examination, it is apparent that, he was not on the spot when the incident took place. 1-6. In cross examination, he stated that in his report and statement before Police he gave statement that all the accused i persons were running camying axe, club and iknife with them. He also déposed that he has lodged report against all the accused and also named all the five accused persons. From his statement, it is manifest that after reaching on spot he outcried. Therefore, Ramcharan, Govind and son of Kotwar Gajendra came, thereafter he went. to Police Station and lodged his report, EXP—1. 17. Report, EXP-1 has been written by Assistant Sub— Inspector M.R.Sinha, P.W.-8, who proved it. In the report, EXP—l, Ramkumar has made a statement that his son Golu came running from granary and told that Khorbahra has killed Ramkirtan by an axe, therefore, he got down from the roof and went to granary where he found dead body of his brother Ramkirtan and also saw injuries over his neck and head caused by an axe. He also reported that because of land dispute as a result of animosity Khorbahra had a; killed his brother Rainkirtan. From report EXP-1, it is apparent that he had not. witnessed the incident but soon after the incident received information from his son Golu that Khorbaln‘a has killed Ramkirtan, he went to spot and saw his brother dead. He went to @ . ll Kotwar, narrated The incidexlt to Kotwar and 011161“ wihmssss and thereafter lodged the report. From his report, EXP-1 and deposition, at the most hie evidence can be relied only to ssupport that at the tilne of incident he was over his roof, his son Golu was in granary along with Rainkixtan. Golu witnessed the incident, who came and informed Ramkumar that Khorbahra had killed Ramkirtan, therefore, he lodged the report. His evidence so far it relates to his being eye—witness or to Witness the appellants running from spot carrying weapons cannot be accepted. $f i 18. Bhuvan (P.W.—5), in his statemént, deposed that, in early inoming mound 9 or 10, he was in his house. He heard the « outmy of Ramkirtan sounding from Badi, he Went towards Badi. He saw accused persons coming from there. Taneshwar and Daleshwar were carrying axe, Khorbahra was not having any arm. In Badi, he saw dead body of Ramkirtan having various cut injuries. In cross— examination, he further stated that Ramkirtan cried “WET 7T”. In his statement, recorded by Police, it hasnot been mentioned that Ramkirtan cried “m 1T”, but this omission is not material, therefore, from his statement, this much can be believed that when healing the outcry of Ramkirtan he went towards granary of Ralnkirtan he saw Taneshwar, Daleshwar and Khorbahra coming r from there. 19. Gajendra Kumar (P.W.—6), who accompanied Ramkumar e to Police Station in his statement deposed that Ramkumar called and told that Khorbahra and others killed his brother, therefore, report is to be lodged. He saw the dead body of Ramkiitan. In cross examination, he admits that Ramkumar did not tell him that he was m 12 on the 3pm, Therefors, his statement only supports the fact that Ramkumar informed him regarding killing of his brother by Khorbahra and others. This Witness did not disclose the names of other persone. Therefore, so far as Khorbahra is concerned, upto that extent his statement is credible, 20‘, EXP—8 is memorandum statement of Khorbahra recorded bV Lambodar Pate1, Station House Offlcer, Kasdol. r Khorbahra Vide EXP—8 discovered the fact of recoverv‘bf an. axe and EXI‘Q is recovely of an axe from the house of Khorbahra at the instance of Khorbahra. Lambodar Patel (P.W.—9) in his evidence deposeh that Khbrbahra gave memorandum statement to the effect « that he has concealed the axe which he. will recover. The Statement, EXP-8 has been recorded byrhim. One axe was recovered from the house of Khorbahra which was kept in his Patav that has been seized vide EXP—9, Meghnath, P.W.-2 corroborated the fact of memorandum and recoverv. From the evidence of both these Witnesses, it is proved that on the memorandum of Khorbahra one axe has been recovered. EXP-4 is memorandum statement of appellant Taneshwar, who in his statement discovered the fact that ‘ he has kept an axe concealed in his Patav. Vide EXP—5 at the instance of Taneshwar, an axe has “seen seized. From the statement of Lambodar Patei (P.W.—9) and Meghnath (P.W.—2), memorandum statement EXP—4 so far it relates to discovery of fact regarding concealment of an axe and thereafter seizure EXP-5 vide which an . “axe has been seized at the instance of appellant Taneshwar has 'been proved. 21. EXP—6 is memorandum statemsnt Cf Dalgshwax. Daltashwar discoverad the fact that he has kept tha club conceakd in his compound. Th€ club has b6€n seized at the instance of appellant Daleshwar’vide EXP—7. Discovery and recovery both have been proved by the evidence of Lambodar Patel (P.W.—9) and Meghnath (RW. —2), 13 22V Lambodar Patel, PAM—9 1‘31 his statement haS deposed r that an axe seized from the possession ofappellant Ta’neshwar and anot'hé‘r axe seized from the possession of appellant Khorbahra were i sent bv him Vide EX.P- 18 and EXP-19 to? Medical Officer for examination. D1? Y.K,Sharma, P,W.-11 in his statement deposed t that two axes were brought on 18-5—2002 for examination. One Kulhadi has 2 inches sharp edge vide which injiiry No.4 caused to Ramkiitan could have been caused, Another axe has sharp edge 2.1 inches. Injuries No.1, 2, 3 and 5 found on the body of Ramkirtan could have been caused by the saine axe. Evidence of both the witnesses is credible. EXP-26 is report of Assistant Chemical Examiner. Assistant Chemical Examiner after examining both the axes has reported the presence of blood stains over both /xx ;y i the seized axes. 3. So far as involvement of appellant Khorbahra Verma in causing homicidal death of Ramkirtan is concerned, the evidence of eve witness Golu alias Surendra is available. EXP—1 is the F‘.l.RI‘ -;which clearly proves that Golu after Witnessing the incident inshed towards his house and told his father that Khorbahra has killed Ramkirtan with an axe. Ramkumar although is not an eye Witness, bnt from his evidence it is clear that after receiving information from @ 14 Golu he. cam€ to spot, saw dead body of Ramkirtan and accompaJlisd with Gajendra and others Wont to Police Station and lodged report. EX.P— 1. Bhuvan, P.W.—5, who after hoaxing 1116 outcry of Ramldml was going towards granaly saw appollemt Khorbahra coming from that An axe has boon soized at tho instanco of appellant Khorbahra which containod blood stains and from medical evidonce it is clear that the axe seized from Khorbahra might have caused injuries No.1, 2, 3 and 5. Therefore, from all these evidence, the involvement of Khorbahra Verma m the oifence has ween proved. So far appellant Taneshwar Verma is concerned, t although Surendra alias Golu (P.W.—1Q) in his statement deposed that Khorbahra and all his sons killed Ramkirtan but the contradictions and omissions described earlier clearly Show that he did not name the elder son of Khorbahra but in his Police Statement the name of Taneshwar Veima is there. So far Taneshwar Verma is concerned, it. is mateiial contradiction. Set apart. soon after the incident, Golu gave information to his father Ramkumar. Ramkumar informed the fact to Gajendra and others and made report i.e. EXP—1. Gajendra, P.W.-6 did not say that Ramkumar informed him that Taneshvvar Verma also killed his brother. In EXP—1, which is a report made by Rainkumar does not contain the name of Taneshwar Vernia as assailant. Therefore, statement of Sitrendra alias Golu suffering infumities and material contradictionf ..,and absence of name of this appellant in the F.I.R. as well cannot implicate this appellant in the involvement of causing homicidal death of Ramkirtan bevond reasonable doubt. 24‘ @ 15 25. So far as appellant Daleshwar Verma is concenmd, Sumndra alias Golu deposgd agajnSt him but taking into account his contradictory statétmcnt, absence of his name in the rcport EXP“ 1, which has becn lodged soon after the incident by Ramkumar, P.W.—1 and absence of his name in the statement of witness Gajendra Kumar, P.W.-6 beyond reasonable doubt it cannot be. held that Daleshwar Vemna is also responsible for causing the death of Ramkirtan. 26.‘ t‘ Ramkumar, P.W.-1 in his cross examination admitted the fact that a civil suit relating to land wheie incident took place was biéought by them but they lost the suit and the Court held title « and possession over the land 1n favourof the appellants. He further admits that his brother Ramkirtan had gone to fence the said land, He also admits that in that granaiy, his brother Ramkiitan canying an axe and crowbar had gone. From the evidence of Surendra alias Golu (PAM—10), it is clear that Ramkirtan was fencing the land and they were providing thoni bush to him. win these circumstances, certainly Khorbahra Verma had right