,''.'•'• -^ te>. 'lt •:liltte 4 ^^ ); O , y HIGH COURT OF CHHAmSSARH AT BILASPUR Criminal Appeal No.1196 of 2003 APPELLANTS: (In Jail) RESPONbENT; Jangli Ram and others Versus The State of Chhattisgarh JU06MENT FOft CONSIDERATEON HON'BLE SHRI R.N.CHANDRAKAR. J Sd/- Dhirendra Mishra Judge -/ Sd/- R.N. Chandrakar Judge -^_ POST FOR JUDGMENT ON ? OCTOBER. 2009 DhirendraMss Judge 1! ;81!l:i li •Blij 1 SMf.'! H" HIGH COURT OF CHHATTTSGARH AT BILASPUR Criminal Appeal No.1196 of 2003 APPELLANTS: (In Jail) 1. 2. 3. 4. 5. Jangli Ram, S/o Muni Ram, age 60 years, Occupation Labour, R/o Own House, Namnakala, P.S. Ambikapur-, Distt. Surguja, (C6) Dinesh © Daroga, S/o Jangli, age 21 years, Occupation Agriculture, R/o Father's house, Namnakala, Ambikapur, Distt. Sur-guja (C6) <l. Deepak Toppo, S/o Jangli Ram, ags 22 years, Occupation Service, R/o Father's house, Namnakala, Ambikapur, Distt. Surguja (C(5) Dharampal, S/o Sautu Ram, age 30 years, Occupation Labour, R/o Father's house, Village Chandramedha, P.S. Pratappur, Distt. Surguja (CS) bilip Toppo, S/o Jangli Ram, age 19 years, Occupation nothing, R/o Father's house, Namnakala, Ambikapur, P.S. Ambikapur, Distt. Surguja (C6) Versus RESPONDENT; The State of Chhattisgarh, Through S.H.O., P.S. Ambikapur, District Surguja, (.C.G.) Present: Shri A.K.Prasad,counselfor appellants No.l, 2 and 5. Shri Arvind Singh, counsel for appellant No.3. Smt. Kiran Jain, counsel for appellant No.4. Shri Sandeep Yadav, Deputy (5ovt. Advocate for the State/respondent. i"7. bivision Bench: Hon'ble Shri bhirendra Mishra <& Hon'ble Shri R.N. Chandrakar. JJ. JUbSMENT (Delivered'on^ctober, 2009) The following judgment'of the Court was delivered by Dhirendra Mishra, J. 1. The appellants have preferred this criminal appeal under Section 374 (2) f-1. of the Code of Criminal Procedure (for short 'the Code') against the judgment of conviction and order of sentence dated 12-9-2003 passed by the 2nd Additional Sessions Judge, Ambikapur, in S.T. No.465/2002 whereby learned 2 Additionat Sessions Judge has convicted the appellants under Sections 148, 452, 302 read with Section 149 and 307 read with Section 149 of the IPC and sentenced each of them to undergo R.I. for 1 year; R.I. for 7 years <& fine of Rs.100/-; life imprisonment and fine of Rs.100/- and R.I. for 7 years & fine of Rs.100/- respectively with usual default clauses. |!'s's'"~-i-w?3rt 2. The case of the prosecution, in brief, is that on 24-8-2002 at about 6 am complainant Lalli Namna was present in his house. His father Jeevlal, Mongia, Savita and Budhram were also present in his house. The appellants and other accused persons armed with club, battleaxe, sword and rod attacked Jeevlal in revenge of the quarrel which had taken place a day before the incident. He sustained multiple injuries on his head and other parts of the body. When Lalli and Paras intervened and tr-ied to save, they were also assaulted by the accused persons and they also sustained injuries over head, leg and other parts of the body. After committing the offence, the accused perso^ went away. The incident was witnessed by Savita, Budhram, Mongia Bai et\c.. \ \ 3. Merg intimation was given by Dasru Ram, ward boy^of District Hospital, Ambikapur, on 24-8-2002 at 14.20 hours vide Ex.-P/29. On the basis of — ^. Itf^3'^^^^^ report lodged by Lalit @ Lalli on 24-8-2002 at 7.35 hours, offence uvas registered against the appellants and Bablu © Vishwanath <& Arju Uraon. Injured Jeevlal, Lalit, Paras and Ramphal were sent for medical examination to (Sovernment Hospital, Ambikapur vide Ex.-P/31, Ex.-P/32, Ex.-P/33 and Ex.-P/34 respectively. The medico legal examination reports of Jeevlal, Lalct and Paras are Ex-P/21, Ex-P/22 and Ex.-P/23 respectively. Jeevlal died in the hospital on the same day. t)r. J.K. Reluvani (PW-11) conducted the postmortem and submitted his report •ff. vide Ex.-P/27. Inquest ffver the dead body of the deceased was prepared in the presence of witnesses vide Ex.-P/S. Site plan was prepared by the Investigating Officer vide Ex.-P/35. On memorandum (Ex.-P/S) of Charki Bai, Bablu © Vishwanath (Ex.-P/4), Dinesh © Daroga (Ex.-P/5) and Dilip (Ex.-P/6), weapon of offence i.e. blood stained axe, sword and 2 iron rods were recovered vide Ex.-P/7, P/8, P/9 ond P/10 respectively. On memorandum of Dipak (Ex.-P/13), bharampal (Ex.-P/15) and Jangli (Ex.-P/16), blood stained bamboo sticks were seized vide Ex.- P/14, P/17 and P/18 respectively. Halka Patwari prepared Nazri Naksha of Ex.-P/ZO as per information given by Budhram and Sushila. Weapons of offence seized from the accused persons we.re sent for medical examination and report of the doctor is Ex.-P/24. 4. In thesame incident, accused Dipak Toppo also sustained injuries and he was sent for medical examination to Sovernment Hospital, Ambikapur, vide Ex.-&/4 and his medical report is Ex.-P/25. 5. After completing the investigation, charge sheet was filed against the appellants and other co-accused persons namely, Pushpa Bai and Charki Bai in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions Judge and the same was received on transfer for trial by the learned Additional Sessions Judge. Since co-accus?d Babli © Renu, Arjun and Bablu were minor, separate charge sheet was filed against them in the Juvenile Court. 6. Learned Additional Sessions Judge framed the charges under Sections 148, 452,506-B, 30Z/149 and 307/149 against all the accused persons. They abjured their guilt. 7. The prosecution examined 15 witnesses in all to establish the prosecution case, thereafter statements of the accused persons were recorded in which they denied the circumstances appearing against them in the prosecution'case, pleaded innocence and false implication. Appellant Dipak Toppo, in (•eply/to question No.74, in his statement under Section 313 of the Cr.P.C. alsp sfated that on the date of the incident Lalli and Paras had assaulted himby rod and lathi. At the time of quarrel in the evening he was not present. On 24-8-2002, he had gone to the house of Ram Kumari. On the same day he was to return to the battalion. He had good relationship with Ram Kumari. M that time,Ram Kumari and her husband were not there. When he enquired about incident of previous night, Jeevlal assaulted him. When he stopped, Paras assaulted him. When he ran, Lalli closed the door and he became unconscious by the assault of Paras. He is innocent. He does not know os to how Jeevlal, Lalli <& Paras sustained injuries. 8. Learned trial Court after hearing learned counsel for the respective parties, convicted and sentenced the appellants as mentioned in paragraph-1 of the judgment, however, accused Pushpa and Charki Bai were acquitted of all the charges by giving them benefit of doubt. 9. Homicidal death of deceased Jeev Lal is not in dispute. Even otherwise, from the evidence of eyewitnesses Ramphal, Lalli Uraon, and Paras Nath, who also sustained injuries in the same incident and from the evidence of Dr. (Shanshyam Singh (PW-10), who noticed as many as 8 injuries (lacerated and incised) on various parts of the body of the deceased <& gave his medico legal examinatiort report Ex.-P/21; and Dr. J.K. Relwani (PW-11), who conducted autopsy (Ex.-P/27) on the person of the deceased and who found the following injuries on his person and opined !< /•••'^-A "-•>. ••<:.'. '\\ /.'.& ' v '^^••sss^. v ^ • •.'•'B'"S,.?, ).: '-^-^' ^-;:teSSy Ift i^^;£''•tw:wy-'S:^3W -. cause of death as coma due to fracture of skull as a result of head injury and excessive bleeding, it is established that Jeev Lal died homicidal death. • One repaired wound over forehead middle of 5 cm size; • One repaired wound horizontally placed on scalp middle of size 6 cm; • One repaired wpund on left parietal region obliquely placed of size 4 cm; • One repaired wound adjdcent to right ear of size 7 cm; • 2 superficial lacerated wounds of size 2 cm x 5 cm; • Repaired wound over left pinna of size 4 cm; • Superficial lacerated wound of right pinna of size 3 cm; • Repaired lacerated wound on right eyebrow of size 1 cm; • Superficial lacerated wound of size 2 cm x i-cm adjacent to left ear; • Contusion of size 5 cmx 3 cm over left shoulder; • Contusion of size 3 cmx i- cm over right shoulder; • Contusion over right elbow of size 2 cm x i cm; • Contusion over right forearm of size 2 cm x i- cm; • Fracture over middle of index finger; • Number of small contusions on epigastric region between the ribs hollowed portion; • Contusion over right glutial region of size 2 cm x 1 cm; • Contusion over right thigh middle and interior and posterior region; • Fracture of size 6 cm over right temporal region of skull; • Vertical fracture on middle of skull of size 5 cm; • Excessive intra-cerebral haemorrhage of brain substance. Clotted blood present. - 10. Learned counsel for the appellants referring to the evidence of Lalli Uraon argued that first information report of Ex.-P/SO is doubtful and i""^' concocted document, as the same was not recorded on the basis of information of Lalit ©Lalli Uraon. The information was given to the police by Ram Kumari, who has not been examined during trial. In the same incident, appellant Dipak Toppo was also referred to the Government Hospital, Ambikapur (Ex.-D/4). Dr. Shanshyam Singh, who examined appellant Dipalk, noticed 3 lacerated wounds over occipital region, one lacerated wound on right temporal region and one lacerated wound over left pinna vide Ex.-P/25. Appellant bipak was not present when the quarrel took place between the parties in the evening of 23-8- 2002. bipak had cordial relations with Ram Kumari and her husband Budhram. On the.date of the incident, at 6 am, he went to them to try to resolve the dispute with proposal of compromise, however, Ram Kumari and Budhram were not present. Deceased Jeev Lal, Paras and Lalli started assaulting him after closing the door. Hearing the cries of Dipak, other accused persons came to the place of incident by scaling the roof to save the life of Dipak, as the complainant party had closed the front door. Dipak was unarmed when he went to Budhram's house and he became unconscious due to assault by the complainant party. The independent witnesses have not proved memorandum and seizure. The incident did not take place in the house of Lalli and the map annexed with the charge sheet is false. The prosecution has not expiained the injuries present over the head of Dipak and thus, the prosecution has deliberately suppressed the genesis of the offence. All the witnesses examined by the prosecution are near relatives. They have inimical relationship with the accused persons and their evidence cannot be believed. A day before the incident, the complainant party had attacked the appellants, as a result, the accused persons had also sustained injuries. On their report, crime No.130/02 was registered against the deceased, witnesses Ramphal, Lalli and Budhram. In that incident, appellant Dilip, Dinesh and Jangliram also sustained injuries as described in Ex.-D/6, Ex.-D/7 and Ex.-D/S. There is materialcontradiction in the ai.i.iii! evidence of prosecution witnesses in respect of place of incident, the manner of assautt and the direction from which the accused persons entered the house of complainant. There is mater'ial contradiction and omission in the statements of witnesses from their earlier statements. There was unexplained and inordinate delay in recording statements of the prosecution witnesse?. The other accused persons went to the place of incident to save the life of bipak after hearing his cries. bipak had sustained grievous injuries on his vital part i.e. head and was unconscious. ,'•./ 11. On the other hand, learned counstel.for the State would argue that the conviction is based on the evidence of injured eyewitnesses who sustained grievous injuries in the same incident. Report was promptly lodged against the appellants by injured witness Lalli. The accused persons armed with lethal weapons i.e. axe, club and sword etc.attacked the house of the complainant party and brutally murdered Jeev Lal, who sustained multiple injuries on vital parts of his body. When the other injured persons tried to save him, the accused persons also attacked them and caused grievous injuries. The injury report of the injured eyewitnesses has been duly proved by the doctor. The injurysustained by Dipak was simple in nature and the same uvas caused while the victims tried to save them. 12. We have heard learned counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. FINNN6S OF THE TRIAL COURT 13. Learned trial Court, after setting up issues for consideration in paragraph-5 of the judgment, has acquitted all the accused persons of the charge under Section 506-B of the IPC with a finding that none of the injured eyewitnesses have deppsed that they were threatened by the accused persons.with their life. lliHi'i ^ 1 ^""fl^ .<:? '%^-y '"l~^!.!r!rf<:' S-SfS 88'" "-:;;^;s;; Rejecting the defence that the prosecution witnesses are relatives and have inimical relationship with the accused persons, therefore, they should be disbelieved, it has been held that on due appreciation of their evidence, it cannot be said that they hove deliberately exaggerated the role played by the accused persons. Repelling the chatlenge to the veracity of the first information report (Ex.-P/30) lodged by Lalit, it has been held that ASI Chandel obtained information from the complainant while he was admitted in the <i. hospital, registered FIR and thereafter obtained his thumb impression in the hospital. Since FIR was lodged in haste, therefore, the names of woman accused persons are missing in the FIR. Regarding argument of delay of 4 days in forwarding copy of the FIR under Section 157 of the Code to the concerned Magistrate, it has been observed that the accused persons were arrested on 24-8-2002 and were produced before the Magistrate with the case diary. In these circumstances, delay in forwarding FIR is immaterial. The trial Court has further held that accused Pushpa, Charki Bai and others might have gone armed with lathi with other family members to the house of the complainant to quarrel, however, the prosecution has failed to prove beyond reasonable doubt that they assaulted the injured persons and accordingly, the version of the defence that they are innocent has been accepted. It has been further held that appellant bipak along with his mother, sister and other-s had gone to quarrel in the house of the complainant. Probably, during quarrel, the injured persons caused him some injury and because of this, all the accused persons armed with sword, rod, lathi etc. entered the house of the complainant by scaling the roof and also through the door and searched paras, Lalli and Jeevlal and mercilessly beat them. In-paragraph 29, it has also beenheld that condition of Dipdk was not serious and he did not sustain grievous injury and it cannot be said that he was unable to participate in quarrel. -1. -:"-!»3| sas'r"?w It has been further held that except Charki & Pushpa, all other accused persons armed with lethal weapons in furtherance of common object of murdering ^Jeevlal, Lalli and Paras entered the house of Budhram and in furtherance of ·the.ir above common object, they caused fatal injuries to Jeevlal 'and caused his death. They caused grievous injuries to Lalli and Paras with a common object of attempting on their life. The trial Court has also held that the prosecution has failed to prove the memorandum' of.''the accused persons and recoveries in pursuance thereof by leadin9 independent and reliable evidence. It is also observed that appellant Dipak sustained injur'ies in the same incident, however, the defence of the accused persons has been rejected that he had gone to Budhram to amicably settle the dispute by compromise and it has been observed that during quarrel, probably, some injuries were caused to him by the complainant. The description of the place of incident as house of Lalli in Nazri Naksha of Ex.-P/35 and site plan of Ex.-P/20, in fact, refers to the house of Ram Kumari and the appellants are not entitled for any benefit with respect to the discrepancy in the version of the prosecution witnesses before the Court. 14. Learned counsel for the appellants have seriously challenged the veracity of the first information report. It has been vehemently argued that the report is ante dated and the same was deliberately delayed to implicate the innocent persons. be facto lodger of FIR, Ram Kumari, has not been examined in whose house the incident took place. The prosecution has also deliberately changed the place of incident as house of complainant Lalit whereas, the incident occurred in the house of Ram Kumari. 15. The report of Ex.-P/SO is purportedly lodged by Lalli on 24-8-2002 at 7.35 am in the police station. The report has been proved by ASI M.S. Chandel (PW-13), who has deposed in para-1 that the report of Ex.-P/30 ItlUB1 iir^ 10 was recorded on the basis of information given by complainant Lalit on 24-8-2002 at about 7.35 am against 7 accused persons whereas, Lalli Uraon (PW-4), in his e^amination-in-chief, stated that the incident is of August, 2002 at about 5 am. Entire family of the accused persons entered their house from different directions and assaulted him, as a result, his left hand was broken from 2 places and also suffered fracture on right hand. Because of the injuries he became unconscious and he regained consciousness only in the hospital in the next morning. •ff. The incident occurred in thfe house of Ram Kumari. He did not go personally to the police sfation to lodge the report, as he was unconscious. Even after gaining consciousness, he did not lodge report in the police station. In para-10, he admitted the suggestion that the report was lodged by his sister Ram Kumari, though he further stated that he himself narrated the above facts to Ram Kumari. 16. Copy of the FIR was received in the Court of Judicial Magistrate 1s Class on 28-8-2002 vide Ex.-P/44. Learned trial Court has rejected the defence of the appellants that FIR is a fabricated document and has held that Vimal Khalkho (PW-6) informed the police about the incident wher-e Didi was present, thereafter the police went to the place of incident and brought the injured persons to the hospital. ASI Chandel obtained information from Lalit in the hospital, recorded the same in the FIR and thereafter obtained his thumb impression in the hospital. The above finding is contrary to the evidence of lodger of FIR Lalli as also ASI Chandel, who registered the FIR. The above finding is contrary to evidence available on record. 17. It is true that delay in forwarding copy of first informotion report under Section 157 of the Code itself would not make FIR doubtful, however, in view of the material discrepancy present in the pr-osecution case regarding lodging of FIR, not forwarding the first information report promptly to the concerned Court is a serious infirmity, which j:aii!i' -?| 4^|^i%g;si;?^.;i cannot be brushed aside only on the ground that the accused persons, after their arrest, were produced before the concerned Magistrate on 25 August, 2002 arid, therefore, the delay is of no consequence. 18. Considering the fact that the complainant party and the appellants were in inimical terms, the infirmity pointed out by the appellants regarding FIR attains significance. Indisputably, appellant Dipak also sustained injunes in the sdme incident and he was referred to the hospital for medical examination vide''Ex.-D/4 and his medical examination was conducted at 8.30 am on 24-8^2002. Dr. Shanshyam Singh (PW-10) has proved his injury report of Ex.-P/25 and has found following injuries on his person:- (1) 3 lacerated wounds of size 2 x-^-x ix ^ cm, 1 x i x ^ cm, 1 x i, x -^ cm on occipital bone, obliquely placed and clotted blood was present. (2) One lacerated wound of size 5x i-x ^ cmon right temporal region, obliquely placed and clotted blood was present. (3) One lacerated wound of size i-x^ x ^ cmon left pinna upper part irregular in shape and clotted blood was present. (4) One lacerated wound of size 7x ^x ^ cmon right parietal bone, obliquely placed and clotted blood was present. (5) One lacerated wound of size i-x ix i cmon occipital region. For injuries 1, 2, 4 and 5, he advised for X-ray. However, he described Injury No.3 as simple in nature. A\\ the injuries were caused by hard and blunt object. Howgver, no X-ray report has been filed and proved. JiiBil ssiwisa 19. (PW-13) ASI Chandel has denied the suggestion that Dipak first came to the police station and lodged the report. He further denied that report lodged by Dipak has deliberately not been produced. However, in the absence of any explanation with respect to the cause and circumstances in which Dipak sustained injuries and he was referred for medical examination, the defence of the appellants that the prosecution has deliberately supprassed the genesis of the offence appears to be probable. Had the Investiggting Officer tried to ascertain the same, the defence version of the iticident could come to the fore and investigation would not have been one sided. ZO.The sum and substance of evidence of PW-2 Ramphal is that he is the real brother of Jeevlal whereas, injured Paras is his real maternal uncle. On the date of incident, he atong with Lalli, Paras, Budhram, Savita, sister of Savita and Nani of Savita were present in home. He went to attend the call of nature with Lalli at 5.30 am towards agricultural field. Around 6 am when they entered the house from the back door, he saw the accused persons were hurling abuses on them. All the accused persons armed with lathi were coming towards his house. He woke up other members and told the same. Jeevlal and Paras woke up whereas others we.re. still sleeping. Appellant bipak, both woman accused and one juvenile girl entered the house. Dipak, his mother and Pushpa were holding lathi. They entered from eastern door whereas, other accused persons namely, Daroga, Vishvanath, Bablu, Jangli, Arjun and Dharampal entered the house from back side door. Bablu was armed with sword. Daroga was armed with rod. Dharampal was armed with dagger. bilip was armed with lathi. /\rjun was arrned with rod. The accused persons assaulted Jeevlal, who fell on ground. When Paras and Lalli tried to intervene, the accused persons .also assaulted both of them. When he tried to intervene, Jangli assaulted him by brick on his waist. He tried to defend by a pipe lying nearby. While he was attempting to flee, Bablu assaulted him by sword on his head. He ducked the assault. However, on :iS !.i 13 • '^ fsssa "ffWyQ 2nd assault, his right hand middle finger was chopped. Thereafter, he fled from the place of incident and went to the house of his uncle and reached Ambikapur Hospital at 2-3 pm. His sister Ram Kumari has a bread factory. Bablu etc. used to quarrel with Ram Kumari and eat bread. The accused persons quarreled on the date of the incident as Jeevlal had forbidden Bablu from quarrelling with Ram Kumari. He is also a witness of memorandum and seizure from the accused persons. However, he has denied any interrogation of the accused persons by the police in his presence, thbugh he has admitted his signature in memorandums and seizures from Ex.-P/S to Ex.-P/lO. He has denied the suggestion of the .defence that a day before the incident, in the evening, he along with Jeevlal, Lalli and Budhram assaulted Jangli, Dilip and Dinesh. However, he has admitted that a criminal case has been registered against the aforesaid persons on the basis of report of bilip. He has also admitted that in the previous night, there was Marpeet with Jeevlal, Lalli and Paras. He has admitted that Dipak is constable in Police. He came to the villageon the eve of 'Rakshabandhan'. He was not present when the quarrel took place in the previous night. Dipak came alone aftep the quarrel of the night, however, he added that he was kicking the door. He has denied the