..^^ 1 p 72.' HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hdn'ble Shri Rangnath Chandrakar, JJ, Appellant Respondent Criminal Appeal No. 1183j)f2003 Santosh Vs. State of Chhattisgarh Appellant Respondent Criminal Appeal No.,1208 of 2003 Vs. Paras State of Chhattisgarh & Crimina! Appeai No. 1224 of 2003 Appellants ResDondent Vs. Makran ard another State of Chhattisgarh ;i^i"i^58t- ^'-^^•f^^Jtis , JUDGMENT FOR CONSIDERATION Hon'ble Shri Dhirendra Mishra, J. POST FOR JUDGMENTON 1^-8-2010 Sd/- . R.N. Chandrakar Judge Sd/- Dhirendra Mishra Judge ; Sd/- ^ DhirendraMishra Judge HIGH COURTOF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. Criminal Appe'al No. 1183 of 2003 ^ ^^^iSK"'^ ApRellant (injail) Respondent Vs. Santosh aged about 30 years, S/o. Nandlal, occupation - Agriculture, r/o. village Khurusbord, Thana - Dhamdha, Distt. Durg (CG). State of Chhattisgarh through the District Magistrate, Durg, Dist. Durg. (CG). CriminalApDeaI No. 1208 of 2003 Appellant (injail) Respondent Vs. Paras, S/o. Jhumuk Lal Satnami, aged about 31 years. R/o. Burus Road, P.S. Dhamdha, Distt. Durg (CG). State of Chhattisgarh through P.S. Dhamdha, Dist. Durg. (CG). Appellants (injail) & Criminal Appeal No. 1224 of 2003 1) Makran Das, S/o. Latel aged about 30 years, occupation - Agriculture. Respondent 2) Vs. Sadhe Lal S/o. Vishal, aged about 40 years, occupation - Agriculturist. Both are r/o. village Khurusbord, Thana - Dhamdha, Distt. Durg (CG). State of Chhattisgarh through District Magistrate Durg, Distt. Durg (CG). % (Criminal Appeal underSection 374(2) ofthe CrP.C.) Present: Smt. Indira Tripathi, counsel for appellant in Criminal Appeals No. 1183 of 2003 & 1224 of2003. Smt. Kiran Jain, counsel for appellant in Criminal Appeal No. 1208 of2003. Shri Ashish Shukla, Govt. Advocate for the State. JUDGMENT (Delivered on s|^_-8-2010) Per RanfinatfiChandrakar, J. 1. Criminal AppealNo. 1183of2003 preferred byappellantSantosh, Criminal Appeal No. 1208 of 2003 preferred by appellant Paras and Criminal Appeal No. 1224 of 22003 preferred by appellants Makran Das and Sadhe Lal are being disposed of by this common judgment as these appeals arise out of the judgment dated 18-10-2003 passed in Sessions Trial No. 229 of 2002, whereby learned VII Additional Sessions Judge (FTC), Durg, has convicted the appellants under Section 302 read with Section 34 ofthelPC and sentenced them to undergo life imprisonment and fine of Rs.500/- eaeh, with usual default clauses for causing homicidal death of Tulsidas, Dukalhin Bai and Durga Das. The appellants have beenfurther convicted under sections 325/34 and 323/34 of the IPC and sentenced them to undergo R.l. for three years and fine ofRs.200/- and S.l. for three months, respectively, with usual default clauses for causing injuries to Devdas, Shantumuni and Satrughan. ;•.';'i.L'iis'' "•,. '^tjl*. 1 T'is-~ ^ 3. The case ofthe prosecution, in brief, is that on 13-5-2002 at about 9.00 p.m. when the complainant Devdas Banjare (PW/1), resident of village Khurusbod, was sleeping at his home, he heard some noise of quarrel coming out from the home situated at Basti and he along with his elder brother namely Satrughan (PW/3) went to see the quarrel. On the way, accused Makran, Sadhe Lal, Santosh and Paras abused Devdas and assaulted him by Lathis. They also assaulted Satrughan (PW/3). Both Devdas and Satrughan sustained injuries and fled away from the scene of occurrence. Thereafter, complainant Devdas (PW/1) and Satrughan went to Police Station Dhamdha and lodged first information report (Ex.P/1) against the accused/appellants. On the next day when they returned to their village at about 4.0' clock Devdas came to know that all the accused/appellants murdered Durgadas, Tulsidas and mother Dukilhin Bai by means of club, axe and tabbal. Bitawan Bai (PW/5) lodged Dehati morgue intimation vide Ex. P/22, P/23 and P/24 on the basis of which morgue intimation (Ex.P/58, P/59 & P/60)were registered. Station House Officer prepared spot map (Ex.P/25& P/26) and inquest (Ex-P/6-A, 7-A & 8-A) over the persons of the deceased in presence of witnesses. Thereafter, the dead bodies were sent for autopsy to Primary Health Centre, Dhamdha vide Ex.P/9-A, P/10-A & P/11-A, where Dr. P.D. Chandravanshi (PW/4) conducted postmortem and gave his reports (Ex-P/9, P/10 & P/11). On the basis of memorandum of the appellants (Ex.P/28, P/29 & P/30), weapons of offence F-:.,;;;. iS'"" [fsSSS'SSSSS 6. 7. lathies were taken into possession vide Ex.P/43, P/45 & P/38. The seized articles were sent for chemical examination to FSL (Ex.P/64) and a report thereof is Ex.P/66. After completing the investigation, charge sheet was filed against the appellants in the Cqurt of Additional Chief Judicial Magistrate, Durg, who in turn committed the case to the Court of Sessions Judge, Durg and the same was received on transfer for trial by the learned Additional Sessions Judge, who framed charges under Sections 148, 294, 323/149, 325/149, 302 & 307 of the Indian Penal Code against the appellants who abjured their guilt. Prosecution in order to establish the charges against the appellants examined 24 witnesses in all. Thereafter the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in paragraph one of the judgment. Homicidal death of deceased Durgadas, Tulsidas and Dukalhin Bai is not in dispute. However, from the evidence of Dr. P.D. Chandravanshi (PW/4), who conducted postmortem and proved the reports (Ex.P/9, P/10 & P/11) in which he found the injuries on the persons of the deceased as mentioned in para 8 to 10 of the impugned judgrrient and opine9 that the deceased died as a result •:_. ^ ^^-/i^y^:^^' of shock and hemorrhage and the injuries were ante-mortem in nature, homicidal death of deceased is established. 8. Ms. Indira Tripathi, learned counsel appearing forthe appellants submits that on the basis of evidence of Devdas (PW/1 ), Shatrughan (PW/3) and Shantumuni (PW/9), the trial Court convicted the appellants under Sections 302/34 of the IPC though from their evidence it is clg'ar that they were not present at the place of occurrence, therefore, conviction under Section 302/34 of the IPC cannot be sustained. First information report lodged by the complainant Devdas goes to show that the offence was registered against the accused persons under Sections 294, 506 Pari: II & 323 ofthelPC in which there was nomention about the death of the deceased. There are so many contradictions and omissions in the statements of Ramkumar Pandey (PW/20) and B.R. Mandavi (PW/23). Learned counsel further submits that the prosecution has not made any effort to lodge subsequent report regarding the death of the deceased and from the evidence available on record it is clear that there is lacuna on the part of the prosecution. Thus, the conviction of the appellants deserves to be set aside. 9. Ms. Kiran Jain, Advocate appearing for the appellant in Criminal Appeal No. 1208 of 2003 also advanced similar arguments. 10, On the other hand, Shri Arun Sao, Government Advocate, appearing on behalf of the State supported the impugned judgment. ^t <^ ^..; 11. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 12. The trial Court has convicted the appellants on the basis of the FIR (Ex.P/1) and the evidence of Devdas (PW/1), Satrughan (PW/3)and Investigating Officer- B.R. Mandavi (PW/23). 13. PW/1 Devdas Banjare has deposed that the incident took place on 13-5-2002 at about 8.30, p.m. They have two houses in the village. He was residing in r»ew house along with his brother Satrughan and mother Dukalhin Bai. He heard the noise of some quarrel coming out from the old house of the vicinity. On hearing the same, he and his brother Satrughan Das proceeded to the old house. On the way, the accused/appellants abused and assaulted them bylathis as a result ofwhich he sustained injuries on his left elbow and Satrughan sustained injury on his wrist. Anyhow, they managed to save themselves and lodged the report at Police Station Dhamdha. On the next day, when they reached the village at 4 p.m., they came to know that the accused/persons along with others murdered their brothers Durgadas and Tulsidas and mother Dukalhin Bai by assaulting with lathis, tabbal and axe. He further deposed that his brother Santumuni Das (PW/9) also sustained injuries in the same incident. In his cross examination he admitted that there were several cases against his brothers Durgadas and Tulsidas and some of them are still pending. He was confronted with the FIR (Ex.P/1) and his diary statement (Ex. D/1). There are contradictions, omissions and improvements in his !B» i^|3:-SS35g;!3^g^ statements regarding weapon of offence, reason for dispute and injuriessustained by Santumuni (PW/9). 14. PW/3 - Satrughan has deposed that on 10-5-2002 a report against the accused/appellants was lodged regarding teasing the women of his family with bad intention. On the dateof incident 13-5-2002 at about 8.30 p.m., while he along with his brother Devdas (PW/1) and mother Dukalhin Bai was taking rest after dinner, his brother Tulsidas.came there and stated that the accused Makran Das and Kamta abused him by holding his collar ? in village Devkar for the incident of 10-5-2002. At the same time, his nephew Prakash Das (PW/10) came there and told that Shantumuni and Durga Das were killed inside the vicinity. His brother was going with Kotwari and Tulsidas went to the house. Then, hearing the noise of quarrel coming out from the vicinity, he along with his brother Devdas and mother Dukalhin Bai went there and found that Tulsidas was lying near the house of Nanu Satnami, who was being assaulted with Lathis and axe. The accused Makran Das assaulted him while he was fleeing from the place to save himself due to which he sustained injury on his left wrist. Devdas also fled away from there. They reached Gadadih from where they went to Police Station Dhamdha on a jeep and returned to village in. theevening of 14-5-2002 and they came to know that the accused/appellants murdered Durgadas, Tulsidas and Dukalhin Bai by assaulting them with clubs and axe. In his cross examination, he was confronted with his diary statement wherein he admitted that the Police recorded his 1»h-»SslSS & statements thrice. There are several discrepancies and improvements in his deposition. He further admitted that he saw Tulsidas being assaulted by the accused/appellants but denied to see Durgadas and Duka.lhin Bai being assaulted by them. 15. PW/9 Santumuni has deposed that on the date of incident at about 7-8 p.m., Tulsidas went to bathe and he was sitting near Jaistambh along with Sukhdev where Dhanaji, Mehtru and ft. Dinesh also came. At that tim^, the accused Kamta came there and stood before him and Makran Das assaulted with lathi on his head from back side as a result of which he fell down on the ground. Thereafter, the appellants and other accused persons started assaulting him with lathis inwhich he sustained fracture on his right wrist. At the same time, his brother Durga Das also came there who was also assaulted by the accused/appellants. Banju Das came there and took him to the house. After some time, he again came out from the house and found that Durga Das was lying in the house of his aunt Sukh Bai. At that time, Tulsi Das was coming after taking bath who was also assaulted with lathis. He was again taken inside the house along with ehildren and women by Banju Das and locked there. On the next day, at 11. a.mwhen Police came to the village he came to know that his brothers Durgadas and Tulsidas and mother Dukalhin Bai were murdered by the accused/appellants by means of lathis. In his cross examination he admitted that he did not inform about the incident to his neighbours until the Police came there. He also denied giving anystatement to Police. He further admitted that there was cnminalcase against him and on the report of Makran Das criminal case was pending against his brother. 16. PW/10 - Prakash Das Banjare has deposed that on 13-5-2002 at about 8 p.m while he was going to watch T.V. serial Ramayan, he saw that 14 persons w.ere assaulting Santumuni with axe and lathis. At the same time, Durga Das came there and 14 persons leaving Santumuni started assaulting Durga DasWith lathis and axe, thereafter, they also assaujted Tulsi Das withlathis and axe who was returning after taking bathe. Thereafter, he went to village Godmarra and returned on 14-5-2002 at 5.00 p.m and came to know that Devdas and Satrughan also sustained injuries during the same incident. In his cross examination he was confronted with his diary statement in which there are so many contradictions, omissions and improvements pointed out by the defence. He admitted that he went to Police for giving information about the incident until he was called. It is worth mentioning here that if he had witnessed the incident he would have given the information to the police at his own. 17. On perusal ofthe testimonies ofthe aforesaid witnesses, it is clear that there are so many contradictions, omissions and improvements in their statements. Even in the First Information Report (Ex. P/1) lodged by Devdas (PW/1), there is no mention about the assault made on Durga Das and Dukalhin Bai. Actually, the incident in which the alleged murderof Durga Das, Tulsi Das and Dukalhin Bai took place, was nof witnessed by any of the above mentioned witnesses as there are so many 10 :!' ...f i.a.aEiS^S ^^^g^' 18. discrepancies and contradictions in their statements. Devdas Banjare (PW/1) stated that when he and his brother Satrughan were going to their old house in the vicinity, they were restrained by the appellants on the-way and assaulted, thereafter they fled away from there and ttiey returned only on the next day in the evening at 4 p.m. On the contrary, Satrughan (PW/3) stated that while he was taking rest in his house, his nephew came there and informed that Santumuni and Durgadas were killed in the vicinity on which hearing the noiseof quarrel while he was going along with his brother Dev Das (PW/1) and mother Dukalhin Bai, Tulsi Das was being assaulted with lathi and axe near the house of Nanu Satnami and when he was fleeing away from the spot he was assaulted by Makaran Das. Thus, the statements of Devdas and Satrughan are not corroborated by each other on the material point. In the testimony of another so called eye-witness Prakash Das Banjare, it is nowhere mentioned that he gave any information to Satrughan (PW/3) regarding the assault made on Santumuni, Durgadas and Tulsidas which goes to falsify the statement of Satrughan that he was informed by Prakash Das Banjare about the assault made on Santumuni and Durgadas. There is also difference in the weapon of offence as described by all the aforesaid witnesses. There is no seizure of any axe or tabbal from the aceused persons as allegedly described by Satrughan (PW/3)and Prakash Das (PW/10). It is pertinent to mention here that initially Dehati morgue intimations (Ex. P/22, P/23 & P/24) were given by Bitawan Bai 11 ^..s-^i-s's.S'e'S' -wseSSSif^ ..-wwifSS •;;•.-;.; (PW/5) on the spot and the same were sent to police station where morgue intimations (Ex.P/58, P/59 & P/60) were registered but there is no evidence on record to show that after registration of morgue intimations (Ex.P/58, P/59 & P/60) any first information report to that effect regarding death of the deceased persons namely Durga Das, Tulsi Das & Dukalhin Bai was registered or after investigation of the morgue regarding the death of these persons under Section 302 of th,e IPC was added to the preyious FIR (Ex.P/1) and a copy thereof was sent to the concerned Judicial Magistrate. This fact is also corroborated by the Investigating Officer B.R. Mandavi (PW/23) who admitted in paras 65 & 66 of his cross examination that on 15-5-2002 a copy of the first information report (Ex.P/1) was sent to Additional Chief Judicial Magistrate, Durg in which there is no mention about offence under Section 302 of the IPC. The Investigating Officer, B.R. Mandavi (PW/23) admitted in para 44 of his cross- examination that Dehati Nalsi is written on thespot if any information regarding the incident is received. He further admitted that in this case Dehati Nalsi was not written on the spot because no information of the incident was received there. On the contrary, R.P. Sahu (PW/24) deposed that he recorded Dehati morgue intimations on the spot being gi.ven by Bitawan Bai (PW/5) which were subsequently got registered as morgue intimation Nos. 14, 15 & 16 (Ex.P/58, P/59 & P/60) and the dead bodies were sent for autopsy after preparing inquest on 14-5-2002. Thus, it is crystal clear that the death of the deceased persons were within yl'".;'t, 1,1o^ s&iSs^WSS? 12 the knowledge ofthe Investigating Officers on 14-5-2002 even though they did not register a separate FIR regarding deathof the deceased persons or added Section 302 of the IPC in the previous FIR (Ex.P/1) which was sent to the Additional Chief Judicial Magistrate on 15-5-2002. Thus, there is clear non- compliance of provision under Section 157 of the Code of Criminal Procedure which vitiates the whole investigation regarding offence •t-'i. under Section 302 of the IPC. ^ 19. It is also pertinent to mention here that despite the presence of independent witnesses on the spot as named by Shantumuni in his deposition no independent witnesses have been examined by the prosecution. The incident took place in the vicinity but none of the neighbours or nearby people was examined. Thus, so far as the offence under Section 302/34 ofthe IPC is concerned, there is no eye-witness to the incident to connect the appellants with the crime in question and looking to the exaggerated statements made by the aforesaid witnesses and not corroborated by each other, their testimonies cannot be held reliable. 20. For the aforesaid discussion, we are of the opinion that the prosecution failed to prove case under Section 302/34 ofthe IPC against the appellants, therefore, the trial court was not justified in convicting the appellants under Section 302 read with Section 34 ofthelPC. 21. Accordingly, the appeal is partly allowed maintaining the conviction under Sections 325/34 & 323/34 ofthe IPC. Conviction of the appellants under Section 302 read with Section 34 of the •S' ^ssssV^S ^ 13 IPC is set aside. The appellants are acquitted of the charge under Section 302/34 ofthe IPC. 22. Counsel for the appellants submits that the appellants are in jail sinee 14-5-2002 which is not disputed by the learned counsel for the State. 23. In view of the above, we direct that the appellants be set at liberty forthwith, if they are not required to be detained in any other ease. Sdl- ndraV Judge Sd/- . R.N. Chandrakar Judge Raju