SM y ^% ] Page 1 of8 '^. K' ^ t, 'Sjil—<'yj!tl ll;^, ;I ^..^';.'-<;1' HI©HCOURT OF CHHATTES6ARH AJ BILASPUR MVISION BENCH: HON. MR. DHIRENDRAMISHRA & HON. Mft.T.P. SHARMA. JJ Cr.A.No.209/2003 PresenT; Mrs. Savita Tiwari, Advocate for appellcint in Cr.A. No. 209/03. Mr. Mnlay Kumar Bhaduri, Advocate for appellant in Cr.A. No.368/03 Mr. U.K.S. Chandel, Panel Lawyer -for the State. JUDGMENT (Oelivered on 3Q.J.2Q06) Per_&hirendra Mishra. J: Crimina! Appeal No.209/03 filed by appellant Pawan, son of Kangloo Marar and Criminai Appeal No.368/03 fi!ed by appellant appellont Rarn Ra+an, son of Samaru Marar are being decided by this common judgment, as both these appeals arise out of the judgment of conviction and order of sentence dated 29.11.2002 passed by Isarned 4 Additionat Sessions Judge, Bilaspur in S.T. No.528/01 whereby learned Additional Sessions Judge has convicted them under Section 302/34 of the Indian Penal Code and sentenced each of them to undergo R.I. for life and to pay a fine of Rs.500/- for causing homicidal death of deceased Sitaram. ApeelLant On Jail) Pawan, dged 40 yrs. S/o Kangcloo Marar, ft/o Bemaparo, Khapara oie, P.S.~Se"kanda, Distt- Bilaspur (C.6.) NN|B( Vs Respondent State of Chhattisgarh :&x ;r.A. N0.368/Z003 \ -4PPELLANT ON JAIL) Karn Ratari, sori of Samaru Marar, a9ed about 45 years, residsnt of Village-Baima, Para-Khaparakhol, Ctistrict-Bilaspur (C.G.) I^T RESPON&ENT State of Chhuttisgarh, through tSistrict Magistrate, Bilaspur, District- Bilaspur (c.e.)_ Page2of8 Case of the pposecution.in brief, is that there was animosity between Sitanim and accused Ramratan, on 24.10.2001 at about 10 in the morning hens of deceased Sitaram had damaged tfie tomato crop of appellant Ramratan, whc enraged by damage to tomato crop ulso entered Badi of thedeceased with his she-goat and damaged his tomato crop and therefor'e, there wdS a quarrel between them on this account. On the same day after the incident deceased Sitaram proceeded for Bilaspur for p,yrchasing seeds, however, the accused persons stopped him on the way, assaulted him by club (rtirfl) and thereafter strangulated him with the help of cloth CTOST). Named report of the incident was lodged by Durjon Marar, son of the deceased on 24.10.2007 at about 17.40 hrs against the oppellants vide Ex.P-18. tiuFing investigation inquest of Ex.P-7 over ttie person of the deceased was performed in the presence of witnesses, dead body of Sitaram was sent for autopsy to bharam Hospital, Bilaspur vide Ex.P-19, where Dr. <5.L. Arora conducted postmortem and gave his report of Ex.P-3. Spot map of Ex.P-1 was got prepared by the Halka Patwari. Bicycle and plastic shoes were taken into possession from the spot vide Ex.P-9. Ptain soil and blood stained soil was also taken into possession vide Ex.P-10. On the basis of memorondum of Ex.P- 11 of appellant Ramratan, weapon of offence ciub (<7lt<f1) was seized from him vide Ex.P-12. On tfie basis of memorondum of Ex.P-13 of appetlant Pawan, weapon of offence club (wicTI) was seized vide Ex.P- 14. Blood stained vest was seized from appeliant Ramratan vide seizure memo of Ex.P-15. Two sealed packets containing wearing oppar-elsof the deceased were taken into possession vide Ex.P-20. 5ei2ed articles i.e. club (wicfl), vest of Ramratan. Wearing apparels of the deceased were sent for chemical examination to Forensic Science Laboratory, Bilaspur, however. report- of F.S.L. is not ayailabie on record. „- @ Page3of8 4. After completing investigation, charge sheet was filedagainst the accused/appellants in the Court of Judicial Magistrate First Class, Bilaspur who in turn committed the case to the Court of Sessions Judge, Bilaspur and thesamewas received on transfer for trial by learned 4 Additional Sessions Judge. Bilaspur, During trial, the prosecution examined 16 witnesses in atl. Thereafter, statements of accused persons were recorded under Section 313 of the Cr.P.C. m which they denied the circumstances appearing against them in the prosecution case and pleaded ^i.nnocence and false implication. However, tearned trial court after hearing learned counset for the parties, convicted dnd sentenced the oppellants, as mentioned above. 5. Homicidal death of Sitaram is not in dispute. Even otherwise from the statement of &r. 6.L. Arora (PW-3), who conducted the postmortem and gave his report of Ex.P-3 in which he noticed that blood was coming out of nostrils; one ligature mark was present around the neck between mandible <md whole neck; tvuo circles mainly over thyroid cartilage; transverse mark; gamcha had one knot & two loops; ligature mark was faint and hardly visibte; sub-dural haemorrhage in the brain membrane was present; plent/ of effused blood was present in the skul!; containing froth with blood was coming out; no any mark of strugg!e was found and he has opined that cause of death is injury over head, ligature mark is anti- mortem in nature and it dppears that left portion of the head was first assaulted and while deceased was semiconscious his neck was pressed with the help of cloth (gamcha) as a result of which there was obstruction in respiration and he died, it is established that death of deceased Sitaram was homicidal in nature. 6. Learned counsel for the appetlants submits that the conviction is based on the stqtement of Kangaru (PW-4), Durjan (PW-8), son of the deceased and Indrani (PW-16), daughter of the deceased. ^onviction is also based on the statement of Parasram, who is the witness of memorandum (Ex.P-13) of appetlant Ramratan ond Page4of8 recovery of Ex.P-12 as also recovery of lathi on the memorandum of appellant Pawan. Learned counsel for the appellants further submits that the trial court has heavily relied upon the statement of Kangaru (PW-4), who has stated that while he along with witness Narod (PW-5) was returning from Mahainaya, they saw Sitaram lying dead beside the road and accused persons were hiding in the paddy field, they asked them to run away from there. However, they are child witnesses aged about 11 years and diary statement of Kangaru was recorded on 24.11.2001 i.e. one month after the incident. Though they have stated before the Court that they disclosed about the incident to Radhe & Durjan, sons of the deceased immediately after their return, however, this fact is not mentioned in the promptly lodged FER. Report has been lodged by Durjan (PW- 8) on the basis of information received froin Boratu, whose son ollegedly witnessed the incident and informed him, however, son of Baratu has not been examined during triat. Whereas, witness Kangaru claims that he saw tiie present appellants hiding and 1+iey asked them to run away. Narad (PW-5) states that he did not recognize the persons who were hiding in the paddy field and he also </ j[^0t->^ V claims that after -tatt; fo the deceased they returned home. Dr. GL. Arora (PW-3) has opined that the deceased was firstly assaulted on the left side of his head as a result of which he became semiconscious and thereafter he was strangulated with the help of clo-rtn as a resutt of which he died due to obstruction in respiratory trock. However, Kangaru (PW-4) & Narad (PW-5), who saw the deceased for the first time lying dead. did not notice any cloth tied around the neck of deceased. Indrani (PW-16) ctaims herself to be the witness of oral dying declaration, she has stated that she sdw her father lying beside the road near the field of Nanbhanwar in injured condition and he informed her that Ramratan (S Pawon have assaulted him.' However, she has stated that she did not see dnybody nearby and gamcha wrapped around his neck was not tied. In her cross-examination she has further stated that Sitarom was Page 5 of8 unconscious and he was not able to talk. Her statement was recorded by the police on 11.11.2001 and there is no explanation for the delay in recording her statement. Finding of the trial court is based on conjecture and surmises as is evident from Paras 28, 29, 30 & 31 of ttie impugned judgment. 5o far as the recovery of lathi on the basis of memorandum of the accused persons is concerned, lathi is an object commonty found in the household of the villagers and in absence of any evidenc^ re9arding presence of blood and that too of the origin of the blood grqup of the deceased, the appellants could not be connected in the offence sotely on the basis of alleged recovery of lathi on their memorandum. 7. On the other hand, learned counsel for the State has supported the impugned judgment. 8. We have heard learned counsel for the parties. We have perused the record as also the impugned judgment. 9. Complainant Gurjan (PW-8) is the son of deceased and he has witnessed the quarret between the deceased and appellant Ramraton in the morning at 10 am on account of damaging of tomato crop by appellant Ramratan and his she-goat. l-1e has further stated that his father proceeded for Bilaspur at 2.00 p.m. in the afternoon for purchasing seeds by bicycle, at that time the appellants. whose house is adjacent to his house, were watching his father from their house. He was informed by Kangaru (PW-4), Baratu & Nandlal: ttiat his father is lying dead beside the road near the field of Nanbhanwar Khar. When he reached there, he found a gamcha tied around his father's neck. He hdS further stated that Lorik, Indrani etc. informed him tliat the appellants have assaulted the deceased. However, the fact that his father comptained oAsout the incident of morning to the.villagers and that the appellants were watching the deceased while he was proceeding for Bilaspur does not find place in his diary statement of Ex.D-l. l-1e has admitted that there is a land l^, fcj S lll'i Kl1 K' Page 6 of8 related dispute between both the famities continuing for more than one year. 10. Kangaru (PW-4) is, an 11 years old boy, his diary statement was recorded by the potice on 24.11.2001, which is available in the record. He has stated that on the date of incident while he was returning with Narad from Mahamaya temple around 2.00 p.m., he saw Sitaram, lying beside the road, they also saw Pawan and Ramratan hiding in the paddy fietd at a distance of 25 feet from the place where Sitaram was lying. Both of them asked them to run and thereafter they ran away. At that time, they were holding lathi. Thereafter, he went and narrated the incident to Radhe, son of deceased Sitaram. 11. Narad (PW-5), whose diary statement of Ex.P-5 was also recorded on 24.11.2001, has also deposed in the similar lines that he and Kongaru were returning from Mahamaya, when he found Sitaram tying dead beside the road, He further states that in the paddy field he saw some persons and thereafter they narrated the incident to Radhe, son of the deceased. This witness has been declared hostite, however, in the cross-examination he has admitted that he gave statement in which he had stated that Ramratan & Pawan were hiding in the paddy fietd and they asked them to run away and thereafter -Hiey ran towards the village out of fear. In the cross-examination he has stated that it is true to say that a-fter talking with Sitaram they had returned to their village. 12. From the close scrutiny of the statement of Durjan (PW-8), Kongaru (PW-4) & Narod (PW-5) it is observed that Durjan (PW-S) went to the place of incident only after being informed by Kangaru (PW-4) and Narad (PW-5) that Sitaram is lying dead. Witness Kangaru had seen tlie appeltants hiding in the paddy field at a distance of 25 ft from the dead body, however, this fact is missing in the promptly lodged FIR. The fact that statement of Kangaru (PW-4) & Narad (PW-5) was not recorded promptly after the incident and was <?4 13. Page7 of8 recorded only on 24.11.2001 i.e. one month after the incident goes to show tfiat the above fact was not brought to the notice of the Investigating Officer immediately. From perusal of the RR it is also observed that son of Baratu had alte9edly seen the appetlants assaulting the deceased, however, son of Barotu has not been examined during trial nor his diary statement is available in the charge sheet. -Baratu, who has been examined as PW-14, has onty stated that he had gone tp Nandiyakhar for grazing his cattle where he found the dead body of Sitaram. This witness has not been cross-examined by the prosecution. Kangaru (PW-4) and Narad (PW-5) together saw the oppetlants near the dead body armed with lathi, they both are residents of same vitlage and therefore, they ought to have identified the appellants, however, witness Kangaru (PW-4) claiins to have identified the appellants but Narad (PW-5) has stated that he could not identify as who were the persons who were hidin9 in the paddy field. Both these witnesses have not stated that they saw any gamcha wrupped around the neck of the deceased. Kangaru (PW-4) states that Sitaram was dead when he saw him, whereas, Narad (PW-5) claims that they talked to Sitaram and thereafter returned to village. Indroni (PW-16), daughter of the deceased, has also stated thotshe along witii 8-10 children were returning after Mahamaya darshan when they saw Sitaramtyin9 in injured condition beside the road, he was alive and on being asked he informed that the appellants assaulted him. However, in the cross-examination she has stated that Sitaram was unconscious and was not able to talk. As already pointed out, the doctor (PW-3) has opined the cause of death as asphyxia due to strangulation, he has also opined that the deceased was -firstly'assaulted on the left side of his head as a result of which he became semiconscious and thereafter his neck was pressed with the hetp of Samcha as a result of which he died. If the cause of death is strangulation on account of pressin9 of neck by gnmcha, %^,.-y^ v!!^^s»flsr Page 8 of8 the question of making oral dying declaration before Indrani does not arise. 14. Considering the abovte discrepancies present in the statements of Kangaru (PW-4), Narad (PW-5) A Indrani (PW-16) before the court below and also conside'ring that their- statement was recorded almost after u month and 17 days respectively of the incident and further considering •tiiat Kangaru (PW-4) & Narad (PW-5) are the child witnesses aged about 11 years, conviction of the oppellants coutd not be based solely ori their testimony particutarly when the prosecution has not examined thfe eye-witness of the incident i.e. son of Baratu, whose name is mentioned in the RIR as the person who informed aboyt -itie participation of the appellants in the assault to his father Baratu, who in turn cofflmunicated the same to complainant Durjan (PW-8). 15. 5o far as the wcovery of tathion the basis of memor'andum of the appellants is concerned, in absence of any other evidence in the shape of chemical examination report or serologist's report regarding presence of the blood 'm tiie seized Sathi, the oppeSiants could not be convicted solely on tiie basis of recovery of lathi at their instance. 16. In ttie result, the appeals (Cr. Appeat No.209/03 preferred by appellant Pawan & Cr. i4ppeal No.368/03 preferred by appellant Ramratan) are allowed. Conviction of the appellants under Section 302/34 and sentenced imposed under that section are hereby set aside and they are acquitted of that charge. It is stated that the appeDants are in jait since the date of judgment i.e. 25.1.2001, therefore, it is directed that they be set at liberty forrtiwith, if not required in ariy other case. Sd/-- -..--- . DhirendraMishra Judge T.P. Sharma Judge Si:shoji'-