^f .img HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hort'bte Shri Rajeev Gupta, C.J. & Hon^ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 842 of 2002 APPELLANT RESPQNDENT Vijay Singh @ Nanu S/o Champeshwar Singh aged about 21 years, R/o R.D.A. Colony, Tikrapara, Raipur (C.G.) Vs. State of Chhattisgarh through District Magistrate Raipur (C.G.) And CrimmaJ Api3eal_Np._927 _of 2002 APPELLANTS ^SSte^. RESPONDENT 1.' Bharat alias Sonu, S/o Shri Subhash Soni, Aged about 20 years; R/o in front of Saraswati School, Turihatri, P.S. Purani i; Basti, Raipur(C.G.) 2. j Prahlad alias Poda, S/o Shri Rajendra Tiwari, Aged about 21 years, R/o Lili Chowk, Baghwamandir Galli, P.S. Azad Chowk, Raipur(C.G.) Vs. State of Chhattisgarh. (Appeals uncfer Section 374 (2) ofThe Code ofCriminal Procedure) Appearance: Smt. Indira Tripathi, Couhsel for the appellant- Vijay Singh @ Nan.u. Shri Roop Naik, Counsel for the appellant - Bharat @ Sonu. Ku. Sangeeta Mishra, Counsei for the appeilant- Prahlad Poda. ' Shri Akhil Mishra, Dy. Govt. Advocate, for the State. '^ '^7?^ ^-^."^"•^^:. 2 Cr.A. No. 842/2002 & Cr.A. No. 927/2002 m ?h"; *f" JUDGJVLENT (^_.09.2008) Fpllovving judgment of the Court was delivered by Sunil KumarSrnha, J. •f^ ''-•? . •rV • 'iv:' .^t}- ; .Chall&nge, is made to fhe judgment of conviction and order of .sentence dated.N"1 of July, 2002 passed by the Second Additional Sessions Judge, Raipur in Sessions Trial No. 400/2001, whereby, all the appellants have been convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine y®^ Rs.5,000/-, in default of payment of fine to further undergo R.l. for 1-1 year, Apart from'that appellant- Vijay Singh @ Nanu has also been convicted u/s 25 (1-b) (B) and Section 27 of the Arms Act and sentenced to undergb R.l. for 1 year and to pay a fine of Rs.500/-, in default pf payment of fine to further undergo R.l. for 4 months and R.l. for 3 years and-fine ofRs.1,000/-, in default ofpayment offine to further undergo R.l. for 6 months with a further direction to run all the sentences concurrently. . (2) The allegations are that on 21.8.2001 at about 14.45 hours, th& appellants gave knife blows to Vinod Shrivastava who received man'.' injuries and was taken to the hospital, where he died on the same day. (3) On information given by mother of the deceased namely Smt. Asha Shrivastava (PW-2), a Deftaff' Nalishi (Ex.-P/2) was recorded on ' the'sa'me day'at about 15.30 hours. She made allegations that appellant- Vijay Singh and Prahlad along with an associate came in their vicinity and took her son towards Nala; the 3 man accompanying them pushed her son and Prahlad and Vijay gave knife blows to him. .She mentioned in Dehati Nalishi that the names of the assailants were r^K w '*"' '—• t^^'s^-'^ 's®^&>'^ !aS^i:S^ (f v^y CLA, Na,842/2002 ^Cr.A._No. 927/2002 |?5B"<'aEfi9|ig^gg told by her son Vinod Shrivastava, who has been brought for treatment to Medical College Hospital, Raipur. When Vinod died in the hospital, a merg intimation (Ex.-P/27) was recorded and based on Dehati Nalishi, a First Information Report (Ex.-P/26) was registered. During the course of investigation, the Investigating Officer gave notices (Ex.-P/3) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased and the dead body was sent for post mortem. The post mortem examination was conducted by Dr. Arvind Neralwar (PW-10), who prepared his report Ex.-P/15. He noticed the following externa,! injuries on the body of the deceased: i) Stab wound 3 x 1.5 cm, penetrating into thorax, over the anterior part of chest at the level of nipple, 1 cm left from middle; ii) Inciseid wound 3.5 x 1.5 x1 cm over posterior part of right thigh; iii) Incised wound 1.5 x 1 cm skin deep over right cavecular area; iv) Stab wound' 1.5 x 1cm at the right side of chest in between 2 and 3 , ribs penetrating inside the thorax cavity; v) Stitched wound 1.5 x 1 cm at the wrist & vi) Incised wound 1.1 cm on the middle finger of left hand, On internal examination, he found that there was accumulation ofabout 250 ml; blood in the thorax cavity; there was cut injury of1 x1 x2cm at the upper portion of right lung and there was also a cut injury of 1.5 x 1 x 3 cm on the lower portion of left lung. The autopsy Surgeon opined that the cause of death was syncope due to shock and hemorrhage. It was homicidal in nature. (4) In further investigation, the MLC report (Ex.-P/25) prepared by Dr. Prateeksha Chauhan (PW-13), who examined the deceased when •'-^&f*--.^ ._ ..,^^i^*C»*J Bl,..'.'".-, •W-l^;.-^:. •TT . t^ Cr.A. No. 842/2002 & CLAJ^o._927/2002 .»»r sas''' .he was alive, was also collected. After taking the appellant- Vijay Singh - @ Nanu into custody, his memorandum u/s 27 of the Evidence Act .;'(Ex.-P/7) was rficorded and a knife was seized on his instance vide Ex.-P/S. The blood stained cloths were also seized from the possessioh of the appellants' and the seized articles were sent for their chemical examinatioh to Forensic Science Laboratory, Raipur under Ex.-P/30, frem where,'~a report (Ex.-P/31) was received. According to the'd V report, the presence of blood was confirmed on all above articles. (5) After completion:of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the .matter to the Court of Sessions Judge, Raipur, from where it was re'ceived on transfer by the Second Additional Sessions Jucfge, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. (6) The conviction of the appellants is based upon the testimonjes of 4- eye-witnesses nam'ely Kallu @ Mata Prasad Soni (PW-4), Laxman (PW-5), Smt. Shital Shrivastava (PW-9) and Ashok Shrivastava (PW- 1t). (7) Learned counsel for the appellants have not disputed the homicidal death ofthe deceased. They submitted that the testimonies of the eye witnesses are totally unreliable as there are many material discrepancies in their evidence. They also submitted that these witnesses h'ave given contradictory evidence regarding the acts attributed to each of the appellants. If the version of one witness is accepted, th'en, the version of other is falsified, therefore, the ^^^^?WW^^^$(. •^ • '^^^^'^s' !t •1— Cr.A. Nol 842/2002 & Cr.A. No. 927/2002 M 1MSS^SS9S6^ involvement of the appellants in crime in questioh becomes doubtful and on such testimonies, the conviction cannot be sustained. (8) On the other han^learned counsel for the State opposed these arguments and supported the judgment and order passed by the trial Court, He submitted that the minor contradictions in the evidence of eye witnesses make no difference and on such contradictions their testimonies cannot be thrown out. He relied on the decision ofthe Apex Court rendered in the matter of Umar Mohammad & others Vs. State ofRaiasthan, 2008 AIRSCW 120. (9) We have heard the learned counsel for the parties at length and have also perused the records ofthe Sessions Court. (10) PW-2, Smt. Asha Shrivastava, is the mother of the deceased. She deposed that "on the fateful day, Vishal told her that appellants - \ Prahlad, Bharat & Vijay have assaulted the deceased by knife. When she reached to the place of occurrence, she saw that her son was being taken to the hospital on a Rikshaw. She accompanied her son to the hospital. In ttie.hospital, her son told her that appellant- Bharat had pushed him and he has assaulted him by knife, thereafter, Prahlad & Vijay also assaulted him by knife". Admittedly, she.is not an eye witness and the version given in Dehati Nalishi was on the basis of information received by her from the injured. In Dehati Nalishi, she has mention'ed the names of Prahlad and Vijay as the persons who gave knife blows to her son. Although, she says that one more person was present but his name has not been mentioned by her and the role attributed to that person was that he pushed her son and then, Prahlad and Vijay gave KS ^^^^"^^ '^'^^^^l^^%"<t^'. f":^''? ^•';t^^^^"^?^'y:;l' ^•i^""^"'?? w'- •'-t:1 ICr.A._"No_.;842/2002 & Cr.A. No. 927/2002 '^i&^'? j 'lfc, knife blows to him. When she was faced with the contents of Dehati Nalishi about omission of name of Bharat, she simply said that she had told the name of.Bharat to the police while writing the report and she cannot tell the reason why it has not been mentioned in the report. She further admitt'ed that her Jethani has seen the occurrence and she had told the names of'all the "assailants to her. [n view of this, the omission of name of Bharat in Dehati Nalishi is fatal to the prosecution and at least his complicity becomes doubtful on the version ofthis witness. (1.1) PW-4, Kallu @ Mata Prasad Soni, deposed that "all the 3 appellants came to the place of occurrence and appellant- Prahlad pushed Vinod due to which Vinod fell down, then, Bharat Soni took out the knife and assaulted Vinod with knife. Thereafter, appellant- Vijay also assaulted him with knife". In his 161 statemenf, he has not stated that Bharat had assaulted the deceased with knife, but he stated that Prahlad and hi.s one associate had assaulted the deceased with knife. W.hen this omissign was called upon to explain by him, he deposed that :;Jie had told the names of all the assailants to the police and he cannot tell the reason as to why the name of Bharat is not there in his 161 statement, Ex.-D/2. (12) PW-5, Laxman, deposed that he had seen the occurrence and ali the 3 appellants had given knife blows to the deceased- Vinod. In his "161 statement, EX.-D/3, he had mentioned that 3 persons participated in ''''Sssault but fie only mentioned the names of Prahlad & Vijay on the in'Tormation given by injured. In an other statement u/s 161 Cr.P.C., Ex.D/4, he did not mention the names of the assailants at all and said that he may identify them. In Para-12 of his cross- •'• . <-" -'!vf~ »'.: •;»-•° '^ •t"^L^^^^^^^ ^ ^^ .^y^ ^ .^:^rt^' Cr.A. No. 842/2002 & Cr.A. No. 927/2002 ^m .t..^fsgWS*^' r£iI'^iS'^SS^si 'g:~l''"ffy"~':' examination, he admitted that for the first time he is telling in the Court as to how the accused persons had assaulted the deceased and he had never mentioned their names in his police case diary statement. (13) PW-9, Smt. Shital Shrivastava, deposed that "all the appellants were present near the Nala and all of them participated in quarrel. She deposed that Bharat had given knife blows to the deceased". All this is not in her 161 statement. Even the name of Bharat is not there and the names of 2 other appellants are mentioned on information of deceased and when she was faced with that statement, she deposed that she had told the names of the assailants to the police. If we read her 161 statement, it relates to post incidental event and what she was deposlng in the Court appears to be an omission by exaggeration. (14) PW-11, Ashok Shrivastava, deposed that he had seen the occurrence that Prahlad had pushed the deceased and when he fell down, he gave knife blows to him. Thereafter, Vijay also gave knife blows to the deceased. About Bharat, he deposed that he was holding the deceased while the deceased was being assaulted by the other accused persons. In his 161 statement, he had not mentioned the names of the assailants on his own knowledge and their names were later on mentioned on information of deceased. He denied the suggestion that he was not knowing the assailants and he was not knowing their names, therefore, he had notmentioned the names in his police case diary statement, Ex.-D/S, He claims that he was knowing the assailants and he had stated their names w'nile recording his.161 statement and if the names of the appellants have not been mentioned cn his instance therein, he cannottell the reason forthe same. lii%^7'8S%^^ t%^s''*»!:-";•»:S''»€"-'':1'%;'1.'11,^ ^^;y?-".^-•y?^'^.'.-:-^•?--?;:1- •- ! '. ,,^-a?::, •ffS-.f."' ': 8"11 ;Gr.A, No. 842/2002 & Cr.A. No. 927/2002 e:»" ,'tf £:>' i (1:5). tt is in this state of evidence, the trial Court has convicted the appellants in this case. tf we consider the evidence of PW-2, Asha '^ ^ ' -. Shrivastava, she has deposed the names of all the 3 appellants saying that it was told by her son in the hospital, whereas the name of Bharat is an omission 'm.Dehati Nalishi, which was recorded at the instance of this witness on the very same day just after 45 minutes of incident. Eve'n in Deha'ti-Naiishi, the role attributed to the 3 person, who accompanied Prahlad and Vijay, is that he only pushed the deceas.ed, whereas, in the Court evidence, she deposed that he also assaulted the deceased. Likewise, PW-4, Kallu @ Mata Prasad Soni, also deposed about Bharat Soni and Vijay as the persons assaulting the deceased, whereas the name of Bharat is an omission in his 161 statement and he 'asserts that he had told the names of all the appeltants to tl-le police. Here also role attributed to each of the appellant and the manner in which the incident took plaqe are different than, what was told by PW-2. PW-5, Laxman, also deposed that the knife blows were given by Vijay & Prahlad and Bharatwas holding the deceased but about the omission of name of Bharat in his 2 case diary statements, he could not offer any explanation. He asserted that he had told the names of all th^ appellants to th®police while recording his 161 statement and if theii names are not there, he cannot tell the reason.So far as PW-9, Smt. Shital Shrivastava,' is concerned, according to her evidence, she reached to the spot after main incident was over. Even in her 161 statement, Ex.P/14, she deposed thatwhen she reached to the place of occurrence deceased Vinod was lying in injured condition near Nala and the appellants were trying to throw stones on him. She has claimed in her Court evidence that she knows all the appellants but she also did ^3^,^+ J ^. SSB's? s r ^^. ^•^&^'^. ...^ 'Cr.A. No. 842/2002 & Cr,A._No. 927/2002 ^...K.^S^ ^fc?s?^"::^ss'*": '•a? not mention their names in her 161 statement on her own and this omission is fatal to the prosecution. AImost same is the situation of PW- 11, Ashok Shrivastava, who claimed that he saw that Prahlad and Vijay assaulted the deceased with knife and Bharat was holding him and he had told the names ofthe appellants to the police on his own knowledge which facts are missing in his. 161 statement and the.names of 2 appellants are mentioned later, on the information of deceased. (16) In appreciation of evidence of these witnesses, we find that all the witnesses are contradicting each other on material points. Their such contradictions and the omissions on the material points, particularly with reference to the names of the assailants and the role attubuted to each of them, make their evidence unreliable. In such state of affairs, their evidence do not inspire confidence of the Court. If we rely on the evidence of PW-2, Asha Shrivastava, that she was told by the deceased that these 3 appellants had assaulted the deceased with knife then why shedid not mention the name of Bharat in Dehati Nalishi immediately lodged by her. If we examine her evidence on account of aet attributed to Bharat, according to the Court evidence, Bharat also gave knife blows, whereas according to Dehati Nalishi, the 3 :person accompanying Prahlad and Vijay, who may be said to be Bharat, had only pushed the deceased and he not at all assaulted the deceased. Likewise, the role attributed to the appellants by the eye witnesses is also contradictory, which are the. material contradictions effecting the credibility of these witnesses. (17) In the matter of Umar Mohammad (supra) relied by the learned counsel for the State, one ofthe points raised was that according to one witness exhortation was give.n against one person whereas according to ^^.•:r p*r^ »-'••'«»!• !t»»: ^r'^^l^l^^l'^'^^^^'^"""!1.^"1^"?' :^^;^'"- -• • -?!;'^i;:'y.,, 10 •CF.A.NO. 842/2002 &&-A,No. 927/2002 9Si33WS "SS!:'SSs.: iw' •• -ywt •±.^ X.. -S? "' ff^f ^ : l!M y y • other witness exhortation was directed against two persons and on this Kihd of contradictory evidence credibility of eye witnesses PW-1, PW-4 & PW-8 was chaltenged, in which, the Apex Court held that the said contradiction was not of such a nature that would discredit the testimonies of eye witness when the evidence of three eye witnesses, referred to above were almost identical and some minor contradictions like the a'bove'would not discredit the testimonies of the witnesses in their entirety. ' •• - ..,, (18) In the present case, the contradictions are not of minor nature.' Here the 4 eye witnesses have contradicted each other with regard to the acts attributed to each of the assailants and the versions of the eye :,^itnesses, particutariy with respect to giving knife blows to the deeeased are not identical. Further, there are. many material omissions in ttieir 161 statements and all this make them unreliable. (19) In this view of the matter, where the eye witnesses are contradicting on material points and there are vital omissions in their police case diary statements, particularly with relation to the names and involvement of:the assailants, we do not deem it proper to sustain the conviction oftte appellants forthe heinous offence like murder on su^. evidence. (20) As far as conviction of appellant- Vijay Singh @ Nanu u/ss 25 (1- b) (B) and 27 of,the Arms Act are concerned, the trial Court has recorded the conviction on the ground that he was found in possession of knife in question on the date of incident, but, there appear? to be no conclusive evidence that the knife was in possession of this appellant. ?"»».. y / .^ 1 -^'/ 11 Cr.A. No. 842/2002 &!Cr.A. No. 927/2002 In the evidence bf'PW-4, Kallu @ Mata Prasad Soni, it comes that the knife was possessed by Bharat Soni, whereas in the evidence of PW-5, Laxman, it comes that it was possessed by Vijay. If we look into the evidence of PW-9, Smt. Shital Shrivastava, it comes that Bharat was holding the knife and in the evidence of PW-11, Ashok Shrivastava, it comes that Prahlad had taken out the knife from his pocket and had assaulted the deceased. Merely, on account of seizure of knife on the memorandum of appellant- Vijay, recorded in connection of offence u/s 302/34 IPC does not make' him liable for punishment under the Arms Act, particularly when the story in relation to murder of the deceased has been disbelieved on account of credibility of the eye witness. Therefore, the conviction of appellant Vijay under the aforementioned Sections of the ArmsAct can also not be sustained for want of credibility of evidence recording alleged possession ofthe arm. (21) In the result, the appeals filed by the appellants are allowed, their conviction and sentences awarded u/s 302/34 IPC and Sections 25 (1- b) (B) and 27 of the Arms Act are set aside. They are acquitted of the charges framed against them, The appellants are in jail since 23.8.2001 (excepted that appellant- Bharat remained on bail'from 8.11.2001 to 4.7.2002), therefore, they be set at liberty, forthwith, if not required in any other case. __———-— Sd/- Chief Justice Sd/- _ ^ Sunil Kumar Sinha \ Judge vatti