HIGH COURT OF CHHATTISGARH AT BILASPUR l DIVISION BENCH CORAM HON’BLE MR. T.p. SHARMA xx ' HON’BLE MR. N.K. AGARWAL, JJ. CRIMINAL APPEAL No. 1 125 OF 1991 CR. APPEAL U/S. 374 (2) OF THE CR.P.C. Present Ms Indira Tripathi Advocate for the appellarlts. Mr RaVIndra Kumar Agrawal P L for the State/respondent ORAL-JUDGEMENT (Passed on 03/03/2010) The following judgment of the Court was‘bassed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of,sentence dated 30/11/1991 passed by Additional Sessions Judge, Khairagarh District Rajnandgaon in Sessions Trial No. 163/90 whereby and Where under after holding the appellants guilty for the ‘v‘x APPELLANTS 1. Siyaram s/o Bisoha aged 45 (IN JAIL) I years ‘ ‘ k 2. Bhukhauram s/o Prabhu aged 4O years 3. Rajkumar s/o Natthuprasad aged i 30 years, 4. Salikram s/o Dhanauram Gond i aged 35 years, (Died—abated) A11 R/o Village: Pipalakachhar * P S Khairagarh Tahs11 Khalragarh Dlstrlct Rajnandgaon (MP) VERSUS RESPONDENT , The State‘of Madhya Pradesh. commission of culpable homicide amounting to murder of deceased Kanhaiya in sharing common intengtion convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life to each appellant. Conviction is impugned on the ground that Without any iota of evidence Court below has convicted and sentenced c‘ . the appellants aforementioned and thereby committed an illegality. The brief case of the prosecution is on fateful day of intervening night of 8—9/6/90 deceased Kanhaiya was present near the field at Village Pipalakachhar, all appellants assaulted him and caused his death. Marg was intimated vide EX. P—ll, on the basis of Ex. P—ll First Information Report was lodged vide Ex. P—lt PW7 Baisakhuram was present at the time of incident but he was threatened by the appellants therefore, he did not disclose the incident to anybody. Investigating Officer left for scene of occurrence and after summoning the witnesses vide EX. P—2, inquest over the dead body of the deceased was prepared vide Ex. P—3. Dead body was sent for autopsy to the Primary Health Center, Khairagarh vide EX. P—8A. PW8 Dr. T.Ci Singhi conducted the autopsy vide Ex. P—8 and found following injuries:— .- (i) Lacerated wound over left region of the head of 2” x 1/2” X 1A”. (ii) Lacerated wound below the left eyelid of 1/2 ” ‘ xWxW. l (iii) Lacerated wound below the left eyelid of 1/4” X 1A” X 1A”. ; (iv) Lacerated wound over right side of the head of 1 1/2” X 1/2” x 1A” V) Lacerated wound below the right eyelid of 1/4 7) x/4x/4. 1» 17: (Vi) Lacerated wound over the right shoulder of 4 1/2 ”X vaux 1A”. (vii) Lacerated wound over the right shoulder of 1/4 " X 1/4” X 1/4”. (viii)One abrasion over the right knee of 2 1/2”. Mode of death was shock as a result of injuries and death was homicidal in nature. 4 One piece of cycle chain and packet of Panama cigarette was seized from the spot vide Ex. P—4. Blood stained cloths of the deceased, one wrist watch and hair found over the hand of the deceased was seized vide EX. P—5. One cycle, one pair of shoe, piece of cycle chain, plain“ and blood stained soil were recovered from the spot vide EX. P—6. Patwari prepared spot map vide Ex. P~7. Seized articles were sent for chemical examination vide EX. P—12 and EX. a P—13. Hair was sent fof'morphological examination. Statement of the witness- Baisakhuram was recorded under Section 161 of the Code of Criminal PrOcedure, 1973 (in short ‘the Code’) on 9/6/90 Vide EX. D—2, 2/7/90 vide EX. D—2A 8L 29/8/90 Vide EX. D—2B. Pgter completion of the ‘investigation charge—sheet was filed before the Judicial Magistrate First Class, Khairagarh who in turn committed the case to the Court of Sessions Judge, Rajnandgaon. Learned Additional Sessions Judge received the case on transfer for trial. Vs In order to prove the guilt of the accused/appellants prosegution eXamined as well as 10 Witnesses. Accused persons were ekamined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication is Claimed. They have also examined the defence witness K.C. Agrawal who has deposed that he has examined Baisakhuram vide EX. D—QA. After affording an opportunity of hearing to the parties learned, Additional Sessions Judge convicted and Q sentenced the appellants as aforementioned. a Learned counsel for the appellants Ms. Indira Tripathi and learned counsel for the State/respondent Mr. Ravindra Kumar Agrawal, P.L. are heard. Judgment impugned and record of court below perused. Learned counsel for the appellants vehemently argued that case is based on evidence of solitary witness PW7 Baisakhuram although there is no bar in conviction on the v basis of evidence of solitary witness if found truthful but in the present case the evidence of PW7 Baisakhuregm does not satisfy the aforesaid test. His statement recorded thricely by the prosecution and after lapse of 2 1/2 months he has deposed against the appellants which does not inspire confidence and safe .to rely that too for the conviction of the appellants under Section 302/34 of the s Indian Penal Code. On the other hand, learned counsel for the A .. State/respondent-opposed the appeal and submits that PW7 Baisakhuram has supported the case of the prosecution and only on the ground of delay in recording his statement by the Police under Section 161 of the Code his evidence cannot be thrown out. ln order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. G In the present case homicidal death as a resultvof ante— mortem injury of the deceased Kanhaiya has not been substantially disputed by the appellant on the other hand, also established by the evidence of PW8 Dr. T.C. Singhi and autopsy report vide Ex. P—8. Death was homicidal in {9 nature. As regard the complicity of the appellant in crime in question the conviction is based on the solitary evidence of l2. ‘vx PW7 Baisakhuram, conviction can be based on the statement of the solitary Witness if found truthful and E trustworthy. In the resent case, PW7 Baisakhuram has p dposed in his evidence that at the time of incidnt at e e aout 7.30 to 8 P.M. appellants were assaulting deceased Knhaiya nea the field of arpanch Mansharam. They a r S wre assaulting the ,deceased by cycle chain and s screwdriver. He has further deposed that appellants stopped him and directed to climb on ther‘tree otherwise ‘ they will also ill him then they finally killed Kanhaiya. He went his Village but did not inform the incident to any person he was under fear, finally he narrated the incident to Police. The documents of the prosecution clealy reveals that firstly his statem was recorded o 9/6/90 vide EX. ent n D2 on second day of the incident in which he has not sted anything against the appellans, again his ta t stement was recorded on 2/7/90 fter 2 days of ta a 7 incident vide EX. D—2A in which he has $not stated U‘ anything against the accused finally his statement was again recorded on 29/8/90 after more than 2 1/2 months vide Ex. D—2B in which he has stated that aforesaid four appellants had assaulted the deceased. DWI K.C. Agrawal who had recorded the statement of the Baisakhuram under Section 16.1 of the Code vide Ex. D— 2A has specifically deposed that he has recorded his k . ‘vx b e r — statement according to the statement given by him. Present appellants have been convicted for the commission of the‘ heinous crime i.e. murder of the Kanhaiya in sharing common intention under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life. Investigating Officer recorded the statement of the PW7 Baisakhuram thricely and he has ‘ . stated against the appellants in his third statement recorded under Section 161 of the Code after lapse of more than 2 1/2 months. Although this Witness has stated that appellants have threatened him and he was under threat therefore, previously he has not stated against the é appellants. According to evidence of PW7 Baisakhuram he was under threat and fear but he has not deposed that how and when he recovered in its original position from fear and threat even investigating officer has not explained that what was the necessity for recording of the statement G of PW7 Baisakhuram thricely. In absence of aforesaid explanation the evidence of PW7 Baisakhurarn is not worth of credence and is not safe to rely even if the evidence of this witness is believed intoto then even he is not fully reliable witness, he may treated as partly reliable O witness and in case of partly reliable witness corroboration of evidence of the partly reliable Witness u from independent sources is sine—quo—non. 15. In the present case his statement does not find support/corroboration from independent sources a in absence of corroboration from independent sources the evidence of PW7 Baisakhuram may be sufficient for creating strong suspicion that appellants had committed the: aforesaid offence but would not be sufficient for drawing an inference that appellants have committed ‘ culpable homicide amounting to murder of deceased Kanhaiya there is long distance between “may be true” .- and “must be true”. 16. On close scrutiny of the evidence of PW7 Baisakhuram, we are of the considered View that the evidence of PW7 Baisakhuram is not sufficient for drawing an inference that appellant's have committed the murder of deceased Kanhaiya while convicting the appellants court below has not considered the evidencary value of PW7 Baisakhuram which was not of sterling quality thereby committed an ¢ illegality. d‘ For the foregoing reasons, conviction and sentence of the appellants are not sustainable under the law. Consequently, the criminal appeal is allowed. Conviction and sentence of the appellants Siyaram, Bhukhauram 8L Rajkumar under Section_302/ 34 of the Indian Penal Code is hereby set aside. They are set at liberty at once. .N l Sd/- Sd/— l » - T. P. Sharma l Judge m. Agrawal v. ;‘ e Judge l ‘ " I l \/ \/