j '^ ^ HIGH COURT OF CHHATT1SGARH. BILASPUR DIVISION BENCH CORAM: HON'a-E MR. T.P. ^HARWIA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.1547 of 1994 Baldev Soni and another •9 . " - Versys - State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FORCONSIDERATION Sd/- T.P.Sharma Judge HON'BLE MR. JUSTICE R.N.CHANDRAKAR g) oL&yT-&£- 'f Sd/- . '-. R.N. Chandrakar Judge th Post for pronouncement ofiudciment on 17"' Auaust. 2011 Sd/- l.P. Sharma Judge ^T'^S^SW^S^^.^^i^^-"-: II'BB:!—- K.!' • "y^\ ar -^/ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. \ APPELLANTS: 'RESPONDENT: Criminal Aopeal No.1547 of 1994 1. Baldev Soni Son of Tapeshwari Soni, Aged 32 years, R/o Village Khapdo, Thana •Ranka, At present Rajpur, Distt. Sarguja, 2. Gopal Soni Son of Tapeshwari Soni, Aged 36 years,. Resident of Village Pahad, Kharua Rajpur (M.P.) (now C.G.) Sarguja. Madhya Pradesh (now Chhattisgarh). Versys State of Madhya Pradesh (now State of Chhattisgarh) {Appeal under Section 374 (2) of Criminal Procedure Code} Present: Mr. R.K. Jain, counsel for the appellants. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. JUDGMENT (17th August, 2011) The following^jydament of the Court was delivered bvJ'.E._Sharma,_J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 12-11-94 passed-by the 2 Additional Sessions Judge, Ambikapur, in Sessions Trial No. 190/93, whereby & whereunder learned Additional Sessions Judge while acquitting co-accused Madan Gopal, after holding the appellants guilty.fbr commission of culpable homicide amounting to murder of Rameshwar Soni in sharing common intention by using .firearm without license, convicted appellant Baldev under Sections 302 of the IPC/25 & 27 of the Arms Act and sentenced him to undergo / imprisonment for life and to undergo Rl for three years, respectively. The trial Court has also convicted co-accused Gopal, who has been released Sfter serving sentence, under Section 324 of the IPC and sentenced him to undergo Rl for three years. ::;.-.Kl~SSf!sv£t!'-"t^!":'SWKST!F!WK 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 29-4-93 at about 7 p.m. Jatta (PW-1) went to the house of co-appellant Gopal and demanded liquor from Gopal which Gopal denied on which Jatta threatened Gopal that he will lodged report whereupon Gopalwent inside his house and came with axe-and assaulted Jatta by axe over back of his head. Jatta snatched axe from Gopal and called his brother Rameshwar (since deceased), at that time appellant Baldev came by cycle along with one Madan, Baldev was having country made pistol and he shot fire by country made pistol upon Rameshwar as of result Rameshwar fell down and died as a result of pistol shot injury. Gopal assaulted Bhula (PW-3) and caused injury. Jatta (PW-1) went to the police station and lodged FIR vide Ex.P-1. Merg intimation was recorded vide Ex.P-22. The investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2 prepared inquest over the dead body of deceased Rameshwar vide Ex.P-3. Blood stained and plain soil were recovered from the spot vide Ex.P-4. One blood stained wooden piece was seized from Bhula vide Ex.P-5. Blood stained axe was seized from Jatta (PW-1) vide Ex.P-6. BIood stained cloth of Jatta was seized from Jatta vide Ex.P-7. One cycle lying in the field of Maniram was seized vide Ex.P-8. Blood stained baniyan was seized from accused Gopalvide Ex.P-9. Blood stained shirt was seized from appellant Baldev vide Ex.P- 10. Acquitted co-accused Madan made discloser statement of stick vide Ex.P-11 andsame was recovered at his instance vide Ex.P-12. Sealed clothes of the deceased, metal ;giece, plastic and synthetic material found in the body ofthe deceased were seized vide Ex.P-13. Dead body of the deceased was sent for autopsy to Assisfant Surgeon, Community Health Centre,,Rajpur. Dr. P.L. Verma (PW-8) conducted autopsy vide Ex.P-14 and found following injuries: - (1) Dry blood over both che@ks, neck, ear and nose. '(2) Lacerated wound of 2 % c.m. x2 % c.m. over right scapular region. (3) Fraeture ofscapular bone of2 % c.m.x 2 % c.m., wholewas also noticed in the bone. (4) Fracture of 4th & 5th ribs and fracture of 4th & 5th vertebra. . <: (5)1-acerated injuryover right lungs. ,^.i-ai,s,',\ ^^ s^'K ,,ti:i^..i». ftw^gl"iia>-. li3 •IL-i?''.:'i;..^3Jii£''A 2' '"'fe- (6) Lacerated wound over sterno clavicular region of 3 c.m. x 3c.m. (7) One broken plastic cover, three synthetic materials found inside the body. (8) One heavy metal piece like bullet in disturbed shape found in internal part ofthe body. Cause of death was gut shot injury, mode of death was syncopeand death was homicidal in nature. Dr. P.L. Verma (PW-8) has also examined injured Jatta (PW-1) vide Ex.P-15 and found one lacerated wound over scalp of 1 c.m. x % c.m.. He has also examined Bhula (PW- 3) vide Ex.P-16 and found one lacerated wound near left eye of 2 c.m. x 1 c.m. and one lacerated wound over scalp of 1 c.m. x % c.m.. District Magistrate, Sarguja accorded sanction to prosecute appellant Baldev for the offence punishable under Sections 25 & 27 of the Arms Act vide Ex.P-20C. Spot map was prepared vide Ex.P-23. During the course of investigation, appellant Baldev Was taken into custody, he made discloser statement of country made pistol on 30-4-93 vide Ex.P-26 and same was recovered at his instance vide Ex.P-27. Empty cartridges with smell of gun powder were seized from appellant Baldev vide Ex.P-28. Seized country made pistol was sent for examination to armourer vide Ex.P-21A and after examination he opined on 30-4-93 vide Ex.P-21 that the country made pistol is in working condition and has been recently used i.e. he noticed the symptom of recent firing from the said country made pistol. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of inyestigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur whb committed the case to the Court of Sessions, Ambikapur, from where learned Additional 9esstons Judge received the case on transfer for trial. / 5. ln order to prove the guilt of the accused persons, the prosecution has examined as many as thirteen witnesses. The accused persons were examined ynder Section 313 of fhe CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. ;6. After affordingopportunityof hearing to the parties, while acquitting co- ; accused Idadan Gopal, learned AdditionalSessionsJudge, convicted & •f'" A?' ^:'' BC sentenced the appellants in the aforesaid manner. Appellant Gopal Soni was released after completion of sentence imposed upon him. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants submits that appellant No.2 Gopal Soni has completedhis sentence and has been released after serving the sentence of Rl for three years imposed upon him under Section 324 of the IPC, he has not been released on bail by this Court. Therefore, only conviction & sentences imposed upon appellant No.1 Baldev Soni are under challenge in the present appeal. Learned counsel further submits that the prosecution has examined Jatta (PW-1) as injured eyewitness, Chander Prasad (PW-2) as eyewitness, Bhula (PW-3) as injured eyewitness and Anil Kumar (PW-4) - child witness as eyewitness. Jatta (PW-1), Bhula (PW-3) & Anil Kumar (PW-4) have deposed in their evidence, initially, that they have seen the incident, appellant Batdev has fired by country made pistot upon deceased Rameshwar and caused his death, and they have seen blood over his head. However, in their cross-examination, they have not supported their version and have deposed that virtually, they have not seen the incident, especially the country made pistol shot fire by appellant Baldev upon Rameshwar. Chander Prasad (PW-2) has produced himself as eyewitness and has deposed that he has seen the incident and appellant Baldev has shot fire upon Rameshwar. Learned counsel also submits that case of the prosecution is r6quired to be considered in totality of evidence and not on the basis of pieces of evidence, if evidence of Jatta (PW-1), Chander Prasad (PW-2), Bhula (PW-3) & Anil Kumar (PW-4)is considered in its evidentiary value, especially consideringthe facts that they-^11 were present on the spot and after sustaining injury by Jatta other witnesses capie to the spot together, it reveals that evidence of Chander Pras6d (PW-2) does not inspire confidence, it is not trustworthy and 1s not safe to rely for conviction of appellant Baldev that too under Section 302 of the IPC. Eyidence of Chander Prasad (PW-2) could not be considered as gospel truthespecially in the light of evidence of other witnesses who also came to the spot along with Chander Prasad (PW-2), if other witnesse&who are also relatives of the deceased had not seen ^, the ihcident, then itwas not possible for Chander Prasad (PW-2) also to •see the incident. Learned counsel contends that as perevidence ofthe UU...: . ^ i&, ili prosecution, country made pistol has been recovered at the instance of appellant Baldev but the alleged discloser statement Ex.P-26 does not find signature or thumb impression of the appellant, though the prosecution has proved signature of appellant Baldev on Ex.P-27 - seizure of pistol. Learned counsel placed reliance in the matter of Jaskaran Singh v. State of Punjab in which the Supreme Court has disbelieved the version of ttie prosecution relating to recovery at the instance of the appellant, in gbsence of signature or thumb impression of the appellant on disctoser statement and seizure memo and on the ground of other circumstances. Learned counsel further contends that even otherwise, as per evidence of Chander Prasad (PW-2), appellant Baldev fired by country made pistol during the course of scuffle and, therefore, the act of appellant Baldev does not travel beyond the scope of Section 304 Part-11 of the IPC. Learned counsel further placed reliance in the matter of Sukhdev Singh v. Delhi State (Govt. of NCT of Delhi) in which the Supreme Court has held that causing death by gun shot injury during the course of scuffle the case squarely falls within the ambit of Section 304 Part-11 ofthe IPC. 9. On the other hand, learned State counsel opposes the criminal appeal and supports the judgment impugned. He submits that evidence of Jatta (PW-1), Chander Prasad (PW-2),Bhula (PW-3) & Anil Kumar (PW-4) is required to be scrutinized minutely, their evidence clearly reveals that appellant Baldev came and fired by country made pistol, but as per their statements in their cross-examination they have not actually seen when the appellant fired, however, only on the ground of such discrepancy, their evidence cannot be discarded. Whole incident was seen by Chander Prasad (PW-2), who came after hearing the sound of Jatta (PW-1) to the spot where he saw that after some dispute, the appellant went to his house then again came with country made pistol and fired -upon his brotb6r Rameshwar, he has seen such incident and has also heard the sound of fire. Defence has cross-examined Chander Prasad (PW-2) in detail, but for the reasons best known to the defence, it hasnot suggested csr asked single questipn to this effect relating to the fact that he is not present on the spot or that he has not seen such incident. In absence of any cross-examination to this witness, evidence of this 1-l997 SCC (Cri) 651 22ba3Cri.L.J.4315 'i'tlS'tl''."!!"?- fes"^'l :;^'.I"^" •""-<&y ^ witness alone is sufficient for conviction of the appellant. Learned State counsel further submits that this is not the case in which the appellant substantially shot fire on sudden quarrel, but after quarrel he went to his house and came with country made pistol and shot fire upon Rameshwar which shows his grave intention of causing murder of Rameshwar. Learned State counsel also submits that absence of signature or thumb impression over Ex.P-26 discloser statement is not fatal to the prosecution. In Jaskaran's case (supra), the Supreme Courthas not disbelieved the factum of discloser and recovery on the ground of absence of signature on discloser statement, but has disbelieved the prosecution story on so many grounds including the ground of absence of signature. In that case, discloser statement and recovery memo do not find signature of the appellant, even as per defence version there was serious discrepancy and inconsistency relating to arrest of the appellant at the time of recovery, considering all circumstances, the Supreme Court has disbelieved the evidence of witnesses in which absence of signature over discloser statement is also one of the grounds. 10.tn order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 11. In the present case, homicidal death of deceased Rameshwar as a result of gun shot injury has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. P.L. Verma (PW-8) and autopsy report Ex.P-14 that Rameshwar died as a result ofgun shot injury and his death was homicidal in nature. Likewise, J.N. Soni (PW-9) has proved the sanction Ex.P-20C required under Section39 of the Arms Act, 1959, accorded by District Magistrate, Sarguja Mr. R.K. Goyal for prosecution. of appellant Baldev for the offence punish'able under Sections 25 & 27 of the Arms Act which has not beert disputed and nothing has been asked to this witness in his ^ - - cross-examination. '*«- l2.As regards complicity of appellants in the crime in question, conviction of the appellants is substantially based on evidenceof Jatta (PW-1), Chander Prasad (PW-2), Bhula (PW-3) &Anil Kumar (PW-4). 13,Jatta (PW-1) & Chander Prasad (PW-2) are sons of Bhula (PW-3) and Anil Kurnar (PW-4) is son of Chander Prasad (PW-2), they are allclose. &! \. . '*s:- 7 relatives and are relative witnesses. Rameshwar (since deceased) was also son of Bhula (PW-3). 14.As per evidence of Jatta (PW-1), initially the incident took lace with him and Gopal caused injury by axe to him, thereafter he shouted for help on which his brothers Rameshwar (since deceased) & Chander Prasad (PW-2) came to the spot and during the course of discussion, appellant Baldev came with country made pistol and fired upon Rameshwar. There are contradictions and omissions in the statement of Jatta (PW-1) recorded under Section 161 ofthe CrPC and his evidence. tn para 12 of his cross-examination, he has admitted that he heard the sound of fire and has seen the body of Rameshwar lying on the floor, but he has not seen as to who shot fire. He has also admitted that after report the police came and after making arrangement of light they have conducted investigation. 15.8hula (PW-3) - second injured witness, has admitted in para 4 of his cross-examination that when he reached to the spot he saw the body of Rameshwar lying on the floor and he has not seen as to who has caused gun shot injury, on account of darkness. As per his evidence, firstly, after hearing the sound of Jatta (PW-1), Rameshwar (since deceased) reached to the spot, then after 10-15 minutes he reached to the spot along with Chander Prasad (PW-2) and Anil Kumar (PW-4). Anil Kumar (PW-4) has admitted in para 3 of his cross-examination that when he reached to the spot, Rameshwar already sustained gunshot injury and he was dead, they were informedvby Jatta that Rameshwar died as a result of gun shot injury. 16.lnitially, all these witnesses have, specifically deposed that appellant Baldev has shot gun shot injury upon Rameshwar, but in their cross- examj.nation they have not supported their version what they have stated -in their examination:-in-chief. Considering the discrepancies in evidence ofJatta (PW-'f), Bhula (PW-3) & Anil Kumar (PW-4), their evidence is not sufficient for drawing inferenee that appellant Baldev has shot fire by pountry made pistol upon Rameshwar. tn these circumstances, evidence of Chander Prasad (PW-2) substantially remains for consideration. AT.Chander Prasad (PW-2) has specifically deposed that after hearing the sbund of Jatta (PW-1), he came to the spot and after causing injury to % 8 Jatta, appellantGopal went inside his house, thereafter, appellant Baldev came to the spotfrom his house, he was holding country made pistol and shot fire upon Rameshwar by country made pistol. Chander Prasad (PW-2) has specifically deposed that he has seen the incident and has also heard the sound of fire. Defence has cross-examined this witness at length but has not askedsingle question to this witness relating to the fact that he has not seen the tncident and he has not seen the gun shot fire by appellant Baldev upon Rameshwar. He has specifically deposed in para 1 of hisevidence that after hearing the sound of his brother Jatta (PW-1), he himself, Anil Kumar (PW-4), Lalsai, Natu and his father Bhula came to the spot, however, he has not deposed that they came together. Defence has also not asked anything to this witness as to whether he came to the spot together with the aforesaid witnesses/persons or not. It is not the case of the prosecution or the defence that these witnesses were sitting or standing together at one place and after hearing the sound they came together, the incident took place at about 7 p.m. in the month of April,1993, even it was not otherwise, possible that these persons were present together. It was quite natural for the witnesses that they may reside near the place of incident and after hearing the sound ofJatta (PW-1) theycame from their places. 18.As regards the question of recovery of weapons at the instance of the appellants, as per evidence of K.M.S. Khan (PW-11) - Investigating Officer.on 30-4-93 i.e. second day of the incident, he interrogated appellant Baldev in custody, appellant Baldev made discloser statement of country made pistol, some plastic bag under the cot and presence of cartridges near Jhingo dam, discloser statement of the same was recorded vide Ex.P-26, then he tgok the appellant along with witnesses to his house from where he took out the country made 12 bore pistol from his room under his cot which was kept ih a plastic back and same - was seized vjde Ex.P-27. Thereafter, theytook the appellant to the dam froi)i where the appellant again produced cartridges vide Ex.P-28. Factum of discloser statemeritand recovery has not been well supported , by.seizurg witness Manjar (PW-12),but he has admitted his signature. The prosecution has declared him hostile. Another witness Jatta (PW-1) - injured has well supported the evidence of discloser statement and seizure. Defehce has cross-examined Jatta (PW-1) in detail relating to >discloser and seizure. In para 12 of his cross-examination, he has -,\ specifically deposed that country made pistol has been seized from the house of appellant Baldev where he was residing alone. He has denied the suggestion that country made pistol has been seized from near some tree. This witness has specifically supported the discloser statement and seizure of country made pistol. 19.Defence has also cross-examined K.M.S. Khan (PW-11) - Investigating Officer in detail, he has admitted in para 20 of his cross-examination that he had not thought proper to obtain the signature of the appellant in the memorandum and, therefore, he has not obtained the signature. He has also admitted in para 21 of his cross-examination that he has seized country made pistol vide Ex. P-27 from the house of the appellant and same is true. He has denied the suggestion that he has prepared memorandum in the police station, Although Manjar (PW-12) has not supported the factum of discloser statement and seizure, but he has admitted signature over aforesaid documents, he has not explained why he has signed over such documents, he has only deposed that the police has obtained signature over aforesaid documents. hle has not stated anything that he was under fear and pressure. 20.While dealing with the question of evidentiary value of police witnesses, the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra has held that witnesses being police officers does not by itself create a doubt about their creditworthiness if non examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under: "Indeed all the five prosecution witnesses who have been examined insUpport of search and seizure were members of the raiding )party. They are all police officials. There is, howeS/er, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, i^equires that the evidence of the police officials, who are interested in the outcome of the result of Ihi case, needs to be carefully scrutinized and . * independently apprecjated. The police officials do not suffer from any disabili!y to give evidence and the mere fact.that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 policeofficials. There is nothing on the record to show that any one of them was hostile to the appellant and despite 'lengthy cross-examination their evidence has "'IAIR:1996 SCW 2943 g „-'""®B, • i ^,.,.-^' // 10 remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that ,was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regardingsearch and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two Panch witnesses, which is supported by the report Ex. 24 filed by PW-4 P.1. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them.they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefore, do not find * any reason to doubt the dprrectness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for'" which he could produce no license or authority because of the non examination of the Panch witnesses we find that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy." 21.1n absence of ^ny adverse circumstances of signing over discloser statementand seizure, it is difficult to hold that Manjar (PW-12) is stating .' the truth. In other words, it appears that he is concealing the truth. In thesecircumstances, evidence of Jatta (PW-1) and K.M.S. Khan (PW- 11)-lnyestigating Gfficerremain for consideration. ,; 22.As regards the question of necessity of signature and effect of not s obtainiftg signature or a.bserrce of