RAHUL v. State Of Chhattisgarh

Judgment

1. In Sessions Trial No. 273/1995, a total of eight accused persons were put to trial, namely Ghanshyam Kabootara (A1), Ghanshyam Joshi (A2), Daradas (A3), Mohan @ Baba (A4), Bindu Kabootara (A5), Ramsharan (A6), Kabra @ Bhura (A7) and Jarban (A8). During the course of proceedings, the trial Court found that accused A4 to A8 were absconding and accordingly kept their trial pending. In the present appeal, only A1 and A2 had preferred the appeal challenging their 2 CRA No. 1188 of 2001 conviction. However, during the pendency of the appeal, A2 expired and the appeal stood abated on his behalf, and therefore the appeal now survives only in respect of A1 Ghanshyam Kabootara.

2. This criminal appeal has been preferred under Section 374(2) of the Cr.P.C. against the judgment of conviction and order of sentence dated

13.07.2001 passed in Sessions Trial No. 273/1995 by the learned II Additional Sessions Judge, Raigarh (C.G.). By the impugned judgment, the appellant (A1) has been convicted for the offences punishable under Sections 395, 396 and 307 of the IPC and sentenced to undergo rigorous imprisonment of ten years for the said offences.

3. The prosecution case, in brief, is that Complainant Bharatlal (PW-27), a resident of Village Domarpali, Police Station Kharsia, was travelling on 09/11/1993 to his sister’s house at Village Chhote Tendumudi, Police Station Chhal. At about 7:00 p.m., near the slope of Jamjali, two persons approached him, one of whom was armed with a gun a wearing a black shirt and trousers, with marks on his face. They told him that a “Sahab” was calling him. Immediately thereafter, a group of 6–7 persons, concealed in the adjoining bushes and armed with tangi, pharsa and lathi, suddenly came out and assaulted him. When questioned, he stated that he was going to his house and had ₹500/- in his pocket, which they took away. One of the persons asked him as to who possessed gold in Village Tendumudi, and he replied that he did not know. They then tied his hands and feet and took him towards Tendumudi, where they apprehended one Santuram, assaulted him, tied him, and took both of 3 CRA No. 1188 of 2001 them to a house. Thereafter, they were taken to the house of Mahara,

where they beaten the persons, and gunshots were fired, causing injuries. One of the assailants pointed a knife at them and threatened to shoot him if he made any noise. The group, consisting of about eight persons, killed Laxmiram and assaulted Udmi Ram, Mahendra Singh, Hansabai, Kashiram, Chattar, Maniram, Jagatnath and Jailal with axes. They also looted gold ornaments, clothes, utensils and other household items from their house and fled. On the next day, i.e., 10/11/1993, Bharatlal (PW27) lodged the First Information Report (Ex.P/14) at Police Station Chhal, which was recorded by Head Constable Motiram. The police issued a notice for identification of the dead body of Laxmiram, prepared the inquest, and sent the body for postmortem to the Civil Hospital, Gharasia, where Dr. B.S. Chandel (PW-10) conducted the postmortem of Laxmiram. The police prepared the spot map, arrested the accused persons, recorded their memorandum statements and made seizures on that basis. Statements of witnesses were recorded, and after completion of the investigation, a charge-sheet was filed before the concerned Court and subsequently, charges were framed and read over to the accused persons. In support of its case, the prosecution examined 27 witnesses. In their statements under Section 313 CrPC, the accused denied all incriminating circumstances and pleaded false implication. No defence evidence or document was produced.

4. The trial Court, after appreciating the oral and documentary evidence 4 CRA No. 1188 of 2001 available on record, by its judgment dated 13.07.2001, convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

5. Learned counsel for the appellant contends that the appellant has been falsely implicated in the present case on the basis of statements of interested and hostile witnesses. It is submitted that the learned Sessions Court erred in placing undue reliance on the prosecution’s version, despite the fact that the prosecution has completely failed to prove its case beyond reasonable doubt. Learned counsel further submits that the trial Court ought to have held that the prosecution failed to establish the guilt of the appellant and, consequently, the appellant deserved to be acquitted. It is pointed out that the Sessions Court wrongly relied upon false and uncorroborated evidence, failed to appreciate the absence of any credible circumstantial proof, and did not properly evaluate the statements of the witnesses, leading to a manifestly erroneous conclusion. In these circumstances, learned counsel prays that the appeal be allowed and the appellant be acquitted of the conviction and sentence imposed, in the interest of justice.

6. Per contra, learned counsel appearing for the State submits that the conviction of the appellant is fully justified and based on unimpeachable evidence. It is submitted that the prosecution has proved its case beyond reasonable doubt through the testimony of Bharatlal (PW-27), who witnessed the assault and subsequent events, as well as other independent witnesses, supported by documentary evidence, including 5 CRA No. 1188 of 2001 the First Information Report, seizure reports, inquest and postmortem reports. Learned counsel further submits that the Sessions Court has correctly appreciated the evidence in its entirety, including the consistency, credibility, and corroboration of the witnesses, and rightly concluded that the appellant participated in the criminal acts, including assault, looting, and causing injuries, which ultimately resulted in the death of Laxmiram. It is submitted that the appellant’s contentions regarding false implication are entirely speculative and not supported by any material on record. The evidence, both direct and circumstantial, firmly establishes the guilt of the appellant beyond reasonable doubt. Learned counsel prays that the appeal be dismissed and the conviction and sentence imposed by the Sessions Court be upheld in the interest of justice and law.

7. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

8. PW-1 Kashiram deposed that the incident occurred about four years prior, during the night, while he was at his residence. Upon hearing commotion and learning that a murder had taken place in the village and that dacoits had entered, he, along with Shyamlal and Laxmiprasad, proceeded towards Mahara’s house, where eight persons armed with firearms were present. He stated that the assailants fired a gunshot, resulting in a firearm injury to Laxmiprasad, who immediately fell unconscious. PW-1 further stated that as he attempted to flee, he also 6 CRA No. 1188 of 2001 sustained an injury on his left hand and additional injuries during the course of the assault.

9. PW-2 Shyamlal deposed that the incident occurred about five years prior, during the night, after he received information that unknown persons were entering houses and committing loot. When he reached near Mahara’s house, he found several persons injured. He clarified that Udmi Ram and his wife had sustained only lathi injuries and that Udmi Ram did not die in the incident, whereas only Laxmi suffered a firearm injury & died on spot. He stated that the dacoits continued committing loot for nearly one to one-and-a-half hours, due to which he and other villagers fled to the forest out of fear. He further stated that his house was also looted and the dacoits took silver ornaments, clothes, a bag and some cash. PW-2 also stated that he was called for test identification of the seized articles, where he identified a bag, silver ornaments, three out of six beads, and a waist-band (santi). The identification memo bears his signatures, and proceedings were conducted at Dharamjaigarh. Likewise, Mahendra Singh (PW3) also supported the prosecution by stating that a dacoity had been committed in the village.

10. PW-4 Hansabai stated that about three years before her testimony, at around 8:00 p.m., while she was bringing water to wash her hands and feet, she saw 8–9 persons approaching from the backyard. Out of fear, she ran inside, but the assailants entered the house, and she was struck with an iron-like object near the doorway, causing injuries to her head and ears, rendering her unconscious. She stated that her husband, 7 CRA No. 1188 of 2001 mother-in-law and father-in-law also suffered injuries, and silver and gold ornaments belonging to her and her family members were looted, along with cloth stock worth ₹2,500/- and ₹3,000/- in cash. She also stated that Laxmi Ram of their village suffered injuries leading to his death. In cross-examination, she candidly admitted that she could not see who entered the house as she ran inside upon hearing the commotion. She conceded that she did not see the accused present in Court assaulting anyone, and that she became unconscious and therefore could not say who took away the articles. She reiterated that she could not identify the person who caused injuries to her and had not seen the faces of the assailants.

11. PW-27 Bharatlal, an eye-witness, deposed that about five years before his testimony, he was travelling to Village Tendamudi to visit his ailing sister when two persons stopped and began assaulting him. Several others soon arrived and collectively beat him while demanding information about gold and silver, threatening to kill him if he did not disclose anything. Upon further beating, he told them he had ₹500/- and was travelling to his sister’s house. He stated that another person coming from the forest was also apprehended, and both were taken to Mahara’s house, tied, threatened with weapons, and made to witness the assault on the family. According to him, about eight assailants committed loot, beat the family members, injured a man who tried to escape, and assaulted the women and child. After the assailants left for another house, he 8 CRA No. 1188 of 2001 managed to flee and spent the night in a paddy field. He stated that he later identified the accused persons inside the jail, where the Jailor conducted the identification proceedings, and he recognised Ghanshyam Joshi (A2) (dead) and Ghanshyam Kabootara (A1) as the persons who had beaten him. His medical examination was also conducted. In cross-examination, he admitted that he did not remember the exact date and month of the incident. He stated that around 7 p.m. it becomes quite dark, making identification difficult. He admitted that several assailants were wearing masks, including one red and one black mask, and that due to darkness he could not clearly see faces. He further admitted that the police took him inside the jail where several persons were present, and he identified only two accused. He conceded that his signatures do not appear on Ex. P-43 relating to identification. He denied being tutored, but admitted that the police brought him first and then brought others one by one for identification. He denied the defence suggestion that he could not identify anyone on the date of occurrence and had wrongly identified the accused in Court.

12. In the present case, the Test Identification Parade (TIP) has been proved on record as Ex. P/43. A perusal of the said TIP proceedings reveals that the parade was duly conducted in accordance with prescribed procedure, in the presence of the competent authority, and the witnesses were afforded a fair and independent opportunity to identify the assailants. The record of Ex. P/43 clearly demonstrates that the accused persons were specifically and unambiguously identified by the witnesses during 9 CRA No. 1188 of 2001 the said TIP, thereby lending corroborative assurance to the prosecution version and strengthening the evidentiary value of the identification made subsequently in Court.

13. On a comprehensive evaluation of the evidence on record, this Court finds no merit in the submissions advanced on behalf of the appellants. The prosecution witnesses, when read together, present a consistent and cogent narrative of a violent dacoity in which multiple persons were assaulted, valuables were looted and one villager, namely Laxmi, sustained fatal firearm injuries. The scattered suggestions of false implication and mistaken identity raised by the defence do not withstand judicial scrutiny in the face of the clear and corroborated testimonies.

14. PW-27, though subjected to lengthy cross-examination, remained firm on material aspects. He categorically stated that he was apprehended, assaulted, dragged to Mahara’s house, tied, threatened with weapons and was made to witness the assault and looting committed by the group of offenders. His testimony regarding the involvement of the appellants finds support from the fact that he had identified them during the Test Identification Parade as well as in Court. Minor discrepancies regarding time, darkness or peripheral details do not dilute the substantive portion of his testimony, which stands unshaken.

15. The submission of the appellants that the Test Identification Parade (Ex. P-43) stands vitiated is equally untenable. The TIP demonstrates that the accused persons were duly identified by PW-27, and the mere omission of signatures or minor procedural lapses does not, by itself, render the 10 CRA No. 1188 of 2001 entire proceedings invalid, particularly when the identification is further corroborated by in-court identification. It is well settled that TIP is only a corroborative tool, and once the witness identifies the assailants in Court with confidence, the evidentiary value remains intact.

16. The testimonies of PW-1 and PW-2 also lend material support to the prosecution case. Both witnesses confirm the occurrence of a large-scale assault and looting, the presence of armed offenders and the fatal firearm injury sustained by Laxmi. PW-2 specifically clarified that although Udmi Ram suffered only lathi injuries and survived, Laxmi died on the spot due to a gunshot injury thereby establishing the homicidal nature of the act. Their statements are consistent and remain unshaken during cross-examination. No substantive contradiction emerges that could benefit the appellants.

17. Likewise, PW-4 Hansabai, though unable to identify the assailants due to the suddenness of the attack, fully corroborates the factum of dacoity, the manner of assault, the injuries, and the looting of ornaments, clothing and cash. The inability of an injured witness to identify the accused, by itself, cannot derail the prosecution case when other witnesses including an eye-witness like PW-27, have provided clear identification. Her testimony reinforces the occurrence and the brutality of the offence.

18. Thus, the collective evidence of PW-1, PW-2, PW-4 and PW-27 forms an unbroken chain establishing that a group of armed assailants, including the present appellants, committed dacoity with assault and caused the death of Laxmi. The defence plea of darkness, confusion, or mistaken 11 CRA No. 1188 of 2001 identity is merely an afterthought and fails to generate any reasonable doubt. The learned trial Court has meticulously appreciated the evidence and arrived at a well-reasoned finding of guilt. The appellant and other co-accused have a checkered history of commission of similar offence including murder, marpeet, loot, etc. for which they were convicted by the concerned competent trial Court and even their appeals have also been dismissed by this Court by one or other reason.

19. Consequently, this Court finds no infirmity, perversity or illegality in the judgment of conviction warranting interference in appellate jurisdiction. The appeal, being devoid of merit, stands dismissed.

20. The appellant is on bail. Since, he was not appearing before the Court, bailable/non-bailalble warrants were issued and when the same was not executed, permanent warrant were issued. His bail bond is cancelled and he is directed to surrender forthwith and/or be taken into custody for serving out the remaining sentence. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant shall undergo the remaining the jail sentence, informing the appellant that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

21. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Rahul/Gowri Sd/- (Bibhu Datta Guru) Judge