Rajendra & Ors. v. State of Chhattisgarh

Judgment

8. Respondent versus 62 S/o appeal Duvasram, S/o Vishambhar Rajendra S/o aged 35 years, Kodan S/o Daulatram, aged 40years, Chhota @ Jivan Chheraka, aged 38 years, Ramnath Dewangan, aged 51 years, Madan @ Krishndutt S/o Maniram, years, ( died during the pendency of appeal abated against him and his name was deleted as per Court's order dated 18-06- 2013) Jondhu S/o Mohar Sahu, aged 56 years, Chhedi S/o Babulal Sahu, aged 39 years, Sonsai S/o Jondhu Sahu, aged 32 years, All R/o Village Misda, Police Station Shivrinarayan, Tahsil -Bilaspur - Janjgir, District (M.P.) (now Chhattisgarh) State Chhattisgarh Police Through Station Shivrinarayan, Tahsil - Janjgir, District - Bilaspur.

Present: Shri Neeraj Mehta, counsel for the appellants. Shri Surya Kant Mishra, Panel Lawyer for the State/respondent. Appeal under Section 374^2-) of the Code of Criminal Procedure JUDGMENT (Delivered on ^ September, 2013) Per Radhe Shvam Sharma. J.: This appeal is directed against judgment dated 26-08-1997 passed by Additional Sessions Judge, Janjgir District Bilaspur, Sessions Trial No.64/1991. By the impugned judgment, appellants were convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence UnderSection 148 IPC Under Section 302/149 IPC Rigorous Imprisonment for 2 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo simple imprisonment for six months. Imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo simple imprisonment for six months.

2. Case of the prosecution, in brief, is as under: On the date of incident i.e. 01/10/1989 at about 11-12 in the day deceased Gangaram was returning after grazing cattles. When he was passing in front ofthe mill of Neelkanth (PW-17), appellants surrounded him and assaulted him with deadly weapons. Gangaram sustained injuries. He was taken to Primary Health Center (for short P.H.C.) Shivrinarayan for medical examination vide Ex.P.-27. Dr. R. Jeetpure (PW-11) examined him and gave his report (Ex.P-18) in which he found (i) incised wound 5cmX1cm into muscle deep behind left ear, blood was coming out (2) lacerated wound 5cmX 1 1/^ cm X muscle deep over the top of the head obliquely situated (3) A bruise 3cm X 5cm over left arm oblique. He referred Gangaram to District Hospital Bilaspur for further treatment. Gangaram died during the treatment. Intimation was sent to Police Station City Kotwali, Bilaspur vide Ex.P.- 30. Merg Intimation (Ex.P-29) was recorded in Police Station City Kotwali, Bilaspur, thereafter regular First Information Report Ex.P- 26 was recorded in Police Station '9iejisi6e|/\| lepjpnp ^eiqo p ijnoo eqi ui siue||9dde eqi isuieBe peiy SBM i98L|S-9Bjeq3 'uo!ie6iiS9AU! eqi p uoiieidujoo jeyv •(9kMd) joqiey pueqo qsuBH ueMied Aq pejedejd SBM (s^-d'x^) de|/\| ].ods 'l.l'-d "X3 ®P!AP9Z!9S SBM iGuej^ eoueisui siq ie pue 01--d"x3 9P!A pepjooej SBM ejpuefey iue||8dde jo luetueieis LunpuejoujeLu '21. -d "x3 epiA pezies SBM/^B/ eoueisui SILJ }e pue 6-d"x3 9P!A pepjooej sii^ SBM HnpuLisux @ |B|uepe|/\| 4ue||edde ^o lueLue^s Lunpuejouuetu 'CI'-d 'X3 9P!A P9Z19S SBM i^ei eoueisui ie pue g-d'x^ iue||9dde p lueLueieis LunpuejoujeLu '^\, epiA pepjooej se/w uepo>| -d "X3 9P!A P9ZJ9S SBM/t/^e/ eoueisui siq ie pue z-d'x3 9piA pepjooej SBM |e|ueAir @ eioqqo ^ueiiedde p lueuueieis ujnpuejoiueuu 'gi, -d 'X3 epiA pezies se/v\/^e/ eoueisui Sjq ie pue 9-d'xg epiA pepjooej seM qieuaiey iue||edde p lueLue^s ujnpuejotueLU '9|<-d'x3 epiA p9zi9s SBM iq^ei eoueisui siq }B pue 9-d"x3 9piA lov souepiAg 941 P ^.3 uoipes JQpun pepjooej SBM nqpuop iue||9dde p lueLueieis '[.-d'x3 epiA oouajjnooo p 9oe|d eqi LUOJJ pezies Lunpuejouu8|/\| 9J9M |ios uie|d pue |ios peuieis pooiq 'uoiieB^seAui jeq^in^ u| •ejnieu ui leppiLuoq SBM qieep eqi pue ^nfui leiuejoBJiui SAISSBLU SBM Liieep ^o esneo pue LueiJOLU-e^ue 9J8M seunfui eseqi 'peseQoep p Apoq peap sqi uo seunfui ^ inoqe jeeu puno^ eq qoiqM ui '(cs-d'x^) yodej siq 9Ae6 pue paseeoep eqi p Apoq peep eqi uo uojieuiLuexe LUQ^OLU ^sodpeionpuoo (si.-Md) e^BLioeueqg •yd "JQ "^ d'xg epiA uoiieuiLuexe UUQ^OUU }sod jo^ jndse|ig leiidsoH lueiuujeAOQ oi ^ues SBM Apoq peep ©qi'peseeoep p Apoq peep eqi uo (fr-d'xg) isenbui pejedejd pue setioued 0} (V£-d'x3) ©o'lou9Ae6 'jndseijg jeoi^o Bu!ie6iis9AU| ©qi-ueAejeuuAiqs leiidsoj-i puisiQ peqoeej 4 Bilaspur, who, in turn, committed the case to the Court of Session, ^ Bilaspur, from where it was received on transfer by Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellants as mentioned above. Appellant Madanlal @ Krishndutt had died during the pendency ofthis appeal, therefore, his appeal has abated.

3. Shri Neeraj Mehta, learned counsel for the appellants has argued that the finding recorded by trial Court that all the accused persons had assaulted the deceased is incorrect. A correct appreciation of evidence would show that there is nothing to implicate them in any of the overt acts. Copy of the FIR had not been sent to the Magistrate as required under Section 1 57 of the Code. He further argued that there was party bandi in village Misda and the relation between the appellants and the deceased party were inimical due to previous animosity. The prosecution witnesses have tried to rope in number of persons though they had no role to play in the commission of the crime in question. He further argued that Dhan Kunwar (PW-7) changed her version on many occasions; though she was wife of the deceased and was highly interested witness. There are inconsistencies between the oral evidence and the medical evidence. There is no independent eye-witnesses. Bhakulal @ Shyamlal (PW-5) has not supported the case of the prosecution and the evidence of Dhan Kunwar (PW-7), Tulsi Prasad (PW-8) is not specific about the overt acts of the appellants. Babulal (PW-10) has given altogether different story, therefore, above witnesses are not reliable. Mr. Mehta has also argued that initially Police had arrested Neelkanth (PW-17) and charge sheet was prepared against •spueq jieqi iLjie-i 6uiAeq 9J9M siue||9dde jeqio pue n>|eqo BuiAeq SBM ipeqqo 'i6uei BuiAeq SBM ejpuefey iue||edde leq^ pesodep (s-Md) pesejd is|ni 'iqiei pue iSuei qiiM peseeoQp 941 pe^inesse peq s^ueiiedde IBLII pesodsp (oi.-Md) |B|nqeg pue (9-AAd) pesejd isini ^omi e Aq |eiidso|-j ueAejeuuAiqg 0} ue^ei SBM peseeoep eqi ieqi pesodep jeqijnj eqg 'QJQ^ LUOJ^ pey pue peseeoep eqi peiinesse Aeqi •spueLj 93 0} 02 inoqe p eoueisip e LUOJ^ luepioui eqi pesseuiiM 9q§ 7^67 pue /fiuej. L|IIM peseeoep 8L|i p9i|nesse Aaqi -iueje6ue9 pueqsnq JQLI p9||i>| peq lesuos '!p9L|40 'nqpuop 'LfieuLuey 'ueM.r @ eioq^o 'uepox '(peep) iue||9dde IBLII pesodep (pQseeoep eqi p BJIM 'z-Md) JBMun>| ueqa •/ ynpuqsux @ uepe|/\| 'ejpuefey •seiijed 941 jo^ |esunoo peujeei pjeeq OAeq a/w -g •Ijnoo suoisseg eqi Aq pessed lueLuBpnf eq^ peijoddns pue siu8Lun6je 8S9L|i pesoddo SBLI luepuodsej /Q^S 9MI jo^ jeAMB-i |eued 'BJL|S!|/\| iue>i e^ng uqs 'pueq jeqio eqi UQ 'S •9Z80SZ861-HIV 'qefund 'sjeyio 4»eu>|3 jo eieis 'A sjsqio pue I|BU!S JBUIV pue 61.9 OOS 9 (OIOZ) pue ej^sejei|e|A| ^o e^s 'A sjeqio pue jeqy ledueo jo e^s •A jeqioue pue '1.99 'qjeBsiueqyO 338 6 (K-OZ) |B|M4S uo 93uei|9J p9oe|d siue||9dde eqi jojiesunoo peujee-i •^ •penmboe eq 0} OAjesep s^ueiiedde e^ 'eoueq snopidsns si uoiinoesojd eqi p eseo ejiiue eqi •siue||9dde eqi isuieBe p9|u SBM leeqs eBjeqo pue peisejje ejeM 'ejo^ejeqi siue||edde jeyeejeqi pue eoiiod eqi Aq pe6jeL|os!p SBM (zi.-AAd) qiue>||99N uoseej Aue CuiuBisse inoqiiM ^nq '(zi.-Md) Mlue>||e9N

8. Now we shall examine whether the evidence of above witnesses are reliable and can be based for conviction.

9. Dhan Kunwar (PW-7) has deposed that the police had recorded her statement twice and on the basis of her statement, initially police had arrested Neelkanth with 4 - 5 other persons. Thereafter police again recorded the statement and then appellants were arrested by the Police.

10. Babulal (PW-10) deposed that there was "party bandi" village Misda. The deceased was in his party and the appellants were belonging to the other party. He further deposed that it is true that the appellants Kodan, Ramnath, Madanlal, Sonsai and Jondhu, have wrongly and falsely implicated in the instant case.

11. Dhan Kunwar (PW-7) deposed in her examination-in-chief that she had witnessed the incident from a distance of 20 to 25 hands. In Para-3 of her deposition she deposed that she witnessed the incident from the roof of the house. Thereafter, she reached the place of occurrence. However, in cross-examination in para -12, she deposed that on having heard shouting she reached the place of occurrence and at that time the assailants were running away. She further deposed that the police had recorded her statement after 15 days of the incident.

12. Tulsi Prasad (PW-8) deposed that when he reached the place of occurrence, by that time the assailants had fled away from the place of occurrence. In Para-5 of her cross-examination he deposed the assailants of Gangaram escaped from the place of 7 occurrence, therefore, he did not know which assailant was having <^) which kind of weapons.

13. Babulal (PW-10) has deposed that near about15 persons had surrounded and the assaulted the deceased with Lathi and Tangi, at that time Rajendra was having Tangi and other persons were having Lathi.

14. In Eknath Ganpat Aher and others v. State of Maharashtra, and others (Supra), Hon'ble the Supreme Court held thus:- "26. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the the courts are called upon to be assault. In such situations, very cautious and shift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the couri: would be obliged to give the benefit of doubt to them."

15. Tulsi Prasad (PW-8) has admitted that his relation was inimical with deceased Gangaram due to old land dispute. Therefore, he had animosity againstthe appellants. Babulal (PW-10) has also admitted that there was group rivalry in Village Misda. He belongs to one party and the appellants belong to opposite party and their relation was inimical to each other.

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19. Sub Inspector Anil Tiwari (PW-19) deposed that Tijram Dewangan had lodged the First Information Report in Police Station Shivrinarayan. He had recorded FIR No. 152/89 for offences under Section 147,148,149, 307 IPC and had sent the injured Gangaram to Primary Health Centre Shivrinarayan. In his cross examination, in Para-23 he deposed that the copy of FIR was not sent to concerned Magistrate. After perusal of the case diary he stated that there is no certificate in regard to sending copy of FIR to concern Magistrate.

20. In Shivlal and another v. State of Chhattisgarh, (2011) 9 SCC 561, Hon'ble the Supreme Court observed thus:- "18. This Court in Bhajan Singh v. State of Haryana [(2011) 7 SCC 421 : (2011) 3 SCC (Cri) 241] has elaborately dealt with the issue of sending the copy of the FIR to the llaqa