High Court of Chhattisgarh · 2025
Case Details
ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.04.28 17:41:23 +0530 NAFR Reserved on 27/01/ 2025 Delivered on 28/04/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 661 of 2004 1. Madho Ram S/o Shri Lalram Aged About 40 Years Occupation-Agriculture, R/o.-Village-Lokhandi, P.S.-Jashpur, District-Jashpur (C.G.) 2. Ranthuram (Died And Abated) As Per Hon'ble Court Order Dated 08-01- 2025 3. Arjun Ram S/o Shri Kairu Ram Aged About 30 Years Occupation Agriculture, R/o.-Village-Lokhandi, P.S.-Jashpur, District-Jashpur (C.G.) 4. Tembaram S/o Mangtaram Aged About 32 Years Occupation Agriculture, R/o-Vilage-Bodadeeh, P.S.-Jashpur, District-Jashpur (C.G.). 5. Bhutkuram S/o Nanhuram Aged About 60 Years Occupation Agriculture, R/o.-Village-Lokhandi, P.S.-Jashpur, District-Jashpur (C.G.) 6. Karmuram S/o Shri Sukhram Aged About 50 Years Occupation Agriculture, R/o.-Village-Jholanga, P.S.-Jashpur, District-Jashpur (C.G.) 7. Devtus (Died And Abated) As Per Hon'ble Court Order Dated 08-01-2025 8. Bihanuram S/o Lohra Ram Aged About 33 Years Occupation - Village Assistant, R/o.-Jholanga, P.S.-Jashpur, District-Jashpur (C.G.) Versus ---- Appellants State Of Chhattisgarh Through P.S. Jashpur, Distt. Jashpur (C.G.) --- Respondent ______________________________________________________________ For the Appellants For State / Respondent
Legal Reasoning
:Shri Divyanand Patel, Advocate. :Shri Aman Tamboli, P.L. ____________________________________________________________ -2- Hon'ble Shri Justice Sachin Singh Rajput C.A.V. Judgment The Challenge in this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) is the impugned judgment dated 03/08/2004 passed by the II Additional Session Judge (F.T.C.), District – Jashpur (C.G.) (for short trial Court) in Session trial No. 44/2003 by which the appellants have been convicted under section 304 Part - I of IPC R/w Section 149 of IPC and sentenced them to undergo R.I. for 10 years and fine of Rs. 1000/- to each appellants in default of payment of fine one month S.I. was imposed. Charge sheet was filed against 28 accused. 22 accused faced the trial. The learned trial Court acquitted 14 accused namely Nokoram, Vibhuram, Mahadev, Suresh, Naguram and Dashrath Ram have been declared absconding during trial. 2. Case of the prosecution, in brief, is that the deceased Firuram was caught by the appellants on 24.05.2002 on the charge of stealing an animal Ox. On enquired, he admitted staling the Ox. Upon which, the appellants tied his hand from behind and assaulted him resulting to his death. Ghurguddu (PW3) informed the death of Firuram to the police station and lodged the FIR Ex-P/3 and Ex-P/4 which was recorded by by Sub-Inspector A.R. Uike (PW9). He went to place of occurrence and panchnama of dead body was prepared vide Ex-P/7 in presence of witnesses. Vide application Ex-P/9, the dead body was sent for postmortem. Dr. George M. Xaxa (PW10) conducted the autopsy on the dead body of the deceased on 25.05.2002, He found lacerated injuries on chin, external part of right eye, abrasion on left knee and injuy on the right cheek, right wrist and other multiple injuries on his person. His 2nd,3rd and 4th ribs were fractured. There was a blood clot on his 3rd and 4th ribs. The death was homicidal in nature on account of excessive bleeding caused due to the injuries sustained. Postmortem report Ex- -3- P/13 was given. Spot map was prepared vide Ex-P/100 and Ex-P/11. One plastic rope was seized vide Ex-P/8 at the instance of Mayanath Ram (PW1) by ASI Ku, Mahalaxmi Kuldeep (PW8) in presence of witnesses. Statement of witnesses were recorded. On completion of investigation, charge sheet was filed before Chief Judicial Magistrate, Jashpur. Vide order dated 06.08.2003, the case was committed to Session Judge, Raigarh who vide order dated dated 08.08.2003 made over the case to the trial Court. 3. The appellants were charged for offence punishable under sections 147, 302/149 IPC who denied the charges and claimed to be tried. 4. In order prove its case, prosecution has examined as many as 10 witnesses and exhibited 22 documents. The statement of the appellants under 313 of the Cr.P.C. was recorded in which they claimed false implication. 5. By the impugned judgment, the appellants have been convicted and sentenced as described in paragraph one of this judgment, which led to filing of this appeal. 6. Learned counsel for the appellants argued that the conviction of the appellants cannot sustain the scrutiny of this Court. He submitted that prosecution failed to prove the guilt of the appellants beyond reasonable doubt. The learned trial Court committed an error of law and fact in convicting the appellants relying upon the incredible evidence of Mayanath Ram (PW1) and Basmati Bai (PW2). He further submitted that the incident is said to have occurred on 24..05.2002 and the statement of alleged eyewitnesses Mayanath Ram (PW1) and Basmati Bai (PW2) was recorded after lapse of seven months. He went on to submit that the prosecution was unable to give any satisfactory explanation for delay in recording the statements of these witnesses. Eyewitnesses Mayanath Ram (PW1) and -4- Basmati Bai (PW2) are the daughter and son in law of the deceased are interest witnesses, their statements do not inspire confidence and are wholly unreliable. Conviction of the appellants on such dubious evidence cannot sustain. He submitted that the no weapon was seized at the instance of the appellants and according to the medical report the injuries sustained by the deceased could be caused by hard and blunt object. From the evidence gathered by the prosecution it appeared that there was mob of 400-500 people and in that case identification of the appellants by the eyewitnesses becomes doubtful. To buttress his submissions he placed reliance on the judgment of Hon’ble Supreme Court in case of Jaipal and others Vs. State of M.P., (2003) 9 SCC 41. He prayed to allow the appeal and acquit the appellants from all charges. 7. On the other hand, learned state counsel supports the impugned judgments. He submitted that learned trial Court has rightly relied upon the statements of Mayanath Ram (PW1) and Basmati Bai (PW2) to sustain conviction. Even if they are relative of the deceased, they cannot be branded as interested witness. However, he is not in position for dispute that the statement of these witnesses is recorded after seven months. However, he submitted that if the evidence of these witnesses is found credible and trustworthy, delay in recording the statement is not fatal to prosecution. He went on to submit that well merited findings recorded by the learned trial Court cannot be found fault with. He prayed for dismissal of the appeal. 8. Heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 9. The learned trial Court basically placed reliance on the testimonies of Mayanath Ram (PW1), Basmati Bai (PW2) and Ruti Bai (PW7) to sustain -5- conviction. Mayanath (PW1) in his examination in chief stated that he knows the appellants. On the date of incident he was at home. At that time, Suresh, Arjun (deceased A/2), Bahura, Indu, Bhutku (A/5) came and asked Firuram (deceased) to go alongwith them. They were taking Firuram (deceased) towards jungle. They took him to half kilometer and started assaulting him. There Temba (A/4), Karmu (A/6), Dashrath, Bihanu (A/8) and Devdus (deceased A/7) gathered. They all together started beating Firuram (deceased) with hands, fists, kicks and stick. Firuram (deceased) was only in underwear his hands, neck were tied. They took the deceased assaulting towards jungle. There also he was assaulted by dry forest wood and lathi. Bihanu, Devdus (deceased A/7), Birbal, Temba ((A/4), Karmu Ram (A/6), Dashrath assaulted Firuram (deceased) there. Karmu Ram (A/6) brought a lathi and assaulted Firuram (deceased) on his legs. At the time of incident Basmati (PW2), Indranath (PW5), Sukhdev (not examined) were present. After the incident, the appellants ran away. He stated that Devnath (acquitted accused) did not do anything. He was declared hostile in this respect and cross examined by prosecution wherein he denied the suggestion in order to save Devnath (acquitted accuse) he is speaking lies. In cross examination he admitted that Devnath (acquitted accused) is his brother. Firuram (deceased) is his father in law. He deposed on 2nd of 3rd day after the incident he has gone to police station and Devnath (acquitted accused) was with him. He met Madam Daroga (Inspector) in police station. On that day madam recorded the statement. He denied that his statement was recorded in the month of December. He denied the suggestion of demanding Rs.5000/- from villagers else he would falsely implicate them. He stated that he has disclosed to police that Karmu (A/6) brought the stick and after holding the deceased by Temba (A/4) and assaulted. Thereafter, Temba (A/4) assaulted the deceased. If it is not mentioned in his police statement -6- (Ex-P/1) he cannot tell the reason. Statement with regard to assault by Bihanu, Devdus (deceased A/7) on the way is also missing in his police statement (Ex-P/1). 10. Basmati (PW2) also deposed in the line of Mayanath (PW1). She deposed that she knows the appellants. Firurum (deceased) was her father. His father was at home. At that time Bahru, Ranthu (deceased A/2), Madho (A/1), Suresh and others came who’s name she does not know. Her father was taken to the place were Devnath (acquitted accused) was kept. On reaching halfway all of them started beating her father. Bihanu, Devdus (deceased A/7) Tmba (A/4), Karmu (A/6) Dashrath, Nirmal have assaulted her father with lathi. After reaching the place where Devnath (acquitted accuse) was tied, Temba (A/4) held the legs her father and Karmu (A/6) assaulted him on his sole by lathi. Bihanu (A/8) also assaulted. After her father died she came home weeping. This witness was declared hostile and was cross examined by prosecution, wherein she initially stated that Jugu, Niko, Birbal, Mahadev, Kutka, Dasrath, Bahura Ram, Devdus (deceased A/7), Suresh, Nirmal, Bardan, Biharu, Devnath, Ranthu (deceased A/2), Jagdish, Madhav, Arjun, Temba (A/4), Ramdhani, Devdhar, Bhutku (A/5), Karmu (A/6) Kandru, Dharmu, Narsingh, Khachoto, Dhebu, Santu Ram assaulted on the pretext of Ox stealing. Thereafter, she states that they have not assaulted. She denied the suggestions that Devnath (acquitted accused) also made the assault. She states to deny statement given to police with regard to Devnath (acquitted accuse). In cross examination on behalf of appellants, she states that on the next day of the incident, police has recorded the statement in her house. She does not know all the assailant barring few. She admits that her statement was recorded in the month May. She admits that her statement is not recorded in the on 13.12.2000 in the month of December. She stated that she has disclosed to -7- police that Karmu (A/6) brought the stick and after holding the deceased by Temba (A/4) and assaulted. Thereafter, Temba (A/4) assaulted the deceased. If it is not mentioned in hios police statement (Ex-P/1) he cannot tell the reason. She stated that for the first time she making such statement. She admits that her husband, Devnath (acquitted accused) and dher wife rakhni lives together and came together. She also admits that the statement is told by Advocate hence she is giving the statement. She denied the suggestion in order to save Devnath (acquitted accused) she is speaking lies. She admits that police has come in search of Devnath (acquitted accused). She denied the suggestion of demanding Rs.5000/- from villagers else he would falsely implicate them. She deposed that she has informed the police with regard to assault made by lathi on the way by Bihanu, Dasrath, Devdus (deceased A/7), Temba (A/4), Karmu (A/6), Nirmal. She cannot give any reason if it is not mentioned in her police statement (Ex-P/2). There other omission in her police statement. 11. Rutibai (PW7) stated that she knows the appellants. Firuram (deceased) was her brother. She came to know at about 8-9 in day hours that her brother is being beaten and then she went to jungle. Her brother was beaten on suspicion of Ox stealing. Among those who assaulted were Bihna Luvkush, Karmu (A/6) etc., I have forgotten the names of the rest. She was declared hostile. In cross examination by the prosecution, she deposed that Kutka, Madhav, Narsingh, Arjun, Santuram, Dharmu, Bahura, Ramdhani,Thibhu, Chhotto were not involved in the assault, Dasrath and Temba (A.4) were involved in the assault. She admits that police has not recorded her statement. She has not told anything to police. She admits that police used to come in search of Devnath (acquitted accused). She admits that she reached after the fight. She admits that she has not seen the persons involved in the fight. She was read over her police statement (Ex-D/2) -8- and she denies to have given such statement to police. She also admits that today for the first time she is telling who have assaulted and who have not. 12. Ku. Mahalaxmi Kuldeep (PW8) has investigated the crime after from December 2002. She happens to support the case of the prosecution with regard to investigation. She has recorded the statement of witnesses. Arrested the appellants made seizure of old plastic rope. She admits to have recorded the statement of Mayanath Ram (PW1), Basmati Bai (PW2) on 13.12.2002. A.R. Uike (PW9) investigated the matter initially till 26.08.2002. She admits that he has arrested Devnath (acquitted accused). He also admits that he reached the spot at 12:00 and stayed there for 2-3 hours. No body informed the name of accused. He also admits that he has enquired from the family members of deceased. They have not informed the name of accused. 13. Thus from above evidence led by the prosecution it appears that Mayanath Ram (PW1), Basmati Bai (PW2) claims to be the eyewitness. They have levelled allegations of assault against the appellants. This Court has to see whether their evidence is credible, impeccable and could be relied upon to sustain the conviction of the appellants. It no more remains in dispute that the incident has occurred on 24.05.2002 and the statement of eyewitnesses were recorded on 13.12.2002 i.e. after about seven months. 14. Hon’ble Supreme Court in case of Harbeer Singh Vs. Sheeshpal and others, (2016) 15 SCC 418 held that “delay in recording statement of witness does not necessarily discredit their testimonies. The Court may rely on such testimonies if they are cogent and credible and delay is explained to satisfaction of the Court. However, delay in recording statements of prosecution witnesses under section 161, although such witnesses were or could be available for examination -9- when investigating officer visits scene of occurrence of soon thereafter, might cast a doubt upon the case of prosecution. Such delay needs to be properly explained.” 15. As stated earlier there is a huge delay of about 7 months in recording the statement of eyewitness. The eyewitnesses Mayanath (PW1) and Basmati (PW2) have state that their statement was recorded within 2-3 day of incident in the month of May. They have denied that their statements were recorded in December. Whereas the Ku. Mahalaxmi Kuldeep (PW7) stated that their statement were recorded on 13.12.2002. A.R. Uike (PW9) also visited the placed of incident on the same day and remained there for 2-3 he was not told about the name of accused even by the family members. He arrested Devnath (acquitted accused) during investigation. Till then he appears to have found no evidence against the appellants. The name of the appellants surfaced after the statement of eyewitnesses Mayanath (PW1) and Basmati (PW2) only on 13.12.2002. There is no much less plausible explanation for recording the statements so late. There is material omissions in the statements of eyewitnesses. They have made material improvement in their Court statements. From analysis of their evidence it appears that they tried to shield Devnath (acquitted accused). These witnesses have stated that assault was also made by lathi, stick. However, no such seizure was made. Whereas, medical evidence suggest that the injuries sustained by deceased could be caused by hard and blunt object. The witnesses are close relatives of the deceased. Though, on this ground their testimonies can not be discarded however, their testimonies appears to be exaggerated and given with interest to see the conviction. Basmati (PW2) has also admitted that she is giving statement on saying of Advocate. Rutibai (PW7) admits that she reached after the fight. She admits that she has not seen the persons involved in the fight. -10-
Decision
16. Therefore, in view of the above discussion, the evidence of eyewitnesses cannot be said credible, impeccable worth reliance to sustain conviction. Hence, the appeal is allowed. Impugned judgment is set aside. The appellants are acquitted from all charges. They are reported to be on bail. Their bail bonds will remain in force for six months in view of section 481 of BNSS, 2023. 17. Copy of this judgment along-with the records be sent back to trial Court for information and necessary compliance. Sd/- (Sachin Singh Rajput) Judge Ashish/J