Mandeep alias Prashant alias Prabhat alias Subodh v. State of Chhattisgarh

Shri S.C. Verma counsel for the appellants. Shri D.K. Gwalre Dy. GAforthe respondent/State. CRIMINALAPPEALS UNDER SECTION 374 (2) OF THE CODE OF^RIMINAL PROCEDURE JUDGMENT (01.04.2013) Since both the aforementioned appeals arise out of the same judgment and order dated 28.6.2005 passed by Sessions Judge, Sarguja (Ambikapur) in Sessions Trials No. 441/2002 and 204/2002, they are disposed of by this common judgment. 2

#2. In the case in hand there are three deceased persons namely Mohd. Javed, Mohd. Saheed and Tavrej who are alleged to have been murdered on 10.12.2001 in between 4.00 and 6.00 p.m. Dehati Nalisi Ex. P-8 was recorded on 11.12.2001 at the instance of Shaniram (PW-3) who at the relevant time was the Up Sarpanch of the village. Three merg intimations Ex. P-20, P-21 and P-22 were recorded at the instance of Shaniram (PW-3) and based on that, FIR Ex. P-24 was recorded on 11.12.200' against accused/appellant Mandeep and 8-10 other persons. As per Dehati Nalisi recorded at the instance of Shaniram (PW-3) on

10.12.2001, he came to knowthat a JanAdalatwas organized by a Naxalite group commonly known as "MCC" in which number of villagers from the surrounding villages were called. It is alleged that the said Jan Adalat was attended by thousands of villagers where at about 4 p.m. 8-10 Naxalites reached there wi^h-three boys tied up with rope. Naxalites were announcing on mike that tied up persons, three in number, had committed some offence. They then asked the villagers as to what should be done with them to which the villagers told them to do as per their will. Thereafter, the villagers left the village and on the second day bodies of three persons were found. Postmortem examination on their bodies was conducted on 12.12.2001 vide Ex. P-15, P-17 and P-19 by Dr. T. Sai (PW-9) according to whom cause of death was coma and haemorrhage due to firearm injuries on head. After completion of investigation, charge-sheet '<-f <-^,. was filed on 19.4.2002 against 9 accused persons. Initially, the charge-sheet was filed against accused/appellant Rajiv alias Raju and acquitted accused Guddu but subsequentlyafter arrest of accused Bindeshwari accused/appellant • Mandeep, supplementary charge-sheet was filed against them and they were prosecuted in the same crime number. However, other accused persons remained absconding.

#3. In support of its case the prosecution has examined 20 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, three witnesses namely Vijay Bhagat (DW-1), Shivnarayan Ram (DW-2) and Ramvir (DW-3) have also been examined by the defence in support of its case.

#4. By the judgment impugned the Court below has acquitted accused Guddu and Bindeshwari of the charges levelled against them but convicted the appellants herein as mentioned above. Hence this appeal.

#5. Heard counsel for the parties and perused the material available on record.

#6. Counsel for the accused/appellants submits that there is no evidence to show that the accused/appellants were involved in the Naxalite activities or were they the leaders of Naxalite group. In :^ 1(^--.-" '"-^. "T"^ll't i ^^y ^ respect of accused/appellant Mandeep, he submits that none of the witnesses has deposed that he was same Mandeep who was present "MCC". He submits in the Naxalite meeting and was commander of that but for the statement of accused Mandeep which was made by him before the police there is no clinching evidence against him. In respect of accused/appellant Rajiv alias Raju, counsel accused/appellants submits that except the statement of Mohd. Naseem (PW-2) who is the father of Mohd. Javed, there is no evidence against him. According counsel accused/appellants, some of the witnesses have though stated that it was accused Rajiv who was making announcement in the village for collecting the villagers in the meeting but there is also evidence to show that he was doing the same under threat. He submits that the only evidence led by the prosecution is that the Naxalites had collected the villagers for some meeting but there is no evidence as to who committed the murder of the deceased persons and urtess the prosecution proves that it is the accused/appellants who have killed the deceased persons, they cannot be convicted for the same. He further submits that in the case of solitary witness while appreciating the evidence, his statement should be scrutinized minutely and in the present case if the statement of Mohd. Naseem (PW-2) is put to close scrutiny, it becomes apparent that whatever he has stated in the Court is not correct and if correct then it can be said that under the threat of Naxalite commander accused/appellant Rajiv was acting in calling the villagers for attending the meeting. In support of his contention, reliance is placed on the decision of the Supreme Court in the matter of Jarnail Singh v. State of Punjab reported in (2009) 3 SCC 391 and "^s^-"^ ^ ^ s ^" in the matter of State of Maharashtra v. Raju Bhaskar Potphode reported in (2007) 11 SCC 261.

#7. On the other hand counsel for the respondenVState. supports the judgment impugned and submits that the findings recorded by the Court below convicting and sentencing the accused/appellants as described above are strictly in accordance with law and there is no infirmity in the same. He submits that though there is no eye witness to the incident, the circumstances make it clear that on the fateful day a meeting was called by the accused/appellants where three persons (since deceased) were brought by them tied with rope and then after taking the consent of the villagers they were murdered by the accused/appellants. He submits that at least the evidence of last seen is there because in the meeting the accused/appellants were present and when all the villagers left the place, they committed the murder of deceased persons. He submits that number of witnesses have stated that the meeting was called by the accused/appellants and in the case like the present one normally the villagers do not come forward on account of fear and that in the present case some of the witnesses categorically stated played accused/appellants and that the conviction of accused/appellants is just and proper.

#8. Prem Sai (PW-1) has stated that on the date of incident Jan Adalat was organized by the accused/appellants in which three boys were brought and then the Naxalites asked the villagers as to what should be done with them on which the villagers told them to do as per 'li. •s ^' .^' -^ **-^ h- ^'^•'^-^ their wish. Thereafter when the meeting was over he went away and till then those three boys were in the custody of Naxalite group. After sometime fire shot was heard by him and then he came to know that those three persons were murdered. He is also the witness to inquest notice Ex. P-1, P-3 & P-5 as well as inquest itself vide Ex. P-2, P-4 & P-6. He is also the witness to the seizure of plain and blood stained soil, muffler, club and rope made under Ex. P-7. Though this witness has been declared hostile, he has admitted the fact that meeting was called by the Naxalites which was duly attended by thousands of villagers from surrounding villages. Md. Naseem (PW-2), father of deceased namely Md. Javed has stated that he knew accused Rajiv as well as the deceased persons, three in number. According to him, the deceased persons were murdered by the people of Naxalite group. On the date of incident he was informed by the villagers that a Jan Adalat was organized by the Naxalites and on the second day when he reached the place where the Jan Adalat was called he fcaw the dead bodies of all the three deceased persons with their hands and legs tied up. According to him, their brain material had come outand gun shot injuries on their head were there. According to this witness, accused/appellant Rajiv had gone to village Bhagwanpur to collect the people for participating in the Jan Adalat. He has further stated that persons of Naxalite group used to visit the village frequently, remained in contact with the villagers and asked them to do various works which they used to do out of fear. Subsequently, he came to know that accused/appellant Mandeep had forcibly taken the motorcycle and contacted the villagers. He also admitted that due to the terror of Naxalite activities all the villagers had attended the Jan Adalat and on 1 ^^£^!3ai^ '•^. 7 that day all the schools were closed and the teachers and the students had also attended the Jan Adalat. Though the information was given to the Police, no action was taken by it nor any arrest was made. Shaniram (PW-3) is a witness who lodged Dehati Nalishi Ex.P-8 and Merg intimations Ex. P-20 to P-22. He has stated that in the village a meeting was called by the MCC group in which number of persons from surrounding villages were called. He has stated that in the meeting about 5-7 Naxalites who were wearing Khakhi uniform came there with three boys who were tied up with rope and they were making certain announcements on mike. The Naxalites had asked the villagers as to what should be done with the tied up boys, the villagers had told them that they could take a decision as per their will. Though this witness has been declared hostile, he has admitted that a meeting was arranged by the Naxalites and three persons were murdered by them. In cross-examination, this witness has admitted that on account of fear of the Naxalites there was terror in the village and for that the villagers could not oppose their activities. In respect of accused Mandeep this witness has stated that he did not recognize him and Naxalite Mandeep who was using the mike was not the same person who was present in the Court. Nahiyara Ram (PW-4) is the witness to village meeting. Though he has supported the case of prosecution, he has not taken the name of anyone. In respect of accused Mandeep he has stated that Mandeep present in the Court was not there at the time of incident. Shoeb Akhtar (PW-5) - brother of the deceased Md. Javed has supported the case of the prosecution describing the manner in which the incident had taken place. He has stated that on being asked in the meeting, all the three deceased 3 persons had admitted that they committed certain offence like theft and thereafter accused Rajiv first assaulted the deceased with club and then he fired a gunshot at Sahid, Javed and Tavrej. Though in cross-examination he has admitted that after the village meeting he left the village, he has stated that he heard the sound of gunshot and therefore statement of this witness that he had seen the incident of shooting becomes doubtful. Smt. Kulestina (PW-6) has stated that on the date of incident accused/appellant Rajiv and one commander who belonged to MCC party had come to her house and asked for the motorcycle. Commander Mandeep entered her house and demanded the key of the motorcycle whereas accused/appellant Rajiv was simply standing there. When she told them that the key of the motorcyde was with her husband, they had scolded her and then out of fear she handed over the key to them. Subsequently they left her house on motorcycle and Rajiv was sitting on it as a pillion rider. She has categorically stated that the person present in the court was the same Rajiv whereas in respect of other accused she has stated that she did not recognize him. She has further stated that about half an hour thereafter commander Mandeep got back on motorcycle but at that time accused/appellant Rajiv was not with him. She has stated that the village meeting was attended by 5-6000 villagers where the villagers had asked the Naxalite people to punish those three boys as per their wish. Though cross-examination stated accused/appellant Rajiv who was already there was threatened by commander Mandeep and asked by him tosit on his motorcycle, his presence in the viilage meeting has been duly admitted by her. She has stated that her village is affected by Naxalite activities and there is fr@:0' ./ terror of Naxalites in her village and for this reason the villagers used to fulfill all the desires of the Naxalites. Ishwar Tiwari (PW-7) is also the witness to village meeting who has supported the case of prosecution stating that he knew accused/appellant Rajiv who was present in the meeting but was not wearing uniform. According to him, in the said meeting three persons were brought by the Naxalite people tied up with rope and thereafter all the persons left the place and subsequently dead bodies were found on the next day. He has stated that though accused/appellant Rajiv was not involved in beating those three boys yet he was very much present there. Subsequently this witness has been declared hostile. However on being confronted with the statement recorded by the police under Section 161 Cr.P.C. he has stated that accused Rajiv had beaten the three deceased persons. Md. Saleemuddin (PW-8), Md. Akhtar Hussain (PW-12), Shahbuddin (PW-16) and Ramjan (PW-17) have not supported the prosecution case and have been declared hostile. Dr. T. Sai (PW-9) is the witness who conducted postmortem examination on the bodies of deceased persons vide Ex. 15,17 and 19 and stated that cause of death was coma and haemorrhage due to firearm injuries on head. R.N.Yadav (PW-10) is the witness who did part of the investigation. Md. Khalil (PW-11) is the witness to inquest notice Ex. P-5 and inquest Ex. P-6 and P-7. Daniel Kujur (PW-13) and Arjun Prasad (PW-14) are the witnesses to village meeting but they failed to identify the accused persons. Mikhail Khaka (PW- 15) is the Patwari who prepared the spot map (Ex. P-40). Ishwar Prasad (PW-18), H.P.Singh (PW-19) and Rakesh Baghel (PW-20) 10 are the witnesses who did part ofthe investigation.

#9. Having thus seen the entire material availahte on record including the evidence of the witnesses, it emerges that accused/appellant Mandeep has not been identified by anyone in the Court nor has anyone stated that it was the same Mandeep who was present in the meeting. Record also does not speak that commander Mandeep was involved in the Naxatite activities or was he the leader of Naxalite group. The only evidence against accused Mandeep is his statement made before the police which unfortunately is not admissible in law. tt is unfortunate that three young persons have been killed by the Naxalites but yet for the lack of evidence accused Mandeep cannot be convicted. However, the State Government if so desire may consider the recommendations contained in paragraph No. 37 of Committee on Reforms of Criminal Justice System Report Volume 1 headed by Dr. Justice V.S. Malimath so far as the Naxalite related offences pertaining special Acts concerned.

#10. As regards accused Rajiv alias Raju, there is ample evidence to show that he was making announcement on mike for collecting the people in the Jan Adalat and that he has been identified by Smt. Kulestina (PW-6) who has categorically stated that the person present in the court was the same Rajiv who was present Y"^-**. 1 ~SS~^ '*.—i t "y in the meeting whereas in respect of other accused she has stated that she did not recognize him. Even in the statement recorded under Section 313 Cr.P.C. accused Rajiv has not stated that he was taken by commander Mandeep after being threatened etc. In this view of the matter conviction ofthis accused/appellant is liable to be maintained.

#11. In the result, Cr.A. No. 674 of 2005 is allowed. Judgment impugned so far as it relates to conviction of accused/appellant Mandeep alias Prashant alias Prabhat alias Subodh is set aside and he is acquitted of the charge ievelled against him. He is already on bail. His bail bonds shall continue for a period of 6 months from today in view of Section 437-A Cr.P.C.

#12. Cr.A. No. 66 of 2008 is however dismissed being without any substance and the judgment impugned so far as it relates to accused/appellant Rajiv alias Raju is affirmed. Since he is already in jail, no order regarding his surrender etc. is necessary.

#13. Government counsel is directed to communicate this order to learned Advocate General as well as the State Government. Sd/- Yatindra Singh ChiefJustice_ Sd/- PritinkerDiwaker Jucige