S!Ky v. State of Chhattisgarh

Judgment

2. Respondent vers_us Arjun,«S/o. Laharam Patel, aged about 30 years, 'Lalaram @ Bhagat, S/o. Radheshyam Patel, aged about 20 years, Both are residentg of village- Ghatmadwa, Station- Bilaigarh, District Raipur (C.G.) Police . of State Chhattisgarh Through Station J^ouse Officer, Police Station Bilaigarh, District Raipur (C.G.) CriminarABpeal No. 100 of 2008 Appellant Respondent yereus S/o. Radheshyam Padumlal, Patel, aged about 28 years, Resident of village- Ghatmadwa, Police Station- BilaigaFh, District Ralpur (C.G.) Chhattisgarh State' Through Station House Officer, Police .Station ,Bilaigarh, District Raipur (C.G.) Present: Shri J.R, Verma, counsel forthe appellants in both the appeals. Shri Sandeep Yadav, Deputy GovernmentAdvocate forthe State/ Responderrt. Shri C.R. Sahu, counsel for the complainant. ^ Appeals under SeCtion 374(2) ofthe Code 6f Criminal Procedure JUDGMENT ; (Deliveredon^3^August,2013) ; Per Radhe Shvam Sharma. J.: These appeals are directed against judgment dated 26-09- 2007 passed by Second Additional Session Judge, Balodabazar, District Raipur in Sessions TrialNo. 17/2007. By the impugned judgment, accused persons/appellants Arjun, Lalaram @ Bhagatand Padumlal have been convicted and sentenced in the following manner. Conviction Under Section302 or.302/34, IPC Sentence Imprisoriment for life and to pay fine of Rs. 20,0007-, in default of payment of fine, to further undergo rigorous imprisonment for 2 years

2. Case ofthe prosecution, in brief, is as under:- Ort-"19.11.2006 at about 9.45 AM, deceased Ayodhya Prasad @ Rahasu had gone to his field alongwith Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8). The deceased was cutting a tree with the help of above persons and at that time, the appellants came in the field and they stopped the deceased and his labour from cuttjng the tree. Deceased Ayodhya Prasad told theappellants that he was owner ofthe tree, therefore, he was cutting the tree. Some quarrel took place between them. The appellants assaulted the deceased with chaku and stone. The deceased fell down and sustained injuneson his head. His brain material came out. He was taken to BiFaspur for treatment, but, he died on the way nearMahanadi Bridge. Shivprasad (PW-6), brother ofthe deceased lodged First Information Report(Ex.P-18) and Merg Intimation (Ex.P-17) in Police Outpost Gidhouri. Thereafter, regular lil1^'^i- ';::'^.

FIR (Ex.P-16) was recorded in PoliceStation Bilaigarh. Investigating Officer reached the place of occurrence, gave notice (Ex.P-10) to panchas and prepared inquest (Ex.P.-11) on the dead body ofthe deceased. The dead body of the deceased was sent to Community Health Centre, Biliagarh for post mortem examination vide Ex.P 25. The postmortem was conducted by Dr. Harnath Verma (PW-12). He gave his report (Ex.P-26), finding (i) lacerated wound 6cm x1cm x bone deep present on eyebrow; bone was fractured and blood was oozing out (ii) incised wound, 17cmx 3.5cmx 0.5cm below the jaw (iii) incised wound, 7cm x 0.25 cm X skin deep on chin (iv) incised wound, 7cm x 3cm x skin deepon forehead (v) incised wound, 6cmX- 1cm X skin deep on the right side of the forehead(vi) incised wound, 8cm X 1cm X 8em on the middfe of the head and bone was fractured (vii) incised wbund, 13cmX4cmX8cm over right parieto region and bone was fractured (viii) incised wound, 8cmX0.5cmX4cm over right temporal region and (ix) incised wound, 2cmX1cmX skin deep over occipital region. He opined tftat. the cause of death was haemorrhagic shock due to head injuries and the death was homicidal in nature. In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex.P-8. Memorandum statement bf appellant Lalaram @ Bhagat was recorded under Section 27 ofthe Evidence Actvide.Ex.P-I.At his instance, katta (cutting object) was. seizgd vide Ex.P-2. Memorandum statement of appellant Arjun was recorded yide Ex.P-3..At his instance, Gandasa was seized vide Ex.P-4. Memorandum statement ^° 4 of appellant Padumlal was recored under Section 27 of the Evidence Act vide Ex.P-5. At hiS instance, stone was seized vide Ex.P-6. Sando baniyan and full-pant of appellant Lalaram @ Bhagat were < seized vide Ex.P-7. Spot map (Ex.P.-9) was prepared Investigating Officer Deenbandhu Uikey (PW-10). Seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-23. After completion .of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate, First Class Balodabazar, who, in turn, committed the case to the Court of Session, Raipur, from whereit was received on transfer by Second Additional Sessions Judge, Balodabazar, District Raipur, who conducted the trial and convicted and sentenced the appellants as mentioned above.

3. Shri. J. R. Verma, learned counsel for the appellants argued that the disputed land belonged to the appellants and the appellants were the owner of the said land and the deceased Ayodhya Prasad was encroaching the propertyofthe appellants and cutting thetree. Appellants Padumlal and Lalaram @ Bhagat stopped the deceased therefrom. The deceased quarreled with both the appellants. The appellants had cultivated the said field, they had cultivated vegetables and also constructed hotel and shop thereon. He further argued that the place of occurrence was not visible from the hotel and shop. He further argued thatappellaht Arjunwas not present at the place of occurrence. Looking to the evidence of Borri Verma iKasWSS- Sf.ftSSS-t I ^^ (PW-2), Bajrang Manjhi (PW-1), Gilli Raout (PW-7) and Mukunda Raout (PW-8), it appears that appellant Arjun was not present when the quarrel took place between the deceased and appellant Padumlal. Presence of appellant Arjun at the place of occurrence is not proved by the prosecution. Shivprasad (PW-6) is real brother of the deceased and, therefore, he is a highly interested witness. His 1; evidence is not reliable. He is a relative witness and has falsely implicated the appellants. The other witnesses Bajrang Manjhi (PW- 1), Borri Verma (PW-2), Gitli Raout (PW-7) and Mukunda Raout (PW- 8) have not supported the case of the prosecution and have turned hostile, therefore, their evidence is not reliable and cannot form basis for conviction. Therefore, the appellants deserve to be acquitted of the chargesframed againstthem. Learned counsel for the appellants further argued that the deceased was aggressor and he was deliberately cutting the tree of the field of the appellants, as a result thereof, some quarrel tpok place between appellants Padumlal and Lalaram @ Bhagat and deceased Ayodhaya Prasad. The deceased provoked appellants Lalaram @ Bhagat and Padumlal and there was severe exchange of abuse between appellants Padumlal and Lalaram @ Bhagat and deceased. Therefore, the act of appellants Padumlal and Lalaram @ Bhagat would not be punishable for offence under Section 302 IPC. He placed reliance on Mohamed Ankoos andothers v. Public Prosecutor, High Court ofAndhra Pradesh, Hyderabad, (2010)1 \'t." SCC 94, Dharam and others v. State of Haryana, (2007) 15 SCC 241, Nafe Singh v. State of Haryana, (2009)12 SCC 408 and State ^s,i. •l.:'!.'l(l ''•.. i?'M II';.: itr<! ..4 .'-.ife- -,^t^»: ^ of Madhya Pradesh v. Sughar Singh and others, (2008) 15 SCC

4. On ttie other hand, Shri Sandeep Yadav, learned Dy. Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned SecondAdditional Sessions Judge do not warrant any interference by this Court.

5. Shri C.R. Sahu, learned counsel for the complainant supported the impugned judgment.

6. We have heard learned counsel for the parties at length and have also pemsed the record of Sessions Trial No.17/2007. The conviction of the appellants is based on the evidence of Shivprasad ^ (PW-6).

7. In the instant case, Bajrang Manjhi (PW-1), Borri Verma (PW- 2), Gilli Raout (PW-7) and Makunda Raout (PW-8) turned hostile and Shivprasad (PW-6) is brother of deceased Ayodhya Prasad @ Rahasu.

8. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, testimonies cannot be discarded. Their relationship to orie of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. flfi' ?• Wli ^: [irs'"!|ii: ';\^x':.\.'^.'' ,M' i^^ A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence:

9. In Waman and others vs. State of Maharashtra, (2011) 7 SCC 295, the Hon'ble Supreme Court held as follows: "17. In Balraj'e v. Stete of Maharashtra, (2010) 6 SCC 673, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to It was further held that when the discard their evidence. eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or be weighed otherwise evidence pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. ......

19. ....."29. .... The evidence of a witness cannot be discarded solely on the ground of his relationship with the The plea relating to relatives' victim of the offence. evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully t6 find out whether it is cogent and credible.