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2013 DIGILAW 17 (CHH)

SURAJ DAS v. STATE OF M. P.

2013-01-07

SUNIL KUMAR SINHA, YATINDRA SINGH

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 28th November, 1996, passed in Sessions Trial No. 406/92 by the Additional Sessions Judge, Baloda Bazar, District Raipur. By the impugned judgment, the Appellants have been convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- with default sentences of R.I. for 1 year. 2. The facts, briefly stated, are as under : Deceased-Biharidas was residing in village - Hasua. The two Appellants were residing in village - Belha. A land dispute was going on between the Appellants and the deceased. The case of the prosecution is that on 10.7.92, at about 6.00 am, when the deceased was passing in front of the tailoring shop of the Appellants, the Appellants assaulted the deceased by lathi, tangia, hands and fists and thereafter, they took the dead body of the deceased on their bicycle and threw it to a place near a boring in the village. The incident was witnessed by Gorelal (PW-6), Ramsarkar (PW-7), Firantinbai (PW-9- wife of the deceased) and Bhujbal (PW-10). Firantinbai (PW-9) lodged First Information Report (FIR Ex. P/16) at about 9.00 am on 10.7.92. The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/9) to the Panchas and prepared inquest (Ex. P/10) on the dead body of the deceased. The dead body of the deceased was sent for postmortem to Government Hospital, Bilaigarh. The postmortem examination was conducted by Dr. Chandra Shekhar Patel (PW-8). He found following injuries on the dead body of the deceased: I. Contusion of 12 cm x 10 cm on the left leg; II. Lacerated wound of 3.5 cm x 1¼ x 2 cm on the right thigh; III. Incised wound of 3¼ x 1¼ x 1½ cm on the right forearm; IV. Lacerated wound of 3 cm x 1 cm x bone deep on the back portion of the skull; and V. Contusion of 5 cm x 3.5 cm on the lower portion of the back. On internal examination, he noticed 2 fractures over the bones of left leg. There was also a fracture on the bone of right thigh and the occipital bone. The Autopsy Surgeon opined that the cause of death was shock as a result of above injuries and the death was homicidal in nature. The postmortem report is Ex. P/15. On internal examination, he noticed 2 fractures over the bones of left leg. There was also a fracture on the bone of right thigh and the occipital bone. The Autopsy Surgeon opined that the cause of death was shock as a result of above injuries and the death was homicidal in nature. The postmortem report is Ex. P/15. In further investigation, Appellant - Suraj Das was taken into custody and his memorandum statement (Ex. P/8) under Section 27 of the Evidence Act was recorded and a Tangia was seized at his instance. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur and a report was received. According to the FSL report, blood stains were found on Tangia. The case of the prosecution was based on the eyewitnesses account of Gorelal (PW-6), Ramsarkar (PW-7), Firantinbai (PW-9) and Bhujbal (PW-10). Gorelal (PW-6) and Ramsarkar (PW-7) turned hostile and they did not support the case of the prosecution. Firantinbai (PW-9) was not relied by the Sessions Judge, as a finding was recorded that she was not an eye-witness and she later on, reached to the boring place, where the deceased was lying dead. The learned Sessions Judge relied on the solitary testimony of Bhujbal (PW-10) and held that it was proved by his evidence that the Appellants had assaulted the deceased by lathi, Tangia, hands and fists, who sustained above injuries and succumbed to those injuries and therefore, the Appellants were liable for punishment under Section 302/34 IPC. 3. Smt. Renu Kochar, counsel appearing on behalf of Appellants has raised solitary contention. She has argued that Bhujbal (PW-10), the sole eyewitness relied by the Sessions Judge, is not a reliable witness, therefore, conviction based on his solitary testimony cannot be sustained. She took us to various paragraphs of his evidence as also his case-diary statement etc. 4. On the other hand, Shri Sandeep Yadav, Dy. Government Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties at length and have also perused the records of the Sessions case. 6. Bhujbal (PW-10) deposed in first line of his deposition that the deceased was assaulted by three persons namely-Babudas, Suraj and Dashrath. 5. We have heard counsel for the parties at length and have also perused the records of the Sessions case. 6. Bhujbal (PW-10) deposed in first line of his deposition that the deceased was assaulted by three persons namely-Babudas, Suraj and Dashrath. According to him, he was present at a distance of 15 feet from the place of occurrence, where the deceased was being assaulted by these persons. He deposed that the deceased was going on the road. When he reached in front of the house of Suraj Das, Babudas and Dashrath, they surrounded him and thereafter, Suraj Das assaulted the deceased by a thick piece of wood (patia). Dashrath assaulted the deceased by lathi. Since Suraj Das and Dashrath had a land dispute with the deceased, they had assaulted and committed murder of the deceased. Babudas was also present with them, but Police have not made him an accused in this case. After the mar pit was over, the accused persons took the dead body of the deceased on a bicycle saying that they are taking it to Police Station. According to him, around 50 persons had witnessed the incident. In last paragraph of his examination-in-chief, he added that accused Suraj Das had caught the deceased, Dashrath had assaulted him and Babudas had twisted him. 7. Bhujbal (PW-10) was cross-examined by the defence. In the cross-examination, he was asked as to what clothes were worn by the accused persons and the deceased, but he could not answer the said question saying that he cannot tell about the clothes. He deposed in para 7 of the cross-examination that when the accused persons were taking the dead body of the deceased on their bicycle, Firantinbai (PW-9, wife of the deceased) also came there after fetching water. He told her that the accused persons are taking the deceased. Firantinbai (PW-9), therefore, ran towards the boring where the dead body of the deceased was thrown. 8. Bhujbal (PW-10) was confronted with his case-diary statement. There are 2 main infirmities in the evidence of Bhujbal (PW-10). First, in his diary statement, he had stated that the deceased was assaulted by Surajdas by Tangia and Dashrath had assaulted him by hands and fists; and second that at that time, he had not mentioned the name of Babudas whose name he took for the first time during trial. First, in his diary statement, he had stated that the deceased was assaulted by Surajdas by Tangia and Dashrath had assaulted him by hands and fists; and second that at that time, he had not mentioned the name of Babudas whose name he took for the first time during trial. Thus, there is contradiction in the case-diary statement and Court evidence regarding the weapon used by the accused persons to commit murder of the deceased. According to Court evidence, accused persons had used lathi, whereas, according to case-diary statement, they had used Tangia. Over and above, there is omission of the name of Babudas in the entire Police record including his case-diary statement. The above 2 features in the evidence of this witness create doubt on his testimony. By his Court evidence, he had tried to implicate one more person-Babudas in the said incident, whereas, name of Babudas does not appear in the entire case of the prosecution. Though he claimed that he had stated the name of Babudas to the Police at the relevant time, but this evidence has been falsified on the evidence of the concerned Police Officer as also the contents of the case-diary. We are of the view that in these circumstances, Babudas was not a fully reliable witness. 9. So far as Firantinbai (PW-9) is concerned, she has been disbelieved by the Sessions Court about the actual incident. The Sessions Court has held that she reached near the boring where the dead body of the deceased was found. Firantinbai (PW-9) has deposed that she had seen the Appellants picking up the deceased. 10. Smt. Renu Kochar, has argued that only on the above evidence, it cannot be said that the Appellants had assaulted the deceased and they were picking up his body with bad intention or to cause much damage to him. 11. In appreciation of evidence of Firantinbai (PW-9), we find that she had only witnessed the presence of the Appellants at the place of boring and nothing more. The solitary evidence of Bhujbal (PW-10) was there, on which the Sessions Judge has fully relied and has based the conviction. 12. We have already held that Bhujbal (PW-10) was not a fully reliable witness and thus, we are of the view that the conviction based on the solitary testimony of Bhujbal (PW-10) cannot be sustained. The solitary evidence of Bhujbal (PW-10) was there, on which the Sessions Judge has fully relied and has based the conviction. 12. We have already held that Bhujbal (PW-10) was not a fully reliable witness and thus, we are of the view that the conviction based on the solitary testimony of Bhujbal (PW-10) cannot be sustained. Merely on the ground that a civil dispute was pending between the Appellants and the deceased, they would not be liable for punishment under Section 102/34 IPC, unless it would be proved beyond all reasonable doubts that the Appellants had participated in the incident and they assaulted the deceased, who received above injuries and succumbed to those injuries. 13. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the Appellants under Section 302/34 IPC are set aside. The Appellants are acquitted of the charges framed against them. It is stated that the Appellants are on bail. Their bail bonds shall continue for a further period of 6 months in view of the provisions of Section 437-A of Cr.P.C. Appeal Allowed.