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2014 DIGILAW 329 (CHH)

Banshi Das v. State of M. P.

2014-09-02

PRITINKER DIWAKER, YATINDRA SINGH

body2014
JUDGMENT Yatindra Singh, C.J. 1. This appeal arises out of judgment of conviction and order of sentence dated 29.10.99 passed by the First Additional Sessions Judge, Baloda Bazar, District Raipur in S.T. No. 174/97 convicting the accused/appellant under Section 302/34 IPC and sentencing him to undergo life imprisonment with fine of Rs. 3,000/- plus default stipulation. In the present case, name of the deceased is Paras Ram. On 12.6.95, at 1.00 p.m. FIR (Ex. P-4) was lodged by Pooran Das (PW-5) son of the deceased alleging that on that day when the deceased was in his house, Basant Satnami informed that Shyam Das, father-in-law of daughter of the deceased, had called him. Immediately thereafter at about 1.30 p.m. the deceased left for village Duldula and at about 2.00 p.m. he was informed by his Samdhi Sant Ram that his father Paras Ram has been killed by Shyam Das Satnami (absconded accused), Rajesh (acquitted accused), Banshi (present appellant), Lain Das (acquitted accused), Bhuwan Das (absconded accused) and Gautam (juvenile accused). He has stated that when he reached the place of occurrence he saw the dead body of his father lying near the house of one Motilal Satnami, drenched with blood and there was injury on his head. He has further stated that marriage of his sister Prem Bai was performed with Gautam Satnami (juvenile) i.e. son of absconded accused Shyam Das about 1 1/2 years prior to the date of incident and since then she was being ill treated by Shyam Das and Gautam. It is further alleged that quite often they used to leave his sister at her maternal house and since last 1 1/2 months she was residing with him and on account of there being animosity between the two families, they committed the murder of his father Paras Ram. Based on this FIR, offence under Section 302 IPC was registered against six accused persons namely Rajesh (acquitted accused), Banshi (present appellant), Shyam Das Satnami (absconded accused), Lain Das (acquitted accused), Bhuwan Das (absconded accused) and Gautam (juvenile). As accused Gautam was juvenile, he was being tried by the juvenile court whereas accused Bhuwan Das Satnami and Shyam Das Satnami were shown as absconded. Postmortem examination on the body of deceased Paras Ram was conducted on 13.06.95 vide Ex. P-1 by Dr. As accused Gautam was juvenile, he was being tried by the juvenile court whereas accused Bhuwan Das Satnami and Shyam Das Satnami were shown as absconded. Postmortem examination on the body of deceased Paras Ram was conducted on 13.06.95 vide Ex. P-1 by Dr. N.P. Tamrakar (PW-1) and according to him, cause of death was coma, shock and haemorrhage as a result of multiple fractures and head injury and the death was homicidal in nature. After investigation, charge sheet was filed against all the accused persons under Sections 147, 148, 149 and 302 IPC. However learned trial judge framed charges under Sections 147, 148 and 302/149 IPC against accused appellant Banshi Das and acquitted accused persons Rajesh and Lain Das. 2. In support of its case, the prosecution has examined 27 witnesses in all. Statements of the accused persons were also recorded under Section313 Cr.P.C. in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. This apart two defence witnesses namely Lekhram and Bhagela have also been examined. 3. After hearing the parties, vide judgment and order dated 29.10.99, learned court below has acquitted accused Rajesh and Lain Das of all the offences but has convicted and sentenced the accused/appellant as mentioned in paragraph one of the judgment. Hence the present appeal. 4. Contention of counsel for the appellant is as under: "(i) That the accused/appellant has been convicted on the basis of sole testimony of Santu (PW-4), the alleged eyewitness though he has not stated as to how the weapon of offence was used by the accused persons. The statement of this witness is not reliable on account of the admitted fact of there being old rivalry between him and the accused/appellant. (ii) That though Sukhdev (PW-10) in the court has become the eyewitness but from his case diary statement it is apparent that he had not seen the accused/appellant assaulting the deceased. (iii) That on the basis of memorandum of accused/appellant Ex. P-16 seizure of spear was made vide Ex. P-17 and likewise baniyan and lungi were made vide Ex. P-18 but the witnesses to memorandum and seizure have not supported the prosecution case. (iii) That on the basis of memorandum of accused/appellant Ex. P-16 seizure of spear was made vide Ex. P-17 and likewise baniyan and lungi were made vide Ex. P-18 but the witnesses to memorandum and seizure have not supported the prosecution case. (iv) That the seizure of spear and clothes was made from mud and that too after nine days of the incident, from the open place i.e. near the railway track and thus the FSL report becomes doubtful." 5. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same. 6. Heard counsel for the parties and perused the material available on record. 7. Dr. N.P. Tamrakar (PW-1) conducted postmortem examination on the body of deceased Paras Ram and noticed following injuries on his body: "(i) fracture of both bones of left forearm with contusion of 15 cm. x 10 cm. around the middle 1/3rd part of the left forearm. (ii) lacerated wound 6 cm. x 4 cm. bone deep with a compound fracture of right frontal bone underneath the injury. Bone fractured in multiple pieces. Contusion present around the wound. The above injury is 1 1/2" above the right eye. (iii) lacerated wound 4 cm. x 2 cm. x bone deep 1" above the left eye underneath the injury. Bone fractured in multiple pieces, contusion present around the wound. (iv) fracture of upper jaw completely as a result of which 8 teeth fractured and thrown out of socket. (v) fractured of lower jaw completely in multiple pieces as a result of which 6 teeth fractured and thrown out of socket. (vi) fracture of the nasal bone in multiple pieces. (vii) incised wound 6 cm. x2 cm. x bone deep over right frontal region of the scalp on vertex. Vertical in direction. (viii) lacerated wound 10 cm. x 6 cm. bone deep over right frontal region on vertex, vertical in direction. (ix) incised wound 12 cm. x 4 cm. bone deep over left front parietal region of the scalp, vertical in direction, fracture of the bone present underneath the injury." All the above injuries are ante mortem in nature. Vertical in direction. (viii) lacerated wound 10 cm. x 6 cm. bone deep over right frontal region on vertex, vertical in direction. (ix) incised wound 12 cm. x 4 cm. bone deep over left front parietal region of the scalp, vertical in direction, fracture of the bone present underneath the injury." All the above injuries are ante mortem in nature. According to him, cause of death was coma, shock and haemorrhage as a result of multiple fractures and head injury and the death was homicidal in nature. Jugnu (PW-3) has not supported the prosecution case and has been declared hostile. However in cross-examination he has stated that there was terror of the deceased Paras Ram in village Simga and on account of which everyone knew him. Santu (PW-4) eyewitness to the incident, has stated that on the date of incident when he was sitting near the door of his house, he saw absconded accused Shyam Das, Banshi, Bhuwan and Gautam assaulting the deceased with clubs and thereafter, he went inside his house. In cross-examination he has admitted the fact that a case was instituted against him for causing death of an ox and in that case accused/appellant was the witness and on account of which his relations with accused/appellant were not good. He has further admitted the fact that there exist animosity between his family and that of the appellant but he has denied the fact that due to said animosity he is making false statement. He has further admitted the fact that marriage of the daughter of deceased was performed with son of absconded accused Shyam Das. Pooran Das (PW-5) - son of the deceased and lodger of First Information Report has stated that at about 1.30 p.m. he was informed by Sant Ram that his father has been killed by accused persons Shyam Das, Bhuwan, Banshi, Lain Das and Rajesh and when he reached the place of occurrence he found him dead and thereafter he lodged the report. He has stated that the relations between his family and family of accused Shyam Das were not good because of the dowry being demanded by Shyam Das. Parvati Bai (PW-6) - wife of the deceased has stated that she came to know from Sant Ram that her husband has been killed by the accused persons. He has stated that the relations between his family and family of accused Shyam Das were not good because of the dowry being demanded by Shyam Das. Parvati Bai (PW-6) - wife of the deceased has stated that she came to know from Sant Ram that her husband has been killed by the accused persons. She has further stated that marriage of her daughter was performed with the son of absconded accused Shyam Das and an attempt was made by them to kill her daughter after pouring kerosene oil on her and for which a village meeting was also convened and the matter was also reported by her husband Paras ram in the police station. She has admitted the fact that number of cases are pending against her husband and that he also remained in jail for some time. Prem Bai (PW-7) - wife of juvenile accused Gautam has stated that after marriage she was ill treated by her father-in-law Shyam Das, mother-in-law and her husband, and prior to the date of incident, her husband had left her at her maternal house and the relations between her father and that of her father-in-law were not good and they were not in talking terms. Ganesh Ram (PW-8) is a witness of inquest (Ex. P-6) and inquest notice (Ex. P-5). Jagan Bai (PW-9) has been declared hostile. Sukhdev (PW-10) has stated that on the date of incident at about 1.30 p.m. when he was in his house he saw the accused persons assaulting the deceased. However if his diary statement (Ex. D-3) is seen it reveals that he has not stated that he saw the accused persons assaulting the deceased and according to his case diary statement at about 2.00 p.m. he came to know that the accused persons had killed the deceased and thereafter he reached the place of occurrence. Kochia (PW-11) and Ganga Das (PW-12) have been declared hostile. Pramod Rao Bhonsle (PW-13) has not stated anything specific against the accused/appellant. Ghana Ram (PW-14) is a witness to inquest notice Ex. P-5 and inquest Ex. P-6. Purushottam Sahu (PW-15) and Balkaran Das (PW-16), the witnesses to memorandum of accused/appellant, seizure Ex. P-11, 12, 13, 14, 15, 17 and 18, have not supported the prosecution case and have been declared hostile. However they have admitted their signatures on these documents. S.R. Banjare (PW-17) is the patwari who prepared spot map (Ex. P-5 and inquest Ex. P-6. Purushottam Sahu (PW-15) and Balkaran Das (PW-16), the witnesses to memorandum of accused/appellant, seizure Ex. P-11, 12, 13, 14, 15, 17 and 18, have not supported the prosecution case and have been declared hostile. However they have admitted their signatures on these documents. S.R. Banjare (PW-17) is the patwari who prepared spot map (Ex. P-19). Prem Shankar Singh (PW-18) - Head Constable - helped in the investigation. Dasru (PW-19), Bhagat (PW-20), Rajesh Kumar (PW-21) and Manmohan (PW-22) have not stated anything against the appellant and have been declared hostile. Mangal Chand (PW-23) is a hearsay witness. Kadar Ali (PW-24) is a witness to inquest notice Ex. P-5 and inquest Ex. P-6, seizure Ex. P-24 by which plain soil, blood stained soil and certain articles were seized, memorandum (Ex. P-11) of accused Rajesh (acquitted) by which seizure (Ex. P-12) was made, has been declared hostile. M.M. Yadu (PW-25) is the Investigating Officer who has duly supported the prosecution case. Laxmi Khunte (PW-26) is the Head Constable who made entry in the rojnamcha sanha. Veerendra Sharma (PW-27) is the Inspector who has conducted part of the investigation including effecting seizure of certain articles. Lekhram (DW-1) and Baghela (D.W-2) have been examined as defence witnesses but they have not stated anything specific which may be of any help to the accused/appellant. 8. Conviction of the accused/appellant is based mainly on the sole testimony of Santu (PW-4). From his own evidence, it is clear that he had inimical relations with the accused/appellant, though he has denied false implication of the accused/appellant on this count. He has claimed himself to be an eyewitness to the incident but has nowhere stated in his entire evidence as to the manner in which the assault was made by the accused persons. In the totality of circumstances he seems to be an interested witness and his evidence does not inspire confidence of this Court. The other piece of evidence against the accused/appellant is recovery of his clothes, club and spear at his instance, which were subsequently found to be stained with blood as per FSL report Ex. P-29. In the totality of circumstances he seems to be an interested witness and his evidence does not inspire confidence of this Court. The other piece of evidence against the accused/appellant is recovery of his clothes, club and spear at his instance, which were subsequently found to be stained with blood as per FSL report Ex. P-29. However, as per prosecution case itself the said recovery was effected from the mud, that too after about 9 days of the incident and therefore, it creates doubt in the mind of the Court as to how in such circumstances presence of blood was ascertained by chemical examination as per FSL report Ex. P-29. Even if it is assumed that blood was found on the articles so seized, mere presence of blood on these articles cannot be considered as an incriminating circumstance against the accused/appellant because there is no serological report to show that the blood found on those articles was human blood. This apart, the witnesses to memorandum and seizure have also, not supported the prosecution case and have turned hostile. As such, when the memorandum and seizure itself have not been proved by the prosecution as required under the law, the FSL report becomes doubtful. In the totality of facts and circumstances of the case, the quality of evidence adduced by the prosecution, we are of the considered view that the prosecution has not been successful in proving involvement of the accused/appellant in commission of the crime in question beyond the shadow of reasonable doubt. Keeping in view the fact that there is sufficient evidence on record to show that the deceased was a hardened criminal, there was his terror in the village, he had inimical relations with number of persons and that several criminal cases were already pending against him, the possibility of commission of murder of the deceased by someone else and implication of accused/appellant can not be ruled out. 9. The trial Court has committed an illegality in holding the appellant guilty under Section 302/34 of IPC and he is definitely entitled to be acquitted of the said charge by extending him benefit of doubt. 10. Thus, it can be held that there is no conclusive evidence against the appellant for connecting him with the murder of the deceased and therefore he is entitled for benefit of doubt. 10. Thus, it can be held that there is no conclusive evidence against the appellant for connecting him with the murder of the deceased and therefore he is entitled for benefit of doubt. In view of what has been discussed above, the appeal deserves to be allowed and the judgment impugned so far as it relates to the present appellant Banshi Das, is liable to be set aside. It is done accordingly. As the accused/appellant is on bail, his bail bonds shall continue for a period of six months in view of section 437-A of the Code of Criminal Procedure.