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2014 DIGILAW 9 (CHH)

KAILASH CHANDRAKAR v. STATE OF M. P. (NOW C. G. )

2014-01-15

RANGNATH CHANDRAKAR, SUNIL KUMAR SINHA

body2014
Judgment Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment dated 23.10.1997 passed in Sessions Trial No. 295/96 by the Special Judge (NDPS) and Additional Sessions Judge, Raipur. By the impugned judgment, the appellants have been convicted u/Ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/- with default sentence of R.I. for 6 months. 2. The facts, briefly stated, are as under:- 2.1 On 7.2.96 at about 8.30-9.00 p.m., deceased- Santosh Sharma was returning to his house with his neighbour, Rajesh Kumar Bhoi. When they reached near Satyanarayan Mandir, Awadhiya Para, 6 accused persons attacked over him by knife, katar, rod etc. They caused multiple serious injuries to him. He succumbed to those injuries. Rajesh Kumar Bhoi, seeing all this, rushed towards the house of the deceased. On the way, he met Dauwa @ Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) and narrated the incident to them. These 2 persons immediately went to the house of the deceased and told his brother Rajesh Sharma (PW-2) that the deceased was being assaulted by some persons near Satyanarayan Mandir, Awadhiya Para. Rajesh Sharma (PW-2) rushed towards the place of incident. He saw from a distance of about 30 feet that his brother (deceased) was lying in pool of blood on the road and the 6 assailants were standing there. Appellant-Kailash Chandrakar (A-1) was holding a gupti, appellants-Natwar Dhobi (A-5), Teku (A-4) and Ashok Dhobi (the 6th accused, who was absconding and was later on tried in an other Sessions Trial), were holding knives. They fled away after seeing him. By that time, Devendra Singh Thakur (PW-5) and Dauwa @ Vinod Thakur (PW-3) also reached there. Rajesh Sharma (PW-2) narrated them about the presence of the accused persons who were holding the above weapons. Rajesh Sharma (PW-2) then went to the house of San jay Dewani (PW-4). Sanjay Dewani (PW-4) told him that just before the incident, appellant-Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (the 6th accused) and 2 other persons had come to his house and were asking about the deceased. Rajesh Sharma (PW-2) and his brother Ashwani Sharma (PW-1) took the deceased to the Medical College Hospital, where he was declared dead. Sanjay Dewani (PW-4) told him that just before the incident, appellant-Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (the 6th accused) and 2 other persons had come to his house and were asking about the deceased. Rajesh Sharma (PW-2) and his brother Ashwani Sharma (PW-1) took the deceased to the Medical College Hospital, where he was declared dead. 2.2 Rajesh Sharma (PW-2) lodged First Information Report (F.I.R. Ex.-P/1) at about 11.00 p.m. In the F.I.R., he mentioned the names of 4 accused persons i.e. Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (the absconding accused). 2.3 The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. Arvind Neralwar (PW-8). He noticed following injuries on the dead body of the deceased:- (A) 7 incised wounds of 2½ x 1 x 1 cm on the chest. 2 of them were deep penetrating in the thoracic cavity; (B) 10 incised wounds of 2½ x 1 x 1 cm on the abdominal region; (C) 13 incised wounds of 3 x 1 x 3 cm on the right abdominal region. 2 of them were deep into abdominal cavity; omentum was coming out; (D) 5 incised wound of 2½ x 1 x 1 cm on the back portion of the neck; (E) 2 incised wounds of 2½ x 1 x 1 cm on the right portion of back; & (F) 1 incised wound of 3 x 1 x 1 cm on the left parietal region. The deceased, thus, had sustained 38 incised injuries. On internal examination, clotted blood was found on the brain. An injury of 1 x 1 cm was also found on the right lung. The abdominal cavity was full of blood. The Autopsy Surgeon opined that the above injuries were caused by sharp edged weapons, the cause of death was shock and haemorrhage on account of the above injuries; the injuries were sufficient to cause death in ordinary course of nature and the death was homicidal. The postmortem report is Ex.-P/4. The abdominal cavity was full of blood. The Autopsy Surgeon opined that the above injuries were caused by sharp edged weapons, the cause of death was shock and haemorrhage on account of the above injuries; the injuries were sufficient to cause death in ordinary course of nature and the death was homicidal. The postmortem report is Ex.-P/4. 2.4 In further investigation, Kailash Chandrakar (A-1), Natwar Dhobi (A-5) and Teku (A-4) were taken into custody and their discovery statements (Ex.-P/29, P/31 and P/25) were recorded and a gupti like katar was seized at the instance of Kailash Chandrakar (A-1) by seizure memo Ex.-P/30 and knife and knife like katar were seized at the instances of Natwar (A-5) and Teku (A-4) vide seizure memo(s) Ex.-P/32 & P/26. Many other articles and the cloths of the accused were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), from where, a report, Ex.P/41, was received. According to the FSL report, blood stains were found on these articles. In Serologist Examination, human blood was found on the katar and cloths seized from Kailash Chandrakar (A-1) and human blood was also found on the shirt of accused- Natwar (A-5). The origin of blood on the other articles could not be determined on account of disintegration and the group test of the human blood found on the above articles could not be performed on account of they being not sufficient for test. The Serologist report is Ex.-P/51. 2.5 Rajesh Kumar Bhoi had died prior to commencement of the trial, therefore, he could not be examined by the prosecution. 2.6 Admittedly, there was no eye-witness to the incident arid the case of the prosecution was based on circumstantial evidence. The learned Sessions Judge mainly relied on the testimonies of Rajesh Sharma (PW-2), Dauwa @ Vinod Thakur (PW-3), Devendra Singh Thakur (PW-5) and Sanjay Dewani (PW-4). It was held that Rajesh Sharma (PW-2) had seen the appellants standing near the dead body of his brother arn1ed with knives and katar just after the incident. This circumstance and other circumstances like narrating the said incident to Dauwa @ Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) were sufficient to hold the appellants guilty of the aforesaid offence. The appellants, thus, were convicted and sentenced as above. However, the 2 accused persons namely-Sunil (A-2) and Dadu @ Jitendra (A-3) were acquitted. This circumstance and other circumstances like narrating the said incident to Dauwa @ Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) were sufficient to hold the appellants guilty of the aforesaid offence. The appellants, thus, were convicted and sentenced as above. However, the 2 accused persons namely-Sunil (A-2) and Dadu @ Jitendra (A-3) were acquitted. 2.7 The 6th accused namely-Ashok Dhobi was later on arrested and a separate charge-sheet was filed against him. It became the subject matter of Sessions Trial No. 116/98 which was disposed of by the judgment and order dated 23.12.1999. By the said judgment, he was also convicted u/Ss 302/34 IPC, which he has challenged by filing Criminal Appeal No. 361/2000. We have heard this appeal and the same is also being disposed of, simultaneously, by a separate judgment. 3. We have heard counsel for the parties. 4. Learned counsel for the appellants firstly contended that Rajesh Sharma (PW-2) was an interested witness, therefore, in the facts and circumstances of the case, his testimony appears to be doubtful. 5. Rajesh Sharma (PW-2) is real brother of the deceased, but, only on this account his testimony cannot be discarded. However, his evidence is to be scrutinized carefully and on such scrutiny if his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, it can be considered for conviction (See-Namdeo Vs. State of Maharashtra 2007 AIR SCW 1835). 6. Rajesh Sharma (PW-2) was the first person who reached to the place of occurrence. According to him as soon as he was informed by Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5), he immediately reached to the place of occurrence which was at a distance of one furlong from his house. He saw from a distance of 30 feet that his brother (deceased) was lying on the road in pool of blood and 6 persons were standing there surrounding him. He could identify only 4 of them i.e. Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (the 6th accused), who were holding knives and gupti. However he could not identify the two other persons. Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5), by that time, also reached there. He immediately disclosed the names of these assailants to them. He could identify only 4 of them i.e. Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (the 6th accused), who were holding knives and gupti. However he could not identify the two other persons. Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5), by that time, also reached there. He immediately disclosed the names of these assailants to them. Thereafter he went to the house of Sanjay Dewani (PW-4), who was his neighbour and was residing near the place of occurrence, for making a telephone call to the police. There also he had narrated the incident taking the names of the above 4 accused persons. It is on this disclosure, Sanjay Dewani (PW-4) told him that 15 minutes back the above 4 accused persons and 2 other boys had come to his house and they were asking about deceased-Santosh Sharma. He had replied them that Santosh Sharma was not present in the house. 7. It was argued that Rajesh Sharma (PW-2) had not seen the above accused persons at the place of occurrence and when Sanjay Dewani (PW4) told that they were searching Santosh Sharma (deceased), then he started taking their names and lodged the report on the names of the above 4 accused persons i.e. Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (absconding accused). The said argument cannot be accepted because it comes in the evidence of Devendra Singh Thakur (PW-5) that before going to the house of Sanjay Dewani (PW-4), Rajesh Sharma (PW-2) had stated them the names of above accused persons saying that they were present at the place of occurrence and they ran away before him. 8. Sanjay Dewani (PW-4) does not say that at the first instance, he told the names of the above accused persons to Rajesh Sharma (PW-2). His version is that Rajesh Sharma (PW-2), himself, told him the names of above accused persons saying that they had assaulted his brother (deceased) by gupti and knife, who was lying on the road. It is after the said conversation, he had told him that the said accused persons were searching his brother just 15 minutes back. 9. Rajesh Sharma (PW-2) has deposed that the above accused persons were holding knife and gupti and they were standing near his brother who was lying on the road in injured condition. 10. It is after the said conversation, he had told him that the said accused persons were searching his brother just 15 minutes back. 9. Rajesh Sharma (PW-2) has deposed that the above accused persons were holding knife and gupti and they were standing near his brother who was lying on the road in injured condition. 10. Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) have corroborated the evidence of Rajesh Sharma (PW-2). According to them, Rajesh Kumar Bhoi had informed them that some persons were assaulting the deceased near Satyanarayan Mandir, Awadhiya Para. Hearing this, they immediately rushed to the house of Rajesh Sharma (PW-2) and informed him about the incident. Rajesh Sharma (PW-2), hearing this, rushed to the place of occurrence. They had not accompanied him, but they had followed him and they also reached to the place of occurrence just after Rajesh Sharma (PW-2) had reached, and at this juncture Rajesh Sharma (PW-2) had stated the names of above 4 accused persons i.e. Kailash Chandrakar (A-1), Teku (A-4), Natwar (A-5) and Ashok Dhobi (absconding accused) to them. It is thus clear that Rajesh Sharma (PW2) had reached to the place of occurrence immediately and these 2 witnesses reached there later on, to whom he disclosed the names of above 4 accused. 11. Learned counsel for the appellants then contended that it was not possible for Rajesh Sharma (PW-2) to identify the assailants in the night. Rajesh Sharma (PW-2) was cross-examined on this aspect. In Para-8 of his cross-examination, he deposed that there was sufficient light on the road at the place where his brother (deceased) was lying. In the said light, he was able to see the assailants who were standing there. In fact, he has deposed that when he cried from about 30 feet, then only the assailants had ran away. As far as the 3 accused persons namely-Kailash Chandrakar (A-1), Natwar (A-5) and Ashok Dhobi are concerned, he clearly deposed that he had seen their faces, however, for the 4th accused, Teku (A-4), he has said that he could only see his back. It was argued that in the map prepared by the Investigating Officer, he had not shown that there was sufficient light at the place of occurrence. It was argued that in the map prepared by the Investigating Officer, he had not shown that there was sufficient light at the place of occurrence. We note that in the instant case, Patwari map was not filed and a nazri naksha was prepared by the Investigating Officer in which only the roads of the place of occurrence were shown. The purpose of the said map appears to show the correct position of the dead body on the road and nothing more. Rajesh Sharma (PW-2) has deposed that there was sufficient light. Therefore if it was not shown in the map (nazri nakha) that there was some electric pole, it will hardly make any difference. That apart, it was not a case in which the incident took place on some out-lying highway or in a remote area. In the instant case, the incident took place in the dense locality of the Raipur township which was fully electrified. Many persons were residing there. There is no material on record to show that there was blackout on the said day. On the contrary, Rajesh Sharma (PW-2) has deposed that a clear light-beam was falling on the injured, where he was lying on the road, and in the said light, he had identified the assailants. The learned Sessions Judge has relied on the decisions of State of U.P. Vs. Anil Singh AIR 1988 SC 1998 . In the said case, the accused was familiar to the eye-witnesses and there was evidence of light at the place of occurrence which was at a distance of 25 paces from the stage. It was held that there was no scope for any mistaken identity of the accused in such circumstances. In the instant case, the accused persons were familiar to Rajesh Sharma (PW-2), who saw them from a distance of 30 feet. There is evidence to show that there was sufficient light. Therefore, there was hardly any chance of mistaken identity, so far as accused Kailash Chandrakar-(A-1), Natwar (A-5) and Ashok Dhobi are concerned, because Rajesh Sharma (PW-2) has clearly stated in his evidence that he had seen their faces. However, so far as the 4th accused-Teku (A-4) is concerned, a doubt is created about his identity because Rajesh Sharma (PW-2) could not see his face and he could see his back portion only. Therefore, case against Teku (A-4), as claimed by Mr. However, so far as the 4th accused-Teku (A-4) is concerned, a doubt is created about his identity because Rajesh Sharma (PW-2) could not see his face and he could see his back portion only. Therefore, case against Teku (A-4), as claimed by Mr. Sushobhit Singh Advocate, appears to be doubtful as a possibility of mistaken identity, so far as Teku (A-4) is concerned, cannot be fully ruled out. 12. It was next contended that Rajesh Sharma (PW-2) has not seen the actual incident and therefore, his narration to the other witnesses namely-Vinod Thakur (PW-3), Sanjay Dewani (PW-4) and Devendra Singh Thakur (PW-5) would not be admissible and relevant, and thus, the chain of circumstantial evidence was not complete. 13. In Halsbury’s Laws of England, Fourth Edition, Vol. 17 Para 6, Page 8, the res gestae has been defined in following manner:- "6. The res gestae. Items of evidence are sometimes said to be part of the res gestae, owing to the nature and strength of their connection with the matters in issue, and as such are admissible. "Res gestae" is an expression mainly of utility in the criminal law concerning the contemporaneity of statements to incidents but, insofar as contemporaneous statements are relevant and accompany and explain mat1ers in issue, they will be admissible." 14. In Words and Phrases, Thomson/West Vol. 37 Page 264, res gestae has been defined as: "Res gestae" is a matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without knowledge of which the main fact might not be properly understood; they are instinctive words and acts of the participants, growing out of the main fact, contemporaneous with it, and made so soon thereafter as to exclude the presumption they result from premeditation or design. 15. Section 6 of the Evidence Act is titled as 'Relevancy of facts fom1ing part of same transaction'. It provides that facts which, though not in, issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 15. Section 6 of the Evidence Act is titled as 'Relevancy of facts fom1ing part of same transaction'. It provides that facts which, though not in, issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Section 6 is an exception to Hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae. To form a particular statement as a part of the same transaction or of the same incident or just contemporary to the incident so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction are facts td be considered. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof and there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it (Vide: Vasa Chandrasekhar Rao Vs. Ponna Satyanarayan (2000) 6 SCC 286 and Javed Alam Vs. State of Chhattisgarh and Another (2009) 6 SCC 450 ). 16. In the instant case, the above evidence of Rajesh Sharma (PW-2) himself, and narration of names of the identified assailants by him to Vinod Thakur (PW-3), Devendra Singh Thakur (PW-5) and Sanjay Dewani (PW-4) would be relevant facts forming part of the same transaction. Rajesh Sharma (PW-2), as soon as heard that his brother was being assaulted by some persons, immediately rushed to the place of occurrence and saw that his brother (deceased) was lying in pool of blood and the above accused persons were standing near him armed with knives and gupti. He shouted from a distance of 30 feet, then only the accused persons ran away. Thereafter Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) came there. He immediately narrated the incident to them taking the names of the accused persons. He shouted from a distance of 30 feet, then only the accused persons ran away. Thereafter Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) came there. He immediately narrated the incident to them taking the names of the accused persons. Then he rushed to the house of Sanjay Dewani (PW-4) for making a telephone call to the police, and there also he told the names of 4 accused persons to him. We are of the view that the above matters were incidental to main fact and were explanatory of it. Therefore, the act of finding the accused persons armed with deadly weapons at the place of occurrence and immediately infom1ing about them to the above witnesses with all descriptions would form the part of same transaction and would be admissible in evidence on the above principles. 17. Apart from the above circumstances, we also find that blood stains were found on the katar and knife seized from the accused persons and blood found on the gupti like katar and cloths seized from Kailash (A-1) was human blood. 18. It was lastly contended that Rajesh Kumar Bhoi, who could not be examined on account of his death prior to commencement of the evidence, did not disclose the names of the assailants to Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5). This, will make no difference. It would not be helpful to the appellants because there is no material to show that Rajesh Kumar Bhoi was knowing the accused persons or he was in any manner acquainted with them. Had there been some material to show that the accused persons were previously known to him, then of course the instance of non disclosure of the names of the assailants by him to Vinod Thakur (PW-3) and Devendra Singh Thakur (PW-5) would have been relevant or material. 19. On due consideration of the entire material on record, we are of the view that the above circumstances were fully established against appellants Kailash Chandrakar (A-1) and Natwar Dhobi (A-5); they were of conclusive nature and tendency and none of the circumstances were capable of being explained and the chain of circumstantial evidence was also complete. So far as appellant-Teku (A-4) is concerned, his presence at the place of occurrence was doubtful, as a possibility of mistaken identity in his case was not fully ruled out. 20. For the foregoing reasons, Cr. So far as appellant-Teku (A-4) is concerned, his presence at the place of occurrence was doubtful, as a possibility of mistaken identity in his case was not fully ruled out. 20. For the foregoing reasons, Cr. A. No. 2494/1997 is partly allowed. The conviction and sentences awarded to appellant-Teku (A-4) are set-aside. He is acquitted of the charges framed against him. It is stated that he (A-4) is on bail. His bail bond shall continue for a period of 6 months in view of Section 437-A Cr. P.C. The appeal filed on behalf of appellant-Kailash Chandrakar (A-1) is dismissed. Cr. A. No. 2723/1997 filed on behalf of appellant-Natwar Dhobi (A-5) is also dismissed. HEADLINE 1. Res Gestae - Principles of - Discussed. jsl xsLVs & dk fl)kar & foosfprA Appeals of Kailash and Natwar Dismissed. Appeal of Teku Allowed.