CRA/825/2002 of KUBER GANDA AND ANOTHER Vs STATE OF CHHATTISGARH on 16 December 2003

1. The above accused/appellants havethese appeals under pr'eferredSection 374 (2) of the Cr.P.C. being aggrieved by the judgment ofconviction dated 27th June, 2002, passed by the 6Additional SessionsJudge, Raipur, in Sessions Trial No.133/2001, by which the iearnedAdditional Sessions Judge after holding the accused/dppellcxnts guiltyof commission of the offences under Section 302 read with Section149 of the I.P.C. and Section 148 of the I.P.C. convicted them for thesaid offences and sentenced each of them to undergo imprisonment forlife and to pay a fine of Rs.2,000/-, in default of payment of fine tofurther undergo rigorous imprisonment for three months under S^ction302 read withSection149 of the I.P.C. and to undergo ri9orousimprisonment for three years under Section 148 of the IP.C*

2. Since these appeals are arising out of the Same incident and are fileda9ainst the same judgment, they are being disposed of by this commonjudgment.

3. Briefly stated facts of the prosecution co.se. are that in the morning of31st December, 2000. a scuffle took pbce between deceased A^adhuNirmalkar and Vinod, but they were separated.On the same dayevening, at about 6.30 - 7 p.m. Nand Kumar, brother-in-law of thedeceased was at his residence, at that time, Jaiswal Tailor came andinformedNandKumar thatsomeboys of Ja!ViharColonyhaveassaulted Madhu Nirmalkar withknife<xnd he was lyingin injuredcondition.Nouid Kumar went to the residence of Madhu and saw thatthegate of thehouse of Madhuwasbroken*On enquiry, the

neighbourersinformedhim that afterdraggingMadhuout ofhi^residence,VinodalongwithftamVishwakarma,Shambhoo, AjjuArjun/ Jony ©Benar, Kartik Odiya etc., had assaulted Madhu withknife, club, belt Achain.On hearing this, Nand Kumar reached thehospital where he saw Madhu and on enquiry, by indicating towardsVinod, Madhu informed Notfid Kumar that Vinod has dssaulted him withknife, but Madhu could not speak further and he succumbed to theinjuries sustdned by him.Madhu received various injuries on buttockand iliac crest region ond blood was comin9 out of the injuries.NandKumar reported the matter at the Police Station: Civil Lines, ftaipur.

4,Onreceiving the information, thecasewas registered<indbehatiNalishi(Ex.P-21)wasrecorded.SushilKumar(PW-9),theHeadConstable, hois stated that the Dehati Nalishi (Ex-P-21) was registeredby him.R.S. Tiwari (PW-4), the Assistant Sub-Inspector, has statedthat at about 22:15 hours when he was on duty in the Police Station, onthe report of Harendra Singh Thakur, the Constable, he registered theF.I.R. (Ex.P-16).PW-7 Diwaker Yadav. Ward Boy of the hospital gavemerg intimation to the Police Statjon on 01.01.2001.The InvestigatingOfficer after 9ivin9 notice (Ex.P-3) to the witnesses prepared thePanchanama of the dead body of Madhu Nirmalkar vide Ex.P-2.Post-mortem examination of the dead body was conducted by Dr.UltasGunnade on 01.01.2001 at about 12:30 Noon and after conducting thepost-mortem examination, he prepared the post-mortem report Ex.P-26and the body was honded over to Nand Kumar, brother-in-law of thedeceased vide ExP-19.The weapons of offence were recovered by theInvestigatingOfficeronthebasis ofmemorandumbythegivenaccusedondthesameweresenttoForensicSciencepersonsLaboratoryvide Ex.P-23.TheForensicScience Laboratory report(Ex.P-29) was received.

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5. After completion of the investigation/charge sheet was filed agalnsttheaccused/appellantsintheCourt ofChief JudicidMagi^trate,Raipur, who in turn committed the case to the Sessions Judge, Raipur,from where the 6th Additional Sessions Judge, received the case ontransfer.As accused Vinod being a juvenile, the Police submitted thepapers[befope][ the][ Juvenile][ Board][ for]proceeding[against][ Vinod][ under]the Juvenile Justice Act, 2000.The learned Additional Sessions Judgeafter hearing the arguments of the Additional Public Prosecutor andcounsel for the accused persons and ofter perusal of the challan poperswas of the opinion that there was material on record for framingcharges for the offences punishable under Sections 148 & 302 of theI.P.C. and in alternatiye under Section 302 read with Section 149 of theI.P,C. against the accusedAccordingly, he framed charges persons,against thc accused persons and read over oind explained the same tothe accused persons.The accused persons denied the charges andclaimed to be tried.

6, The prosecution in order to prove the offence against the accusedpersons examinedin all17 witnesses.Statements of the accusedpersons[were][ recorded][ under][ Section][ 313][ of][ the][ Cr.P.C.,][ in][ which][ al!][ the]accused either denied the prosecution evidence or stated that they donot know anything.They further stated that the witnesses are falseand they have not comniitted any crime and they have been falselyimplicated in the crime.

7. The learned Additional Sessions Judge after hearing the arguments ofthe Additional Public Prosecutor cmd counsel for the accussd personsand after placing reliance on the prosecution evidence, mainly on theevidence of Sanjay Mesram (PW-1), Kundan Lal Yadav (PW-2), NandKumar Nirmalkar (PW-8) and Investigating Officer Vikash Thakur (PW-15), conyicted and sentenced the accused persons in the manner statedabove.

8. Wehaveheardthelearnedcounselappearingonbehalf oftheaccused/appeliflmtsandlearned^overnmentAdvocatefortheState/respondent,

9. As far as the death of Madhu Nirmalkar being homicidal is concerned,counsel for the accused/appellants have not disputed this fact*br.Ullas Gunnade (PW-13) has stated that on lsit January, 2001, he wasworking in the Medical Cotlege in the Forensic Medicine Department andat about 12.30 p.m. Police Station: Civil Lines, Raipur, has sent -t+ie bodyof Madhu Nirmaikar for post mortem examination,He conducted thepost mortem examination and found that there was indsed wound,oblique present on medial surface of left index finger at upper third^ acontusion, fresh, present on lateral surface of left arm size 4" x 3"; agraze abrasion present on left side, 3" below inferior aingle of scapulasize 4" x 3^H, oblique, directed medially to laterally, downward toupward; a tronsverse stab incised wound elliptical, present 9 cm, Belowand 3 cm. bterol to highest point of left iiiac crest, size 1,5 cm. x 0,6cm. 3.5 cm.; a vertical, stab incised wound, present 10 cm. beiow and 9cm. right lateral to highest point of left iliac crest, directed from ri9htto left from upwards to down wards, size 2 cm. x 0.7 cm. x 5*5 cm.,elliptical; a vertically oblique, stab incised wound, present 14 cm. betowand 4cm- left lateral to highest point of right iliac crest, a nickpresent[on][ mediaj][ border]1,2 cm- above lower end triangular shope nick,angle onmedially <ind free bare laterally, directed upward towardsright to left side, in between pierce, skin, subcutdneous tissue, musclesof perennial region, 2 cm. x 0*7 cm. x 6 cm. size; a vertical, eltiptical,stab incised wound present 23 cm- below and 4 cm. right foteral tohighest point of ieft iliac crest size1.5 x 0.5 cm. directed belowupwards fromlateral to medially, pierce skin, subcutameous tissue,muscles and per&nnial region; a contusion present on mid third of rightthigh posteriorly; ouid a contusion present on mid third of teft thigh The doctor opined that the death was due to shock cxndposteriorly.haemorrhage on account of injury to internal iliac vessel by injuryNo.(H) i.e< stab injury.He further opined that the injury No.(H) wciscaused by hard, sharp and penetrating object and the injuries weresufficient to cause death in ordinary course of circumstances o^id theyare homicidal< in nature,So, in view of this evidence of the doctor, itstonds proved that the death of Madhu Nirmolkar was homicidal innature.

lO.Now coming to the involvement of th& accused/appellants in committingthe murder of AAadhu Nirmalkar, the prosecution has adduced thefollowing evidence in order to prove the crime: - a.ThedyingdeclarationmadebydeceasedMadhuNirmalkarbefore Ncind Kumar Nirmalkar (PW-8).

b. The evidence of Sanjoiy Mesram (PW-1) and Kundan Lal Yadav(PW-2), the eyewitnesses.

c,Recovery of weapon of offences at the instance of the accusedpersons,

ll.&ylnqdeclaration:-AsfarastheevidenceofNandKumarNirmalkar (PW-8) is concerned, he has stated that on receiving theinformation about the incident he reached 1+ie spot, but by tiiat timeMadhuNirmalkarwcisalreadytakentoMekaharoHospitalandther&fore, he went to the X-Ray Room of the Mekahara Hospital whereMadhu was present.When he enquired from him cxs to what happened,he was asking for water, but the doctor said, "do not give him water".From there, he was taken to emergency room and by that time thePolice also came and Nand Kumar again enquired from Madhu, then hecould only speak That quarrel Took place with Vinod Deep and beyondthat he could not speak anything. Thereafter, the doctor said that theinjured required blood.He gave his blood and during the treatmentMadhuNirmalkarsuccumbedtotheinjuries. sustainedbyhim.

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Thereafter, on askin9 by the Police, he gave Dehati Nalishi, report ofthe incident, Ex.P-21.

12. Inview of theabove evidence, itisclear that deceasedMadhuNirmaJkar, on enquiry by this witness, stated that the he received theinjuries on account of quarrel with Vinod. The deceased had not statedanythingagainsttheaccused/appellantstoNandKumar, presentTherefore, there is no evidence agdnst the present accused/appeilantsas nothing has been stated by this witness Ncxnd Kumar, against thepresent accused/ appellants.As far as accused Vinod is concemed,being a juvenile, against him separate proceedings have been initiateabefore the Juvenile Board, 13,Evidence of PW-1 <& PW-2: -Now coming tp the evidence of KundanLal Yadav (PW-2), he has been examined by the prosecution as aneyewitness and he has stated that in the morning there was somequarrel between deceased Madhu and accused Vinod and he intervenedand separated them.Thereafter, after some time, Vinod agdn ^toodon the way having a stick in his hand and when Madhu was riding abicycle he assaulted Madhu with the stick, but Madhu escaped. In theevening, at about 6.30 or 7 p.m. Vinod went to the house of Madhu andstarted exchanging hot words ond some quarrel also took ptace betweenthe two and in that process Vinod received abrasipns on the left handand chest.Vinod returned to his residence and thereafter, accusedRam Vishwakarma, Ajju, Kuber, Kartik, Shambhoo and Jony @ Benarwere called by him and after seeing the injury on the body of Vinod, allof them became angry and went to the house of Madhu, entered intohis house after breaking the door, dragged him out of the house dndstarted assaulting him by fist and kick and with dangerous weapons iikeknife and stick.As far as the evidence of this witness is concerned,the counsel for the accused person^ argued that the statement of thi5witnessunderSection161oftheCr.P.C.wasnotrecordedand v .

prosecution had not shown him as an eyewitness to the incident.Hewasshownas av^itnesstothememorandumofrecoveryandPanchanama of the body.Therefore/his evidence cannot be taken intoconsideration.

H.Weare of the opinion that there is substance in the submission of thecounsel for the accusedIn the charge sheet, this witness persons,(PW-2) has been shown as witness to The memorandum and recoveriesand he has not been shown as eyewitness to the incident, nor hisstatement was r&corded by the Police under Section 161 of the Cr.P.C.Therefore, there is no previous statement of this witness cind for thefirst time, before the Court, he gave the evidence that he saw theincidentofassaul+ingthedeceasedbyalltheaccusedpersons.Therefore, we are of the opinion that the evidence of this witness asan eyewitness cannot be relied upon dnd taken into consideration forconnecting the accused/appellants with the murder of deceased MadhuNirmalkor.A similar view was taken by the Hon'ble Apex Court in themaner of Ram Lakhan Singh and others vs. The State of UttarPradesh reported in AIR1977 Supreme Courl-1936, in which the Hon'ble Apex Court held that, "In a grave charge like the present, it wiil not be properto place reliance on a witness who never figured duringthe investigation and was not named in the charge sheet*The accused who are entitled to know his eorlier versionto the police are naturally deprived of an opportunit/ ofeffective cross-examination and it willbe difficult togive any credence to a statement which was given for thefirst time in court after about a year of the occurrence."

Therefore, in view of the above principle hid down by the Hon'ble ApexCourt, we are also of the opinion that much credence cannot be given tothe evidence of this witness (PW-2). Moreover, this witness has statedthat br. Vijay Namdev Padukar, Vishal Pandey, 6eeta Bai, Udeshiya Bai,Smt, Saraswati and other persons had seen the incident.But, none ofthese persons has been produced by the prosecution.As hois been held ^-^

by the Apex Court, where there is no previous statement of a witness,the accusedis deprived of his right to cross-examine the witnesseffectively.

15. Now, coming to the evidence ofScinjay Mesram(PW-1) whois aneighbourer of deceased Madhu Nirmalkar, this witness has also beendeclared hostile ond he has not supported the prosecution ccise, He hassimply stated in his evidence that in the evening when he was at hisresidence, he saw that there was a 9roup of persons standing near thehouse of deceased Madhu.br. Vijay Sahu, Kundan Yadav and neighbourKankar were stonding there.At that time, accused Kuber came andstarted hurling abuses on Madhu by soying that Madhu has assaultedhis nephew, he will not leave him alive, he will murder him and for thathe was prepared to go to jail.There were two other persons withaccused Kuber and they started pushing and banging the door of thehouse of the deceased.Dr. Vijoy Sdiu tried to intervene, but accusedKuber did not pay ony heed to -Hie request of Dr. Vijay Sahu. Accu^dKuber asked Jony @ Benar to bring the weapon ond on this accusedJony ran for bringing the weapon.PW-1 Sanjay Mesram has furthersfated that he could not identify the other two boys who were withaccused Kuber.He stated that Kundan was also present there and atthat time Jony @ Benar assaulted Madhu Nirmalkar with stick on hisneck and on account of that Madhu fell down in the drain.Kuber cameand assaulted with a lump/clod of earth (a stone weighing 2 Kgs.) on theback of the deceased.At that time, accused Ajju Mahanond, Kartikand Shambhoo were also present there.They lifted Madhu from thedrain Gaid took him towards Sudama Street and for some time, thiswitness (PW-1) stayed there and these persons alreody left that place,Therefore, the only evidence giveh by this witness is that, accusedJony assaulted with hockey stick on the neck of the deceased andaccused Kuber hit him with a lump/ciod of earth (weighing 2 Kgs.).Therefore, virtually there is no evidence to show who inflicted the €)

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incised fatal injuries/wounds on i!iac crest which were received by thedeceased by which internal iliac vessel was cut and on account of whichblood started oozing out of it and on account of excessive bleeding, thedeceased ^uccumbed to the injuries.The only evidence is that Jonyassaulted with hockey stick and Kuber assaulted with a stone and as perthe post-mortem report oind the evidence of &r. Uilas Gunnade (PW-13)that 3" below inferior scapulo region there was an injury of the size of4" x 3 i" oblique in nature and in the formof abrasion. It seems thatthis injury was caused by the assaujt mode by accused Kuber with alump/clod of eorth or stone of 2 Kgs. weight.As far as assaulting onthe neck by accused Jony is concemed, there is no corresponding injuryon the neck of the deceased as per the medical evidence, therefore, asfards these two accused persons are concerned, against them oniyoffence under Section 323 of the I.P.C. is made out.As far- as thequestion of assault by the other accu^d persons, and by these twoaccused persons with knife and causing fatal injuries on JJiac crest isconcerned,thereisnoevidencea9dnsttheaccusedpersons.Therefore, they comnot be h^ld liable for causing the fatal injuries.

16. Recover/ of weapons of offence: -As far as the recovery of knifeand other weapons of offence are concerned, in the first instance, asdiscussed above, there is no eyewilness who states that he saw theaccused cissaulting the deceased with knife.Moreover. the f.S.L.report simply says that on the knife Article-T which was recovered atthe instance of accused Kart-ik; on knife Article-'G' recovered at theinstance of accusedRamVishwakarma;onhockey stick Articie-'H'recovered at theinstance of AjjuMahGmand;on shirt Article-Trecovered at theinstance ofaccusedKartik;on shirtArticle-'K'recovered at the instance of accused Ram Vishwakarma; cmd on knifeArticle-V recovered at the instance of accused Vinod beep, blood woisfound, but there is no report that this blood wois humou^ blood and wasof the btood group of the deceased.Therefore.on the basis of these ^»»

recoveries, the accused persons cannot be connected with the murderof deceased AAadhu.

17. Therefore, the conviction recorded by the learned Additional SessionsJudge against the accused/appellants and finding to the effect thatthe accused/appellants cissaulted the deceased with knife and otherweapons and ccujsed fatal injuries ond are responsible for the murderofMadhuNirmalkarandwerecarryingdeadlyweopons andweremembers of unlawful assembly, cannot be sustained for the reasonsrecorded above, as the same are not based on any reliable and cogentevidence,However, the offence under Section 323 is proved againstaccused/appellcxnts Jony ©Benar ond Kuber.

18. In the result, the oippeals of accused/appellants Ajju Mahanand, JonyBenar Sendre, Kartik Sona, Shambhoo Sona, Kuber 6anda and KamVishwakarma succeed and the same are allowed.They are acquitted ofthe char9es under Sections 148 and 302 read with Section 149 of theI.P.C.However accused/appellants Jony @ Benar Sendre and Kuberfianda are concerned the judgment of conviction and sentence aremodified and they are convicted for the commission of the offenceunder Section 323 of the I.P,C. and are sentenced to undergo RJ. forKone year and pay a fine of fts.2,000/- each, in default of payment offinetofurtherundergoR.I.forthreemonths.Thesetwoaccused/appellants have already undergone the sentences.Therefore,all the accused/ appellants are directed to be released forthwith, ifnot required in any other case.—

Sd/-L.C. BhadooJudge

Sd/-Chief Justice

2003l^ft^-