AI Structured Summary
Not yet generated for this judgment
Judgment
Sunil Kumar Sinha, J.—The Appellants have been convicted u/s 302, IPC and sentenced to undergo imprisonment for life and fine sentences by the Third Additional Judge to the Court of Sessions Judge, Bilaspur, in Sessions Trial No. 204/85 on 31st October, 1991.
Appellant No. 1 Baldu @ Baldev died during the pendency of the appeal. His name has been deleted vide Court order dated 15-7-2005. The appeal filed on behalf of Appellant No. 1 stands abated.
The facts, briefly stated, are as under:
Deceased-Kheduram was the elder brother of complainant Upasiram (P.W. 5). The deceased was working as a labour in the house of Appellant No. 4 Faguram. On some reason, he had left the work of Appellant No. 4 prior to 1985 and was working in the house of Kanahaiya Satanami.
On 30-3-85 at about 5.00 p.m., the deceased was returning to the house of Kanahaiya Satnami with his catties. The allegations are that when he reached in front of the house of the Appellants, who are father and sons, they came out from their house and assaulted the deceased by lathis. The deceased received many injuries and succumbed to those injuries. The incident was witnessed by 4 eye-witnesses namely Panchram (P.W. 1), Upasiram (P.W. 5), Ludu (P.W. 8) and Gawaharam (P.W. 9). The First Information Report (Exh. P-15) was lodged by Upasiram (P.W. 5).
The learned Sessions Judge believed the testimonies of the above eye-witnesses and held that the deceased was assaulted by all the Appellants, and the Appellants were convicted as aforementioned.
Mr. S.C. Verma, Learned Counsel appearing on behalf of the Appellants, argued that the Sessions Judge erred in law in holding Appellant Nos. 2 to 4 guilty of the offence punishable u/s 302, IPC. The eyewitnesses have exaggerated there versions in their Court evidence that Appellant Nos. 2 to 4 also participated in actual assault, whereas, in their case diary statements, they have categorically stated that the deceased was assaulted by Appellant No. 1 alone and these Appellants were seen running from the place of occurrence. Even they have not said that they saw these Appellants having lathis in their hands. He further argued that Appellant No. 1 Baldu received serious injuries in the same incident which were not explained by prosecution witnesses, therefore, on this account also, the versions of these witnesses become doubtful.
On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.
We have heard the Learned Counsel for the parties at length and have also perused the records of the sessions case.
Eye-witnesses Panchram (P. W. 1), Upasiram (P. W. 5), Ludu (P. W. 8) and Gawaharam (P.W. 9) all have deposed in similar fashion. They have deposed that when they reached to the place of occurrence, they saw that the accused persons, namely Baldu, Faggu, Lalla & Dalluram, were assaulting the deceased by lathis in front of their house and the deceased died on account of injuries sustained by him. Panchram (P.W. 1) has further added that as soon as the deceased reached in front of house of the Appellants, they surrounded him and thereafter they assaulted him by lathis. The incident took place at about 5.00 p.m. on 30-3-85 and 161 Code of Criminal Procedure statements of these witnesses were recorded on the very next day i.e., on 31-3-85. In their 161 statements, none of the eye-witness stated that Appellant Nos. 2 to 4 also participated in the assault given to the deceased. They have simply stated that at the time of incident Faggu, Dallu and Lalla were running towards their house and have categorically stated that Baldu alone was assaulting the deceased by lathi. Their case diary statements as marked as Exhs. D-1 to D-4. They have been asked to explain the above omissions and contradictions in their Court evidence and the case diary statements but they could not explain it and simply denied to give such versions to the police as mentioned in their case diary statements.
Mr. Akhil Mishra, learned Dy. Govt. Advocate argued that 164 Code of Criminal Procedure statements of these witnesses were also recorded before the concerned Magistrate on 16-5-85, in which, they deposed that they had seen Appellant Nos. 2 to 4 assaulting the deceased. Therefore, their versions become reliable. We are unable to accept the said argument advanced by the Dy. Govt. Advocate. Needless to say that 164 Code of Criminal Procedure statements were not substantive evidence and they can be used only to contradict the witnesses who made such statements at one point of time.
On due consideration of the entire evidence of all these witnesses, we find that the omissions in their case diary statements regarding assaulting the deceased by Appellant Nos. 2 to 4 were fatal to the prosecution and on this account, their testimonies cannot be relied on. Even these witnesses have not stated in their case diary statements that when they saw Appellant Nos. 2 to 4 running to their house, they were armed with lathis. Appellant Nos. 2 and 3 are real brothers and they are sons of Appellant No. 4. Appellant No. 1 was also son of Appellant No. 4. It appears that the above prosecution witnesses have tried to implicate all the family members of Appellant No. 1. If we look (sic) scenario, the conduct of these witnesses is that they are giving (sic) versions as different point of time and their versions on the point of (sic) given by Appellant Nos. 2 to 4 or their participation in any other manner (sic) been consistent. Therefore, it was not safe to rely on the testimonies (sic) witnesses for convicting Appellant Nos. 2 to 4 for commission of (sic) of deceased-Kheduram.
Now we shall consider the second argument advanced by Mr. S.C. Verma.
It is an admitted position that Appellant No. 1 Baldu also received injury in the same incident. He was examined by the Doctor. His injury report has been proved as Exh. D-5. According to Doctor C.S. Sharma (D.W. 1), Baldu sustained fracture of his right ulna bone. The X-ray report has been proved as Exh. D-7. We find that such suggestions that Baldu sustained above injuries in the same transaction was given to the eye-witnesses Ludu (P. W. 8) and Gawaharam (P.W. 9) and they denied it in their cross-examination vide Para 6 and Para 4.
At the trial, the defence version was that when Kheduram assaulted Baldu on account of some previous transaction, then Baldu also assaulted him by lathi and except the above 2 persons no one was involved in the incident. Such defence version has also been recorded in Para 6 of the judgment. We find that the prosecution, in fact, has failed to explain the injuries sustained by Appellant No. 1 Baldu and it was also a factor affecting the prosecution case. In our considered view, non-explanation of such injuries sustained by Appellant No. 1 makes the prosecution version of the occurrence doubtful. It appears that the prosecution has suppressed the genesis and truth of occurrence and a true version of the incident was not present before the Court. On the contrary, the defence has presented a probable story and has tried to explain the injuries sustained by Appellant No. 1 Baldu, frankly speaking that Baldu alone was assaulting the deceased on account of above reasons.
In appreciation of the entire evidence available on record, we are unable to uphold the conviction awarded to Appellant Nos. 2 to 4. It appears that on account of being real brothers and father of Appellant No. 1 these Appellants have also been implicated in this case.
For the foregoing reasons, the appeal filed by Appellant Nos. 2 to 4 is allowed. The conviction and sentences awarded to these Appellants u/s 302, IPC are set aside. They are acquitted of the charges framed against them. These Appellants are on bail. Their bail bonds are cancelled and sureties stand discharged.