Bodhiram Sahu and Others vs State of Chhattisgarh

Sunil Kumar Sinha, J.—Cr. A. No. 75/2006 has been filed against the judgment dated 26th of December, 2005 passed in Session Trial No. 419/2004 by the Additional Session Judge, Mungeli; and Cr.A. No. 422/2009 has been filed against the judgment dated 26th of May, 2009 passed in Session Trial No. 29/2007 (subsequent trial of an absconding accused) by the First Additional Session Judge, Mungeli. By the impugned judgments, the appellants have been convicted u/s. 302/34 IPC and sentenced to undergo imprisonment for life with fine sentences of Rs. 1,000/- each in Session Trial No. 419/2004 and Rs. 100/- in Session Trial No. 29/2007.

Appellant-Bodhiram Sahu (appellant No. 1 in Cr.A. No. 75/2006) died during the pendency of the appeal, therefore, his name has been deleted from the cause-title of the appeal and the appeal filed on behalf of appellant No. 1 has abated.

The facts, briefly stated, are as under:-

Deceased-Jodhu was real brother of appellant - Bodhiram. Appellants-Rajendra Sahu, Rakesh @ Shera and Rajesh @ Palu Sahu are sons of appellant-Bodhiram. They are residents of village Kodwabani. Jethu Markhande (PW-2) is resident of village Jhulna. On 5-5-2004 at about 11.00 a.m., he was present in the house in village Jhulna. He saw that 5 persons were chasing one person with lathi(s) in their hands. They caught him in the field of Jaijairam and assaulted him by lathi(s). Seeing this, Jethu Markhande (PW-2) went to village-Kotwar. When they returned back, they saw that the assailants had run away after committing murder of the deceased. Jethu Markhande (PW-2) lodged the First Information Report (F.I.R.-Ex. P/12). The report was lodged against 5 unknown persons. The Investigation Officer reached to the place of occurrence, gave notice (Ex. P/19-A) to the Panchas and prepared inquest (Ex. P/19) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem vide requisition Ex. P/13-A. The post-mortem examination was conducted by Dr. P.C. Joshi (PW-7). He found multiple serious injuries on the dead body of the deceased. In fact, there were multiple fractures on occipital bone. The Autopsy Surgeon opined that the cause of death was coma as a result of multiple head injuries and it was homicidal in nature. The post-mortem report is Ex.- P/13.

In further investigation, the appellants were taken into custody and their memorandum statements (Ex. P/4, P/5 & P/17) u/s. 27 of the Evidence Act were recorded on 8-5-2004 and Lathi(s) were seized at the instance of the appellants. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex. P/34) was received. According to the FSL report, blood stains were found on lathi(s) seized at the instance of the appellants and clothes belonging to the deceased. The above articles were sent for Serologist examination to Institute of Serology, Calcutta and a report (Ex. P/35) was received. According to Serologist report, the clothes of the deceased were found to be stained with human blood of ''O'' group. However origin of the blood stains found over the lathi(s) could not be determined on account of their disintegration.

Since the assailants were unknown to Jethu Markhande (PW-2), a Test Identification Parade (T.I.P.) was conducted by Executive Magistrate, K.L. Sori (PW-12) on 9-5-2004. In the T.I.P., Jethu Markhande (PW-2) identified all the 3 appellants, who were arrested by that time, namely - Bodhiram, Rakesh & Rajendra and were put for identification. The T.I.P. is Ex. P./15. On the 4th day after the incident i.e. on 8-5-2004, 161 Cr.P.C. Statement (Ex. D/1) of Dinesh Kumar (PW-5) was recorded. He came as an eyewitness and stated that he had seen the appellants assaulting his father by lathi(s).

The learned Session Judges relying on the testimonies of Jethu Markhande (PW-2) and Dinesh Kumar (PW-5) held that it was proved beyond all reasonable doubts that the appellants had assaulted the deceased by lathi(s) and therefore, they were liable for punishment u/s. 302/34 IPC. The appellants were thus convicted and sentenced as aforementioned in 2 separate trials referred to above.

Firstly we shall consider the evidence led in first session trial i.e. Session Trial No. 419/2004. The conviction in this trial is mainly based on evidence of Jethu Markhande (PW-2) and Dinesh Kumar (PW-5). Jethu Markhande is an eyewitness to the effect that he saw 4-5 unknown persons assaulting the deceased. Jethu Markhande (PW-2) had lodged the F.I.R. (Ex. -P/2). He mentioned in the F.I.R. that he had seen that 5 unknown persons were assaulting the deceased. However, in his evidence before the court, he deposed that there were only 4 persons who were assaulting the deceased. In the cross-examination, he has explained that by mistake, he had mentioned about 5 assailants in the F.I.R., but, in fact, there were 4 assailants. Since the assailants were unknown to this witness, a Test Identification Parade (T.I.P.) was conducted on 9-5-2004 and the 3 appellants (relating to Cr.A. No. 75/2006) were put for identification. According to T.I.P. memo (Ex. -P/15), Jethu Markhande (PW-2) identified the above appellants in T.I.P.

In Mulla and Another Vs. State of Uttar Pradesh, the Supreme Court, relying on various other decisions, describing various principles relating to T.I.Ps. and dock-identification, held that:

The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in CrPC and Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

Applying the principles laid down in the above case, if we examine the veracity of evidence of Jethu Markhande (PW-2), he admitted in clear words, in Para-32 & 33 of his evidence, that he was called by the police on Sunday; his statement was taken and at that time all above 3 accused persons were present in the police station and he had seen them in the police station on that date. He categorically admitted that the above accused persons were kept in a room in police station; he was able to see them; and he had seen the faces of all the 3 accused persons in police station itself. Admittedly, this was an incident prior to conducting the T.I.P. on 9-5-2004. This shows that Jethu Markhande (PW-2) had seen the appellants in police station prior to T.I.P. and on this account, the T.I.P. vitiates. The learned Session Judge has placed reliance on the T.I.P. as also the dock-identification of the above 3 appellants by Jethu Markhande (PW-2). We are of the view that in light of the said infirmity in the T.I.P., the evidence relating to correct identification of the above appellants by Jethu Markhande (PW-2) becomes doubtful. It appears that on 8-5-2004, after taking memorandum statements of the appellants, they were kept in custody in police station, where Jethu Markhande (PW-2) was called by the police and he had seen the appellants and then he identified them in the said T.I.P. on 9-5-2004.

The other evidence, relied by the Session Judge, is the evidence of Dinesh Kumar (PW-5). Dinesh Kumar (PW-5) is son of the deceased. He claims to be the eye-witness of the incident. He is a chance witness. He deposed that on the fateful day, his father (deceased) said him that he wants to sell a buffalo, therefore, Dinesh Kumar (PW-5) should take the buffalo to Mungeli market and his father will come by a bicycle. When he was going with the buffalo, he saw that the accused persons were coming on a bullock-cart. Bullock-cart crossed him on the way and it was taken towards Kodwabani. He turned and saw that his father was coming on a bicycle from Kodwabani side. All the accused persons started chasing his father who was running before them, and they started assaulting him by lathi(s). This was the incident of village Jhulna. He became frightened and went back to his village Kodwabani. We note that the incident took place on 5-5-2004. 161 Cr.P.C. statement (Ex.-D/1) of Dinesh Kumar (PW-5) was recorded on 8-5-2004. There is no plausible explanation as to why Dinesh Kumar (PW-5) remained silent for about 4 days. We gather from the record that he was throughout with the police during the course of investigation since 5-5-2004. This is clear from the requisition for post-mortem (Ex. -P/13-A) prepared by the police on 5-5-2004. In the said document in column relating to the persons accompanying the dead body who would identify the dead body, the name of Dinesh Kumar (PW-5) being son of the deceased has been mentioned. This shows that Dinesh Kumar had accompanied the dead body on 5-5-2004 along with the police officer who took the dead body for post-mortem with the requisition Ex.-P/13-A. Not only this, in post-mortem report (Ex. P/13) also, it has been mentioned that the dead body of the deceased was identified by Dinesh Kumar (PW-5) being son of the deceased. This has been proved by the Autopsy Surgeon. When Dinesh Kumar (PW -5) was throughout present with the police from 5-5-2004 onwards, why he did not disclose to the police about the incident which he claims to have seen on 5-5-2004. Not only this, if we look into the contents of the post-mortem requisition (Ex. -P/13-A), we find that in the column of information available with the police officer till sending the dead body for post-mortem, it has been mentioned that some unknown persons had assaulted the deceased. As we have already stated that Dinesh Kumar (PW-5) is a party to this document. If he was knowing that the accused persons had assaulted his father, he would have told this fact to the police, and it would not have been mentioned in the requisition memo, Ex. -P/13-A, that the deceased was assaulted by unknown persons.

In Balakrushna Swain Vs. State of Orissa, the Apex Court held that unjustified and unexplained long delay on part of Investigating Officer in recording statement of material eye-witness, u/s. 161 Cr.P.C., during investigation of murder case will render evidence of such witness unreliable. Because the delay would give an opportunity to concoct a different version than what actually took place.

In State of Orissa Vs. Mr. Brahmananda Nanda, , eye-witness did not disclose the name of assailant for a day and a half. The Apex Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and the High Court was correct in rejecting it as untrustworthy and acquitting the accused.

In Bachu Narain Singh Vs. Naresh Yadav and Others, 5013, for over period of one hour while Investigating Officer was preparing inquest report, no one coming before him claiming to be eye-witness and to lodge report about occurrence though there were alleged to be the eye-witnesses. The report was lodged after more than one and half hour after Investigating Officer came to place of occurrence. The Apex Court said that the presence of informant and alleged eye-witness at the time of occurrence appears to be doubtful. There was serious doubt about presence of the eye-witness at the time of occurrence."

Relying on the above judgments, this Court held in Pradeep Kumar Jaiswal Vs. State of Chhattisgarh, that no strait-jacket formula can be applied in all cases of late disclosure by eye-witnesses and the credibility of the witnesses are to be judged in the prevailing facts and circumstances of each case. However, that judgment should be arrived at keeping in mind the normal human conduct and the probable circumstances including the explanation offered regarding nondisclosure of the facts relating to commission of such a heinous offence.

Applying the above principles, the conduct of Dinesh Kumar (PW-5) becomes highly suspicious. He being the son of the deceased did not make any hue and cry after seeing that his father was being assaulted by 4 persons. Even he did not go to rescue his father. He participated in investigation along with the police, but he did not disclose anything to the police for about 4 days. The explanation given by Dinesh Kumar (PW-5) that he was frightened, looking to his overall conduct, does not appear to be plausible. We have scrutinized the evidence of Dinesh Kumar (PW-5) with great care and caution as he is son of the deceased. On a careful scrutiny of his evidence, on the above conduct of his late disclosure and that he remained with the police throughout in the investigation, we find that it was not safe to rely on the testimony of Dinesh Kumar (PW-5). We are of the view that the learned Session Judge erred in law in relying upon the testimony of Dinesh Kumar (PW-5).

The learned Panel Lawyer has argued that lathi(s) were seized on the discovery statements given by these appellants and blood stains were found over them in FSL report. Lathi(s) are common articles. The origin and group of the blood stains found over them could not be determined in Serologist examination. Therefore, only on account of seizure of lathi(s) at the instance of the appellants, in absence of any proof of origin and group of the blood stains found over them, the appellants cannot be held guilty for an offence punishable u/s. 302 IPC. Therefore, the conviction of the above 3 appellants of Cr.A. No. 75/2006, in light of the above discrepancy in the prosecution case, cannot be sustained and they deserve to be acquitted.

Now we shall consider the case of appellant-Rajesh @ Palu Sahu who was later on tried vide Session Trial No. 29/2007.

In the said session trial (S.T. No. 29/2007), Jethu has been examined as PW-1. He deposed in clear words, in Para-1 of examination-in-chief, that he does not know this accused (Rajesh @ Palu Sahu) and he is seeing him for the first time in the court. Admittedly no T.I.P. was conducted for identification of accused-Rajesh @ Palu Sahu. Therefore, he was not at all identified by Jethu (PW-1).

Dinesh Kumar has been examined as PW-4 in the said trial. Though in his examination-in-chief, he deposed about seeing the appellants assaulting the deceased, but in cross-examination, he admitted that he never disclosed these facts to any other person. In Para- 7 of his cross-examination, even he denied that the police had recorded his 161 Cr.P.C. statement. He deposed in clear words that if any written statement (his statement u/s. 161 Cr.P.C.) has been produced by the police in this matter, then it is wrong. He had never given any statement to the police. He very clearly admitted that he is telling all these facts for the first time before the court. We have already discussed about the conduct of Dinesh Kumar (PW-4). The conviction of Rajesh @ Palu Sahu in the above session trial is mainly based on testimony of Dinesh Kumar. For the reasons which we have assigned earlier his testimony was not reliable and on appreciation of his entire evidence, we find that the learned Session Judge erred in law in relying on the testimony of Dinesh Kumar (PW-4) for conviction of appellant-Rajesh @ Palu Sahu. We are of the view that Rajesh @ Palu Sahu could not have been convicted on the above set of evidence and conviction & sentences awarded to him also deserve to be set-aside. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/s. 302/34 IPC are set-aside. The appellants are acquitted of the charges framed against them. It is stated that the 3 appellants in Cr.A. No. 75/2006 are in jail since 8-5-2004 and the 4th appellant in Cr.A. No. 422/2009 is in Jail since 1-9-2007. They be released forthwith, if not required in any other case.