Brijlal Gond And Ors vs The State Of C.G
2021 Latest Caselaw 314 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                               Criminal Appeal No.71 of 2001

                           Judgment Reserved on :              12.2.2021

                           Judgment Delivered on :            15.6.2021


    1. Brijlal Gond, S/o Jivrakhan Gond, aged about 24 years,
    2. Jivrakhan Gond, S/o Anandi Gond, aged about 45 years,
         Both     R/o     Village     Limo,      P.S.     Gandai,       District    Rajnandgaon,
         Chhattisgarh
                                                                                    ---- Appellants
                                               versus

         State of Chhattisgarh through Police Station Gandai, District
         Rajnandgaon, Chhattisgarh
                                                       --- Respondent
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For Appellants : Shri Pragalbha Sharma, Advocate For Respondent/State : Smt. Dipti Shukla, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against judgment dated 22.12.2000 passed

by the Additional Sessions Judge, Khairagarh, District

Rajnandgaon in Sessions Trial No.143 of 2000, whereby each of

the Appellants has been convicted and sentenced as under:

Conviction Sentence Under Section 304 Part II of Rigorous Imprisonment for 5 the Indian Penal Code years and fine of Rs.500 with default stipulation

2. Prosecution case, in short, is that Appellant No.1 is son of

Appellant No.2. Vinod Kumar (PW1) and Rajesh (PW2) are sons of

deceased Girwar. The Appellants and the deceased were

neighbour and their houses were situated adjacent to each other.

On 31.12.1999 at about 5 p.m., the deceased was making a

staircase of wood. Since a wood fixed in the roof of the house of

the Appellants was obstructing the work of the deceased, he cut the

said wood. On this, the Appellants entered the house of the

deceased and threatened him of life. After this incident, the

deceased went to deposit money in a bank at Gandai. In the

evening at about 7:30 p.m., he was returning his village. Allegedly,

the Appellants, armed with lathi and irta (a tool in one side of which

an iron nail is fixed and during cultivation this tool is used for

removing the mud collected over the surface of the plough), were

hidden in the way and waiting for the deceased. They assaulted

the deceased with the lathi and irta and as a result of which the

deceased succumbed. Dehati morgue intimation (Ex.P1) and

Dehati First Information Report (Ex.P2) were lodged by Vinod

Kumar (PW1). Later on, First Information Report (Ex.P19) was

registered. Statements of witnesses were recorded under Section

161 of the Code of Criminal Procedure. On completion of the

investigation, a charge-sheet was filed. The Trial Court framed

charge under Section 302 of the Indian Penal Code.

3. To rope in the Appellants, the prosecution examined as many as 8

witnesses. Statements of the Appellants were also recorded under

Section 313 of the Code of Criminal Procedure in which they

denied the guilt, pleaded innocence and false implication. 1

witness was examined in defence.

4. On completion of the trial, the Trial Court acquitted the Appellants

of the charge framed under Section 302 of the Indian Penal Code,

but convicted and sentenced them as mentioned in 1 st paragraph of

this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellants submitted that the

Appellants are convicted without there being clinching and sufficient

evidence on record. Their conviction is mainly based on the

statement of Rajesh (PW2), younger son of the deceased, who

claimed himself to be the sole eyewitness of the case. It was

further argued that the statement of Rajesh (PW2) is not reliable.

Immediately after the incident, as stated by witnesses Vinod Kumar

(PW1) and Rajesh (PW2), they and other villagers reached at the

spot and Rajesh (PW2) told there that the incident was witnessed

by him. But, Dehati morgue intimation (Ex.P1) and Dehati FIR

(Ex.P2) do not contain the fact that Rajesh (PW2) had witnessed

the incident. Instead, it is reported in Ex.P1 and P2 that the

Appellants would have caused the murder. Thus, it is clear that

Rajesh (PW2) did not witness the incident. He, as an after thought,

claimed himself to be the eyewitness of the incident. Therefore, his

statement is not reliable. It was further argued that there is no

other circumstantial evidence on record on the basis of which the

Appellants could be held guilty. With regard to seizure of the

weapons of offence, it was argued that though the seized weapons

contained blood stains, there is no serological report on record to

establish that the blood stains found over the seized weapons were

of human blood. Therefore, from the seizure of the weapons also,

the prosecution does not get support. Looking to the entire

evidence adduced by the prosecution, the Appellants are entitled to

get benefit of doubt.

6. On the contrary, Learned Counsel appearing for the State,

opposing the above arguments, supported the impugned judgment

of conviction and sentence.

7. I have heard Learned Counsel appearing for the parties and

perused the entire record of the Trial Court including the statements

of the witnesses with utmost circumspection.

8. It is not in dispute that the houses of the Appellants and the

deceased were situated adjacent to each other. Vinod Kumar

(PW1), who is elder son of the deceased, deposed that on the date

of incident, at about 4 p.m., the Appellants, their wives and mother

came to their house and quarreled on the issue of cutting of their

wood. At that time, the Appellants threatened the deceased that on

that day itself they will kill him. On this point, the prosecution also

examined Gautar (PW3), who, at the relevant time, was working in

the house of the deceased as a repairman ( mistry). According to

the Court statement of Gautar (PW3), a dispute had taken place

between the lady members of the two families at about 4-5 p.m. At

that time, the Appellants had come to the spot and threatened the

deceased of his life, nothing so has been stated by Gautar (PW3).

In his cross-examination, he categorically stated that the dispute

had taken place only between the lady members of the two

families.

9. Vinod Kumar (PW1) stated that on 31.12.1999 at about 7 p.m.,

Horilal (not examined) came to their house and informed that the

deceased was lying down smeared with blood in the lane situated

near the house of Jagesar (DW1). This witness and his mother

went to the spot. There they found the deceased in injured

condition. On raising a voice, 5-6 persons reached there.

Thereafter, Rajesh (PW2) also reached there. He told that the

Appellants assaulted the deceased and ran away. According to

Vinod Kumar (PW1), they were taking the deceased on a bullock

cart and during that time Bashir Khan (PW4) met them on the way.

They also told Bashir Khan (PW4) about the incident on which he

also accompanied them to the police station. In the fateful night

itself, at about 10 p.m., Dehati morgue intimation (Ex.P1) and

Dehati FIR (Ex.P2) were lodged by Vinod Kumar (PW1). Next day,

i.e., on 1.1.2000, inquest proceeding (Ex.P4) was conducted.

During cross-examination, in paragraph 10, Vinod Kumar (PW1)

stated that in his report (Ex.P2), he had got written that the incident

was witnessed by Rajesh (PW2), but, why this fact is not mentioned

in Ex.P2 was not known to him. In paragraph 13, this witness

further admitted that when he and Horilal reached at the spot,

nobody was present there.

10. Rajesh (PW2) stated that at about 7 p.m., when he met with the

deceased on the way, at that time, he sat on the bicycle of the

deceased and was returning home with him. On the way, due to

call of the nature, he got down from the bicycle and went towards

the river and at that time itself his father (the deceased), taking

name of this witness, shouted 'bachao bachao'. Running, this

witness went to the spot and saw that Appellant Brijlal with a lathi

and Appellant Jivrakhan with a tangiya like weapon were assaulting

the deceased. Running, he reached to the deceased. At that time,

taking names of the Appellants, the deceased got unconscious.

Rajesh (PW2) further deposed that at that time, he went towards

the village for calling a doctor. On not getting a doctor, he went

home. At home also, he did not find anybody present. Then he

again went to the spot with a torch. Vinod Kumar (PW1) and other

villagers were present there. There, he told them about the

incident. But, in his case diary statement (Ex.D1), this witness

stated that from the spot, running, he went home and there he told

about the incident to his brother Vinod Kumar (PW1) and mother.

Thereafter, he went out for calling a doctor and Vinod Kumar (PW1)

and Horilal went to the spot. In paragraph 5 of his cross-

examination, Rajesh (PW2) admitted the fact that first of all Horilal

witnessed the incident and came to their house and informed about

the incident and thereafter this witness went out for calling a doctor

and Vinod Kumar (PW1) and Horilal went to the spot. Since that

was a dark night, when he again went to the spot, at that time, he

had kept a torch with him.

11. Bashir Khan (PW4) is the witness before whom disclosure

statements (Ex.P6 and P7) in respect of Appellants Jivrakhan and

Brijlal, respectively were recorded and one lathi was seized from

Appellant Brijlal vide seizure memo (Ex.P8) and one iron irta was

seized from Appellant Jivrakhan vide seizure memo (Ex.P9). Blood

stained clothes of Appellants Jivrakhan and Brijlal were also seized

vide seizure memo (Ex.P10 and P11), respectively. Bashir Khan

(PW4) admitted the fact that the villagers usually keep lathi and irta

at their houses for agricultural purposes. He further admitted that

while commanding bullocks danda and irta get stained with blood of

bullocks.

12. Dr. M.P. Tiwari (PW5) is the witness who conducted post mortem

examination over the dead body of the deceased and gave his

report (Ex.P12). This witness also examined the seized articles

and opined in his report that the seized articles examined by him

were stained with blood. This witness also suggested for chemical

examination to find out whether the blood stains found over the

seized articles were of human or not. However, no serological

report in this regard is produced by the prosecution.

13. R.C. Lahri (PW8) Assistant Sub-Inspector is the witness who

recorded the First Information Report (Ex.P19) on the basis of

Dehati FIR (Ex.P2). K.P. Banjare (PW7), Sub-Inspector is the

witness who investigated the offence in question.

14. On a minute examination of the evidence adduced by the

prosecution, it is clear that the statement of Rajesh (PW2) is

doubtful. He really witnessed the incident is doubtful because

immediately after the incident, at 9:40 p.m., Dehati morgue

intimation (Ex.P1) and at 10 p.m. Dehati FIR (Ex.P2) were lodged

by Vinod Kumar (PW1). According to the Court statement of Vinod

Kumar (PW1), when he along with Horilal reached at the spot, at

that time, Rajesh (PW2) told them that he had witnessed the

incident. Had it been so, Vinod Kumar (PW1) would have got this

fact mentioned in Dehati morgue intimation (Ex.P1) and Dehati FIR

(Ex.P2). Instead, he expressed his doubt and in Dehati FIR

(Ex.P2) he got mentioned that the deceased would have been killed

by the Appellants. Furthermore, inquest proceeding (Ex.P4) was

conducted next day, i.e., on 1.1.2000 in which Vinod Kumar (PW1)

is a witness. Ex.P4 also does not contain the fact that the

assailants of the deceased were the Appellants. In his Court

statement, in paragraph 5, Rajesh (PW2) categorically admitted the

fact that first of all the incident was witnessed by Horilal and he

came to their house and informed about the incident and thereafter

this witness went out for calling a doctor and Vinod Kumar (PW1)

and Horilal went to the spot. Thereafter, this witness went to the

spot with a torch. From the above admission made by Rajesh

(PW2), it is also clear that he himself did not first witness the

incident and he reached at the spot later on with a torch after giving

intimation of the incident by Horilal. Horilal has not been examined

by the prosecution for the reasons best known to it. Looking to the

above contradictions and omissions in the statements of Vinod

Kumar (PW1) and Rajesh (PW2), it appears that the incident was

not witnessed by Rajesh (PW2) and his statement appears to be an

after thought.

15. The material witness Horilal has not been examined by the

prosecution. No other eyewitness is available on record. There is

also no evidence on record to show that the Appellants were seen

near the spot at the time of incident or immediately prior to the

incident or immediately after the incident. With regard to the motive

also, independent witness Gautar (PW3) categorically stated that

on the fateful day at about 4 p.m., the dispute had taken place

between the lady members of the two families. Therefore, the

Appellants would have threatened the deceased of his life is also

suspicious. Since there is no serological report on record to show

that the blood stains found over the seized articles were of human

blood, the prosecution does not get support from the seizure of

those articles also. Looking to the entire evidence of the

prosecution, in my considered view, the offence alleged against the

Appellants is not proved beyond reasonable doubt. The finding of

the Trial Court is not in accordance with the evidence available on

record as also not in accordance with law. Therefore, the

conviction of the Appellants is not sustainable. They are entitled to

get benefit of doubt.

16. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellants are acquitted

of the charge framed against them.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal