Rahul @ Krishnadas And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 1402 Chatt

                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.234 of 2014

                   Judgment Reserved on :      25.2.2022
                   Judgment Delivered on :     17.3.2022


   1. Rahul @ Krishnadas @ Lala Vaishnav, son of Shri Ghasidas Vaishnav,
      aged about 48 years,

   2. Deepakdas, son of Shri Rahul @ Krishnadas @ Lala Vaishnav, aged
      about 24 years,

      Both are residents of Pali, Police Station Junapara, District Korba,
      Chhattisgarh

      Present Address Aadarsh Chowk, Mangala, Police Station Civil Line
      Bilaspur, District Bilaspur, Chhattisgarh
                                                               ---- Appellants
                                    versus
      State of Chhattisgarh through the Station House Officer, Police Station
      Takhatpur, District Bilaspur, Chhattisgarh
                                                              --- Respondent


For Respective Appellants :    Ms. Minu Banerjee and Shri Rishi Rahul Soni,
                               Advocates
For Respondent            :    Ms. Madhunisha Singh, Dy. Advocate General



           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT


Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 31.1.2014

passed by 1st Additional Sessions Judge, Bilaspur in Sessions Trial

No.78 of 2011, whereby the Appellants have been convicted and

sentenced as under:

Conviction Sentence

Under Section 333 of the Rigorous Imprisonment for 6 Indian Penal Code months and fine of Rs.500 with default stipulation Under Section 394 of the Rigorous Imprisonment for 10 Indian Penal Code years and fine of Rs.500 with default stipulation Under Section 323 of the Rigorous Imprisonment for 3 Indian Penal Code months Under Section 325 of the Rigorous Imprisonment for 3 Indian Penal Code years and fine of Rs.100 with default stipulation Under Section 302 of the Imprisonment for Life and fine of Indian Penal Code Rs.1,000 with default stipulation

The sentences imposed for the offences under Sections 323, 325, 333 and 394 IPC are directed to run concurrently and after completion of these sentences, the sentence imposed for the offence under Section 302 IPC shall start to run.

2. In this case, there are 2 deceased persons, namely, C.P. Singh and

S.P. Singh. At the relevant time, C.P. Singh was posted as Head

Constable and S.P. Singh was posted as Sub-Inspector in Railway

Protection Force (RPF), Bilaspur. At that time, PW1 Arvind Kumar

Mishra and PW25 Ramgopal Yadav (R.G. Yadav) were also posted

there as Assistant Sub-Inspector and Head Constable, respectively.

According to the case of prosecution, on 2.2.2011 at about 4 a.m.,

on the basis of secret information, all the above 4 persons along

with other staff of the R.P.F., Bilaspur reached Railway Yard

Gataura and made a raid there. They caught 2 persons with stolen

railway properties, but, other 2 persons ran away. The persons

who were caught were Parmeshwar and Santosh. They were

taken to the R.P.F. Police Station and a crime was registered. It

was informed by these 2 caught persons that the 2 persons who

had run away from the spot were Rahul (Appellant No.1) and Sagar

Vishwakarma (absconded accused). On 2.2.2011 itself at about

8:10 a.m., all the aforesaid 4 persons went to Village Pali for

searching absconded Rahul and Sagar. On one motorcycle, PW1

Arvind Mishra and S.P. Singh and on another motorcycle PW25

Ramgopal Yadav and C.P. Singh were sitting. They inquired about

the absconded accused persons in Village Pali. Since they did not

find the persons, they were returning. Further case of the

prosecution is that while returning, on the way, the Appellants and

absconded accused Sagar were hidden and suddenly they

assaulted them with lathis as a result of which they fell down. Even

after falling down, the Appellants and the absconded accused

continued assaulting them with lathis. Due to the assault, all of

them sustained injuries on their head and other parts of the body.

PW1 Arvind Mishra informed the incident to Inspector S.N. Akhtar

through his mobile phone. Thereafter, he got unconscious on the

spot. Due to the injuries, S.P. Singh died on the spot. Injured

Arvind Mishra, C.P. Singh and Ramgopal Yadav were taken to

hospital. C.P. Singh also found dead while admitting in the hospital.

Injured Arvind Mishra and Ramgopal Yadav were medically

examined by PW15 Dr. Rajkumar. MLC reports of these injured

witnesses are Ex.P28 and P27, respectively. It is further case of

the prosecution that in the incident, the Appellants and the

absconded accused also looted Hero Honda Splendor motorcycle

bearing registration No.CG 10 BA 2594 of C.P. Singh. On 2.2.2011

at about 5 p.m., PW1 Arvind Mishra lodged Dehati Nalishi (Ex.P1).

On the basis of Ex.P1, numbered First Information Report (Ex.P44)

was registered. Inquest proceeding (Ex.P4) of deceased C.P.

Singh was conducted. Inquest proceeding (Ex.P30) of deceased

S.P. Singh was conducted. Morgue intimations of these 2

deceased persons were also registered. Post mortem of the dead

body of C.P. Singh was conducted by PW34 Dr. Neeraj Kumar and

the post mortem report is Ex.P55. Post mortem of the dead body of

S.P. Singh was conducted by PW20 Dr. R.K.Upadhyay and the post

mortem report is Ex.P32. During the course of investigation, on

9.2.2011, disclosure statements of Appellants Rahul and

Deepakdas were recorded vide Ex.P5 and P6, respectively. On the

basis of their disclosure statements, at their instances, 1-1 wooden

stick stained with blood were seized from them vide Ex.P8 and P9.

Their blood stained clothes were also seized vide Ex.P10 and P11.

The looted motorcycle bearing registration No.CG 10 BA 2594 was

also seized from Appellant Deepakdas vide Ex.P7. The seized

clothes, wooden sticks and other articles were sent to the Forensic

Science Laboratory for examination vide Ex.P50. FSL report is

Ex.P51. Statements of witnesses were recorded under Section 161

Cr.P.C. On completion of investigation, a charge-sheet was filed

against the Appellants declaring co-accused Sagar as absconded.

The Trial Court framed charges.

3. In support of its case, the prosecution examined as many as 34

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellants denied the guilt and pleaded

innocence. 1 defence witness Sunil Kumar Patel was examined by

the Appellants as DW1.

4. On completion of the trial, the Trial Court convicted and sentenced

the Appellants as mentioned in first paragraph of this judgment.

Hence, the appeal.

5. Learned Counsel appearing for the Appellants jointly argued that

the Trial Court has wrongly convicted the Appellants without there

being clinching and sufficient evidence on record. Statements of

both the eyewitnesses, i.e., PW1 Arvind Mishra and PW25 R.G.

Yadav are not reliable. There are material contradictions and

omissions in their statements. It was further argued that

immediately after the incident, inquest proceeding of the dead body

of C.P. Singh was conducted at 12:55 p.m. in presence of PW1

Arvind Mishra and PW25 R.G. Yadav vide Ex.P4 and named Dehati

Nalishi (Ex.P1) was lodged by PW1 Arvind Mishra on 2.2.2011 at 5

p.m. According to the Court statements of both the above

eyewitnesses also, at the time of incident, they were aware of the

names of all the assailants, but at the time of inquest proceeding,

they did not disclose names of the assailants. Therefore,

mentioning their names in the Dehati Nalishi (Ex.P1) for the first

time is doubtful. It was further argued that identification of the

accused persons is also doubtful. Post mortem of the dead body of

S.P. Singh was conducted by PW20 Dr. R.K.Upadhyay, but he did

not disclose nature of the death of S.P. Singh. Therefore also, the

homicidal death of S.P. Singh is not established. In this regard,

reliance was placed on MPWN Note 59 1986 Part II

(Sureshchandra v. State of M.P.). It was further argued that from

the admissions made by the prosecution witnesses themselves it is

clear that at the time of incident Appellant Deepakdas was injured

and was not in a position to move. Therefore, the case of the

prosecution against Appellant Deepakdas is suspicious. It was

further argued that even after lodging of the named Dehati Nalishi

(Ex.P1), the accused persons were not arrested immediately.

Therefore also, a suspicion arises. In this regard, reliance was

placed on 1988 MPLJ 241 (Dheer Singh v. State of Madhya

Pradesh). Looking to the entire evidence adduced by the

prosecution, the Appellants are entitled to get benefit of doubt.

6. Learned Counsel appearing for the State opposed the arguments

advanced on behalf of the Appellants and supported the impugned

judgment of conviction and sentence.

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

perused the record of the Trial Court, gone through the statements

and other evidence minutely.

8. Post mortem of the dead body of S.P. Singh was conducted by

PW20 Dr. R.K.Upadhyay and the post mortem report is Ex.P32 in

which following injuries were found:

(1) Lacerated wound of 8½ x 2½ x 2 cms. with blood clots on mid parietal region of the head

(2) Bruise of 5½ x 4½ cms. on left upper part of the forehead

(3) 4 lacerated wounds of 2½ x 1½ x 1 cms. with blood clots present on middle of the head

Following injuries were found in the brain and skull of S.P.

Singh:

         (1)    Frontal lobe of the brain was found lacerated

         (2)    Blood and blood clots were present inside the brain
                and cranial cavity

         (3)    Blood clots were found under the scalp

         (4)    Left side temporal and parietal bones of the skull were
                found fractured transversely

         (5)    Mid parietal bone of the skull was found fractured

         (6)    Right temporal and parietal bones of the skull were
                found fractured.

Cause of death of S.P. Singh opined by the doctor is the head

injuries followed by coma, intracerebral haemorrhage and

cardiopulmonary dis-function.

9. Post mortem of the dead body of C.P. Singh was conducted by

PW34 Dr. Neeraj Kumar and the post mortem report is Ex.P55 in

which following injuries were found:

(1) Lacerated wound of 3 x 1 cms. over left zygomatic arch with fracture of some bone

(2) Lacerated wound of 1 x 0.3 cms. over left eye near lateral canthus

(3) Contusion of 4 x 3 cms. over left mastoid process

(4) Abrasion of 2 x 0.5 cms. just below left knee joint

(5) Contusion of 12 x 2 cms. over right side of chest at T-4 vertebra level, 6 cms. away from right nipple on right lateral wall of chest below axilla.

Cause of death of C.P. Singh opined by the doctor is coma due to

the head injuries.

10. It was argued on behalf of the Appellants that nature of the death of

S.P. Singh was not disclosed by PW20 Dr. R.K.Upadhyay.

Therefore, it is not established that the death of S.P. Singh was

homicidal in nature. Looking to the statements of both the

eyewitnesses PW1 Arvind Mishra and PW25 R.G. Yadav, it is well

established that at the time of incident, the assailants assaulted

S.P. Singh with wooden sticks due to which he sustained injuries on

head and other parts of the body and on the spot itself he died.

The statements of PW1 Arvind Mishra and PW25 R.G. Yadav in this

regard are not rebutted during their cross-examination. In these

circumstances, though PW20 Dr. R.K.Upadhyay has not opined

nature of the death of S.P. Singh, looking to the unrebutted

statements of PW1 Arvind Mishra and PW25 R.G. Yadav,

apparently, it appears that the death of S.P. Singh was homicidal in

nature itself. Thus, we do not find any substance in the argument

advanced by Learned Counsel for the Appellants in this regard.

From the evidence adduced by the prosecution, it is well

established that nature of the death of both S.P. Singh and C.P.

Singh was homicidal.

11. PW15 Dr. Rajkumar is the witness who immediately after the

incident examined injured PW1 Arvind Mishra and PW25 R.G.

Yadav. His reports are Ex.P28 and P27, respectively. It was found

by him that bone of face of R.G. Yadav was fractured and Arvind

Mishra had sustained simple injuries. The above statement of this

witness is also not rebutted during his cross-examination. Thus, it

is also established that Arvind Mishra had sustained simple injuries

and R.G. Yadav had sustained grievous injuries.

12. Now the question which arises for consideration is how witnesses

PW1 Arvind Mishra and PW25 R.G. Yadav and deceased persons

S.P. Singh and C.P. Singh sustained injuries and who is responsible

for the homicidal death of S.P. Singh and C.P. Singh.

13. In this case, there are 2 eyewitnesses. They are PW1 Arvind

Mishra and PW25 R.G. Yadav. In their Court statements, they have

deposed that on the date of incident at about 4:30 a.m., they along

with both the deceased persons and other officials went for secret

monitoring. They saw 4 persons. Those 4 persons were

surrounded and stopped. Out of them 2 persons ran away and 2

persons were caught. The caught persons were Parmeshwar and

Santosh in whose possession stolen properties kutneri and contact

wire (O.H.) were found. The caught persons were brought to the

police station. On inquiry from them, they told the names of

absconded persons to be Rahul Vaishnav and Sagar Vishwakarma.

They also disclosed that both the absconded persons will be found

in Village Pali. Both the above eyewitnesses further stated that

both of them along with S.P. Singh and C.P. Singh went to Village

Pali on 2 motorcycles. On reaching Village Pali, they inquired

about Rahul and Sagar, but they were not found there. Thereafter,

PW1 Arvind Mishra and S.P. Singh on one motorcycle and PW25

R.G. Yadav and C.P. Singh on another motorcycle left Village Pali

for Bilaspur. S.P. Singh and PW1 Arvind Mishra were ahead. As

soon as they reached near a tree, both the Appellants and

absconded accused Sagar assaulted them with lathi and danda.

They fell down from the motorcycle. At that time, PW25 R.G. Yadav

and C.P. Singh also reached there. The Appellants and accused

Sagar assaulted them also with lathi and danda. As a result of the

assault, these 4 persons sustained injuries on their heads and other

parts of the body. PW1 Arvind Mishra further deposed that the

Appellants fled from the spot on the motorcycle bearing registration

No.CG 10 BA 2594 of C.P. Singh. PW1 Arvind Mishra informed

Inspector S.N. Akhtar about the incident through his mobile phone

and thereafter he got unconscious. He got conscious in Apollo

Hospital. There he came to know that S.P. Singh had died. He

lodged named Dehati Nalishi (Ex.P1) in the hospital. PW25 R.G.

Yadav also deposed that he had also become unconscious and he

was thereafter taken to Apollo Hospital where he came to know that

S.P. Singh and C.P. Singh had died.

14. In paragraph 9 of his cross-examination, PW1 Arvind Mishra

admitted the fact that in the inquest proceeding (Ex.P4) of

deceased C.P. Singh, he had put his signatures and at that time he

had not disclosed names of the assailants. Later on, when he got

Dehati Nalishi (Ex.P1) recorded, he mentioned names of the

assailants for the first time. Why this witness did not disclose

names of the assailants at the time of inquest proceeding (Ex.P4),

no explanation has been sought for from him by the defence.

Therefore, if names of the assailants were not disclosed by this

witness at the time of inquest proceeding (Ex.P4), this does not

adversely effect the case of the prosecution. This witness as well

PW25 R.G. Yadav have no previous enmity with the Appellants.

Rather, they did not know them. Therefore, these witnesses will

falsely implicate the Appellants, there appears to be no possibility.

On the point of injuries caused to them and the deceased persons

by the Appellants, both these witnesses have remained firm during

their cross-examination. Their statements are natural and

trustworthy.

15. Further corroborating the prosecution case, PW5 Abhishek Kumar

Sandey also deposed that on the date of incident at about 7 a.m.

near the bus stand, Appellant Deepakdas met him and asked for

his mobile phone and thereafter he talked to his father Appellant

Rahul and told him that 4 persons had come to catch him and were

searching him. On this point, this witness has remained firm during

his cross-examination. Further corroborating the case of the

prosecution, PW7 Gopal Prasad and PW9 Ramadhar Gupta have

also deposed that on the date of incident at about 9 a.m., on the

way, near a neem tree, they saw the Appellants and 1 unknown

person armed with lathis. Thereafter, the Appellants and that

unknown person went away on a motorcycle.

16. According to the case of prosecution, on the basis of memorandum

statements (Ex.P5 and P6) of Appellants Rahul and Deepakdas

respectively, 1-1 lathi stained with blood were seized from them

vide Ex.P8 and P9, respectively and vide seizure memo Ex.P10

and P11 their blood stained clothes were also seized. PW2 Lallu

Sahu and PW18 Akant Kumar are the witnesses of said

memorandum statements and seizures. PW18 Akant Kumar has

supported the above recording of the memorandum statements of

the accused persons and the seizures made from them. PW2 Lallu

Sahu also stated that in his presence, memorandum statement of

Appellant Rahul was recorded and at his instance 1 lathi was

seized. With regard to the recording of memorandum statement of

Appellant Deepakdas and seizure of 1 danda from him, PW2 Lallu

Sahu has not supported the case of the prosecution. He only

admitted his signatures on the memorandum statement (Ex.P6)

and seizure memo (Ex.P9).

17. The above seized clothes of the Appellants and the wooden sticks

were sent to the FSL for chemical examination vide Ex.P50.

According to the FSL report (Ex.P51), all the four articles were

found stained with blood.

18. In this case, during the course of investigation, on 9.2.2011, in the

premises of Crime Branch, Bilaspur, on production of Appellant

Deepakdas, a motorcycle bearing registration No.CG 10 BA 2594

was seized vide Ex.P7. In this regard, statement of Investigating

Officer PW33 Sadhna Singh has not been rebutted during her

cross-examination. The R.C. Book of the said motorcycle was

seized vide Ex.P21. Witnesses of the seizure memo (Ex.P21),

PW11 Bisan Singh and PW12 U.S. Shriwas have supported the

above seizures. According to the entries of registration book, the

said motorcycle was registered in the name of C.P. Singh and as

per the statement of PW1 Arvind Mishra, at the time of incident, the

said motorcycle was in the possession of C.P. Singh and was

looted by the Appellants.

19. On a minute examination of the above evidence, it is clear that both

the eyewitnesses PW1 Arvind Mishra and PW25 R.G. Yadav have

fully supported the case of the prosecution. They have remained

firm during their cross-examination. Though both were present at

the time of preparation of inquest proceeding (Ex.P4) and they did

not disclose the names of the assailants at that time, no

explanation has been sought for from them by the defence in this

regard. Therefore, no adverse effect is caused to the case of the

prosecution. PW1 Arvind Mishra lodged named Dehati Nalishi

(Ex.P1) in the hospital on the same day in the late evening. Both

PW1 Arvind Mishra and PW25 R.G. Yadav had no enmity with the

Appellants. Both these witnesses have duly identified the

Appellants at the time of their examination before the Court also.

Their statements are natural and trustworthy. PW5 Abhishek

Kumar Sandey, PW7 Gopal Prasad and PW9 Ramadhar Gupta

have also corroborated the prosecution case. At the instances of

the Appellants, seizure of 1-1 blood stained lathi and seizure of

their blood stained clothes are also proved. FSL report (Ex.P51)

also confirms that blood stains were found on the above articles.

From the evidence adduced by the prosecution, it is also

established that at the time of incident, deceased C.P. Singh was in

possession of the motorcycle bearing registration No.CG 10 BA

2594 which was looted from him by the assailants. The seizure of

the said motorcycle from Appellant Deepakdas is also duly proved.

There is no evidence available on record to show that at the time of

incident, Appellant Deepakdas was bedridden and was not in a

position to move. Therefore, the argument advanced on behalf of

the Appellants in this regard has no substance. Looking to the

entire evidence adduced by the prosecution, in our considered

view, the Trial Court has rightly convicted the Appellants. The

sentence part also does not warrant any interference.

20. Consequently, the appeal is dismissed. The impugned judgment of

conviction and sentence is affirmed.

                            Sd/-                                 Sd/-

              (Rajendra Chandra Singh Samant)          (Arvind Singh Chandel)
                         Judge                                 Judge

Gopal