Chattisgarh High Court
Dhoni @ Dhuni Yadav & Ors vs State Of Chhattisgarh on 16 September, 2017
Bench: Manindra Mohan Shrivastava, Ram Prasanna Sharma
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 18 of 2012
(Arising out of judgment/order dated 29.10.2011 in Case No.01/2011 of the
learned Special Judge, Kabirdham (Kawardha)
1. Dhoni @ Dhuni Yadav S/o. Shobharam Yadav, Aged about 50 years,
2. Santosh S/o Shobharam Yadav,Aged about 40 years,
3. Bahura Bai @ Kunti Bai Yadav W/o Dhoni @ Dhani Yadav, Aged about 40
years,
All R/o Vill. Kodvagodan, P.S. Kukdur, Distt. Kabirdham . (C.G.)
---- Appellants
Versus
State Of Chhattisgarh Through: P.S. Kukdure, Distt.-Kabirdham, C.G.
---- Respondent
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For Appellants : Mr. P.K. Tulsyan, Advocate. For Respondent/State : Mr. Gary Mukhopadhyay, Panel Lawyer.
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Hon'ble Shri Justice Manindra Mohan Shrivastava Hon'ble Shri Justice Ram Prasanna Sharma Judgment on Board by Manindra Mohan Shrivastava J. 16.09.2017 Heard.
1) This appeal is directed against the impugned judgment of conviction and order of sentence dated 29.10.2011 passed by the Special Judge, Kabirdham (Kawardha) (C.G.) in Special Case No. 01/2011, whereby 2 and whereunder the appellants, three in number, have been held guilty of commission of offence under Sections, 302 read with Section 34 of the IPC, sentencing each of them to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default of payment of fine amount to further undergo R.I. for 1 year.
2) Prosecution case, as unfolded from the impugned order and the record of the case is that the appellants and the deceased had ongoing dispute with regard to title and possession of certain piece of agricultural land and in this background it is alleged that on 17.10.2010 when deceased Titaru Gond along with other family members was trying to take away harvested crops, which according to the appellant belonged to them, the appellants arrived at the spot, intercepted the deceased and other family members. Further, allegation is that appellant Santosh assaulted Titaru Gond with the help of a tabbal (axe) and the other two co-accused namely Dhoni @ Dhuni Yadav and Bahura Bai @ Kunti Bai assaulted the deceased with clubs. Titaru Gond fell on the spot. Further, the prosecution case is that the appellants thereafter searched Khemsingh the son of Titaru Gond and it is alleged that Khemsingh was also assaulted though, at another spot, with the help of tabbal (axe) and lathi. The matter was reported to the Police and when the police arrived at the spot a dehatinalishi (spot F 9 R) and merg (death intimation) were recorded at the spot itself by the Police. Dead bodies of Titaru Gond and his son Khemsingh were recovered from the spot where the dead bodies were lying and sent for 3 postmortem. Upon examination of the dead bodies the Doctor opined that it was a case of homicidal death. The Police thereafter carried out the investigation and recorded the statements of prosecution witnesses under Section 161 of the Cr.P.C., seized weapon alleged to be used in commission of offence along with the clothes of the deceased and the accused were sent for forensic examination.
3) Upon completion of usual investigation charge sheet was filed before the jurisdictional Magistrate who committed the case for trial before the Special Judge. Though, while filing charge sheet, allegation of commission of offence under Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 was also levelled, the trial Court on the basis of the material contained in the charge sheet, framed charges for commission of offence under Sections 302 read with section 34 of the IPC against all the appellants. The appellants abjured guilty and were tried for alleged commission of offence. On the allegation that the appellants committed murder of Titaru Gond and his son Khemsingh, learned trial Court relying upon the evidence led by the prosecution, particularly taking into consideration the eye-witness account of Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) and Shiv Singh Gond (PW-5) as also the evidence of extra-judicial confession made by the accused/appellants Dhoni @ Dhuni Yadav and Santosh before Smt. Radhabai Maravi (PW-4), held them guilty of commission of offence 4 under sections 302 read with section 34 of the IPC as mentioned above.
4) Assailing the correctness and validity of the impugned judgment and order of sentence learned counsel for the appellants submits that from the evidence the case of the prosecution is liable to be disbelieved because in so far as the death of Titaru Gond is concerned, the conviction is based on the evidence of interested witnesses Santoshi Bai Gond (PW-1) and Smt. Ashwani Bai Gond (PW-2) who are the family members of deceased Titaru Gond. Santoshi Bai Gond (PW-1) and Smt. Ashwani Bai Gond (PW-2) both were the daughter-in-law of deceased Titaru Gond. The witnesses admitted that a dispute with regard to title and possession of agricultural land was going on, therefore, the appellants have been falsely implicated. As far as the eye-witness account of Shiv Singh Gond (PW-5), who claims to have witnessed the incident of appellants assaulting Khemsing is concerned, his evidence does not inspire confidence because he has admitted in his corss-examination that even after the incident he did not report to the police nor disclosed it to anybody else which makes it highly doubtful that he had witnessed the incident and he is a concocted witness.
Learned counsel for the appellant further argued that even if it is found that some kind of quarrel had taken place on the spot resulting in death of Titaru Gond, it was only a case of sudden and grave provocation. Even, according to the testimony of Santoshi Bai Gond 5 (PW-1), Smt. Ashwani Bai Gond (PW-2), deceased Titaru Gond tried to take away harvested crops lying on the agricultural field which was in physical possession of the appellants and it was only then the appellants desisted the deceased, the incident had happened, therefore, it cannot be said that there was an intention to cause death and it was only intended to disable the deceased Titaru Gond from removing the crops from the field of the appellants. Therefore, in the circumstances, it could be only a case of culpable homicidal not amounting to murder as there was no intention. Therefore, at the most, the appellants could be convicted under Section 304 Part II of the IPC and the appellants have already undergone almost 7 years of sentence, the period undergone by them, in the given facts and circumstances of the case, may be imposed as sentence for commission of offence under Section 304 Part II of the IPC. As far as the allegation of murder of Khemsingh is concerned, it is argued that the evidence of Shiv Singh Gond (PW-5) is not credible because of the conduct of the said witness is doubtful and except his evidence, there is no other evidence against the appellants, therefore, the appellants are entitled to be acquitted of the charges by giving benefit of doubt. It is further argued that the seizure of weapon and its examination as also the forensic evidence have not conclusively proved that the seized article contained human blood much less blood of the group and origin of deceased Titaru Gond and Khemsingh. This, further adds doubt over the story of the prosecution. In support of his argument, 6 learned counsel for the appellants placed reliance upon Surain Singh Vs. State of Punjab (2017) 5 SCC 796 and prays that the appellants may be acquitted of the charges levelled against them.
5) On the other hand learned State counsel supported the impugned judgment of conviction and order of sentence. It is argued that the case of the prosecution is proved beyond reasonable doubt in view of the evidence of eye witnesses Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) and Shiv Singh Gond (PW-5), in whose presence the incident occurred. He submits that even though Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) are related to deceased Titaru Gond, only on that ground, their evidence cannot be disbelieved, once it is otherwise found reliable and trustworthy. The appellants had arrived at the spot with premeditated mind, armed with weapon to cause death and with intention to cause death they assaulted on the vital part of chest and head of deceased Titaru Gond with extreme force resulting in fracture and damage to the brain resulting in death; therefore, it is a case of murder.
6) In so far as the death of Khemsing is concerned, it is argued that the prosecution witnesses Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) both have deposed that after having assaulted Titaru Gond, the appellants declared that they would also find out the sons of Titaru Gond Khemsingh and Shatrughan and kill him. Thereafter, they searched and having found Khemsingh on the road, assaulted him brutally on his face with the help of tabbal resulting in multiple fracture 7 injuries on the vital part causing death. The appellants Santosh and Dhoni acted cruelty while assaulting Khemsingh with clear intention of causing death soon after having assaulted Titaru Gond, therefore, in these circumstances it would be case of murder.
7) Dehatinalishi Ex.P-1 recorded at the spot as also Dehati merg intimation prepared at the spot vide Ex.P-2 has been proved by PW-1 Santoshi Bai, the witness of the incident. She has proved her signature in Dehati merg intimation as well as Dehatinalishi. First Information Report Ex.P-1 A lodged immediately soon after the incident has also been proved by this witness. The incident as stated in the Dehatinalishi, Dehati merg intimation and FIR recorded in the Police Station reveals that the incident first took place when the deceased and his family members were trying to take away harvested crops, the appellants came armed with lathi, tabbal and assaulted Titaru Gond and thereafter they went to search Khemsingh stating that he has to be murdered.
Homicidal death of Titaru Gond and Khemsingh, is proved from the nature of injury, cause of death proved by PW-8 Dr Dhanshyam Sahu. He has proved postmortem report Ex.P-20, prepared and signed by him, upon examination of the dead-bodies of Titaru Gond and Khemsingh. Following injuries, internal and external, as deposed by him were found as under:-
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Titaru Gond:-
(I) Above the left eyebrow size 5x3x5x5cm vertical with fracture and fragmentation of underlying bone with indentation of fragments in brain matters.
(ii) Between eyebrows' size 2x2x5cm with fracture of underlying bone of brain matters, Inferolateral to the right ala of nose.
(iii) Contusion in the size 3x3x2cm with fracture of underlying facial bone.
(iv) Left zygomatice region 3x2x1cm and Right parietal area over scalp interoperability 8x2x1cm.
(v) Contusion at left orbital region with rupture of left eyeball.
(vi) Extradural haemorrhage present over right frontal parietal area (about 200 ml clotted blood) Cause of death is haamorrhage and shock as a result of injuries present on face and head. Death is homicidal in nature.
Khemsingh:-
(I) Hypostasis present on back, fixed one contused lacerated wound at lateral border of right eyebrow obliquely vertical bone deep, size 5x1x1cm.
(ii) One contused lacerated wound in between eyebrows transversely bone deep 3x1x1cm 9
(iii) One lacerated wound at right zygomatic region obliquely present directed towards root of nose in the size of 5x1x2cm with fracture of underlying bone.
(iv) One contused lacerated wound present at lateral side of left eyebrow 1x1x1cm and left occipital region size 5x3x1cm.
(v) Right frontal region 1x1x1cm and left side of chin size 1x0.5x1cm.
(vi) Multiple contusions present vertically above downward at left side of back extending from lower part of left shoulder blade at the variable size range 25x5cm to 8 cm x2 cm with ecchymosis of underlying soft tissue.
(vii) Extradural haemorrhage present over right frontal region and at occipital region (each area contains about 200 ml blood).
Cause of death is haamorrhage and shock as a result of multiple injuries present on face and head. Death is homicidal in nature.
Santoshi Bai Gond (PW-1) and Smt. Ashwani Bai Gond (PW-2) are the eye witnesses of the incident in which Titaru Gond was assaulted. Santoshi Bai Gond (PW-1) daughter-in-law of Titaru Gond has deposed in her evidence that she along with her father-in-law Titaru Gond, mother-in-law (Jhamoutin) and sister-in-law (Ashwani Bai) and her daughter Khilmati had gone towards field to collect harvested crops. When, after having collected the crop they along with the deceased were going back, near the field of Aajuram, Appellants 10 Dhoni, Santosh and Bahura Bai @ Kunti Bai Yadav arrived and objected to removal of crop, at that time Santosh who was holding tabbal (axe) in his hand and Dhoni and Kunti Bai who were holding club in their hands obstructed the deceased as to why while he was taking away the crop. When her father-in-law stated that he was taking away crop of his own field, all the three accused started assaulting her father-in-law on his head and face who started bleeding and fell down. This witness has been subjected to detailed cross-examination and it has been elicited that in respect of the agriculture field wherefrom the crop were removed by Titaru Gond and other family members including this witnesses, there was a dispute going on with regard to title and possession and a case was also pending before Revenue Court and she was informed by her father-in-law regarding the case. It has also been elicited in her cross-examination that a part of the disputed land was actually occupied by the appellants and they had constructed small house over there. The suggestion that the deceased and her family members were aggressor and they opened assault, has been specifically denied.
8) The other eye witness PW-2 (Ashwani Bai Gond) who is the other daughter-in-law of the deceased Titaru Gond, has also narrated the story of assault by stating that while they were taking away the harvested crops, the appellants came and obstructed to removal of crop and when her father-in-law asserted that the fields belongs to them and they were removing the crop of their own field, the 11 appellants assaulted on the head and face of Titaru Gond by tabbal (Axe) and club where after her father-in-law fell down on the spot. This witness has also been subjected to detailed cross-examination to elicit the existence of dispute with regard of ownership, title and possession of agricultural field. She has admitted that there was a dispute with regard to title and possession and that the appellants were in possession of part of disputed land and the dispute arose between the parties and they assaulted when attempt was made to remove the harvested crop. Except this, nothing else to be elicited in her cross examination to disbelieve her testimony of she having witnessed the incident of assault.
9) An argument has been made before this Court that as the two witnesses were interested being related to the deceased, in the absence of independent corroboration, their evidence should not be disbelieved. On principle, it cannot be said that merely because the witness is related to the deceased, his evidence should not be believed, unless there is independent corroboration. If the evidence even of a related witness is truthful, reliable, it can always be relied upon without insisting on independent corroboration unless the circumstances of the case require that the evidence should be supported by any other corroborative evidence. The account of the incident given by two witnesses is quite natural. There is no material discrepancy in the testimony of Santoshi Bai Gond (PW-1) and Smt. Ashwani Bai Gond (PW-2) with regard to the place of incident, the 12 geneses of dispute, weapon used by the appellants and the assault made by them on Titaru Gond.
10) More over, the injury proved by the evidence of PW-8 Dr Dhanshyam Sahu, which show that the fatal injury were found on the head and face of the deceased, also support the ocular testimony of two witnesses. Not only this, there is extra judicial confession of appellants Santosh and Dhoni before the Sarpanch Radhabai Maravi (PW-4) that they assaulted Titaru Gond. Therefore, in the circumstance, we are convinced to hold that the prosecution has proved its case beyond reasonable doubt that the appellants had assaulted deceased Titaru Gond.
11) As far as the assault on Khemsingh is concerned, Shiv Singh Gond (PW-5) has clearly stated in his evidence that while he was going on bicycle along with Khemsingh, appellants Santosh and Dhoni armed with tabbal (Axe) and lathi arrived at the spot and started assaulting on the head and face of Khemsingh and due to multiple assaults, Khemsingh fell down on the spot. Shiv Singh Gond (PW-5) has deposed in para-2 of his evidence that Dhoni @ Dhuni and Santosh came running and dragged Khemsingh away from bicycle abused and said that today, they have captured him and then started assaulting.
Learned counsel for the appellants argued that as this witness did not report the matter either to the Police or to anybody else but kept sitting in his house though he had ample opportunity to report the matter, therefore, his testimony is doubtful. Upon close scrutiny and 13 consideration the submission is not acceptable. This witness in his evidence, in corss-examination, has deposed that he was frightened to see the incident and therefore, he could not immediately report the matter to anybody for help. This witness is not related to any of the parties. The incident is of the same date at about 12.30 in the afternoon. Santoshi Bai Gond (PW-1) has stated in para-5 of her evidence that after assault Santosh and Dhoni @ Dhuni left the spot where they assaulted the deceased by declaring that they will kill his son also. Soon thereafter, Khemsingh is assaulted. Therefore, evidence of Santoshi Bai Gond (PW-1) lends support to the evidence of Shiv Singh Gond (PW-5). Moreover, the medical evidence with regard to injury sustained by deceased Khemsingh where the Dr. Ghanshyam Sahu (PW-8) has clearly stated regarding nature and number of injuries found on the head and face of deceased Khemsingh supports the ocular testimony of Shiv Singh Gond (PW-5) with regard to the use of weapon and the manner of assault on Khemsingh. Therefore, we are inclined to rely upon the testimony of Shiv Singh Gond (PW-5) to hold that Appellants Dhoni @ Dhuni and Santosh assaulted Khemsingh with the help of lathi and tabbal (axe).
12) The alternative submission of learned counsel for the appellants is that as there was an existing dispute with regard to title and possession of the agriculture land and when Titaru Gond and the other family members objected to remove harvested crop the dispute cropped up all of a sudden resulting in assault made on Titaru Gond, therefore, it 14 cannot be said that the accused carried an intention to cause death and only a knowledge and therefore, due to this reason it could only be a case of commission of offence of culpable homicidal not amounting to murder punishable under Section 304 part II of the IPC. In so far as the assault on Titaru is concerned, the evidence of Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) proves that the incident of assault on Titaru happened when Titaru and other family members including Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) removed harvested crop from the agriculture field which according to the appellants has in their physical possession and they objected Titaru Gond, in that sequence, assault was given by them on the face and head of Titaru..
13) Looking to the evidence of Santoshi Bai Gond (PW-1) and Smt. Ashwani Bai Gond (PW-2) it is proved that some part of the disputed land was in actual and physical possession of the appellants and when harvested crop were removed, dispute arose at the spot and then assault made. Taking into consideration the totality of the circumstance, in so far as, alleged criminal overt act of assault and resultant death of Titaru Gond is concerned, it would be the case of sudden quarrel, therefore, to that extent, the appellants are liable for commission of offence under Section 304 Part II of the IPC.
14) However, from the evidence on record particularly that of Santoshi Bai Gond (PW-1), it is found that after having assaulted Titaru Gond, which may have been occasioned due to grave and sudden 15 provocation of removal of harvested crop, Appellants Dhone @ Dhuni and Santosh nurtured a common intention to cause death of sons of Titaru. At this stage, the evidence of Santoshi Bai Gond (PW-1) goes to show, Kunti Bai went home and did not accompany Dhone @ Dhuni and Santosh. According to Shiv Singh Gond (PW-5) it was only appellants Dhone @ Dhuni and Santosh who arrived at the spot where Khemsingh was found and started assaulting him. This sequence of events proved by the evidence of Santoshi Bai Gond (PW-1), Smt. Ashwani Bai Gond (PW-2) and Shiv Singh Gond (PW-5) clearly proves that after assaulting Titaru Gond, Appellant Dhone @ Dhuni and Santosh nurtured common intention of killing sons of Titaru and they also searched, found Khemsingh and then assaulted him. The words uttered by the appellants have been deposed in para-5 of the evidence of Santoshi Bai Gond (PW-1) that if they find the sons of Titaru they will also be killed. With this background, if the incident of assault on Khemsingh is appreciated, that there can be no doubt that the appellants Dhone @ Dhuni and Santosh, with clear intention of killing Khemsingh, searched and found him and then brutally assaulted him. Multiple injury found on the face of deceased Khemsingh clearly shows that the appellant acted cruelty.
The injury found on the body of Khemsingh and proved by the Dr Ghanshyam Sahu (PW-8) in the postmortem report which was proved by him in his deposition before the Court shows the following injuries were found on the body of Khemsingh.
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(i) Rigor mortis present all over the body in strong phase.
(ii) Hypostasis present on back, fixed one contused lacerated wound at lateral border of right eyebrow obliquely vertical bone deep, size 5x1x1cm.
(iii) One contused lacerated wound in between
eyebrows transversely bone deep 3x1x1cm.
(iv) One lacerated wound at right zygomatic region
obliquely present directed towards root of nose in the size of 5x1x2cm with fracture of underlying bone.
(v) One contused lacerated wound present at
lateral side of left eyebrow 1x1x1cm and left
occipital region size 5x3x1cm.
(vi) Right frontal region 1x1x1cm and left side of
chin size 1x0.5x1cm.
(vii) Multiple contusions present vertically above
downward at left side of back extending from
lower part of left shoulder blade at the variable size range 25x5cm to 8 cm x2 cm with ecchymosis of underlying soft tissue.
(viii) Extradural haemorrhage present over right frontal region and at occipital region (each area contains about 200 ml blood).
If these injuries are looked into, it is clear that there were repeated assaults made on the face and head the vital parts of the body of deceased Khemsingh which only further the prosecution case that there was clear intention of causing murder of Khemsingh. Therefore, Appellant Dhone @ Dhuni and Santosh are clearly found 17 guilty of murder of Khemsingh and are liable for punishment under Section 302 of the IPC.
15) In view of above examination, as far as appellant Bahura Bai @ Kunti Bai Yadav is concerned, she is found guilty of commission of offence under Section 304 Part-II of the IPC, in the matter of assault and death of Titaru. She is in jail since 18.11.2010 that means, she has undergone more than 6 ½ years of sentence by now. Looking to the role played by Bahura Bai @ Kunti Bai and that the fatal injury on the body of deceased Titaru was found on his face resulting from assault made by tabbal (axe), we are inclined to award sentence and fine for the period undergone by her which shall also include the sentence in default of payment of fine. Bahura Bai @ Kunti Bai shall therefore, be released forthwith.
16) Conviction of Appellant Dhone @ Dhuni and Santosh for commission of offence under Sections 302 read with section 34 of the IPC does not warrant any interference by this Court, therefore, appeal of these two appellants stands dismissed.
(Manindra Mohan Shrivastava) (Ram Prasanna Sharma)
JUDGE JUDGE
Santosh