Chattisgarh High Court
Anjordas vs State Of Chhattisgarh Through Ps Hirri ... on 29 March, 2011
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No39 of 2005
1 Anjordas
2 Girdhari
...Petitioners
Versus
State of Chhattisgarh Through PS Hirri Dist BilaspurCG
...Respondents
! MrGovind Ram Miri with MrYogeshwar Sharma counsel for the appellants
^ MrSanjeev Kumar Agrawal Panel Lawyer for the Staterespondent
CORAM : HONBLE MR TP SHARMA & HONBLE MR RL JHANWAR JJ
Dated : 29/03/2011
: Judgement
JUDGMENT
(Delivered on 29th March, 2011) CRMINAL APPEAL UNDER SECTION 374 2 OF THE CODE OF CRIMINAL PROCEDURE 1973 The judgment of the Court was delivered by T.P.Sharma, J.:-
1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 3.11.2004 passed by the 10th Additional Sessions Judge (F.T.C.), Bilaspur in Sessions Trial No.307/2003, whereby & whereunder learned 10th Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Chandraram, Shyamratan, Kunjbihari and Dhaniram in sharing common intention convicted them under Section 302 read with Section 34 of the I. P.C., 302 read with Section 34 of the I. P.C., 302 read with Section 34 of the I. P.C. , 302 read with Section 34 of the I.P.C. and 323 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.500/- in default of payment of fine to further undergo S.I. for two months for each conviction under Section 302 read with Section 34 of the I.P.C. and fine of Rs.200/-, in default of payment of fine to undergo S.I. for one month under Section 323 read with Section 34 of the I.P.C.
2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
3. As per case of prosecution, on the fateful night of 4.6.2003 at about 4 a.m. at morning Chandraram (since deceased) was sleeping in his temporary hut (kundra) situate in front of his house which was under construction along with his son Rajkumar Kurre (PW-8), Kunjbihari (since deceased) his guest was also sleeping nearby son of Chandraram, Shyamratan (since deceased) was also sleeping on sand. Between 3.45 to 4 a.m., appellants Anjor Satnami and Batau Satnami came to temporary hut, they were holding stick and betel axe, they asked Rajkumar Kurre (PW-8) about his father, at the same time Chandraram woke up, then they pushed Chandraram, Chandraram fell down on sand, thereafter simultaneously both the appellants assaulted him by betel axe and stick. Shyamratan woke up and tried to intervene and save his father, appellants also assaulted him by stick and betel axe. Third unfortunate deceased Kunjbihari also woke up, appellants also assaulted him. Rajkumar Kurre (PW-8) immediately proceeded from the spot, appellants also assaulted Rajkumar by stick over his right hand. While he was running from the spot he fell down and also received injury on his left leg. He went to the house of 4th deceased Dhaniram, his uncle whom he told the incident, Dhaniram came to the spot i.e., near the house of Chandraram and started weeping near dead body of Chandraram i.e., his brother, at the same time accused Dhansu and Anil, appellants Anjor and Batau Satnami came from back and assaulted Dhaniram by stick and betel axe and killed him. After causing injury the appellants fled from the spot. In morning Rajkumar Kurre (PW-8) saw dead body of guest Kunjbihari in ditch (diged for collecting waste material) (ghurwa). Rajkumar Kurre (PW-8) informed his grandfather Guhan (PW-2) and Kotwar Prakash Das (PW-9) who went Police Station for lodging report and lodged Rojnamcha Sanha vide Ex.P/46A. Investigating officer N.P.Mishra (PW-14) left for scene of occurrence after recording Rojnamcha vide Ex.P/47A, he reached village Monhda, Police Station Hirri, seven kilometers away from the spot. Rajkumar Kurre (PW-8) lodged dehati nalishi vide Ex.P/12A and dehati merg intimation vide Exs.P/13A, P/32, P/33 and P/34. Finally F.I.R. was lodged vide Ex.P/12 and merg intimation was recorded vide Exs.P/13, P/14, P/15 and P/16. After summoning the witnesses vide Ex.P/17, inquest over dead bodies of deceased Shyamratan Kurre, Kunjbihari, Chandraram Kurre and Dhaniram were prepared vide Exs.P/18 to P/21. Bloodstained and plain soil were recovered from the spot vide Exs.P/29 and P/30. Injured Rajkumar was sent for medical examination vide Ex.P/5, he was examined by Dr.A.K.Sanyal (PW-4) vide Ex.P/5 and found following injuries:-
(i) Contusion of 6 cm. x 2 cm. on right upper arm below deltoid region.
(ii) Contusion and suspected fracture of middle metacarpal bone of right ring and middle finger.
(iii) Abrasion of 3 cm. x 3 cm. on left knee.
Dead bodies of the aforesaid deceased were sent for autopsy to Community Health Centre, Bilha where Dr. A.K.Sanyal (PW-
4) conducted autopsy of Shyam Ratan vide Ex.P/1 and found following injuries:-
(i) Lacerated wound just above right eye. Eye ball was ruptured. Orbital bone was found fractured and there was hole in orbital area of 5 cm. x 3 cm. x 3 cm.
(ii) Lacerated wound on left zygometic process. Underline bone was found fractured. Eye ball was ruptured.
(iii) Lacerated wound over mouth. Mandible was fractured in multiple pieces. Inciser teeth was broken. Lower lip fare. Left jaw was also fractured in many pieces.
(iv) Incised wound on base of neck on right side of 6 cm. x 2 + cm. x 5 cm. Underline trachea, skin and bone were found cut.
(v) Incised wound on right clavicle region of 3 cm. x 1 cm. x 4 cm. Underline clavicle was found cut.
(vi) Incised wound behind left ear of 5 cm. x 1 + cm. x 2 cm.
(vii) Incised wound on parietal region of 5 cm. x 2 cm. 1 cm.
(viii) Incised wound on occipital region of 10 cm. x 3 cm. x 2 cm. Underline skin and muscle bone were found cut.
(ix) Contusion on outer aspect of left palm. Heamorrhage and fracture of left metacarpal bone of middle and ring finger.
(x) Contusion on chest below of 10 cm on left cabidal fossa of 15 cm. x 4 cm. Ribs were found fractured.
Cause of death was shock. Dr.A.K.Sanyal also conducted autopsy of Kunjbihari vide Ex.P/2 and found following injuries:-
(i) Lacerated wound on forehead of 5 cm. x 1 cm. x bone deep.
(ii) Lacerated wound on left temporal region from left eye to ear. Underline skull bone, orbital bone, upper part of mandible were fractured in multiple pieces. Left eye ball was crushed.
(iii) Lacerated wound of 1 + x 1 x bone deep on left zygometic process. Underline bone was found fractured.
(iv) Contusion on left side of chin. Underline mandible fracture in multiple pieces. Upper and lower inciser teeth were broken.
(v) Incised wound on occipital region of 4 cm. from left ear
5 cm. x 1 + cm. x brain deep. Skull bone, skin and brain found were cut.
(vi) Incised wound on occipital region of 3 cm above injury No.5 of 8 cm. x 2 cm. x brain deep. Skin skull bone was found cut. Brain matter comes out.
(vii) Incised wound on left thumb of 4 cm. x + cm. x bone deep.
(viii) Incised wound on darsum of left palm of 6 cm. x + cm. x bone deep. Metacarpal bone of index middle finger of 1 + x , x bone deep. Bone was found cut.
Cause of death was heamorrhage and shock. Dr.A.K.Sanyal (PW-4) also conducted autopsy of Chandraman vide Ex.P/3 and found following injuries:-
(i) One crush injury on face including face to chin.
Underline skull bone, orbital, nasal, zygometic and mandible bone were found cut. Inciser & canial teeth were broken.
(ii) Incised wound on left side of forehead of 5 cm. x 1 cm. x bone deep.
(iii) Incised wound on left side of face from nose to neck including left ear of 10 cm. x 5 cm. x bone deep. Underline bone, cheek, mandible left ear were found cut.
(iv) Incised wound below right zygometic process from below nose to right ear. Underline skin, jaw, mandible and tongue were found cut of 8 cm. x 1 + cm. x bone deep.
(v) Incised wound below neck above left clavicle of 5 cm. 1 + cm. x 5 cm. Underline bone, clavicle and muscle were found cut.
(vi) Incised wound on abdomen from above umbilicus to right ant.Sup gliac spin. Intestine was visible of 10 cm. x 3 cm. 5 cm.
(vii) Incised wound of 10 cm. above left heal on sin of tibia of 5 cm. x 1 cm. 1 + cm. Underline skin, bone and muscle were found cut.
Cause of death was heamorraghe and shock. Dr. A.K.Sanyal (PW-4) also conducted autopsy of Dhaniram vide Ex.P/4 and found following injuries:-
(i) Incised wound above left eye brow of 4 cm. x 1 + cm. x bone deep.
(ii) Lacerated wound on left zygometic process. Zygometic process was crushed.
(iii) Contusion on right zygometic process of 5 cm. x 2 cm.
(iv) Incised injury on left tempo occipital region of 10 cm. x 5 cm. x brain deep. Underline skin, bone and brain were found cut. Brain matter comes out. Big heamatoma was found cut.
(v) Contusion on parietal region of 7 cm. x 3 cm. Skull bone was found fractured in multiple pieces.
(vi) Multiple contusion on left scapular region. Scapula bone was found fractured in multiple pieces. Heamatoma was found cut of 15 cm. x 10 cm.
(vii) Incised wound below left axilla of 8 cm. x 3 + cm. x 4 cm. Underline skin, muscle & 4 ribs were found cut. Lung was visible.
Cause of death was heamorrhage and shock. Spot map was prepared vide Ex.P/37. During the course of investigation, appellants were taken into custody, appellant Anjor Das made disclosure statement of betel axe and stick vide Ex.P/22, same were recovered at his instance vide Ex.P/23. Appellant Girdhari @ Batau made disclosure statement of axe vide Ex.P/24, same was recovered at his instance vide Ex.P/25. Another accused Dwarika @ Dhansu juvenile offender made disclosure statement of axe vide Ex.P/26, another accused Anil Satnami made disclosure statement of stick vide Ex.P/27, same was recovered from accused Anil vide Ex.P/28. One terricot lungi, plain soil and bloodstained soil were recovered from the spot vide Ex.P/38. Sealed clothes of deceased Kunjbihari, Dhaniram, Chandram and Shyamratan were seized vide Ex.P/40. Documents relating to age of Dhansu were seized vide Ex.P/41. Seized articles were sent for chemical examination vide Ex.P/44 and presence of blood on betel axe, stick and axe recovered from the appellants has been confirmed vide Ex.P/49.
4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short `Code') and after completion of investigation charge sheet was filed before the Additional Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned 10th Additional Sessions Judge (F.T.C.), Bilaspur received the case on transfer for trial.
5. In order to prove the guilt of the accused/appellants, prosecution has examined as many as fourteen witnesses. Accused/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and claimed innocence and false implication in crime in question.
6. After affording an opportunity of hearing to the parties, learned 10th Additional Sessions Judge (F.T.C.), Bilaspur convicted and sentenced the appellants as aforementioned.
7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court.
8. Learned counsel for the appellants vehemently agued that this is a case of blind murder of four persons in which the present appellants have been falsely implicated without any cause, they have not committed murder of aforesaid four persons, they were not having grudge against the deceased persons and deceased Kunjbihari was not resident of the place of incident. After brutal murder of four persons at the instance of Rajkumar Kurre (PW-8) matter was intimated by telephone to Police Station Hirri, thereafter at the instance of Rajkumar Kurre (PW-8) Kotwar Prakash Das (PW-9) went to the Police Station along with Guhan, grandfather of Rajkumar and Sukhsagar and informed the police that unknown persons have killed Chandarman Satnami, Dhaniram Satnami, Shyamratan Satnami and one other person vide Ex.P/46(A), then police officers proceeded for the spot after recorded Rojnamcha Sanha vide Ex.P/47(A). Till that time assailants were unknown and when the police came to the village then after discussion with other persons, false report against the present appellants has been lodged. Presence of the appellants after commission of incident shows their natural conduct that they have not committed any offence. Only evidence of Rajkumar Kurre (PW-8) and Panchu (PW-1) do not inspire confidence and trustworthy, they are interested witnesses. Learned counsel further submits that evidence collected on behalf of prosecution is not sufficient for conviction of the appellants.
9. Learned counsel placed reliance in the matter of Ashish Batham v. State of Madhya Pradesh1 in which the Supreme Court has held that mere suspicion, however, strong or probable it may be is no effect substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true and `must be true'. Learned counsel further placed reliance in the matter of Ram Kumar Pande v. The State of Madhya Pradesh2 in which the Supreme Court has held that omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. Learned counsel also placed reliance in the matter of K.Ashokan v. State of Kerla3 in which the Supreme Court has held that F.I.R. lodged by eyewitness within 3 hours of incident, details given of every aspect and accused persons known but not named, prosecution case becomes doubtful. Learned counsel relied upon the matter of State of M.P. v. Rambagas4 in which the High Court of Madhya Pradesh has held that if FIR is lodged by Kotwar then it may be presumed that after collecting all relevant information from all concerned persons he has lodged FIR and non-mentioning the name in FIR is omission in material point and goes to show that none has witnessed the incident. Statements of alleged eye witnesses full of doubt and is close relative, conviction cannot recorded only on the basis of such witness. Learned counsel further placed reliance in the matter of State of M.P. v. Kriparam5 in which the Supreme Court has held that delay in lodging F.I.R. is required to be explained on behalf of prosecution and in absence of proof of human blood on the article makes the case of prosecution doubtful. Learned counsel also placed reliance in the matter of Durbal v. State of Uttar Pradesh6 in which the Supreme Court has held that in absence of any motive for causing attack or in absence of any attempt of attack by accused upon single witness who alleged to have seen the incident throws doubt upon prosecution case. Learned counsel relied upon the matter of State of Uttar Pradesh v. Jageshwar and others7 in which the Supreme Court has held that presence of accused persons at the seen of occurrence after committing murder are highly improbable.
10. On the other hand, learned State counsel opposed the appeal and argued that in the present case Rajkumar Kurre (PW-
8) is relative witness and son of deceased Chandraram, but his evidence cannot be discarded on the ground of his relation. A close relation would be the last to screen the real culprit and falsely implicate an innocent person. Rajkumar Kurre (PW-
8) aged about 14 years is not only eyewitness but also injured witness; therefore, his presence cannot be doubtful, although this witness has not shouted for help. His age is only 14 years and he was shocked on account of murder of his four relatives. The appellants have not speared him, they have also assaulted him, he rushed from the spot, thereby he has been saved. He has not informed Kotwar or any other person that some unknown persons have committed the offence. Defence himself has asked Prakash Das (PW-9) in para 3 of his cross- examination that he was not informed by Rajkumar relating to incident. This shows that at that time of lodging of Rojnamcha Sanha Ex.P/46A, Prakash Das (PW-9) was not having knowledge that present appellants have committed the offence. After recording Rojnamcha Sanha investigating officer immediately proceeded for the spot, then Rajkumar Kurre (PW-8) who has witnessed the incident and was also assaulted by the accused persons has lodged dehati nalishi and merg in which he has specifically informed and described the names of assailants and weapons which they were holding and injuries caused by them to four persons. Betel axe, axe and stick have been recovered from the appellants and presence of blood has been confirmed on the aforesaid articles, although prosecution has not proved presence of human blood, that too blood group of the deceased but in the light of evidence of Rajkumar Kurre (PW-8) and Panchu (PW-1) same is not fatal to prosecution. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as aforementioned.
11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution.
12. In the present case, homicidal deaths as a result of multiple fatal injuries found over vital parts of bodies of Chandraram, Kunjbihari, Dhaniram and Shyamratan have not been substantially disputed on behalf of the appellants, on the other hand, also established by evidence of Dr.A.K.Sanyal (PW-
4) and autopsy reports Exs.P/1 to P/4. Present appellants have also not disputed simple injuries found over the body of Rajkumar, same has also been established by evidence of Dr.A.K.Sanyal (PW-4) and injury report Ex.P/5 which reveals that Contusion of 6 cm. x 2 cm. on right upper arm below deltoid region, contusion and suspected fracture of middle metacarpal bone of right ring and middle finger and abrasion of 3 cm. x 3 cm. on left knee of his examination on 4.6.2003 at about 3.30 p.m. i.e., on same day.
13. Conviction of the appellants is substantially based on evidence of Rajkumar Kurre (PW-8) who is aged about 14 years and son of deceased Chandraram. As per his evidence, his father was working at Bhilai Steel Plant, their property is situated at village Monhda i.e., place of incident. On the date of incident he was present at village Monhda, they were constructing house at village Monhda. Two days before the incident his father Chandraram and friend of Chandram i.e., Kunjbihari came from Bhilai to village Monhda, they were staying at Monhda on 4.6.2003, he along with his father were sleeping inside temporary hut (kundra) (prepared to watch the material and house which was under construction), deceased Kunjbihari was also sleeping near temporary hut, another deceased Shyamratan, brother of this witness was also sleeping near temporary hut. At about 4 to 4.15 a.m., appellants came near the place of incident, appellant Anjor was holding betel axe, appellant Girdhari was holding axe, another accused Dhansu and Anil were holding sticks, they assaulted his father, at the same time his brother Shyamratan woke up and he asked, then all the appellants also assaulted his brother Shyamratan, thereafter they also assaulted Kunjbihari who was also sleeping at the place of incident, then he tried to run from the spot. Juvenile accused Dhansu assaulted him by stick over his right shoulder and palm. He went to the house of his uncle Dhaniram for calling him, he narrated the incident to Dhaniram, then Dhaniram came to the spot along with this witness. His aunt Muniya also came to the spot along with his son Panchram i.e., Panchu (PW-1). Dhaniram started weeping near dead body of his brother Chandraram, at that time the appellants were hiding themselves near tree, then they again came and assaulted Dhaniram by betel axe, axe and stick. His aunt Muniya Bai, wife of Itwari, advised this witness to run from the spot, then he rushed from the spot, thereafter his aunt Muniya Bai also went to her house, he also went to the house of Dhaniram. At about 6 a.m. he narrated the incident to Guhan (PW-2), then he again went to the place of incident along with Guhan and Sukhsagar and went to the house of Sudharam for informing the police by telephone. Somebody informed the police by telephone from the house of Sudharam whom the police directed to lodge report at Police Station. Thereafter report was lodged and police came to the village whom he lodged merg vide Exs.P/13A, P/14, P/15 and P/16 and dehati nalishi vide Ex.P/12A.
14. Panchu (PW-1) son of Itwari, 10 years aged child witness, has deposed in his evidence that he along with his mother Muniya Bai went to the spot at about 4 a.m. where he saw that appellants assaulted his elder uncle Dhaniram by betel axe, stick and axe, Chandraram, Kunjbihari and Shyamratan were also present there, then he along with his brother went inside ditch (digging for manure) for hiding themselves, after sometime the appellants went from the place of incident, then they went near dead bodies of Dhaniram, Chandraram, Kunjbihari and Shyamratan. As per evidence of Muniyabai (PW-3), on the date of incident at about 4 a.m. Raju @ Rajkumar Kurre (PW-8) came to the house of Dhaniram and informed his uncle Dhaniram that the appellants were assaulting to Shyamratan and others, then Dhaniram went to the spot, she along with her son Panchu also went to the spot, appellants assaulted by aforesaid weapons. Raju @ Rajkumar Kurre was also present with her, then they went inside Ghurwa for hiding themselves. After sometime they went to their house and they were informed relating to deaths of Chandraram, Shyamratan, Kunjbihari and Dhaniram.
15. Defence has cross-examined Pancu (PW-1), child witness in detail. In para 2 of his detailed cross-examination he has admitted that he has seen dead body of Kunjbihari at Ghurwa. He has also admitted in his cross-examination that he is school going children and he used to go in school and casually he do not go to school. In para 6 of his cross-examination he has further admitted that previously he was residing at Artara, nearby village Monhda. On the date of recording his evidence he was called by Police from Artara, at that time some ritual on account of death was performed. In para 10 of his cross-examination he has deposed that he along with his mother went to the spot after sunrise along with Dhaniram, but he has further stated that he do not know the minutes. In para 11 of his cross-examination, he has denied the suggestion that he was not present at the time of incident, therefore, he has not seen the incident. Defence has also cross-examined Muniyabai (PW-3) in detail. In para 7 of her cross- examination she has specifically deposed that she has visited the spot at about 4 a.m. along with Dhaniram. She has also admitted that Dhaniram was her neighbour and Rajkumar has visited the house of Dhaniram. She has heard discussion of Dhaniram and Rajkumar. She has denied the suggestion that she has not seen the incident and she has not gone to the spot at the time of incident in para 10 of her cross-examination.
16. Defence has cross-examined Rajkumar Kurre (PW-8) in detail. In para 12 he has denied the suggestion that he was not sleeping near the house under construction. In para 13 he has admitted that he has not narrated the incident to Guhan, Sukhsagar and Prakash. He has denied the suggestion in para 15 that he has not seen the incident. He has also denied the suggestion that he has telephoned to Bhilai. He has deposed in para 25 of his cross-examination that at the time of recording dehati nalishi and statement he has stated the police that Muniya Chachi and her son Panchram has also visited the place of incident and on the direction of Muniya he fled from the spot. He has denied the suggestion in para 31 of his cross- examination that after consuming liquor his father and Kunjbihari were quarreling with two-three persons. He has also denied the suggestion in para 32 of his cross-examination that two-three persons were assaulting Kunjbihari and his father and as directed by his father he went to his house for sleeping. He has also denied the suggestion that the persons who had assaulted his father have committed robbery of money which his father was keeping with him. He has admitted that prior to incident there was no dispute between the appellants and themselves. In para 34, he has further denied the suggestion that at night time Kunjbihari was assaulting his father and he also chased him, then he fell down and received injuries.
17. Rajkumar Kurre (PW-8), Panchu (PW-1) and Muniyabai (PW-3) are relatives witnesses. Evidence of relative witnesses cannot be discarded only on the ground of their relation. While dealing with the question of reliability of relative witness the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab8 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
18. While dealing with the same question, the Supreme Court in the matter of Guli Chand and others v. State of Rajasthan9 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony.
19. While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra10 held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under:-
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
20. Panchu (PW-1) is also child witness and competent witness. Before examining such child witness, the Court is required to satisfy itself that whether such witness is understand to speak truth and is able to answer the questions rationally. Before examining this witness by putting questions, the Court has satisfied itself that Panchu (PW-1) is able to answer the questions.
21. Definitely in the present case, Kotwar Prakash Das (PW-9) has lodged Rojnamcha Sanha Ex.P/46(A) in which it has been mentioned that unknown persons have committed murder of four persons. Defence has cross-examined Kotwar Prakash Das (PW-9) who has lodged Rojnamcha Sanha and specifically suggested him in para 3 of his cross-examination that he was informed by Sukhsagar and Rajkumar has not informed the incident to this witness. Sukhsagar has not seen the incident. Rajkumar has deposed that he has seen the incident. Incident took place at about 4 a.m. As per suggestion given by defence to prosecution witness at about 5 a.m. persons used to field for ease. This shows that at about 4 to 4.30 a.m. place of incident was lonely and no other persons were passing or moving near the place of incident. After incident when villagers came to know then Kotwar Prakash Das (PW-9) went to the Police Station and lodged Rojnamcha Sanha Ex.P/46(A), at that time he was not informed the incident by Rajkumar Kurre (PW-8).
22. Commission of murder of four persons is serious incident of village and Kotwar has rushed to the Police Station immediately. In these circumstances, non-mentioning of detail information before intimating the police by Kotwar Prakash Das (PW-9) was not unnatural. Police has also proceeded to the spot within ten minutes of recording Rojnamcha Sanha. Virtually Ex.P/46(A) Rojnamcha Sanha was initial information about the incident and detailed F.I.R. has been lodged by Rajkumar Kurre (PW-8) vide Ex.P/12 and same is F.I.R. lodged by eyewitness.
23. As held by the High Court Madhya Pradesh in the matter of Rambagas (supra), it may be presumed that before lodging F.I.R. by Kotwar he has collected all information from all concerned persons but evidence of Prakash Das (PW-9) itself shows that he has not collected information from concerned person i.e., Rajkumar Kurre (PW-8) whose three relatives and one friend of his father have been murdered, therefore, he has not given details of the accused and incident. Therefore, facts of the case of Rambagas (supra) are distinguishable to that of the present case.
24. In all cases it is not necessary that person who has intimated the police shall collect all information. It is clear from Ex.P/46(A) Rojnamcha Sanha that Kotwar Prakash Das was in hurry and even he has not informed the name of 4th person i.e. Kunjbihari which reveals that Chandarman Satnami, Dhaniram Satnami, Shyamratan Satnami and one other have been killed. This shows that Kotwar was in hurry and in hasty to inform the police about big incident committed in his village.
25. Guhan (PW-2) who has accompanied Kotwar Prakash Das (PW-
9) has deposed in his evidence that between 5 to 6 a.m. Rajkumar Kurre (PW-8) knocked his door and informed him that the appellants have killed his uncle Dhaniram, father Chandraram, brother Shyamratan and one relative of village Mohanbhatta, then he visited the place of incident and saw dead bodies. In para 5 of his cross-examination he has specifically admitted the suggestion given by the defence that he has not told the names of assailants at Police Station but he has denied the suggestion that Rajkumar has not informed the names of assailants, therefore, he has not informed the police. He has admitted in para 8 that 100 persons gathered on the spot between 5 to 6 a.m. In para 10 he has further admitted that after informing the police by telephone they immediately proceeded for Police Station by motor-cycle. His detailed evidence especially para 5 of cross-examination reveals that although he was informed by Rajkumar relating to incident and assailants but he has not informed the police and virtually one constable was controlling the movement of Police and Police immediately went to the spot by four vehicles, although it was his duty to inform the names of assailants to the Police, but he has not informed the names of assailants to Police, even he has not lodged any Rojnamcha Sanha or report and Rojnamcha was lodged by Prakash Das (PW-9). In these circumstances, non-recording of names of assailants in Rojnamcha Sanha Ex.P/46(A) is not fatal to prosecution.
26. As per defence, the appellants were not having any grudge against the complainant party and there was no cause for committing murder of aforesaid four persons. Rajkumar Kurre (PW-8) has specifically admitted in para 32 of his evidence that prior to commission of incident there was no any dispute with the appellants and he was in talking terms with children of the appellants. This witness has denied the suggestion that some other persons have assaulted the deceased persons and have committed robbery but this fact has not been corroborated by any other witnesses.
27. As held by the Supreme Court in the matter of K.Ashokan (supra), F.I.R. lodged by eyewitness within three hours of incident giving all details but not named the accused makes the case doubtful. In the present case, Ex.P/12 is F.I.R. lodged by Rajkumar in which names of assailants have been mentioned. Therefore, facts of the case of K.Ashokan (supra) are distinguishable to that of the present case.
28. As held by the Supreme Court in the matter of Ram Kumar Pande (supra), omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In the present case, there are no any omissions of important facts. Therefore, facts of the case of Ram Kumar Pande (supra) are distinguishable to that of the present case.
29. As held by the Supreme Court in the matter of Burbal (supra), in absence of any cause for attacking upon the deceased and for leaving eyewitness, case of the prosecution was not found trustworthy. In the present case, the appellants have attacked upon four persons and caused their deaths. They have also attacked upon Rajkumar Kurre (PW-8) and have caused injury. Rajkumar Kurre has saved himself from the appellants by escaping from the spot. Therefore, facts of the case of Burbal (supra) are distinguishable to that of the present case.
30. In the present case, as per evidence of prosecution witness, the appellants were present in the village and have not fled from the village, they were not present on the spot and villagers gathered at the place of incident, although this is unfavorable to prosecution case, as held by the Supreme Court in the matter of Jageshwar and others (supra), but it appears from the evidence that within short time after commission of offence villagers woke up and gathered and there was no opportunity to the appellants for escaping from the spot.
31. As held by the Supreme Court in the matter of Ashish Batham (supra), mere suspicion, however, strong or probable it may be is no effect substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basis and golden rule only helps to maintain the vital distinction to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. Defence has not taken defence even by suggestion to the witness that on account of enmity with other persons or family members of complainant party Rajkumar Kurre has falsely implicated the appellants. Even nothing has been suggested to this witness that on account of advise or suggestion or at the instance of any other person Rajkumar Kurre (PW-8) has lodged F.I.R., that too within short span of time without any cause. This circumstance reveals that Rajkumar Kurre (PW-8) was not having any ground for implicating falsely the appellants. This fact corroborates truthfulness of Rajkumar Kurre. Rajkumar Kurre (PW-8) is not only relative witness and eyewitness but also injured witness. He has been examined by Dr.A.K.Sanyal (PW-4) on the same day and visible injuries of considerable size were noticed vide Ex.P/5 which finds support from dehati nalishi Ex.P/12A. His evidence is substantially corroborated by evidence of Panchu (PW-1), Muniyabai (PW-3) and promptly lodged F.I.R. Ex.P/12 which are sufficient for drawing inference that the present appellants have committed homicidal deaths of aforesaid four persons.
32. Prosecution has also adduced evidence relating to recovery of weapons at the instance of the appellants, although Parshuram (PW-7) has not supported the factum of memorandum and seizure but same has been corroborated by Gorelal (PW-12) who has deposed that appellant Girdhari @ Batau has made disclosure statement of stick and betel axe present in well and same were recovered at the instance of appellant Girdhari vide Ex.P/25. He has admitted signature over disclosure statement and seizure of Girdhari vide Exs. P/22 and P/25 i.e., disclosure statement and recovery of betel axe and stick from well. He has admitted in para 4 of his evidence that nothing has been seized from appellant Anjor Das. In para 5 he has admitted that sister of Girdhari has informed about the articles. Virtually he has also not substantially corroborated disclosure statement and seizure of the appellants, but both the witnesses have admitted signatures over the documents. As per Exs.P/22 to P/24, both the appellants have made disclosure statement and on the basis of their statements, one betel axe, one axe and stick have been recovered from well. These witnesses have not deposed that they have been compelled by Police or any authority to sign the aforesaid documents.
33. If the accused persons have not made disclosure statements and if the articles have not been recovered from well then there was no occasion for signing on the documents. This shows that both the witnesses are concealing the truth. In these circumstances, only evidence of N.P.Mishra (PW-14) is remain for consideration who has deposed that appellants Anjor Das and Girdhari have made disclosure statement of betel axe, axe and stick vide Exs.P/22 to P/23. Aforesaid articles have been recovered from well and from the house of Girdhari. In his detailed cross-examination he has denied the suggestion that all the appellants have not made disclosure statement and he has not seized the articles from the appellants. Articles were sent for chemical examination and blood was found in betel axe and axe recovered from both the appellants vide Ex.P/49, although prosecution has not proved blood group but the fact remain that on the date of incident both the appellants were in possession of betel axe and axe stained with blood. This fact also corroborates the evidence of Rajkumar Kurre (PW-8).
34. As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. Motive is a state of mind of person at the time of commission of offence and only person concerned would be in a position to explain that what was his intention or motive behind commission of any act.
35. In the present case, no clear motive for commission of four murders have been established by prosecution but multiple fatal injuries found over the body of the deceased persons are sufficient for drawing inference that the present appellants were having motive for causing murders of aforesaid four persons and have caused homicidal deaths with intent to cause deaths of Chandraram, Kunjbihari, Shyamratan and Dhaniram and have also caused simple injury to Rajkumar Kurre (PW-8) in sharing common intention.
36. After appreciating the evidence available on record, learned trial Court has convicted and sentenced the appellants as aforementioned.
37. On close scrutiny, we do not find any illegality in the judgment impugned warranting interference. This is a case of homicidal death amounting to murders of four persons. The trial Court has taken reasonable view in sentencing the appellants.
38. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed.
JUDGE