Rohit and Another vs State of Chhattisgarh

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 4.1.2007 passed by the Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 13/2006, whereby and whereunder learned Additional Sessions Judge while acquitting co-accused Murari and Suresh and after holding appellant Rohit guilty for commission of offence punishable under Sections 120B, 302 and 148 of the I.P.C. and appellants Nag Singh, Manoj Chhagan, Nirmal and Punitram guilty for commission of offence punishable under Sections 120B, 302/34 and 148 of the I.P.C. sentenced them to undergo imprisonment for life and fine of Rs. 100, imprisonment for life and fine of Rs. 100 and R.I for one year and fine of Rs.100, in default of payment of fine to further undergo SI for fifteen days on each default. The Trial Court has also convicted appellants Rohit and Nag Singh under Sections 25 (1) (b) and 27 of the Arms Act and sentenced them to undergo R.I. for three years and fine of Rs.100, in default of payment of fine to further undergo S.I. for fifteen days. 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.

As per case of the prosecution, on account of previous enmity of Bhalaram Dev with appellant Rohit, appellant Rohit entered into illegal conspiracy with other co-accused persons and obtained firearm from appellant Nag Singh. On the fateful day of 12.8.2005 at about 10 p.m. while Bhalaram Dev (since deceased) and his wife Dukalo Bai (PW5) were present in their temporary hut situated at bank of Umarpal river, four persons came to their temporary hut, they were having firearms i.e., bharmar guns, they asked for food- grain, while Bhalaram was going inside his hut for bringing food-grain two persons shot fire upon him and caused serious injury, thereafter they fled from the spot. At the time of incident with a view to confuse the persons and investigation they used the word that they are jungle wale i.e. symbol of nuxli. They also affixed one nuxli pamphlet Ex.P7K. Dukalo Bai (PW5), wife of deceased Bhalaram immediately went towards village and informed to her sons Shyam Singh (PW1) and Santram (PW11), they immediately rushed to the spot, at that time, Bhalaram was alive, Shyam Singh (PW1) immediately went to the Police Station and lodged the HR. vide Ex. P1 against two unknown persons. Merg was also recorded vide Ex.P2. When Santram (PW11) was present with injured Bhalaram on the spot and no other persons were present, then injured Bhalaram made dying declaration that four persons had come to the place of incident and out of four Rohit and Punit were present. He was under threat and after eleven days of incident he narrated the incident relating to factum of dying declaration to police vide Ex.D5. After summoning the witnesses vide Ex.P5, inquest over dead body of Bhalaram was prepared vide Ex.P6. Investigating officer prepared spot map vide Ex.P3. Alleged nuxli pamphlet Ex.P7K was seized from the spot along with one nail vide Ex.P7. Cartridge of firearm and piece of cloth containing smell of explosive were seized from the spot vide Ex.P11. Bloodstained and plain soil were recovered from the spot vide Ex.P12. Nuxli pamphlet Ex.P/34 was seized from the spot vide Ex.P13. Dead body was sent for autopsy and death was opined as a result of gun shot injury. Sealed clothes of the deceased were seized vide Ex.P10. During the course of investigation, appellant Rohit was taken into custody, he made disclosure statement of gun, torch and cell vide Ex.P14 and cell and torch were recovered at the instance of appellant Rohit vide Ex.P15. Alleged gun was recovered from appellant Nag Sai vide Ex.P16. Another gun was recovered from appellant Rohit vide Ex.P17. Acquitted co-accused Suresh was taken into custody, he made disclosure statement of register and paint box vide Ex.P25 and same were recovered at his instance vide Ex.P26. Acquitted co-accused Suresh Kumar was subjected to identification vide Ex.P23 and he was identified by Dilip Singh and Jageshwar. Gun was examined by armour vide Exs.P27 and P27 A. Co-accused Suresh was also identified vide identification memos Exs.P20 to P30. Specimen signature relating to pamphlet was sent for examination to expert. One piece of cloth was also recovered vide Ex.P35. Seized articles were sent for chemical examination vide Exs.P39 to P42 and as per report Exs.P43. Ex.P44, P45, P46, P48, P49. P50, P51 and P52, both guns were used for firing and presence of explosive (barud) was found in piece of cloth.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (for short ''the Code'') and after completion of investigation, charge-sheet was filed before the Court of Judicial Magistrate First Class, Chowki, who in turn committed the case to the Court of Sessions. Rajnandgaon, from where learned Additional Sessions Judge. Rajnandgaon received the case on transfer for trial.

In order to prove the guilt of the accused/ appellants, prosecution has examined as many as twenty witnesses. Accused were examined u/s 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question.

After providing an opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Murari and Suresh has convicted and sentenced the aforesaid appellants as aforementioned.

We have heard Mr. Arvind Kumar Dubey, learned counsel for the appellants and Mr. Vinod Shrivastava, Government Advocate for the respondent/State, perused the judgment impugned and record of the trial Court.

Learned counsel for the appellants vehemently argued that co-accused Suresh and Murari have been identified by Vishnu Singh (PW6) and Heersai (PW9) and they have visited their village and have threatened them, but the Court below has acquitted them. As per evidence of Navrulram (PW15), co-accused Suresh and Murari had compelled him to affix pamphlet Ex.P7K showing the same as nuxli pamphlet. Learned counsel further argued that only evidence of Santram (PW11) is remain for consideration on the point of alleged dying declaration made by deceased Bhalaram before him. He has not informed the factum of dying declaration or the fact that accused Rohit and Punit were assailants on first day and after eleven days on 24.8.2005 his statement has been recorded, he is only substantial witness, his conduct is not natural and his evidence does not inspire confidence and trustworthy. Presence of explosive on piece of cloth found near the place of incident and evidence of fire by both guns is not sufficient to connect the appellants in crime in question unless it is proved that by firing gun shot they have caused death of Bhalaram. Prosecution has not examined any witnesses to connect the appellants on the ground of conspiracy. In absence of substantial evidence against the appellants, conviction and sentences imposed upon the appellants are not sustainable under the law.

On the other hand, learned State counsel opposed the appeal and argued that the State is effected by nuxlite and in forest area the persons also commit crime in the name of nuxli. In the present case, prosecution has adduced sufficient evidence to prove conspiracy and murder of Bhalaram by the appellants in furtherance of conspiracy. After appreciating the evidence adduced on behalf of prosecution the trial Court has convicted and sentenced the appellants as aforementioned.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution.

Although in the present case, autopsy report has not been filed and prove. Prosecution has not examined doctor who has conducted autopsy but homicidal death as a result of gun shot injury has not been substantially disputed on behalf of the appellants, on the other hand, also established by the evidences of Shyam Singh (PW1), Nehru @ Dhewru (PW2), Phaker Sai (PW3), Sudesh (PW4), Dukalo Bai -(PW5), Vishnu Singh (PW6) and Hanshuram (PW7) and inquest report Ex.P6 corroborated by the F.I.R. Ex.P1 and merg Ex.P2 that death of Bhalaram was homicidal in nature.

As regards the complicity of the appellants in crime in question, conviction is substantially based on evidence of Santram (PW11), second son of deceased Bhalaram. As per initial case of prosecution, on 12.8.2005 at about 10 p.m. two persons holding guns were came to hut of Bhalaram where he was present along with his wife Dukalo Bai (PW5), they demanded food-grain, they introduced themselves as jungle wale. While Bhalaram was going inside hut for bringing food grain at the same time they shot fire from gun and caused injury to Bhalaram. he fell down, Dukalo Bai (PW5), wife of injured Bhalaram went to village for calling villagers and her sons Shyam Singh (PW1) and Santram (PW11), they came to the spot, at that time Bhalaram was in talking position, Bhalaram told his sons that enemies have assaulted him. Thereafter, Shyam Singh (PW1) went to Police Station and lodged the F.I.R. vide Ex. P1. As per Ex.D5 statement of Sant Ram (PW11) recorded u/s 161 of the Code after eleven days of the incident i.e., on 24.8.2005, firstly Bhalaram told his sons Shyam Singh in his presence that two persons came to his house, they demanded food-grain and thereafter they shot fire from back of Bhalaram. Bhalaram also stated that four persons were causing injury to him and out of four persons he knows two persons and after sometime he will tell the names of two persons. Thereafter when he alone was present near his father, then his father told him that appellants Rohit and Punit, his relatives have caused firearms injury to him, but he did not inform any of the relative or police, he was under fear and on 24.8.2005 he informed the police about dying declaration made by his father to him.

Ex.Pl F.I.R., Ex.P2 Merg, evidence of Shyam Singh (PW1) and Dukalo Bai (PW5), wife of the deceased reveal that enemies have assaulted Bhalaram. At that time Bhalaram has not stated anything relating to any of the accused persons before Shyam Singh (PW1) and Dukalo Bai (PW5). Santram (PW11) has deposed in his evidence that when he reached to hut of his father after incident and was alone with his father, then his father Bhalaram told him that four persons had come to his house and out of four persons he knows two persons namely, Rohit and Punit, present appellants. In para 5 of his cross- examination he has admitted relationship with appellants Rohit and Punit. He has also admitted that at the time of postmortem and report, he is not informed the police. Police Station is situated at Mohla and he has visited Mohla so many times. He has admitted in para 3 of his evidence that police has recorded his statement as Ex.D5. As per evidence of Dukalo Bai (PW5), wife of the deceased who was present on the spot at the time of incident, all appellants were present at the time of incident i.e., as per her evidence eight persons were present at the time of incident and out of eight accused i.e., co-accused Suresh and Murari, six persons demanded food grain. She has stated that she has also informed the police in her statement Ex.D3 relating to presence of all appellants and injury caused by Rohit, but same fact does not find place in Ex.D3. She has denied the suggestion that she has informed the police about two persons holding firearms who find place in Ex.D3. Her statement recorded u/s 161 of the Code by police.

As per evidence of Shyam Singh (PW1). he has lodged the F.I.R. Ex. P1 and merg Ex.P2 which reveal that two unknown persons holding firearms have committed the incident. As per evidence of Dukalo Bai (PW5) who was present on the spot, eight persons were present at the time of incident. As per F.I.R. Ex. P1 and merg Ex.P2 lodged by Shyam Singh (PW1) son of deceased Bhalaram on second day of incident, two unknown persons holding firearms have committed the incident and as per evidence of Santram (PW11), his father has informed him that four persons came to his hut and out of four persons he has identified two persons namely, appellants Rohit and Punit.

In the present case, Santram (PW11) has admitted that after incident he was under fear but he has visited village Mohla where Police Station is situated so many times, but he has not stated the factum of dying declaration made by his father to him at the time of incident to police on second day or other occasion when he visited Police Station Mohla. His statement was recorded on 24.8.2005, after eleven days of such incident, although he has stated that he was under fear but he was present at the time of incident, he has frequently visited Mohla where Police Station is situated shows that he was not under fear.Even otherwise, as per his evidence, Punit and Rohit were present at the time of incident who are uncle of this witness..

As per evidence of prosecution, two firearms have been seized and have been used for firing. Ex.D5 statement of Sant Ram (Pw11) recorded u/s 161 of the Code reveals that four persons were present and his father has received gun shot injury from back shows that he has not seen the persons who had actually caused injury but he has seen out of four persons two were appellants Punit and Rohit.

As per evidence of Dukalo Bai (PW5), eight persons have committed the incident and as per evidence of Santram (PW11), four persons were present at the time of incident. Evidence relating to presence of number of persons are complete contradictory to each other, that too in the evidence of close relatives of deceased Bhalaram i.e., Shyam Singh (PW1) son, Dukalo Bai (PW5) wife and Santram (PW11) son.

Considering the complete contradictory evidence relating to presence of number of persons, it is difficult to hold that how many persons were present at the time of commission of offence.

As regards the question of presence of appellants Punit and Rohit and role attributed to them, deceased Bhalaram has not made dying declaration to Santram (PW11) that appellants Punit and Rohit have caused injury by gun shot. Prosecution has not proved the case that four guns shot injuries were found on body of the deceased or alleged four persons have shot fired by guns and caused injuries to deceased Bhalaram. Even prosecution has not adduced any evidence that all eight persons were holding firearms,

In absence of aforesaid evidence, it is difficult to hold that appellants Punit and Rohit have shot fire by gun. On the basis of evidence of Santram (PW11), he has also not informed names of assailants to police on second day or other occasion during the course of his visit to village Mohla where Police Station is situated.

Prosecution has relied upon the report of ballistic report Ex.P48 which reveals that on examination of piece of cloth, one gun and one piece of lead, expert has opined that presence of firing discharge residue was found in cloth of piece and bharmar gun was working condition and lead piece marked as ''A'' which was examined chemically contents fire discharge residue and has been fired, but prosecution has not collected any evidence to establish that cartridge found near the place of incident has been fired through the guns seized from appellants Nag Sai and Rohit.

This is a case of murder by firearms of father of Santram (PW11). He was not stranger to his father. While dealing with the question of evidentiary value of witness not disclosing name of assailant for a day and a half, in the matter of State of Orissa v. Mr. Brahmanada Nanda the Supreme Court has held that non-disclosure of statement of assailant is serious infirmity which destroyed the credibility of evidence of the witness and such evidence should be rejected.

In the matter of Badri v. State of Rajasthan, the Supreme Court has held that evidence of single witness is sufficient to prove the charge and no particular number of witnesses is required to prove the charge, but it is a sound and well established rule of law that quality and not quantity of evidence. In such case the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person.

Santram (PW11) has not stated the factum of dying declaration relating to involvement of appellants Punit and Rohit to police and has disclosed the same after eleven days of the incident. There was no circumstance or propriety for non-disclosure of names of assailants for eleven days. In these circumstances, as held by the Supreme Court in the matters of Mr. Brahmanada Nanda (supra) and Badri (supra), his evidence is not of sterling quality and not sufficient for drawing inference that appellants Punit and Rohit have committed the offence. His evidence is also contradicted by evidence of Shyam Singh (PW1) and mother Dukalo Bai (PW5) relating to presence of number of accused persons. Evidence of Santram (PW11) suffers from serious infirmity and is sufficient to destroy his credibility. His evidence is not substantially corroborated by evidence of other witnesses.

Prosecution has also adduced another set of evidence relating to recovery of firearms and expert report of firearms that both firearms have been used. Even this fact is admitted in evidence, then the only inference would be possible that two firearms have been used for firing on or about the date of incident, but this evidence alone is not sufficient to connect the appellants in crime in question that they have used firearms and by using such firearms they have caused injury to Bhataram. Although in case of conspiracy, direct evidence would not be possible and Courts are required to consider the circumstance of commission of offence. In the case of conspiracy it is not necessary that offender should participate in conspiracy from beginning to end, he may take part during the course of conspiracy and left during the course of conspiracy but still prosecution is required to prove the factum of conspiracy, role attributed to different accused persons for commission of offence.

In the present case, evidence adduced on behalf of prosecution is not sufficient for drawing inference that the present appellants have entered into conspiracy and in furtherance of conspiracy they have committed murder of Bhalaram. Appellants Punit and Rohit are not unknown to Dukalo Bai (PW5), they are relatives to her, but Ex.D3 her statement does not find the names of these accused also creates great doubt.

Prosecution is required to prove its case beyond all shadow of doubt. Prosecution has not taken weakness of defence and required to stand on its own legs. He cannot take benefit of weakness of defence. Suspicion, however strong it may be, cannot take the place of legal proof.

In the present case, scatter piece of evidence if considered together, then same would not be sufficient for drawing any definite conclusion that the present appellants have entered into conspiracy and in furtherance of conspiracy they have committed murder of deceased Bhalaram, but the fact remain that present appellants Rohit and Nag Singh were found in possession of firearms and they have fired the firearms and have used firearms for firing without any license.

While convicting appellant Rohit under Sections 120B, 302 and 148 of the I.P.C and appellants Nag Singh, Manoj Chhagan, Nirmal and Punitram under Sections 120B, 302/34 and 148 of the I.P.C, the trial Court has not considered the complete insufficiency of evidence and thereby committed illegality. For the foregoing reasons, the appeal is partly allowed.

Conviction and sentences of appellant Rohit under Sections 120B, 302 and 148 of the I.P.C. and conviction and sentences of appellants Nag Singh, Manoj Chhagan, Nirmal and Punitram under Sections 120B, 302/34 and 148 of the I.P.C, are hereby set aside. However, conviction and sentences of appellants Rohit and Nag Singh under Sections 25 (1)(b) and 27 of the Arms Act are hereby maintained. Present appellants Rohit and Nag Singh are in custody for more than three years and other appellants have been acquitted of the charges, therefore, all the appellants be released forthwith, if not required in any other cases.