Samlu and others vs State of M.P.

Appellants/accused persons have filed this appeal against the judgment dated 04.07.1998 passed by the Second Additional Sessions Judge, Mandla in Sessions Trial No.85/95 whereby the appellants were convicted under Section 302 read with Section 149 and Section 353 read with Section 148 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.100/- each.

Prosecution case in brief is that on 21.07.1993 the deceased Chandanlal (Forest Guard) with Vijendra Kumar, Abdul Hamid and others were patrolling in the Kanha Reserve Forest (Project Tiger). At about 7:00 p.m., they found 15 to 20 persons assembled there for hunting the animals.

They had axes, traps, utensils and clothes. After seeing the patrolling party, the appellants fled away from the spot leaving the aforesaid articles.

Chandanlal (since deceased) and his team members took articles left by the appellants at their Chowki. After sometime, the appellants about 15 to 20 persons attacked at the Chowki (sauf-naka). They assaulted Chandanlal by an axe and sticks. His team members Vijendra Kumar and Abdul Hamid (Forest Guards) climbed on the tree to save themselves. They saw, the appellants inflicting the injuries to Chandanlal. The appellants took their articles from the Chowki and fled away from the spot. Another Officer R.N. Awasthy (PW-6) brought Chandanlal to the Hospital, Mocha.

Doctor declared him dead and conducted autopsy of his body. FIR was lodged by R.N. Awasthy (PW-6) against the appellants for the offences under Sections 353, 147, 148 and 302 read with 149 of I.P.C. After due investigation, chargesheet was filed before the concerned Court.

After committal of the case, charges under Section 302 read with Section 149 and Section 353 read with Section 148 of the Indian Penal Code has been framed by the learned Trial Court against the appellants. Appellants abjured guilt and stated that they are innocent and falsely implicated by the police in this case.

After having considered the entire evidence on record, learned Trial Court found the appellants guilty for committing offence under Section 302 read with Section 149 and Section 353 read with Section 148 of the Indian Penal Code and sentenced them as mentioned in para 1.

Findings of the learned trial Court are challenged by the appellants on the grounds that the trial Court has wrongly appreciated the evidence on record and failed to see that the alleged story of the prosecution is solely based on the "Dock Identification" and on the memorandum and seizure which were not proved by the prosecution. Further the prosecution witnesses have not supported the prosecution story. There are so many lacunae in the prosecution case, hence, the appellants deserve to be acquitted.

Heard learned counsel for the parties at length and perused the record.

Learned Government Advocate for the respondent-State has contended that the appellants were rightly convicted and sentenced by the trial Court as per the evidence on record.

Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) are the eye witnesses to the incident. Their testimonies with regard to the posting of the deceased on the date of incident, i.e. 21.07.1993 as Forest Guard at Kanha Reserve Forest Area is not challenged by the appellants. Along with the Deceased-Chandanlal, Vijendra Kumar (PW-9) and Abdul Hamid (PW-2) were also on duty. The said fact is also unchallenged in their testimony. Hence, at the time of the incident, the presence of Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) are found reliable. Both the witnesses stated that they were on patrolling duty. They found that some persons were gathered and talking together in the Kanha Reserve Forest.

They had axes, traps, utensils and clothes. After seeing the patrolling party, the appellants fled away from the spot leaving the aforesaid articles.

Therefore, Chandanlal (since deceased) and his team members took the aforesaid articles with them at the outpost (Chowki), Saufnaka. After sometime, the appellants about 15 to 20 persons attacked at their outpost (Chowki). They assaulted Chandanlal by axes and sticks, at that time Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) climbed on the tree to save themselves. They witnessed the incident. They saw that the appellants took their articles from the outpost (Chowki) and fled away from the spot. Then they went to the spot and brought Chandanlal to outpost (Chowki). They saw Chandanlal sustained several injuries. He was bleeding from his head. His condition was critical. Their Officer R.N.

Awasthy and staff personnel also came there.

R.N. Awasthy (PW-6), who was Range Officer received wireless message about the incident and thereafter, he came to the spot. He brought Chandanlal to the hospital, but on the way Chandanlal died.

Bachchu @ Pappu (PW-7) and Rameshwar (PW-1) partly corroborated the testimony of above witnesses with regard to the injuries sustained by Chandanlal and presence of Abdul Hamid (PW- 2), Vijendra Kumar (PW-9) and R.N. Awasthy (PW-6) at the scene of occurrence.

They turned hostile but their testimony which supported the prosecution story, can be used for the corroboration.

After considering the above evidence which establish that Chandanlal was assaulted by the accused persons who were present in the forest for hunting or committing illegal act which is punishable under the provisions of the Forest Act. It has also been established from the evidence brought on record that they had an intention to obstruct the Forest Guards to restrain them from prohibiting the offence. The articles seized from the possession of the accused persons also indicate their intention to commit the offence.

Learned counsel for the appellants contended that the identification of the appellants for involvement in the crime has not been proved beyond the reasonable doubt. He has also urged that at the time of the incident, the number of culprits and darkness on the spot creates reasonable doubt in favour of the appellants.

K.C. Bopte (PW-10), Naib Tahsildar deposed that on 07.08.1993 he conducted identification parade of the appellants at Sub-Jail, Mandla and prepared memo (Ex.P/2) which was signed by witnesses Vijendra, Abdul Hameed and Ganga Prasad. During identification parade, 28 persons were added with the appellants. In his presence appellants Samlu, Naval, Munna, Deepu, Boda, Rattu, Gareeba, Premlal, Pansari, Chamru and Subbal were properly identified by Vijendra, Abdul Hameed and Ganga Prasad. On 29.09.1993 the appellants Shankar and Veershay were identified by Abdul Hamid and Ganga Prasad in between 12 persons. In crossexamination, they failed to explain that who were joined with the appellants for identification parade.

Abdul Hameed (PW-2) corroborated the testimony of K.C. Bopte (PW-10), Naib Tahsildar. He admitted his signatures (Ex.P/2 and P/3).

Similarly, Vijendra Kumar (PW-9) also corroborated the testimony of K.C. Bopte (PW-10), Naib Tahsildar. Learned counsel for the appellants submits that both the witnesses are tutored witnesses. They falsely stated against the appellants. Hence, there is necessity to scrutinize the testimony of Abdul Hameed (PW-2) and Vijendra Kumar (PW-9) with great caution because incident took place at about 7.00 p.m. In cross-examination, in para 16 Abdul Hameed (PW-2) stated that he heard some noise then both of them (he and Vijendra) climbed on the tree. He failed to explain number of culprits who came on the spot for assaulting Chandanlal. He said about 10-15 persons came there, but he did not say, who caught hold the deceased, who caught hold Ganga Prasad, who beaten them and who was searching the articles. In para 18, again he submitted that the place of the incident was 50 to 60 feet away from them.

Vijendra Kumar (PW-9) also deposed that his camp and that of the deceased Chandanlal were situated in opposite direction and when the persons attacked on the deceased-Chandanlal's camp, immediately, he climbed on the tree which was at the other camp. That tree was very

dense. The statement of Vijendra Kumar (PW-9) creates reasonable doubt that in such a situation, they are not able to see exactly the assailants in dark and from some distinct place. In para 17, he stated that identification parade was conducted at Panchayat house but Abdul Hameed (PW-2) and K.C. Bopte (PW- 10), Naib Tahsildar deposed that identification parade was held at Sub-Jail, Mandla. Vijendra Kumar (PW-9) also stated that he signed without reading identification memo (Ex.P/2).

Prosecution examined Ganga Prasad (PW-15) as an eyewitness but he turned hostile. He stated that he identified Chamaru, Dukali and Munna

only. In para 5, he stated that he did not remember how many persons identified by him.

After considering of the above facts, we find that the evidence of identification parade and identification of the appellants are not sufficiently proved against the appellants. There is a reasonable doubt in favour of the appellants.

L.S. Kashyap (PW-19), In-charge Police Station deposed that he recorded the memorandum of appellants Dhaniram, Subbal, Gariba, Naval, Munna, Premlal, Bhiku, Samlu, Rattu, Pansari, Boda, Veershay and Shankar and recovered incriminating articles as stated earlier. But panch witnesses Chadamilal (PW-18), Ramgopal (PW-17), Chhidilal (PW-11) and Puranlal (PW-8) turned hostile. Puranlal (PW-8) denied the execution of the proceedings of identification parade as Ex.P/7. Similarly, Anurag Das (PW-5) did not support the prosecution story and testimony of Investigating Officer. Therefore, the proceeding of memorandum of the appellants and seizure of incriminating articles from their possession are not duly established by the prosecution. The alleged charges are not proved beyond reasonable doubt against the appellants.

Even though, Dr. B.K. Chaturvedi (PW-3) supported the prosecution story that Chandanlal died due to fatal injury of his head and chest as shown in postmortem report (Ex.P/4). But the prosecution failed to prove that the injuries were caused by the appellants in furtherance of their common object to commit the murder of the deceased as a member of unlawful assembly.

Under these circumstances, we are of the opinion that learned trial Court wrongly convicted the appellants on the basis of weak type of evidence. Hence, they are entitled to be acquitted.

Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside and the appellants are acquitted of the offences. The appellant no.11 is in jail. He is directed to be released forthwith, if not required in any other case. Other remaining appellants are on bail. Their bail bonds stand discharged.

Copy of this judgment be sent to the Court below for information and compliance alongwith its record.