IMPORTANT POINT
Murder - Unless eyewitnesses identify accused present in Court, it cannot be said that, based on testimony of eyewitnesses, guilt of accused has been proved.

JUDGMENT :

(ABHAY S. OKA, J.)

FACTUAL ASPECTS

1. These appeals take exception to the judgment dated 10th September 2010 of the High Court of Chhattisgarh. A total of nine accused were prosecuted for the offences punishable under Sections 147, 148, 307, read with Section 149 and Section 302, read with Section 149 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court convicted them under the aforesaid sections. For the offences punishable under Section 302 read with Section 149 of the IPC, the sentence of life imprisonment was imposed. The present appellants are accused nos.1 to 8. They and accused no.9 (Ramesh Singh) had preferred an appeal before the High Court. By the impugned judgment, the High Court confirmed the judgment of the Sessions Court.

2. One Kashiram Rathore, a resident of a place called Masturi, had borrowed a certain amount from one Ganpat Singh. As he could not repay the loan, he gave his shop and the land adjacent to it to Ganpat Singh, who, in turn, gave the shop to his relative Rajendra Singh (PW-11) and opened a medical store through him. After commencing business, PW-11 purchased the shop and the adjacent vacant land from Kashiram by way of a Sale Deed.

3. The case of the prosecution is that on 23rd March 2001, the accused, with a common object, armed with deadly weapons like sword, rod, knife, poleaxe, club, etc. went to the disputed shop and murdered Manrakhan Singh and Narayan Singh and attempted to kill PW-1 (Shivraj Singh), PW-3 (Virendra Singh), PW-4 (Judawan Singh), PW-5 (Visheshwar Singh Thakur) and PW-8 (Rakesh Singh Thakur). These are the injured eyewitnesses. The First Information Report (FIR) was registered at the instance of PW-8. The Police claimed that recovery of a sword was made from the 1st appellant (Tukesh Singh–accused no.1). Another sword was allegedly recovered at the instance of the 3rd appellant (Baba alias Rajesh Singh–accused no.3). A dagger like weapon stained with blood was allegedly recovered at the instance of accused no.7 (Mangal Das). A sword was allegedly recovered from the 2nd appellant (Basant Singh–accused no.2). A bloodstained club was allegedly recovered at the instance of the 4th appellant (Pappu Singh–accused no.6). A wooden plank was recovered at the instance of accused no.4 (Anil Singh) and one rod at the instance of accused no.5 (Vishnu Singh).

SUBMISSIONS

4. The learned senior counsel appearing for the appellants has taken us through the notes of evidence and other documents on record. The learned senior counsel submitted that there was a counter case in which prosecution witnesses and others were shown as accused. Tukesh Singh (Appellant) had filed the FIR Crime Number – 49 of 2001 on 24.03.2001 at 03:00 PM. The counter case (Criminal Case No.79 of 2001) registered based on the said FIR ought to have been tried with the case subject matter of these appeals. Therefore, prejudice has been caused to the appellants/accused. He relied upon the following decisions of this Court in support of his contention: Sudhir & Ors. v. State of M.P., (2001) 2 SCC 688, Kuldip Yadav & Ors. v. State of Bihar, (2011) 5 SCC 324 and Nand Lal & Ors. v. State of Chhattisgarh, (2023) 10 SCC 470. He submitted that the accused also sustained injuries which were not explained by the prosecution. He pointed out that the complainant’s party was the aggressor as seen from the evidence. Moreover, there was a delay of five and a half hours in lodging the FIR. There were two Police Constables who arrived at the spot immediately after the incident. Moreover, the Police Station was between two to three furlongs away. There was a delay in recording the statements of PW-4 (Judawan Singh) and PW-11 (Rajendra Singh). He pointed out that PW-13 (Dilip Singh), PW-14 (Shiv Kumar Dubey) and PW- 15 (Ishwari Srivas) were independent witnesses who did not support the prosecution.

5. He submitted that the account given by the eyewitnesses PW-1, PW-3, PW-4, PW-5 and PW-8 of the incident differs in mate