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2009 Supreme(Chh) 137
2009(2) C.G.L.J. 462 (DB)
HIGH COURT OF CHHATTISGARH, BILASPUR
Hon'ble Shri D. R. Deshmukh & Hon'ble Shri R. L. Jhanwar, JJ.
STATE OF M.P. (NOW C.G.) - Appellant
Vs.
BUDRU & OTHERS - Respondents
Criminal Appeal No. 1224 of 1989,
Decided on 20-4-2009.
Shri Ashish Shukla, Government Advocate, for the State/ appellant.
Shri Vishnu Koshta, Advocate, for the Respondents No. 2 and 4.
The main legal point established in the judgment is the requirement for credible evidence, including eyewitness testimony and dying declarations, and the impact of failing to explain injuries sustained by the accused and not examining available independent witnesses on the prosecution's case.
Headnote:
I.P.C. - Criminal Appeal - Sections 147, 302, 149 - Summary of the acts and sections referenced and discussed by the court: The court discussed the testimony of the eyewitness, the importance of independent witnesses, and the credibility of related witnesses. It also highlighted the requirement for explanation of injuries sustained by the accused and the impact of failing to examine available independent witnesses on the prosecution's case.
Fact of the Case:
The prosecution alleged that the accused were involved in a physical altercation resulting in the death of Shivnath. The prosecution's case relied on the testimony of an eyewitness and a dying declaration.
Finding of the Court:
The court found that the testimony of the eyewitness was unreliable and that the dying declaration was not credible. It also noted the lack of explanation for injuries sustained by the accused and the absence of examination of available independent witnesses, leading to doubts in the prosecution's case.
Issues: The issues revolved around the credibility of the eyewitness testimony, the dying declaration, and the failure to explain injuries sustained by the accused. The absence of examination of available independent witnesses was also a crucial issue.
Ratio Decidendi: The court emphasized the importance of credible eyewitness testimony, the need for explanation of injuries sustained by the accused, and the impact of failing to examine available independent witnesses on the prosecution's case.
Final Decision: The court dismissed the criminal appeal, upholding the acquittal of the respondents by the learned Additional Sessions Judge.
As per Hon'ble Shri D.R. Deshmukh, J. :-
1. This criminal appeal by the State is directed against the judgment dated 31-5-1989 delivered by the 3rd Additional Sessions Judge, Bastar place at Jagdalpur in Sessions Trial No.48/87, whereby the respondents Arjun and Baldeo and deceased co-respondents Budru and Raghu were acquitted of the charge under Sections 147, 302 read with Section 149 of the I.P. C.
2. The appeal has abated against the respondents Budru and Raghu, who died during pendency ofthis appeal.
3. Prosecution story is that Nakul son of deceased Shivnath was married to the daughter of Budru. However, daughter of Budru remarried upon which enmity erupted between Budru and Shivnath. On 2-8-1986 an oral altercation had taken place between Shivnath and Budru on the same issue. Shivnath accompanied by Manto, Mani, Mansingh and Sitaram was going to P.S. Bhanpuri to lodge a report. Near Hathitalab, Farsaguda, on the main road, Budru, Raghu, Arjun, Baldeo and Phoolsingh started a fight with Shivnath. Budru assaulted Shivnath by a Farsi on the left wrist, right hand and chest. His companions also assisted in the assault. Sitaram P.W.-3 and his companions intervened. Sitaram P.W.-3 snatched the Farsi from Budru after he sustained an injury on the left wrist. At about 9:20 P.M. Sitaram P.W.-3 accompanied with Shivnath and Sonsingh P.W.':' 4 went to P.S. Bhanpuri and lodged the ELR. EX.P-3. One iron Farsi with a wooden handle was seized vide EX.P-4 from Sitaram at the time of lodging the ELR. On 2-8-1986 Moharrir Dinkar Prasad Shukla P. W.-8 sent Shivnath for medical examination to the Government Hospital Bhanpuri. Sometime after medical examination, Shivnath died. Inquest was recorded vide Ex.P-14 on 3-8-1986. Post mortem was conducted by Dr. N.S.Thakur P.W.-2 who found the following injuries on Shivnath vide autopsy report Ex.P-2 :
After completion of investigation, the respondents were prosecuted under Sections 147,302 read with Section 149 of the LP.C. Challan was filed against Phoolsingh before the Juvenile Court.
4. The respondents abjured the guilt, pleaded innocence and proved the M.L.E. report Ex.D-3, EX.D-4 and EX.D-5 dated 2-8-1986 of the respondents BaIdeo, Raghu and Budru respectively. The prosecution examined as many as 13 witnesses. The learned Additional Sessions Judge acquitted the respondents on the ground that besides Sitaram P.W.-3 who was related to the deceased other independent eye-witnesses Manto, Mani and Mansingh who were cited by the prosecution were not examined by the prosecution. No explanation was offered for the injuries sustained by Raghu, Budru and Baldeo. The testimony of Sitaram P.W.-3 that Baldeo had assaulted Shivnath by a knife in the chest and neck was not reliable because in the ELR. or in his statement under Section 161 of the Cr.P.C. this fact was not stated. The possibility that the deceased was the aggressor and had started the fight could not be ruled out.
5. Shri Ashish Shukla, learned Government Advocate for the State/appellant argued that even if the prosecution had not examined independent witnesses Manto, Mani and Mansingh, the testimony of Sitar am P. W.-3 alone could form the basis for convicting the respondents under Sections 147,302 read with Section 149 of the LP.C. It was also argued that failure to offer explanation for the simple injuries sustained by the respondents did not render the testimony of Sitaram unworthy of credit. Besides, Sonsingh P. W.-4 had also proved the oral dying declaration of Shivnath implicating Budru and Baldeo for the assault by Farsi and knife respectively on him. Therefore, the acquittal of the respondents by the learned Additional Sessions Judge ought to be set aside and the respondents were liable to be convicted under Sections 147,302 read with Section 149 of the I.P.C. Reliance was placed on State of MP Vs. Kalu Ram and another1, Ram Udgar Singh Vs. State of Biha?
6. On the other hand, Shri Vishnu Koshta, learned counsel for respondents No.2
