RAMHARI SARTHI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) By this appeal, the appellant challenges the correctness, validity and propriety so also the findings recorded by the Court below in its judgment dated 31-1-1998 passed in Sessions Trial No. 289/1996 convicting the appellant for offence punishable under Section 302, IPC and sentencing him to undergo imprisonment for life. The prosecution case in brief is that the deceased Ramcharan and the appellant/accused Ramhari were cousins, in relation to certain ancestral properties and its division certain disputes were going on between the said parties. It is also stated by the prosecution that deceased Ramcharan used to abuse the accused and his family members. On 15th Feb., 1998, as alleged, at about 7 p.m. when the accused came to his house, he found that the deceased was abusing his family members. On this the accused armed with a 'Farsi' opened an assault on the deceased, caused him as many as 11 injuries, as a result of which the deceased died on the spot. The prosecution further says that P.W. 2 Rajkumari, the grant daughter of the deceased after seeing the assault, ran away from the spot and came back to the spot, after about half an hour. The accused, according to the prosecution case, armed with the said 'Farsi' went to the house of P.W. 1 Ghanshyam Das, informed him that he had committed murder of the deceased. After receiving the information P.W. 1 Ghanshyam required the accused to go to the Police Station and lodge the report. The accused appeared at the Police Station, lodged the report Ex. P-13 and appended his signatures to the said report. On 16-2-1998, the Investigating Officer came to the village and after reaching the spot made 'Panchnama' and seized the body. The body was sent for post-mortem. Certain statements of the witnesses were recorded on 16-2-1998. After completing the investigation, the Police filed the challan against the appellant. As the appellant denied the commission of offence, he was put to trial.

(2.) The learned Trial Court after recording the evidence and after giving proper opportunity to the accused to lead defence evidence heard the parties and after hearing the parties, on being satisfied that the prosecution had successfully proved that the accused was the author of the injuries on the person of deceased, convicted and sentenced the accused, as referred to above. Shri R.K. Jayaswal, learned counsel for the appellant has submitted that the statements of P.W. 2 Rajkumari, the grand-daughter of the deceased, arc unnatural and as she had been projected rather concocted as an eye-witness, her statements cannot be relied upon. Regarding P.W. 1, Ghanshyam, he submits that the confessional statement made by the accused before said P.W. 1, appear to be unnatural and as such the statement of P.W. 1 could not be relied upon. Challenging the credibility of P.W. 2, Rajkumari, he submits that Rajkumari had clearly staled that the deceased was wearing one underwear only, but as the other witnesses and Panchnama of the body show that the deceased was wearing a vest (Banian), the statement of Rajkumari should be absolutely discarded. He also submits that though the accused has admitted lodgment of the First Information Report, but as the accused was in custody and was forced to append his signatures on Ex. P-13, the contents of Ex. P-13 should not be relied upon.

(3.) On the other hand, Shri Ranveer Singh, learned Government Advocate for the State submits that the statements of P.W. 2 Rajkumari, the grand-daughter, are but natural and after seeing the ghastly incident if she ran away from the spot and returned after some time, she cannot be disbelieved. Referring to the statement of P.W. 1, he submits that nothing has been brought on record to impeach the statement and credibility of P.W. 1, he submits that present is a case where the accused armed with a deadly weapon came to the house of the deceased, opened the assault and caused as many as 11 injuries to the deceased which led to the death of deceased. According to him, the Court below was absolutely justified in convicting the appellant and awarding the sentences. Undisputedly, Ex. P-13 is the report which was lodged by the accused himself. In view of the judgment of the Supreme Court in the matter of Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC Pg. 119 and Narayana Swami Vs. Emperor, AIR 1939, Privy Council 47, the confessional statements contained in the First Information Report, would not be admissible against the interest of the appellants. It is worth noting that the learned Trial Court has also not placed any reliance upon the contents of the FIR Ex. P-13 to hold the appellant guilty. P.W. 2 Rajkumari is the grand-daughter of the deceased Ramcharan, She has stated before the Court that she was about 14 years of age, but the Court in its estimate found that she was about 12 years. Before her statements were recorded in the Court, the Court being alive to the situation had put certain questions to P.W. 2 Rajkumari to ascertain whether she could understand the questions and was wise enough to answer the said questions. After making the enquiry, the Court recorded that the witness was wise enough to understand the effect and import of the oath. But as she was about 12 years of age, oath was not administered to her. P.W. 2 Rajkumari had clearly stated that she had raised the volume of Radio so that the abuses hurled by the accused could not be heard by the deceased. According to her, after hearing the abusive language, the deceased came out of the house and almost at the same time, the accused armed with a 'Farsi' came to the spot and opened the assault. She states that after seeing the said assault, she with her younger brother ran away from the spot. According to her, almost after half an hour, she came back and found the dead body of the deceased. In the cross-examination, it was suggested to her that, in fact, the deceased was abusing the accused. Not even a single question had been put to her in her cross-examination to show or suggest that the accused did not open the assault. She was cross-examined mainly on two points. First, as to what the accused was wearing and second as to what the deceased was wearing. In Paragraph 2 of her statement, she stated that at the time of assault, the deceased was wearing an underwear only and was not wearing any vest. For the accused, she stated that he was wearing a full pant and 'Kurta'. In Paragraph 3, it was suggested to her that because of the dark, she could not see anything. In reply to the Court question, she stated that at the place where the actual incident took place, there was no light, but she had seen the accused hitting her grand-father. In her further statement, she has stated that in the light of bulb, which was illuminating in her house, she could see the accused though the lane (Gali) was dark. In the last line of Paragraph 3, she staled that the accused hit her grand-father in the 'Chaura' (Varandah of the house). Learned counsel for the appellant submits that the Panchnama shows and, the witnesses have stated that the body of the deceased was wearing a vest, therefore, it must be presumed that P.W. 2 Rajkumari had not witnessed the incident.