KASIM ALI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The instant appeal has been moved against the judgment dtd. 29/11/2013 passed by the 7th Additional Sessions Judge, Raipur in Sessions Trial No.212 of 2012, whereby the Appellants have been convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code and sentenced with imprisonment for life and fine of Rs.1,000.00 each, in default of payment thereof they have to undergo additional rigorous imprisonment for 6 months.

(2.) Name of deceased is Mohd. Rafis Ali alias Nafis Ali. PW1 Batulam Begum and PW2 Shama Parvin are his wife and daughter, respectively. Rafis Ali was working as a truck driver and was residing at Maudahapara, Raipur. Appellant 1 Kasim Ali was also a truck driver. One month prior to the incident, a dispute took place between Rafis Ali and Appellant Kasim regarding rent of the truck. Allegedly, Appellant Kasim threatened Rafis Ali of life. Rafis Ali and the Appellants were originally residents of Hamidpur, Uttar Pradesh and a dispute was going on in their families for the last 19 years. Allegedly, brothers of Rafis Ali, namely, Rahmat and Rahman were also murdered by relatives of the Appellants and, therefore, the dispute continued between the families. Further case is that on 2/7/2012 at about 21:45 hours Rafis Ali came out of his house for taking his truck to Bilaspur. The Appellants were hidden on the way. In furtherance of their common intention, they assaulted Rafis Ali with stone, brick and iron rods. Rafis Ali sustained grievous injuries on his body. The incident was witnessed by PW1 Batulam Begum, wife of Rafis Ali and PW2 Shama Parvin, daughter of Rafis Ali. PW4 Bachchaji alias Mohd. Sadik and PW6 Imam Ali also witnessed the incident. After the incident, the Appellants fled from the spot. Injured Rafis Ali was taken to Medical College Hospital, Raipur. He died during the course of treatment. Dehati FIR (Ex.D1) was lodged by PW1 Batulam Begum. First Information Report (Ex.P22) was registered. Inquest (Ex.P2) was conducted on 3/7/2012. Post mortem examination over the dead body was conducted by PW9 Dr. Shiv Narayan Manjhi. Post Mortem Report is Ex.P37 in which cause of death is reported to be due to haemorrhage and shock as a result of head injury and nature of death is reported to be homicidal. During the course of investigation, on the basis of memorandum statements of the Appellants, i.e., Ex.P3 to P6, stone, brick, iron rods and blood stained clothes of the Appellants were seized. Statements of witnesses were recorded under Sec. 161 Cr.P.C. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges. To rope in the Appellants, the prosecution examined as many as 9 witnesses. In examination under Sec. 313 Cr.P.C., the Appellants denied the guilt and pleaded innocence. A specific defence was taken by Appellant 4 Habbi alias Habib Ali that on the date of incident he was not present on the spot and thus a plea of alibi was taken by him. In their defence, the Appellants examined 4 witnesses. On completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in first paragraph of this judgment. Hence, this appeal.

(3.) Learned Counsel appearing for the Appellants argued that the eyewitnesses PW1 Batulam Begum and PW2 Shama Parvin are wife and daughter of the deceased, respectively and other eyewitnesses PW4 Bachchaji and PW6 Imam Ali are also close relatives of the deceased and, therefore, all the 4 eyewitnesses are interested witnesses. Hence, without corroboration by other evidence, their statements cannot be relied. PW2 Shama Parvin is a child and tutored witness and, therefore, her statement is also not reliable. It is further argued that the incident took place in an open place, but, despite that, the prosecution did not examine any independent witness. The statement of DW2 Sultan Ali, who is a resident of Maudahapara itself, clearly shows that he was present on the spot and the eyewitnesses came there later and according to the statement of Sultan Ali, the assailants were unknown persons. Therefore, the entire prosecution case is suspicious. It is further argued that from the statements of DW3 Nageshwar Prasad and DW4 Kheduram, it is also established that on the date and time of the incident Appellant 4 Habib Ali was present at Korba for loading of coal, but, the Trial Court has not appreciated this evidence properly. Therefore, it appears that all the eyewitnesses have falsely implicated the Appellants due to the previous animosity. Reliance has been placed on Mahendra Singh v. State of Madhya Pradesh, (2022) 7 SCC 157, Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781, Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418, J. Venktesh v. State of Chhattisgarh, 2022 SCC OnLine Chh 1989 and Onkar Sahu v. State of Chhattisgarh, 2022 SCC OnLine Chh 1973 .