Dismissed

Firatram Banaj @ Nanki Dau and Anr. v. State of Chhattisgarh

Chhattisgarh HC13 Aug 2012CRA/551/2008

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh disposed of a criminal appeal challenging murder and grievoushurt convictions. The court upheld the lower court's finding on common intention and reliance on injured witnesses, dismissing the appeal against sentences under IPC and the Tonahi Pratarna Nivaran Adhiniyam.

What did the court decide?

The criminal appeal filed against the judgment of conviction and sentence was dismissed; conviction and sentence affirmed.

Firatram Banaj @ Nanki Dau and Anr. Vs… — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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l^^ f^y

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma

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Criminal Appeal No.551 of 2008

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Firatram Banaj @ Nanakidau and others versus State of Chhattisgarh

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JUDGMENT FOR CONSIDERATION

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Sd/-

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R.S. Sharma

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Hon'ble Shri Sunil KumarSinha, J.:

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Sd/KumarSinha

Postfor^ -08-2012

Sd/-

y-^ian _

HIGH COURT OF CHHATTISGARHAT BILASPUR

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D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma

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Cnminal Appeal No.551 of 2008

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Appellants	1. 2.	Firatram Banaj @ Nanakidau, S/o Ratiram Banaj, aged about 39 years, Dileshwar Prasad @ Dilaram Banaj, S/o Ratiram Banaj, aged about 57 years,
	3.	Bheshkumar Banaj, S/o Dileshwar @ Dilaram Banaj, aged about 27 years,
	4.	Narendra, S/o Dilaram @ Dileshwar Banaj, aged about 23 years,
	versus	All residents of Village Bhathagaon Road Kosir, Tahsil Sarangarh, District Raigarh.
Resp.ondent		State ofChhattisgarh

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Present:

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Shri Rakesh Pandey,counsel for the appellants. Shri Rajendra Tripathi, Panel Lawyer for the State/respondent.

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Criminal Appeal under Section 374(2) ofthe Code ofCriminal Procedure

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JUDGMENT

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(Delivered^on _^_August,²⁰¹²⁾

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PerRadhe Shyam Sharma, J.:

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This appeal is directed against judgment dated 26-04-2008 passed byAdditional Sessions Judge, Sarangarh, District Raigarh in Sessions Trial No.17/2007. By the impugned judgment, accused persons/appellants Firatram Banaj @Nanakidau, Diles'hwar Prasad @^{DilaramBanaj,BheshkumarBanajandNarendrahavebeen}

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'S^S 3;;£S^|

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convicted and sentenced in the following manner with a direction to

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run the sentences concurrently:

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Conviction	Sentence
Under Section 302/34 IPC	Imprisonment for life and to fine of Rs.10,000/- each, default of payment of fine, further undergo imprisonment 1 year	pay in to for
Under Section 324/34 IPC	Rigorous imprisonment for years and to pay fine Rs.2,000/- each, in default payment of fine, to furt undergo imprisonmentfor 1 ye	3 of of her ar
Under Section 4 of Tonahi Pratarna Nivaran Adhiniyam, 2005	Rigorous imprisonment for years and to pay fine Rs.3,000/- each, in default payment of fine, to furt undergo imprisonmentfor 1 ye	3 of of her ar
Under Section 5 of Tonahi Pratarna Nivaran Adhiniyam, 2005	Rigorous imprisonment for years and to pay fine Rs.10,000/- each, in default payment of fine, to furt undergo imprisonmentfor 1 ye	5 of of her ar

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Caseofthe prosecution, in brief, isas under:

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Chitrekha is daughter of appellant No.2 Dileshwar Prasad @ Dilaram Banaj. She was mentally ill since 6 months. Appellant No.2 suspected on deceased Puniram that he was Tonaha (a person who makes Jadu-Tona on anyone). A quarrel took place between the appellants and the deceased on the suspicion that the deceased was Tonaha and he was responsible for ill-health of Chitrekha. On 10-11-2006, at about 2:30 a.m., the appellants, armed with teng/, lathi and rod, entered the house of the deceased and began to abuse him. Gurudev (PW-2 - son of the deceased) tried to prevent the appellants from abusing but theappellants dragged him and committed marpee?with him. Appellant No.1 Firatram and appellant

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He opined that the cause of death was coma due to head injury caused by hard and sharp and hard and blunt objects and the death was homicidal in nature.

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In further investigation, Inspector M.S.Pareshwar (PW-13) prepated spot map vide Ex.P-5 and Patwari Laxman Swarnakar (PW-9) also prepared spot map vide Ex.P-6. Inspector M.S.Pareshwar (PW-13) recorded memorandum statement (Ex.P-9) of appellant No.2 Dileshwar under Section 27 of the Evidence Act and at his instance, lathi was seized vide Ex. P-24. Memorandum statement (Ex.P-10) of appellant No.3 Bheshkumar was also recorded and at his instance, iron pipe was seized vide Ex.P-25. Memorandum statement of appellant No.4 Narendra was recorded vide Ex.P-11 and at his instance, Tangi was seized vide Ex.P-26. Memorandum statement of appellant No.1 Firatram was recorded vide Ex.P-12 and at his instance, Tangi was seized. Plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-13. White shirt was seized from appellant No.2 Dileshwar vide Ex.P-16. Pant and shirt were seized from appellant No.3 Bheshkumar vide Ex.P-17 and a sancfo baniyan and nicker were seized from appellant No.4 Narendra vide Ex.P-18. Gurudev (PW-2) was examined by Dr. M.K.Manhar (PW-11), who gave his report (Ex.P-34), in which he found—

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i) Incisedwound, 3X1cm on occipital region, ii) Incised wound, 4X1 cm on right temporal region, iii) Incised wound, 2X1 cm in the middle region.of the head,

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iv) Contusion, 3X1 cm on right wrist,

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v) Contusion, 3X1cm on rightsideofhipsjoint,

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On the contrary, Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned t Additional Sessions Judge do not warrant any interference by this Court.

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We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No.17/2007.

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The conviction of the appellants under Sections 302/34 and 324/34 IPC and Sections 4 and 5 of Tonahi Pratarna Nivaran Adhiniyam, 2005 is based on the evidence of Lilaram (PW-1), injured witness Gurudev (PW-2), Fultori (PW-3), Sunita Banaj (PW-5), Chunuram Banaj (PW-6) and Tiharin Bai (PW-8).

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In IVIano Dutt and another v. State of Uttar Pradesh, (2012) 4 SCC 79, the Hon'ble Supreme Court observed as follows:

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"30. ....... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.

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We may merely refer to Abdul Sayeed v. State of M.P., (2010) 10 SCC 259, where this Court held as under: (SCC pp. 271-72, paras 28-30)

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"28. The question of the weight to be attached to the evidence of a witnessthat was himself injured in the course f the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as Tie is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881, Malkhan Singh v. State ofU.P., (1975) 3 SCC 311, Machhi Singh v. State of Punjab, (1983) 3 SCC 470, Appabhai v. State of Gujarat, 1988 Supp SCC 241, Bonkya v. State of Maharashtra, (1995) 6 SCC 447, Bhag Singh v. State of Punjab, (1997)7 SCC 712, Moharv. State of U.P., (2002) 7 SCC 606 (SCC p. GOQb-c), Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270, Vishnu v. State of Rajasthan, (2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P., (2009) 12 SCC 546 and Balraje v. State of Maharashtra, (2010)63cc 673).]

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While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlierjudgments held as under: (SCC pp. 726-27, paras 28-29)

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'28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Kamataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured

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witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

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^ 29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the timeand placeof occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

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The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicafe a third party for the commission ofthe offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictionsand discrepancies therein."

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B~?";

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In Dharnidhar v. State of Uttar Pradesh and others, (2010)

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7 SCC 759, the Hon'ble Supreme Court held asfollows:

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"12. There is no hard-and-fast rule that familymembers can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case.% . In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213,paras23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicioys of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

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Similar view was taken by this Court in Ram B/iaroseyv. State of U.P., (2010) 1 SCC 722, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or

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enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same."

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Lilaram (PW-1), G^rudev (PW-2), Fultori (PW-3), Sunita Banaj (PW-5), Chunuram Banaj (PW-6) and Tiharin Bai (PW-8) deposed that the deceased was father of Lilaram (PW-1), Gurudev (PW-2) and Chunuram Banaj (PW-6) and was husband of Tiharin Bai (PW8). They further deposed that on 10-11-2006, at about 2:30 a.m, appellants Firatram and Narendra armed with tangi, appellant Bheshkumar armed with iron rod and appellant Dileshwar Prasad @ Dilaram armed with lathi, entered the house of the deceased and began to abuse the deceased indicating that the deceased was a Tonaha. At that time, the deceased was reading Ramayan in verandah and Chunuram Banaj (PW-6) was also reading a book. Gurudev (PW-2) tried to prevent the appellants from abusing. The appellants dragged him in the courtyard and committed marpeetw'iih him. They furi:her deposed that appellants Firatram and Narendra assaulted with tangi. Appellant Bheshkumar assaulted with iron rod and appellant Dileswhar assaulted with lathi. Appellants Firatram and Narendra gave tangi blow on the head, appellant Bheshkumar gave iron rod blow on right handand appellant Dileshwar gave blows on back and shoulder of Gurudev (PW-2). Right wrist of Gurudev (PW-2) was fractured.

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Lilaram (PW-1), Gurudev (PW-2), Fultori (PW-3), Sunita Banaj (PW-5), Chunuram Banaj (PW-6) and Tiharin Bai (PW-8) deposed that when the deceased tried to save Gurudev (PW-2), the appellants assaulted the deceased too. Appellants Firatram and Narendra gave tangi blow on the head of the deceased and appellant Bheshkumar assaulted the deceased with rod and appellant Dileshwar assaulted the deceased with lathi. The deceased fell down and became uiyonscious.

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Lilaram (PW-1) deposed that he had gone to Police Station, Kosir and lodged FIR (Ex.P-1) there. Merg Intimation (Ex.P-2) was also recorded. The date and thetimeofthe incidentwas 10-11-2006 at about 2:30 am and the FIR (Ex.P-1) was lodged on the same day at about 3:30 am. The FIR (Ex.P-1) was lodged within an hour ofthe incident. In the FIR (Ex.P-1) and the Merg Intimation (Ex.P-2), name of the appellants are mentioned as assailants.

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Gurudev (PW-2) was taken to the hospital for treatment. Dr. M.K.Manhar (PW-11) deposed that he examined Gurudev (PW-2) and gave his report (Ex.P-34), in which, he found 8 injuries, out of which, injuries No.1, 2 and 3 were incised and rest of the injuries were contusions. He further deposed that injuries No.1, 2 and 3 were caused by hard and sharp object and injuries No.4, 5, 6, 7 and 8 were cau.sed by hard and blunt object.

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Dr. R.L.Sidar (PW-10) deposed that on .10-11-2006, he conducted post mortem examination on the dead body of the deceased and gave his report (Ex.P-29), in which, he found incised

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wounds on right ear, left parietal region and occipital region. He further deposed that he also found multiple abrasions on scapular region and head. The evidence of Dr. M.K.Manhar (PW-11) reveals that Gurudev (PW-2) sustained injuries on his person with sharp edged weapon and also with hard and blunt weapon. The evidence of Dr. R.L.Sidar (PW-10) indicates that the deceased had also sustained incised wounds with hard and sharp edged weapon and ^ abrasions with hard and blunt object.

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From the above discussion, we find that the evidence of Lilaram (PW-1), Gurudev (PW-2), Fultori (PW-3), Sunita Banaj (PW5), Chunuram Banaj (PW-6) and Tiharin Bai (PW-8) are cogent, trustworthy and reliable and are duly corroborated by medical evidence and the same can be based for conviction.

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Now, we shall consider whether there was any common intention on the part of the appellants and in furtherance thereof, they committed murder of the deceased.

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It is well known that to establish the common intention of several persons so as to attract provisions of Section 34 IPC, the following two fundamental facts have to be established: (i) common intention to commit an offence ahd (ii) participation of the accused in commission of the offence. To attract Section 34 IPC, it is not necessary that each one of the accused persons must assault the deceased. It is enough if it is shown that they shared common Jntention to commit the offence in furtherance thereof and each one played his assigned role by doing separate acts, similar or diverse.

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laa KIB

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13 -

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Section 34 IPC is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 IPC, it is not necessary to show some overt act on the part of the accused.

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In Rangnath Sharma vs. Satendra Sharma and others, (2008) 12SCC 259, the Hon'ble Supreme Court observed as follows:

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"21. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direction or circumstantial, that there was plan or meeting of minds of all tt)e accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention pervading amongst all accused in order to attract the provision. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34, it is not necessary to show some specific overt act on the part of the accused, when it is shown that there was common intention and meeting of mind.

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In Ram Tahalv. State ofU.P., (1972) 1 SCC 136, it has been laid down as under: (SCC p. 140, para 5)

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am^'

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"5. ... There is no doubt that a common intention should be anterior in time to the commission of the crime showing a prearranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. This Court had in Khshna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413, already referred to earlier, held that the prearranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a court convicts a person under Section 302 or 304, read with Section 34 IPC, it should come to a definite conclusion that the said had one or more person a prior concert with persons named or unnamed for committing the offence."

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¶92

,,-}no }|3ds 'sniii 'SI UOI}UeiUj UOLULUOO i0 QSGO v '^Bujg jspuifieg jo^ [e^ peAOJd uaeq peq /(jnfui euo ^eqi pue ||9M se /y\d MBuig jepuiMfey 0} pssneo ueeq peq seunfui |ej9Aes teqi jeeio os]e si i| -jeyeejeLi} pesneo ueeq peq seunfu! eqi ys^} pue q(iM Aeme euop eq ^yed 8)isoddo eqi }eq) ejB>||B| e pasiej pue p9iujB }no eiiioo peq pue A)!|EOO| eiues s^ ui jeq^aBo} esop p9M] os]e Aaiii 'opuiN peses} peq AeLft se AIILUE.) tuipiA eqi ^o sjaqiueLu eq} qiiM paAouue ejeM Aeqi PUB A|ILUB1 9UO JO ||B 8J9M pasnooB eqi }eqi pa^BiiqBiq eq 0} spssu }\ uieBe eouo 'sseo aq} p spej eqi ui 'g,, uoiiue^u! UOLULUOO p uoi^senb eqt dn e>|Bt MOU a/\A

¶93

:SMO||OJ se pe/uesqo ynoo saiejdng 3]q,uo|-| eqi

¶94

'(OS) S99 T"~l"!.i3 Z 1.02 'qefund ^o eiei9 •A yBuig lieuuno u| gi,

¶95

¶96

¶97

From the above, it is apparent that the appellants shared common intention for committing murder of the deceased and assaulting Gurudev (PW-2). The appellants used to suspect that the deceased was a person who harms or possesses power to harm any person by black magic, evil or by any other means known as Tonaha.

¶98

¶99

The evidence of Lilaram (PW-1), Gurudev (PW-2), Fultori (PW-3), Sunita Banaj (PW-5), Chunuram Banaj (PW-6) and Tiharin Bai (PW-8) are cogent, trustworthy and reliable and are duly corroborated by the medical evidence. The same can be based for conviction.

¶100

Therefore, the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge based on the above evidence does not call for any interference by this Court.

¶101

ESKt^il

¶102

For the foregoing reasons, we do not find any substance in

¶103

this appeal; it deserves to be and is hereby dismissed.

¶104

SdA Sucil Kumar Siaha - -'Judge Sd/R.S. Sharma Judge

Firatram Banaj @ Nanki Dau and Anr. v. State of Chhattisgarh

Case brief

What is this about?

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Firatram Banaj @ Nanki Dau and Anr. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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