^ H(*<d( 3^T^JV^, ^rN^, te^p- ^A,t.!.^93..»A<4.f2^^ a^Ti^ra? C^^s^f) ^^r^r^^ WT^¥r^N7 ^N^-qwff ^ff^^^ ^ ^fRlH 3??^T Criminai Appefal No.1147 of2003 APPELLANT: (InJail) -V RESPONDENT: Sukhiram, Son of Panchuram Raot, aged 28 years, Cultivator, R/oVillage: Dumariya, P.3.: Gandai, Distt. Rajnandgaon (C.G.) ersus - State of Chhattisgarh, Through: P.S. Sahaspur Lohara, Distt. Kawardha (At present - KabJrdham)(C.G.) {Appeai under Section 374 (2) ofjthe Code ofCriminal Procedure, 1973} j AND Criminal Appjsal No.1254 of 2003 APPELLANT: (In Jail Custody) Gambhir Ram, S/o Budhuram Rauat aged about 31 years, Occupation: Cultivator, R/o Village: Dumriya, P.8.: Gandai, Distt. Rajnandgaon (C.G.) IVersus - RESPONDENT: State of Chhattisgarh, Through: P.S. Sahaspur (Lohara), Distt. Kawardha (Present Kabirdham) (C.G.) {Criminal appeai urjder Section 374 (2) Cr.P.C.} Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble IVIr. Dhirendra Mishra^ ^y •:,, ^ •• GRPRJ— FS/24&—2/2007 -50 i ^ii^r^rfN^ ^tisp ^^T^PrT^j^TT^ f^j^ ^^ ^-.&.....(..l..^..s^,^^^ 3^1ra^ C^^st) ^^R^^3??^r ^N?^ •qiiRjy-^^ ^^7 ^'3?RTH3?7^r 18-7-2007 Mr. Suryakant Mishra, coun^el forthe appellant in Cr.A.No.1147/2003. Mr. V.P. Gupta, counsel for|he appellant in Cr.A.No.1254/2003. Mr. Sudhir Bajpai, Deputy Qovt. Advocate for the State/respondent. Oral judgment dictated on q)ai's. L.C. Bhadoo. J: - j Criminal Appeal No.1147/2003 filed by accused Sukhiram and Criminal Appeal No.1254/2003 |led by accused Gambhir Ram are being disposed of by this common judgfnent, as both these appeals are arising out of the same judgment dated 2-$-2003 passed by the Additionai Sessions Judge (Fast Track Court), Kawar^iha in Sessions Trial No.16/2000. These appeals are direct^d against the judgment of conviction and order of sentence dated2nd S^ptember, 2003, passed by the Additional Sessions Judge (Fast Track CoL|rt), Kawardha in Sessions Trial No.16/2000, whereby learned Additional Ses^ions Judge after holding accused/appellants Sukhiram & Gambhir Ram gui!^y for commission of offence under Section 394 ofthe I.P.C. sentenced ea^h of them to undergo R.l. for ten years and pay a fine of Rs,200/-, in defaul| of payment of fine to further undergo R.l. for six months. In addition to th^t, learned Additional Sessions Judge also convicted accused Sukhiram u|ider Section 302 of the I.P.C. for committing the murder of Suklia Bai, and s^ntenced him to undergo imprisonment for life and pay a fine of Rs.200/-, in |jefau!t of payment of fine to further undergo R.l. for six months. Further, Jearned Additional Sessions Judge acquitted accused Gambhir Ram of cllarge under Section 302 of the I.P.C. and accused SomJal & Banshi of.^h GRPRJ— FS/246—2/2007 arge under Section 414 ofthe I.P.C. n' ^^ ^T37^T '^RW '^ ^row wm^ 3^^13n^, ^fter^^ l^TO^- ^A:..!.!.<t.^.^fs^^^ 200^ an^rit^ C^f^^) ^iw^r sii^r ^^N-w^r ^"fe^-^^ ^^fOT^^r Case of the prosecution,jin brief, is thaton 29-9-1999 at about 12 noon, Bhagwantin Bai (RA/-2)jand hsr mother-in-iaw Suklla Bal (since deceased) went to bring veget^bles from their kitchen garden at Viilage: Ranidahra. The said kitchen g^lrden was at some distance/adjacent to the forest, from the residence of ^uklia Bai & Bhagwantin Bai. At that time, accused Sukhiram & Gambhir l^am came in the kitchen garden. Suklla Bai enquired from them as to who ^r^ they and why they have come there, then the accused persons disclosedjthat they are hunters. Sickle of Bhagwantin Bai was lying on the roof of hi(t which was picked up by accused Gambhir Ram, he started chlsellng the l^andle of axe with the sickle and thereafter, he kept the sickle at the same pl^ce. Thereafter, the accused persons caught Bhagwantin Bai & Sukiia Bai, ^Iosed their mouths and took each of them to opposite side. Accused Ga(lfibhir Ram took Bhagwantin Bai, whereas, accused Sukhiram took Sukli^ Bai. Bhagwantin Bai heard the cries of her mother-in-Iaw and thereafterl SukhJram also oame to the side where Bhagwantin Bai and accuse|9 Gambhir Ram were present. They took Bhagwantin Bai inside the for^sst where they committed rape on her turn by turn. Bhagwantin Bai saw ^iitia (a form of neckiace) of Sukfia Bai in the hands of accused Sukhiram. fAfter committing rape, the accused persons left Bhagwantin Bai at Viilage: ^hendra Nawagaon. They also snatched the | Anthi from Bhagwantin Bai asjid after leaving her they ran away. Bhagwantin j Bai disclosed everything t{3 the viilagers. In the mean tims, when | Bhagwantin Bai & Suklia Ba^ did not return to their house, Fatteram (PW-3), husband of Bhagwantin B^i & son of Suklia Bai, started searching the i whereabouts of his wife anjd mother. He came to the kitehen garden inj s^rch Qf,^them an<Jt.sa|/| th^A his mother was lying dead, however,i GRPRJ— FS/246—2/2007-~~ .^ff^iy ^w^" (g) ^^•:s"?n^^^f^roy wmr ^•.fi.'..l.l.i74.3.."<?.a:5^ ant?r1ra^ (^^r) 200ri ^^W^T^T Bhagwantin Bai was not there, viiiage: Ranidahra. Ultimately, Fatteram reported the matter ^^^^ ^'^ ^?I7 ^'^fRw^TT^r therefore, he informea tne vif of his in the morning of 30l" September, 1999, galnst unknown person in Police Statlon: Sahaspur Lohara and his reportj(Ex.P-3) was registered as Crime No.117/99 under Section 302 of the I.P.C| On a search being made, Bhagwantin Bai was found at Village: Bhendr^ Nawagaon. Thereafter, Bhagwantin Bai dlsciosed about the incident. Rajesh Devdas (PW-13^, Assistant Sub Inspector, reached on the spot, prepared the site plan an|d seteed blood stained soil & plain soii under Ex.P-5 from the piace of oc^urrence. After giving notice Ex.P-6 to the Panchas, he prepared Inqu^st Ex.P-SA on the body of Suklia Bai. Panchnamas Exs.P-8 & P-9 y^ere prepared on the basis of the information given by accused Gambhir i^am & Sukhiram, respectiveiy. One axe and clothes of accused Gambhi^ Ram were seized under Ex.P-10 by Sub Inspector Ajay Mishra. One a(<e and clothes of accused Sukhiram were a!so seized by Sub Inspector Aja^ Mishra under Ex.P-11. Accused Sukhiram gave memorandum Ex.P-lljSj regarding Sutia (a form of necklace) of Suklia Bai and Anthi of Bhagw^ntin Bai. Accused Gambhir Ram gave memorandum Ex.P-12 regarcting the sale of Sutia through one Somial. Sutia and register were seized by ^ssistant Sub Inspector Rajesh Yadav on 26-10- 1999 from Vishal Emporium|on being produced by Ashish Kumar under Ex. P-13. The Sutia was put toj identification before Naib Tehsildar R.K. Kripal j 1 (PW-7) and the same w^s identified by Pyareia! (PW-6), husband of| dsceased Suklia Bai. B^dy of SukHa Bai was sent for post-mortemj examination under Ex.P-18|A to Primary Health Centre.Sahaspur Lohara,' where Dr,:V.K. Shrivastayaj (PW-9) conducted post-mortem on the body of •^•..^^^ GRPRJ—FS/246—2/200-; "s^ _^T^1^ri^ Wffs^'^jqr 3^^^^-, STftw^, f^ro^ WTOT ^&9.-...!..1.^03.^.'.l^ 3^T^^ (1N5^r) ^nw^rsn^r ^ 200 ^> ^^Nhr ^TOftfe^T^R ^3fRiTT3^ Sukiia Bai, prepared the report Qx.P-18 and opined that the cause of death is coma & shock as a result of irjjury to brain and extensive haemorrhage in brain due to fracture of skuli b^>ne. Seized articies were sent for chemicai examlnation to Forenslc Scierjce Laboratory, Raipur under Ex.P-22 from where the report was receivedj wherein blood was found on the clothes of the deceased, but blood was n4t found on the axe seized from Sukhiram. After compietlon of Inve^tlgation, charge sheet was fiiec against the four accused persons namelyj Sukhiram, Gambhir Ram, Somlal & Banshi Iz., against accused Sukhlrarr| & Gambhir Ram under Sections 394 & 302 of the i.P.C. and against accus^j Somlal & Banshi under Section 414 of the l.P.C., in the Court of Chiefj Judicial Magistrate, Kawardha, who in turn committed the case to the |Sessions Judge, Rajnandgaon, from where learned Additional Sessions ^udge (Fast Track Court), Kawardha received the case on transfer for triai. Prosecution in ordertofestablish charges againstthe accused persons examined 14 witnesses. l|earned Additional Sessions Judge recorded statements ofthe accused pe('sons under Section 313 ofthe Cr.P.C. in which they denied the materia! app^aring against them in the prosecution evidence and stated that they are inno^ent, they have been implicated in a false case. Learned Additional S^ssions Judge, after hearing the arguments of counse! for respective partie^, convicted and sentenced the accused persons as aforementioned. We have heard Mr. $uryakant Mishra, learned counsel on behalf of| accused Sukhiram; Mr. V.P1 Gupta, iearned counsel on behalfof Gambhir! iearned Deputy Govt. Advocate on behalf of thej Ram; and Mr. Sudhir Bajpai State/re^ondent. .^i^'^.jl GRPRJ— FS/246—2/2007 -~ ft' ^••il/, ^^T^r^iNF WTsn^r^Rr T?raw 3^^Tpn^, ^ft^T^, f^i^- ^•^••i^7/^.^^L^^j an^r^ra; (T^S^^) •"?^ 2003 ^nw^Ersn^r ^raf^l^ ^-^^^ ^^fRw^^r As far as the homicidal (|eath of Suklia Bai is concerned, Dr. Vineet Shrivastava (PW-9) has stateql; jn his evidence that he conducted post- mortem on 1-10-1999 on the b|?dy of Suklia Bai. There was one lacerated wound in the size of 2 14" x 14" on the right side of occipital region, bone beneath the injurywas broken.jbrain matter was coming out from the injury and there was excessive haem^rrhage. Lacerated wound in the size of 2" x 1" on the right side of occipital r^gion %" above injury No.1 , bone beneath the injury was broken, brain n^embrane was congested and there was haemorrhage in the brain. H^ has stated that in his opinion the cause of death was head injury,extens'^e haemorrhage and shock as a result ofthe fracture of skull bone and injurj? to brain. Injuries were ante-mortem in nature and the death was homicidal axe was sent for inspection on |n nature. His report is Ex.P-18. The seized which he saw that there was a blood like spot. The injuries found on the hea<| of the deceased could be caused by the said axe. The blood was just like ^uman blood. In view ofthe above evidence of the doctor, It is established fiat the death of Suklia Bai was homicjdai in nature. During the course of slrguments, it was informed by learned counsei ' for respective parties that as far as the rape committed on Bhagwantin Bai is concerned, a separate charg4 sheet was fiied against the accused persons. j As far as lnvolvemer|t of the accused persons in committing the \ murder of Suklia Bai is cc|ncemed, there is only one witness namely, j Bhagwantln Bal (PW-2), dai^ghter-in-law of deceased Suklia Bai, who was with Suklia Bai and both of tl|iem went to coliect vegetables from their kitchen garden. Bhagwantin Bai (PVV-2) has stated in her evidence that when theyj reached kitphen garden; j^isl: thereafter, accused Sukhiram & Gambhir Ram j GRPRJ—FS/246—2/20( II j; 1.^ B ^i?r^r'f?^y ^IT ^?r '^?NT ./ ^s^^m^f, ^twrs, f^roy w^r ^e-il..^5..^.!.S ^n^nraq? C^sf^s^t) ^ 200^ ?^m^f?w3n^r ^N^ ITTtRtf ^ fe^T^^ ^•3fRPT371^T came there. When they enquir^d from the accused persons as to why they have come there, they said th^t hunters of that village have called them. Accused Gambhir Ram was w^ring a shirt, on which there were stripes, he picked up the sickle lying on th^ roof of the hut and started chiseling handte of the axe with the sickle and tljiereafter, he again kept the sickle on the roof of the hut. Thereafter, both ti^e accused persons caught them and ciosed their mouths. Accused Gambl^ir Ram caught hoid of her, whereas accused Sukhiram caught hold of her (mother-in-law. Accused Sukhiram took her mother-in-iaw towards bushes whereas accused Gambhir Ram took her to the other side. Thereafter, sljie heard the cries of her mother-in-law 'save save'. Gambhir Ram closed hfer mouth and forced her to bend. Thereafter, Sukhiram came towards thejside where accused Gambhir Ram and she were present. Thereafter, botfi of them tied her hands & legs with the help of a towei and after lifting her th^y took her towards river Jhori, they took her in the forest and committed rap^ on her one by one. She saw silver Sutia (a form of necklace) of her moth|er-int-taw with the accused. They snatehed her Anthi also and thereafter, tifey left her at Village: Nawagaon. !n cross- examination defence has n4t been able to discredit the evidence of this witness that accused Sukhir^m had not took Suklia Bai to the other side or that the evidence of thjs witn^ss is not worth reliance. From the evidence o1 with homicida! death, as th( (PW-2) has categorically st^ Sukiia Bai to other side, w| opposite^^ide, she I'ie^i^l GRPRJ— FS/246—2/2007 Dr. Vineet Shrivastava (PW-9), Suklia Bai met j |re were injuries on her head. Bhagwantin Bai ted in her evidence thataccused Sukhiram tooki ^ereas accused Gambhir Ram took her on thej th^,< cries of her mother-in-Jaw 'save save',' ^i^r^r^TW sR?^ ^•^) NiN^r (h^lcb 3^^n^-^^i^, fe^ ^-.!.5.i2/.5£..''^.^5^i200 3, 3^r1ra^ (11?^^) ^TOR^f^sn^r ^N^rk ijiiRff -^^ftf^^ ^ ^ffW 3??^T Therefore, from this evidence, it i$ established that accused Sukhiram was the only person who committed accused Sukhiram took Suklia Bai ;he murder of Suklia Bai, because when immediateiy thereafter, this witness heard the cries of her mother-in-Iaw ancj thereafter accused Sukhiram immediately came near to accused Gambhir R^m and this witness. Ajay Mishra (PW-14), Inve^tigating Officer, has stated in his evidence that from accused Sukhiram one ^xe and his clothes stained with blood were seized under Ex.P-11 which be^rs his signatures at place from 'B' to 'B'. Ishwar Singh (PW-4) has been ^xamined to prove seizura memo Ex.P-11, but he has not suppor' sd the pro^ecution case. However, from the evidence ofAjay Mishra (PW-14) recoveryjof axe and clothes is established and there Is no reason to disbelieve this ^ecovery. The axe was sent to Dr. Vineet Shrivastava (PW-9) who has stafed that he examined the axe and the injury found on the head of Sukiia Bai (j^ould be caused by the said axe. Therefore, this circumstance a!so corroboi|ates the fact of committing the murder of Suklia Bai by accused Sukhiramj Even though an attemrft has been made that Sutia (a form of necklace) was seized at the in^tance of accused Gambhir Ram, same was put to identification parade a^id was got identified by Pyarelal (PW-6), husband of Suklia Bai, but the (srosecution evidence is shaky in this regard, because it has come in the evic|ence of Pyarelal that the Police got engraved the name of Suklia Bai on that jSutia in order to facilitete identification of the said Sutia by her husband. doubtfui. This circumstanc^ connecting the accused withj GRPRJ—FS/246—2/20 Therefore, identification of Sutia becomes cannot be taken into consideration for the crime in question. Even otherwise, evidence ofiBhagwantinlBgti^fyw^, medical evidence and recovery of axe ^»'..5 : 3?n^T^T'f?;ri?F ^r^i^r ?RW 3^r ^TPTT^T, ^ft^T^, ^rey ^^^^..&....fi......(.[i.7/55..^^^ an^TT»sw (i^g^T) ^W^f5^31I^T ^N^ -RI^jf •£;fe^-^^ ^ 'sfRp? ^TT^r from the accused estabiish beyo|id reasonabie dou&t tnat accU$ed Sakhiram was the author of the commissioh of murder of Sukiia Bai and to this extent, we do not find any liiegaiity or in1|rmity in the judgment of the trial Court. As far as conviction of at;cused Sukhiram under Section 394 of the I.P.C. Is concerned, recovery ofputia is doubtfu! and the same has not been properiy identlfied, therefore, hl^ conviction under Section 394 of the IP.C, cannot be sustalned. Now, coming to the com|nission of offence under Sectlon 394 of the I.P.C. by accused Gambhir Ran|i for looting the Anthi from Bhagwantin Bai is concerned, In the first instancej recovery of Anthi at the instance of accused Gambhir Ram & Sukhiram ha^ not been proved. Even the Anthi has not been got identified by Bhagw^ntin Bal. Therefore,lootlng of Anthi from Bhagwantin Bai and rscoveryj of the same from accused has not been establlshed. Even though, sh4 has stated in her evidence that the accused persons looted the Anthi, but tji9 same has not been estabiished because in the flrst instance, the Anthl wa4 not recovered at the instance ofthe accused, secondly, recovery of Anthi h^s not been established and thirdly, the same has not been Identified by BhatewaRtin Bai. Therefore, conviction of accused persons Sukhiram & Gambhirpam under Section 394 ofthe I.P.C. for looting the Anthl from Bhagwantin Bap has not been established beyond reasonabie doubt. Hence, their convicti4n under Sectlon 394 of the i.P.C. cannot be sustained. In the resuit, (1) the appeal of accusedjGambhir Ram (Criminal Appeal No.1254/2003) succeeds and he is ^cquitted of charge under Section 394 of the ^iction and sentence imposed upon him under ! .P.C, resultantly, ,G..pn^ GRPRJ—FS/246— a' ^•Ul ' ^I^T^'(N?? wrsn^r %^ ^ Soma 1 ^ ^'^ '<11<4W^, y>T{l'yjl(S, i®|<7ii|^|^< 10 ^ ^.A...!.^^. l.^:^_ "'^l 2003 3??^r T^^ (^<stl^^) ^'CTW^T^n^r that Section are set aside Therefore, he be set at 1 case. (ii) Similarly, conviction and under Section 394 of the ofthe said charge. How< him under Section 302 Suklia Bai, are maintaln< allowed. 4»l^?<n<fli *iH<'iT ^f ftc^ Tf^^R ^^tRpT^T^r He is stated to be in detention since 1999. srty forthwith, if not required inany other sentence imposed upon accused Sukhiram .P.C. are also set aside and he is acquitted sver, conviction and sentence imposed upon ^f the I.P.C. for committing the murder of •d. Crimlnal Appeal No.1147/2003 is partly Sd/- L.C. Bhadoo Judge Sd/- Dhirendra Mishra Judge ~^i' GRPRJ— FS/246—2/2007— 50,UOO. ^- I'l I'l