CF0000064392 IH TH2 HIGH COORT ©F _Jl©IC&TOKE _AT JABALPDR CRIMINAL A.RPEAL N0.^-^"^ <-1\OF 2000 CRIMINAL.APPBAL VWXSL SECTIGN 374 (2) OF CODE OF CRIMINAL PROCEDURE.1973. APPELIaANT; ^'!. z-' \\'^- (IH JAII.) r^ c x r ^- y RESPONDENT; COIIVIGTIONS Mikbail Toppo S/o M*Toppe aged about 48 years,At present ia Kariker 3ail,S./o Village Timorala, Policfe Station Jashpur Nagar, Dlstfe.tTashpur Nagar (M.P.) VEKSUS; Sfeate of Ma<ahya Pradesh» Throue^ - Poliee Station Paakhajur, Distt. Kankar (M.P.) SENTENCEs ^f »a« HIGH COURT OF CHHATTISGARH AT BILASPUR CriminalAoDealNO. 2554/2000 Mikhail Toppo Vs. State of Chhattisgah Judgnient forconsideratiou Sd/- DhirendraMishra Judge Hon'bte Shri Justice Fakhruddia Sd/- Fakhruddin Judge 1^ Post fbr 5 -7-2006 Sd/- DHIRENDRA MISHRA Judge @ ttt ^ <i- jW»i iilliilii^ Ex. P-9 was performed over ftie dead 'oody of the deceased ia the presence of fhe witnesses atter due aotices to ftie witaiesses. Blooct stained soil aad plain soU were seized vide Ex. P-10. A portion ofwouud in the sealed packet, blood atauied paat, shirt, baaiyari aiLd one blood stauied belt of fhe deeeasefl wei®seized vide Ex. P-l-t. One Beret cap wifh laonowas seized vide Ex.P-l'2.Aiuein.ovi<leEx.P-14was sent to the Executive Magistrate requestiag him to reiaaui present duruig 't'. inquest over ftie dead body. T'he seized articles - blood staiaed soUs, weapon of offence, etc. werc sent for exanunation to ftie Forensic Seience Laboratorv vide Ex. P-15. The accused was arrested ou 1-3- 1996 at 19.30. Aftercompletiilguivestigatton,chargesheetwastiledm. the Court of Judicial Magistrate Fttst (31ass, BBariupra'tappur who in tum coinniitted ftle case to the Court of Sessioii, Jagd.alpur aad same was received oa taausfer for trial by Uie leaxned Additional Sessioiis i • • . Jud.ge, 4. Learaed-Additional SessiQns Judge framed charge under Seetion 302 of Indian: Penal Code agaiast fhe appellaat. T'he appeUaat adjured his guilt. Prosecution iai order to estabKsIi the charges a^aiiist fhe appeUatit exaiaiaed as m.aay as 17 witnesses, fhereafter stateinent of accused under Section 313 of Code of Cruiunal procedure was reeorded ia wliicli me appeUaiit derued ttie circumstaiiGes appearing agauist hiTn in me prosecution ease aad pleadea irulocence and false HnpUGation. He also examijied fhe defence witaess No. 1 Kusuiu Bas, |5. Learaed Trial Court aftcT hearinig the Additional Publk;! Prbsecutor land couasel forfhe appeUantcoiNacted aiid sentenced the^^^^a^ iaBove. :: • •: ;' " •::~. .- :. • 1-: •,.' : i :' ~." |6. Hoinicidal death of 'rrUochaiL is^ not ia dispute. Bvea ptiierwise ifroia the evideuce ofP.W.l Dr. M.C. Vyas, who had conducted: post <.;<: t— . . . inortem. over the dead body of the deceased and submitted report Ex. P- 1 and who had noticed entry wound over fhe person ofthe deceased aad who had opuied ffaat ' fhe cause of tiie deafh. was shock, haeinorrhage aad tnjuiy to vital orgaas cominon cause, archlof aorta clot blood found, nipture of.right hyig aiid the same was hoinicidal ia nature, homicidal death ofT'rilochaa is established. 7. So far as involvement pf the appeuaat'ia criine in questiori. is ff- : . • • • • ' conceraed, fhe leamed Court below after rccording finduigs fhat deceased T'rilochaa died hoinicidal death aiid he died because ofbuUet iujuiy froin riffle aad on the basis ofeye-witaess account givenby P.W. 12 Inspector/Coiapaiiy Coinm.aa.der Ram.agovind an.a. other luaterial; Iield fh.e appeUant guilty; , • '". 8. Leamed couasel~for the appeuaatsubiuitted fh.at fhere is no inotive. Ttie prosecution has notestabitshed aay motive to the appellant y ; ' ' tor causing aeatti ot liiloctian.. Aclinitteaiy, ttie uicictent tooK. piace ui the dark aad as such tfaere was nd occasion for eve-witaess Ramagoviiid to witness ftie in.cident aad Uiis aspect has also been overlooked by the Courtbelow.It is furuierargued that even as per fhe prosecution case, at fh.e relevant tim.e, tlie appeuaat was disc&argitig his ofBcial duty of Guard aad ta the absence of sanction under Section 197 of Cr.P.C. fhe whole prosecution is vitiated and, uierefore, the mipugneujudginentcannotbeuplield. 9. On the other haad, learaed counsel for fhe State supports the :unpugiiecl juri.gment. , | ;10. We have heard the learaed courisel for ftie parties. We have Iperused fiie uiaterial available on reeord, oral and documentary jevidence as also tfae impugned judgment. n ^ BtlBN' 11. The 303 riffle aad 3 live cartridges and two eiapties were seized ia coiuiected case of murder of Abdul Majid Khaa froui Uie eustody of the appellaiit in preseuce ofwitness Kusuia Uas aad Preetpal Siagh by Sub inspector K.K. Nag. The seizure iiieiuo has been duly proved by P.W. 10 Preetpal Singh who has st^ted fha.t the weapon of-offence aad the cartndges were seized from. fhe accused. The stateiaent ofthis witaiess fixids support by tfae stateinent ot Sub Inspector K.K. Nag P.W. B wlio f,. • .. . • ' • . ' had enected the seizure. He stated taat ia this case, three live cartridges and eBipties were not seized separately. The seized rifue in coimected case was examined t>y Senior Scientist, Forensic Science Laborator^7, Sagar w&o Uas given report and opined that ttie nffie ia question was ia order, it was recently fired and oa coniparison, lie has further opiaed that seized eiapties were fired by the seized riffie. Thus Iroin fhe above witness, it is proved that fhe einpties which were seized iroin fhe -f ' . appeuaiitwere fired froin the rifEle seized froia fhe appeUaat. TIus fact finds furttier corrbboration by fhe ceraficate of Ex. P-20 (In. S.T. No. 453/96) which shows fhat fhe above rifue was issued to fh.e appeuant. Dr. M.C. Vyas who has conducted post niorteia over Uie dead body of ftie deceased. aad. Iias tbuiid injuries as descnbed above, has also statecl fhat in his post niortem report while descnbing fhe uijuries, he has inentioned that the above iajuries were caused by buUet. So far as iavolvenient of the appellaD.t in this onence is concenied, P.W. 2 Shivprasad. who has lodged reporl Ex.P-1 iminediately after the incideQt, Iias deposed fhat Triloehaa was Guard Conunander of tus CQmpany. Abdul Majid and Triloc&aa are dead. in the year 1995, he was posted ui the place of incidentaad alterttte iacidenthe was tFausfeireid. Me was on duty asrearguard froitt 12.0u to 2.30 his in Uie Qight. Betore lum., Meeiia Kuinar was 6n duty wno liaa gone toiJodge Ufe <t ^.-< p- report of first incideat to poUce slation and because of first ineident, he was in. position. At about 12.05 hrs,Mikhail Toppo was eoiiiiiig wittt riffle. He was ordered to stop whereuppn. he told his aaine. Head Constable Trilocban ordered Mikhait Toppo to throw the riffle, however he did not sfop aud iastead fired at T'rilochan as a restdtTrilochaiifeU. there. After Trilochaa feU, fhe accused assaulted hiin 2-3 tunes with buit of his giui. He uirected fiie accused to stop. He did not stop and •'r. went towards hill. Thereafterhe along with Bhaiyalal, Major Vedrain, M. Baliadur went to poUce station uiider alert coxidition and lodged Ex. P- 1. In the cross-examination, lie has adiiutted that when the first iacidentoccurred, he was sleepiag in. the guard rooni and tberefpre, he had aot seeii fhe incident. He has denied the Suggestion that at ttie tmie of incident with T'rilochan, he Was present m. fhe poUce station Pakhanjur and said ftlat hewas on duty ia the rear guaid rooia. P.W. r • ' : : ; 12 who is the eye-witiiess has stated that on the date ot iaciaeiit, he was in^ cajmp wliereas racident took pJaee near P.S. Pakhaajur. In fhe nj^ht he was preparing for ineals, he Iieard sound offiruig froin poliee statioii. T'hen he alQng wiffa Platoon Gonuiiaader Hiralal went to the place froiu where the sound came. He asked TrilQchaa about fhe sound, Trilochau told that accused has escaped after tiri.ag at Abdul Majid. TheB he informed about the death ofAbdul Majid to Station-in-charge K.K. Nag. K.K. Nag also reached to fhe plaee of iacident. They were asKed to taKe position aacl ttie a&cuseGl wfio escapecl;was asKect to surrender. Then he faccused) fired at Guard CotnrnaBdar 1?ril6chan. TJiiese witnesses were uninoved in t&e cross-examio.atiQn aact cletence has not lieen able to elicit anyUiiag •te-luch iilakes tUe evideiice of:tiie^e witaesses untrustworfhy or Imreliable; T&e stateiaeuts witngsses furttier tind corroboiatioa iroia ttie stateinent olf f.jW. 5 ;6f iffacse 6 -\.? ^- Constablfi Vediam. wlio has also stated fhat hewas on the uight duly on fhe date of iacident along with Meena Kuinar, Shivprasad and the deceased constables. Botii fhe deceased coiistables were sittuig beneafh Mahiia tree whereas he was sleepuig ia the guard room. At about 8.30 he slept after taking Iiis nieais. One hour thereafter Guard CoTnrnaader Trilochaa came there ana infQEmed thaf fhe accused has fired at Maiid and he mrther stated TQ teke position wifh your ruue. Tbe accused after f{. the first iacident went out ofthe bouadary and after au hour agam came to UuaFd rooin. He asked Trilocnan to give Bidoria. wlien iniociieua said tliatyour ±fictonawoulcl be wiUi you, ttien tie tired at Trilochaa. The stateinent of above witaess is further corroboiated bv pronipfly lodged F.I.R. as also fi-oin the post iiiortem.repbrt.So far as arguments of tne couns&l for fhe appellant that the prosecuttoii nas faUed to prove inottve iu the jnstalit case is Goncerned, tt * : ^ - ' : law tiiat wJiere ttiere are eye-witnesses to ttie tticictent, motive losses a.U its s^ni&caace.. 12. In the case of Bikau_pande3r_ mid_others_-v- gtate of Bihar reported in (2QQ3) 12 SCC 616, fhe Hon.'ble Supreine Court nas held in para 13 fhat even if the absenee of motive as aueged is accepted, that is of no consequence aad pales iato ias^nifican.ee when dircct eviden.ee establishes the criine. 13. The second arguinent advauced t>y the leamed counsel for the appeilaat that f&e aueged ia.cident is pf fhe night and, therefore, it was not possible for fhe wituesses tp idenfify fhe appellant as perpetTator of tue oftence. This arguDient also lias no Substaace iaasmucli as the witaesses cfimpaiiy eacn are constaBles anicl co.uipaay coiiunaacter in tUe sanl6 laay, fhey were engaged ia. the aight guard duty aad famaliar wifh ofher. .T]ie1 fire waa shotfroiiiaclose raage as stated/by P.W. Ig. In l^ ^ fhe afbresaid circunistances, the question ofidentity on the ground that it was ni^ht is witiiout any substaace aad fhere.is evidence available on record to show that at fhe relevant tiine, the place was iuummated with electric bulbs. The fliird ai^uinent advanced by tlie counsel lor t&e appeuaat Uiat tne onence it&ny is coirunittea t>y me appellaat wtule tie was on duty of fhe rear guard aad as such he coiild not have been prosecuted with.out saaction Iroin the competent autJiority as per Uie provisions under Sectioa 197 qf;Cr.P.C. is concemed, fhe above arguinent is also without substance becayse fhe appeUant haa left the place after coinpletuig.his duty. He had hauded oyer his charge to P.W, 17 Constable Meena Kum.ar and fhereatter he came there arm.ed with nffie after Qbtaiiung tlie saoie trom. (Vless. Bven oUierwise.-itwasiio part ofhis official duty to fiie'at his Coinpany Couunaader and as such the act aueged agaiast the appeUaiit had no nexus whatsoever with his r. • - ' otticial ctuty and ui ttie atoresaicl circu-mstauces, no saacUon as per provisions of Secfion 197 of Cr.P.C. was neGessary for prosecutiiig Uie appeUaut. However froia perusal of ftie record as also troin ttie evidence, we fuid th.at fhis detence was never taken by ftie appeilaiit duriag tnal aacL even m. t&e raeino ot appeal no sucti grouna is mere, aad same is raised for the first time during argument. 14. Thus on the basis ofabove discussions, we are offhe considered opinion fhat the prosecution has estaDUshed the charge agamst the appeuant hy adducing retiable evidence and fhe Court below has correcfly held fhe appeuaat guilty uader Section 302 of I.P.C. and seatenced as above by tlie unpugaed juclginent. T'4e appeal fails_&nd is disiiiissed. •s> Sd/- Fakhruddin Judge Sd/- DHIBENDRA MBHRA Judge