HIGH COURT OF CHHATTISGARH AT BILASPUR ^ ^ Division Bench:Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 10 of 1994 Appellant Hurra alias Nohru Respondent Vs. State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- R.N. Chandrakar Judge Hon'ble Shri Dhirendra Mishra,jJ. 9 Ay^_ Sd/- JUDGE 2<//6/2010 POST FOR JUDGMENT ON ^T-6-2010 Sd/- Dhirendra Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar. JJ. Appellant Criminal Appeal No. 10 of 1994 Hurra alias Nohru, son of Baisakhu, aged 27 years, resident of village Timdi, P.S. Kekshkal, District Bastar, CG. Vs. Respondent State of Madhya Pradesh (Npw Chhattisgarh) Present: Shri Ravindra Agrawal, counsel for the appellant. Shri Arun Sao, Govt. Advocate for the State JUDGMENT (Deliveredon ^S .06.2010) By this appeal under Section 374(2) of the Code of Criminal Procedure, the accused/appellant has questioned legality and correctness of the judgment of conviction and order of sentence dated 6-2-1993 passed in Sessions Trial Case No.70 of 1992, whereby learned Additional Sessions judge, Kanker, District Bastar, after holding the appetlant guilty for commission of offence under Section 302 read with Section 34 and 201 of the Indian Penal Code., sentenced the accused to undergo imprisonment for life and R.l. for two years respectively. Both the sentences are directed to run concurrently. The case of the prosecution, in brief, is that the appellant and the deceased were of the same family and the deceased was Dev Pujari (Priest) of the village as well as of the family. The family members of the appellant very often fell sick and the reason they suspected was annoyance of their "Kuldevta" because despite their repeated requests ^ .-::.-¥^ K Iste; '\ g ''''^^S^ t, ^^ t.ft ^' K '1s J t-—-'Jy the deceased did not worship their "Kuldevta" properly, therefore, the appellant, his brother Madda @^ Mudda (already released after completion of sentence) and their father were having grudge against the deceased. Due to this reason co-accused Madda @ Mudda and the accused/appellant Hurra assaulted the deceased on his back with an axe in the evening of 18-11-1991 between 19.11.1991 at 11.00 a.m., as a result pf which^the deceased succumbed to the injuries. 3. Report of the incident was lodged by the complainant Nevaru (PW/2), son of the deceased on 20-11-1991 at 3.05 p.m. at Police Station t Keshkal. After registering the crime, police proceeded to the scene of occurrence and prepared inquest (Ex.P/7) over the person of the deceased in presence ofthe witnesses. On the memorandum (Ex.P/1) of Madda @ Mudda, Danda (Bomboo) wasrecovered. The dead body of the deceased was sent for post mortem examination to Government f Hospital, Keshkal, where Doctor O.P. Pilley (PW/7) conducted / postmortem and gave his report vide Ex.P/9. The plain soil and the blood stained soil were seized from place of incident vide Ex. P/3. /eapon of offence, axe was takeninto possession from Sobhiram (PW/3) vide Ex.P/5. Dhoti of the deceased was seized from forest vide Ex.P/4. The seized' articles i.e., one iron axe, one sealed packet containing blood stained soil, one sealed pacl(et containing whit^ coloured dhoti and one sealed packet containing bfo^d smeared, soil and plain soil and one sealed packet containing the clothes of the deceased were also sent for chemical examination to FSL, Sagar vid^ Ex.P/11 and report thereof has been received vide Ex.P/12 stating that blood was found on all the seized articles except plain soil. '^ / y ^ 4. After completing the investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Kanker, against the appellant, who in turn committed the case to the Court of Sessions Judge, Kanker for trial. Learned Additional Sessions Judge framed charges under Section 302/34 and 201 of the Indian Penal Code against the appellant who abjured his guilt. 5. In order to establish the charges against the appellant, prosecution examined 8 witnesses in all. Thereafter the statement of accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. 6. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one ofthe judgment. 7. Homicidal death of deceased Asadu Ram is not in dispute. Even otherwise, from the evidence of PW-4 Munna and the evidence of Dr. O.P. Pilley, who conducted thepost mortem & proved his report Ex-P/9 inwhich he found the following internal and external injuries present on the person of the deceased and opined that the deceased died as a result of excessive bleeding and shock and that the injury sustained by the deceased is sufficient for death in ordinary course of nature, the homicidal death ofthe deceased is established. 1) 2) 3) External Iniuries Smell was emanating from the body. The dead body was full of insects. Insects were found on both eyes and tongue ofthe deceased. One hole was found on the back side of head where the whole brain was eaten by insects. 4) 1)) 2) 3) The process of rigor mortis had passed. Internal Iniuries The right and left lung were found congested. Heart and blood vessels were empty. Undigested food was present in his stomach. Digested food was found in the small intestines and fecal matter was found in the large intestine. Liver and spleen both were congested. Back side of bone of head was fractured. ^ / 8. Shri Ravindra Agrawal, learned counsel for the appellant vehemently argued that the conviction of the appellant is based on the testimony of PW/1, Nahru, PW/2 Nevaru, PW/3 Shobiram and PW/4 Munna before whom the extra judicial confession is said to have been made by the appellant and Sanpati Bai (PW/6) who is the witness of last seen together with the deceased and there is no clinching evidence except that of these witnesses whose testimonies cannot be relied upon to connect the appellant with the crime. There are contradictions in the statements given by the prosecution witnesses and they are mfirm witnesses. 9. On the other hand, Shri Arun Sao, Government Advocate, appearing on behalf of State supported the impugned judgment. 10. We have heard learned counsel for the parties and perused the records of the Court below. 11. Nevaru (PW/2) has lodged the report vide (Ex.P/8) of the incident on 20-11-1001 at 3.05 pm at Police Station Keshkal and has proved the same in his deposition before the Court below. He has further deposed that his sister-in-law came to his house and told that his father was not in threshing field then they both went to Timadi forest in search ^) of his father. On searching, dead body ofAsadu, the father of Nevaru (PW/2) was found lying on the road going towards Timadi forest. Panchayat was convened in village in which Chaitu Ram, Nevaru and Kotwar Sobhi Ram were present along with all the three accused persons. On being enquired, Munna (PW/4) told that accused Hurra and Mudda had killed Asadu Ram, father of PW/2 Navaru. In the Panchayat, accused Hurra and Mudda admitted that they had killed Asadu by axe and threw the deadbody in Timadi forest. 12. Munna (PW/4) deposed that Hurra came to call him, took him to threshing field and showed him the dead body of Asadu Ram and asked for his help in throwing the dead body whereas he deniedto do so. Thereafter, the accused threatened him to kill if he would not help him. He furtherdeposed that on being asked who killed Asadu Ram, the accused tolcf that Mudda killed Asadu Ram by axe. The accused further disclosed that he himself assaulted the deceased by axe after the assault was made by Mudda. He further deposed that Mudda did not tell him that he killed the deceased. The accused furtherthreatened him that he would kill him by axe if he discloses this matter to any one. Mudda washed the axe in river and went to his house. Thereafter he and accused went to their house. On the next day, Panchayat was convened in which he told that Hurra and Mudda had killed the deceased Asadu Ram. In his cross examination he admitted that dead body ofAsadu Ram was taken into forest by Mudda and Hurra. 13. Sampati Bai (PW/6) deposed that she saw the deceased Asadu Ram at about 4.00 p.m. on Monday at his premises. She also deposedthat she saw Mudda, Hurra and Baisaku nearbythat premiseswhichis adjacent to the premises ofAsadu Ram. At the time of returning from Asadu / £ "<%, ""\ y i%&'K!». .% li "is«t%, 'j .0 ^''N£.:."J' .-^ Ram's premises, she saw Munna (PW/4) going towards the premises of Baisaku and he was alone. 14. Doctor O.P. Pilley (PW/7) deposed that he was working as Assistant Doctor in Primary Health Centre, Keshkal since 1984. On 21-11-1991 dead body of Asadu Ram was brought by Police and he conducted autopsy on the dead body on 23-11-1991 at 11 .30 a.m. On examination he found internal and external injuries on the body of the deceased as discussed in foregoing paragraphs. He opined that death was caused due to excessive bleeding and shock. 16. On close scrutiny ofevidence available on record, it is manifestly clear that the evidenceof Navaru (PW/2), PW/4 Munna, PW/6 Sampati Bai and PW/7 Dr. O.P. Pilley, is duly corroborated by all the other witnesses. From the statement of Sanpati Bai (PW-6) who had seen the deceased in his premises adjacent to which accused/were also present, it is clear that deathof the deceased was homicidal in nature. In other words, it can be said that the deceased was last seen by Sampati Bai and thereafter thedead body ofthe deceased was found in the forest with the injuries. Moreover, FSL reportalso indicates that blood was present on axe and the other seized articles. From perusal of the judgment of the lower Court also it would be evident that the evidence of PW/4 - Munna, has not been denied by the accused in his defence and the accused also admjtted his guilt before the Panchayat convened by the villagers. 17. On the basis of aforesaid discussion, we are of the opinion that the prosecution has successfully proved the involvement of the appellant in the crime in question beyond reasonable doubt and the Sessions Court rightly found the appellantguilty of the offences charged against him. '•%%,%•.:, We do not find anyillegality or infirmity in the impugned judgment convicting and sentencing the accused in the manner mentioned above. 18. In the result, the appeal fails and the same is dismissed. The appellant is on bail. His bail bonds are cancelled. He is directed to surrender before the trial Court to serve the remaining sentence imposed upon him. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Raju