' HIGH COURT OF CHHATTISGARH BILASP’UR- ' Criminal Appeal No.365 of200‘3 APPELLANTS: (In Jail)' ‘ ‘ . 'z 1. . .Phool >Jhool Singh Slngh Kamar Kamar @‘ Aged Mohar 4‘0‘yea’rs’,’ Singh R70 S/Q 91L; ‘ V > _ ' Gram Nawagarh Ponce Stahon Ganyaband v Dlstt Ralpur (Chhattxsgarh) 2. Dukalu Ram S/o Phool Slngh Aged 36 ' years R/o Gram Nawagarh Police Station ‘ . Ganyaband Dls’tt Ralpur(CG) Versus ,‘RESPONDENT: ‘ ' State of Chhattrsgarh Through Polrce > , . Statron Mampur Drstt Rarpur(C G) {Criminal appeal under Section 374 (2) of'Cnmmal Procedure Code} Present - Mr Vlmal Tondey, counselforthe appellants ‘ _ r Mr Arun Sao Govt Advocate forthe State/respondent Drvrslon Bench - Hon’ble Mr TP Sharma and gen ble Mr R L Jhanwar, JJ ORAL JUDGMENT (20—9-2010) TP Sharma J - 1 Challenge m thrs appeal ls to the ludgment of convrctlon & order of A . - ' sentence dated ‘17 1 2003 passed by the 6t“ Addrtronal Sessrons Judge, " ’ ’ ' w n "Raipur in Sessions Trial No.270/2002, whereby & whereunderv-learned ‘ _ . Additional Sessions Judge after holding the appellants guilty for - . commission of culpable homicide amounting to murder of-Gahan-Yadav’, concealing the evidence of criminal case and sharing cemmon intention, ,convrcted the appellants under Sections 302 read wrth Section 34 & 201 , v v’ C ‘ read wrth Section 34 of the lP C and sentenced each of them to undergo imprisonment for life & pay fine of RS2 OOOI— in default of payment of ftne to further undergo R l for three months and to undergo 5' * " R l for three years & pay fme of Rs 500/— m default of payment of fme to further undergo R l for one month respectively r w: 2. ,Conv1ctlon Is Impugned on the ground that Without any Iota of eVIdence the trial Court has conVIcted & sentenced the appellants and thereby ‘ committed ttlegahty ‘ ‘ 3. Case of the prosecution m brief Is that on 16-4-2002 one Gahan Yadav (smce deceased) reSIdent of Musapall Police Station Khoksara Dlstt , Kalahandt (Onssa) came to Vlllage Nawagarh Poltce Statton Mampur Dtstt Ralpur he was a mentally dtsturbed person and was movmg In V Village Nawagarh he assaulted appellant No 2 Dukalu on which both theT ‘ appellants took hlm to thelr house and there appellant N02 Dukalu l ' assaulted htm by stick and appellant No 1 Jhool Smgh assaulted htm by blunt part of axe Gahan Yadav died on the spot and then they dragged ’ the dead body of Gahan Yadav to nala and buned the dead body Whlle “ . the appellants were dragging Gahan Yadav towards their houee Rajendra (PW 5) saw the Incudent and thereafter, at about 2 am. (mid night) when 'the appellants were assaulting Gahan Yadav neighbour ' Ratan Singh (PW 7) saw the moldent he went to the house of Punltram . ‘ v g,» ' ' (PW 2) and told the InCIdent but Punitram directed him to go and sleep , . . ‘ ‘ On second day, both the appellants came to Jitendra Kumar (PW-4) & Bhagoli (PW 8) and made extra judiCIal confessmn that they have ,_c‘0mmitted mistake and have killed one mad person and buried him in y I I phalphali nala the police is searching for them and the appellants also I ' ‘requested Jitendra Kumar (PW 4) & Bhagoli (PW 8) to save them Harpal Singh (PW-1) Sarpanch also came to know about the aforesaid facts he went to the Police Station and lodged merg intimation on 18 4- v 2002 Vtde Ex P 1 4. The Investigating Officer recorded F l R vide Ex P 35 and left for the H 5 .I . scene of occurrence The area where the dead body was buried was v surrounded by Villagers The Police Officer obtained permission for .vexhumlng the body buried and on 20-4 2002 after obtaining Permissmn v spot panchnama was prepared by the Additional Tahsildar Vide Ex P 4 . After exhuming the dead body and after summoning the Witnesses Vide Ex.P 2, inquest over thedead body of the deceased was prepared yide i ‘t Ex.P-3. Dead body was sent for autopsy to.Assistant Surgeon, Mainpu‘r. l l Dr. ‘K.C. Uraon (PW-3) conducted autopsy vide EXP-21 andxfOUnd 7 l wound over leftjaw, ‘leftjaw was found fractured, parietal.&.frontal bones were also found fractured,- head was depressed and 12-15 om. fracturevwru. 11!. 1" of'parietal bone was found. Cause‘bf death was cardiorespiratory arrest 3 due to Intracramal haemorrhage and death was homICIdaI In nature Spot map was prepared by the Investigatmg OfFcer Vlde Ex P 19 In which It wa‘s nohced that dragging marks along wrth blood stains Were fpund near the house of the appellants up to the place where the dead body was buried. Patwari has also prepared spot map vide EXP-6 in which dragging marks and blood stains were shown near the house of the appellants up to the place where the dead body'was buried. Appellant No.2 Dukalu was arrested, he made discloser of stick vide Ex.P~8 and stick was recovered at his instance vide Ex.P-15. Appellant N01 Jhool Singh was also taken into custody he made discloser statement of axe Vide EX P 9 and axe was recovered at his instance Vlde Ex P-14 Blood stained and plain scll were recovered from the spot Vide Ex P 13 Blood stalned clothes of the appellants were recovered wde Exs.P-16 & P-17. One spade used for digging earth was seized from appellant No.2 Dukalu vide EXP-18. . Seized articles were sent for chemical examination and presence of blood on stick, axe and clothes recovered from the appellants was confirmed vide EXP-37. During the course of investigation, photograph of deceased Gahan Yadav EXP—28 was seized vide EXP—29 and on the basis of clothes, body was identified as that of Gahan Yadav vide ExlP- 30. . Statements of the witnesses were recorded under SectiOn 161 of the Cr.P.C.. After completion of investigation, charge sheet Was filed before the Court of Judicial Magistrate First Class, Gariaband who committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. . ln order to prove the guilt of the appellants, the prosecution has examined as many as fourteen witnesses The accused were examined under Section 313 of the Cr P C in which they denied the Circumstances appearing against them pleaded innocence and false implication . After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned. . We have heard learned counsel for the parties, perused theijudgment impugned and record of the trial Court. if, i .I, ri' ,1 ii_ . . . r 10.Learned counsel for the appellants vehemently argued that in the present case, evidence of the prosecution witnesses do nct inspire confidence, the prosecution witnesses have not identified the person to whom the appellants have caused injury, they have not seen the incident and the accused persons have not made extra judiciat confession to the witnesses, and without any cogent and reliable evidence, the trial Court“ has convicted & sentenced the appellants. 11 .On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellants is based on the evidence of eyewitnesses and the extra judicial confession made by the appellants before the witnesses which‘ are sufficient for drawing inference that the appellants were the persons who have committed the offence. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. ,i 13.ln the present case, homicidal death of Gahan Yadav as a result of fatal injuries has not been substantially disputed on behalf of the appellants, othenNise also, it is established by the evidence of Dr. K.C. Uraon (PW— 3) and autopsy report EXP-21 that the death tof‘Gahan Yadav was homicidal in nature. 14.As regards complicity of the appellants in the crime in question, as per the evidence of Rajendra (PW-5), on the fateful day at about 9 p.m. he was coming towards his old house at Nawagarh, at that time, he saw in the light of truck that Jhool Singh was holding mad person and Was“ taking him towards his house, after three days of the incident he came to know that the appeilants have buried the mad person near the nala. Defence has cross—examined this witness, but it has not been able to elicit anything in his cross—examination to discredit his testimony. 15.Ratan Singh (PW-7) - neighbour of the appellants has deposed in his evidence that on the date of incident‘at night he was sleeping in his house, he heard the sound on which he came out from the house and saw that the appellants were assaulting one person whereupon he went to Punitram and informed about the incident, but Punitram directed him to go and sleep. Punitram (PW-2) has substantially corroborated the’ ' evidence of Ratan Singh (PW—7) and further deposed that after 2-3 days, police came to the village, they exhumed the dead body, they have prepared map, and they saw dragging marks right from the house of the accused persons tlll the place where the dead body was buried along ith blood stams Defence has cross exammed these Witnesses also ‘ ’ but 1t has noi been able to eIIClt anything m their cross examrnatlon to drscredrt thelr testimony 16 The prosecution has also examined Jitendra Kumar (PW 4) & Bhagoli‘ , ' (PW—8) before whom the appellants have made extra JudICIal. confeSSIon and requested to save them from the pol1ce In their cross examinatiOn they have spec1fcally stated that both the accused persons have made .extra Judrcral confeSSIon before them. ‘ flaw 7" 17 As per the evrdence of D P Bh01 (PW-14) Station In charge' on 18 4- 2002 he has recorded merg Intlmatlon vrde Ex P 1 then he has applred ,to the Sub DMSIonal Magistrate Garlaband for exhummg the dead body vrde Ex P 34 they have obtarned the order and on 20 4 2002 the dead body was exhumed before the Additional Tahsrldar He has substantrally corroborated the Investigation and has deposed that both the accused persons have made drscloser statements of stick & axe and on the basts of their statements, both the articles (weapons of offence) were recovered which were found stained with blood s” i 18 In the present case convrction of the appellants ls substantially based on T t the eVIdence of Punltram (PW 2) Rajendra (PW-5) and Ratan Singh (PW 7) Rajendra (PW 5) has seen first part of the inCident and Ratan Singh (PW-7) has seen the lncrdent before whom both the accused U persons have assaulted the mad person (the deceased) As per the eVIdence of Jitendra Kumar (PW-4) & Bhagoli (PW 8) both tne accused persons have made extra JudICial confessmn before them As per spot maps Exs P 6 & P 19 dragging marks and blood spots were found near ‘ the house of the appellants up to the place where the dead bodywas buried; This is also a substantial piece of evidence and circumstance“,.‘;.. ‘ against the appellants lf’these evidences are considered together the only inference that the appellants have caused fatal injuries to the ' tmentally disturbed man and caused his death would be possmle After causmg his death With intent to conceal the eVidence of criminal case ' ' i ‘ the appellants have buried the dead body near nala in sharing common , \N \ . intention 19 After appreCIating the eVIdence available on record learned Additional Sessmns Judge conVicted & sentenced the appellants in the aforesaid W :l,_, anner. On clo’se scrutiny of evidence, we do not find an iiie a it i onvicting & sentencing the appellants. 0.Consequently, the appeal is devoid of merit, same is liable- to b 2 e ismissy and i s. Sdl— R.L. Jhanwar Judge Sdl~ TE. SHARM m y _ y n c d t is hereby dismised _ c A