a \"^ APPELLANT: HIGH COURT OFCHHATTISGARH, BILASPUR CriminaLARpealNo.944 of 1991 Kudiyam Bojja son of Hunga Muriya aged about 32 years, resident of village Komla Police Station Bijapur Distt. Bastar. RESPONDENT: Versys The State of Madhya Pradesh (now .Chhattisgarh) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Prafull Bharat, counsel for the appellant. Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent. DiyisipnBench: - Hon'ble Mr. T.P. Sharma and Hon^blelVlr^R.!-. JhanwariJJ ORALJUDGMENT (18-3-2010) LP.i'harma, J: - 1. Challenge in this appea! is to the judgment of conviction & order of sentence dated 3-10-91 passed by the 3 Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 145/90, whereby & whereunder learned Additional Sessions Judge while convicting the thirteen accused persons under Section 323 of the I.P.C., convicted the appellant herein namely, Kudiyam Bojja son of Hunga Muriya under Section 302 of the I.P.C. for commission of homicidal death amounting to murder of Hemla Budhram and sentenced him toundergo imprisonment for life. / 2. Conviction is challenged only on the ground that the trial Court has •t»^ illegally convicted & sentenced the appellant herein instead of convicting & sentencing accuspd No.11 Kudiyam Bijja son of Hinga Mariya and thereby committed illegality. - ' i l'"I USES 3. Case of the prosecution, in brief, is that on the fateful day of 16-8-89 at about 4 p.m. the appellant herein along with other accused persons assaulted Hemla Budhram (since deceased) and caused his death. F.1. R. was lodged vide Ex. P-7 on second day. After summoning the witnesses vide Ex.P-11, inquest over the dead body of Hemla Budhram was prepared vide Ex.P-12. Dead body was sent for autopsy to Primary Health Centre, Bijapur vide Ex.P-1A and autopsy was conducted by Dr. Chandrakanta Singh (PW-1) vide Ex.P-1 who found nine injuries on the person of the deceased. Death was homicidal in nature. During the course of investigation, the Investigating Officer interrogated the accused persons including the appellant herein and they made discloser statements. Appellant herein Kudiyam Bojja son of Hunga Muriya made discloser statement of stick vide Ex. P-20 and stick was recovered at the instance of the appellant vide Ex.P-21. Another accused Kudiyam Bijja son of Hinga Mariya made discloser statement of carpenter axe vide Ex.P-22 and carpenter axe was seized from Kudiyam Bijja sonof Hinga Mariya vide Ex.P-23. 4. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Courtof Sessions, Jagdalpur from where 3 Additional Sessions Judge, Bastar at Jagdalpur received the case on transfer for trial. 5. In order to prove the guilt of accused persons, the prosecution has - "examined as/friany as fifteen witnesses. The accused were examined under Section 313 ofthe Cr.F.€.in which they denied the circumstances appearing against them, pleaded innocence and false implication. •^s ^7.' •eea- ^».f--aa^ ;Iti'(;ft«, ^ E.''^.y h' 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgmeni impugned and record of the trial Court. 8. Learned counsel for the appellant only submits that he is not disputing the facts finding of the trial Court, he is only disputing the conviction of the appellant on the ground that the evidence adduced on behalf of the prosecution reveals that accused No.11 Kudiyam Bijja son of Hinga Mariya has used carpenter axe and caused injury to the deceased. Carpenter axe was seized from accused No.11 Kudiyam Bijja son of Hinga Mariya on the basis of his confessional statement Ex.P-22, but probably on the ground of mistaken identity or similarity in names & fathers' names, instead of convicting accused No.11 the trial Court has convicted & sentenced accused No.3 Kudiyam Bojja son of Hunga Muriya i.e. the appellant herein. 9. On the other hand, learned State counsel opposed the appeal. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 11.1n the present case, homicidal death of deceased Hemla Budhram as a result of ante-mortem fatal injuries has not been substantially disputed by - 'the appellan^ otherwise also established by the evidence of Dr. Chandrakanta Singh (PW-1) a'nd autopsy.report Ex.P-1. 12.As regards complicity of the appellant in the crime in question, conviction is based on the evidence of eyewitness Heml.a Mahendra (PW-12) son of deceased Budhram, who was present at the time of incident. He has •specifically deposed in para 1 of his evidence that all accused persons /.^ ^ '! '-&/^s^. s""1-' :ih. '•a<; " '^.'- * were present on the spot, Kudiyam Benja son of Hinga assaulted his father with carpenter axe on his head and other accused persons assaulted his father with hands & sticks. Another son ofthe deceased Hemla Sannu (PW-3) has also deposed in para 3 of his evidence that Kudiyami Bonja has assaulted his father with carpenter axe. 13.Vinayak Nath Yogi (PW-14J - Investigating Officer has deposed in para 2 of his evidence that accused Kudiyami Bojja made discloser statement vide Ex.P-20 relating to stick and he has recovered stick at the instance of Kudiyami Bojja along with lungi vide Ex.P-21. He has further deposed that Kudiyami Bonja son of Hinga made discloser statement of carpenter axe which was recovered at the instance of Kudiyami Bonja son of Hinga vide Ex. P-23. 14.The trial Court has discussed the evidence in paras 7, 8, 9 & 10 of its judgment which reveal that the trial Court has considered the evidence of eyewitness Hemla Mahendra (PW-12). Para 14 of the judgment reveals that on the basis of confessional statement Ex.P-22, the Investigating Officer has seized carpenter axe vide Ex.P-23 from Kudiyam Bojja. Injury found over the head of the deceased was fatal and was caused by sharp edged weapon like carpenter axe. On the basis of the aforesaid evidence, the trial Court has arrived at a finding that the accused who was holding carpenter axe and who has caused injury over the head of Hemla Budhram^has committed the offence of murder punishable under Section 302 of the I.P.C. But while convicting the accused concerned, ^ the trial Court has mentioneiTthe namepf accused in paras 23 & 24 of its judgment as Kudiyam Bojja son of Hunga and sentenced him to undergo imprisonment for life. 1 ssv^ 15.The trial Court has not arrived at finding that the appellant herein i.e. accused No.3 Kudiyam Bojja son of Hunga Muriya was holding carpenter axe or any how he was in possession of carpenter axe and has caused injury on the head of Hemla Budhram with the said carpenter axe or he is otherwise liable for commission of murder of Hemla Budhram. Entire marshalling of evidence and finding of the trial Court reveal that the trial Court has convicted the accused who was holding carpenter axe and has caused injury to Hemla Budhram with the carpenter axe. 16.Evidence of Investigating Officer Vinayak Nath Yogi (PW-14), eyewitness Hemla Mahendra (PW-12) & Hemla Sannu (PW-3) clearly establish that Kudiyam Bijja son of Hinga Mariya wgs holding carpenter axe and has caused fatal injury to Hemla Budhram over his head by carpenter axe and the appellant herein was not holding carpenter axe. The appellant herein has not caused injury with carpenter axe, but hewas holding stick which has been recovered from him vide Ex.P-21. 17.The aforesaid facts clearly establish that the trial Court instead of convicting accused No.11 Kudiyam Bijja son of Hinga Mariya aged about 28 years has convicted the appellant herein i.e. accused No.SKudiyam Bojja son of Hunga Muriya aged about 32 years and thereby committed illegality. For the aforesaid reasons, conviction & sentence of the appellant herein namely, Kudiyam Bojja son of Hunga Muriya is not sustainable under the law. f 18.1n the result, the appeal is allowed. Conviction & sentence of appellant Kudiyam Bojja son of Hunga Muriya under Section 302 of the I.P.C. are hereby set aside and he is acquitted of the said charge. The appellant is on bail. He need not surrender before the.trial Court. fl"':'"'^, .-^' "'•-. & .^s'- t^:ai-<(l^'j£^^ 'wf^y ^«y l9.The offence took place in the year 1989. The State has not filed any appeal against the acquittal of accused No.11 Kudiyam Bijja son of Hinga Mariya under Section 302 of the I.P.C. It may take necessary steps. R.L. Sd/- aoma Sd/- T.P. Sharma Judge 'T» /