HI6H COURT OF CHHATraSGARH AT BIUtSPUR Crimmol ApDealNo. 1253/1993 APPELLANTS VERSUS RESPON&ENT Heeralai son of Manohar Panika, , aged 20 years (14 years at the time of incident), R/o Saja Pahad, P.S. iShondi, District Surguja (MP) (Now C6) Laimanson of Ramlal 6ond, oged 23 yeoirs, Resident of Bcdapara, Shivpur, at present Resident of Sajapahad, P.S. <5hondi, District Surguja (MP) (Now C6) Manejar alias Ramkhelawan, aged 24 years, son of Manohar Panika, R/o Sajapahad, P.S. Shondi, district Surguja (MP) (Now C6) State of Madhya Pradesh (Now Chhattisgarh). CRIMINAL APPEAL UN&ER SECTION 374 (2) OF THE CORDE OF CRIMINAL PROCE&URE A-. Appearonce: Smt. Kiran Jain, counsel for the appeliants. Shri Rajendra Tripathi, Panel Ldwyer for •the State. '•^- Division Bench:- Hon'ble Shri T.P. Sharma & Hon'ble Shri R.L.Jhanwar.JJ ORAL JUD6MENT (12.04.2010) Per T.P.Sharma, J.. 1. Challenge in this appeal is to the judgmerit of conviction and order of sentence dated 17.12.1993, passed by the Additional Sessions Judge, Manendragarh (Ambikapur), District Surguja m Sessions Trial No.61/91, whereby and whereunder, the learned Additional Sessions Judge after holding the appelkmts guilty for commission of culpable homicide amounting to murder of fihonshyam, convicted the appellants under Section 302 of the IPC and sentenced to undergo imprisonments for tife. 2. The conviction is impugned on the ground that without omy iota of evidence, the learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Brief case of the prosecution is that on fa-teful day of 18.10.1990, at about 6.00 p.m., on account of previous enmity, the appellants assaulted Shanshyam by axe and stick over his head <md caused fatal injury. Chanchala bai (PW-1) lodged the F.I.R. vide Ex. P/l. Chanchala bai andjsome other persons took the injured immediately to the hospital for treatment. Ghanshyam succumbed to the injuries on the way to Hospital. Merg was recorded vide Ex*P/t5. After summoning witnesses vide Ex. P/16, inquest over the dead body of the deeggs&d was prepared vide Ex. P/17. The dead bpdy was sent for autopsy to the Government Hospital, Chirmiri vide Ex.P/18. Originally, injured was examined vide Ex. P/19A by Dr. R.R. fiajabhiya ond foundfollowing injuries. r' !•!. i " over left parietal 1. One lacerated wound of3x T xi " over ri9ht temporal region 2. One lacerated wound ofi x t " over right temporal region 3. One lacerated wound of 2 x i-x region Condition of the deceased was very poor. He was admitted to the hospital, where he died. Intimationof death of the deceased was sent vide Ex. P/15. Finaliy, Dr. R.R. Sajabhiya (PW-9) conducted autopsy cmd found 3 stitched wounds comprising fracture of right temporal region and death was homicidal in nature. During the course of inyestigation, accused Heeratal was taken into custody. He made disciosure statement of axe vide Ex.P/5 <ind same was aized at the instance of tiie accused Heeralal. Stick and clothes were seized vide Ex.P/6. Another accused Monejar made disclosure statement of axe and clo-rties vide Ex.P/7. The same was seized at the instance of the accused Manejar vide Ex.P/8. Accused Lalman made disclosure statement of axe and cloth^ss vide Ex. P/9. The same was seized at the instance of Laiman vide Ex.P/10 and P/4. Blood stained and plain soil was recovered from the,spot vide Ex. P/2. One Kalari and Lungi was seized from the spot vide Ex. P/3. Spot map was prepared vide Ex. P/13. Seaied clothes of the deceased were seized vide Ex.P/22. Investigoting Officer prepared spot map vide Ex. P/24. Seized ^ / articles were sent for chemical examination vide Ex. P/25. '-»- Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of investigation, dnavy sheet wos filed before the Judlcial Magistrate First Class, Manendragarh, who in |-:|TI[-!IIII;' '°»;>. tum, committ-ed the case to the Court of Sessions Ambikapur, from where, the learned Additional Sessions Jud9e receiyed the case on transfer for trial. 5. In order to proye the guilt of the accused/oppellants, prosecution hos examined as many ofi 10 witnesses. Accused persons were examined under Section 313 of the Code, where they denied the circumstances appearing a9ainst them, innocence and false implication in crime in question was claimed. Accused persons have examined defence witnesses Raju ond Bablu, who have deposed that on the date of incident, no quarrel has taken place ond Raju has not seen the oppellants. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellonts as aforementioned. During the pendency of the appeal, appellant No.l- Hiralal died, therefore, the appeal agcinst Hiralai stonds disrnissed as abated. 7. We have heard, S.mt. Kiran Jain, learned counsel for appellonts No. 2 and 3 ond Shri Rajendra Tripathi, learned Ponel Lawyer for the State, perused the judgment impugned and record of •tiie Coyft below. ^ / 8. Learned counsel^for the appellonts vehemently argued that th& 'conviction is based on the evidence of interested witnesses Chcnchala; bai (PW-1) cmd her husband Balbhagirathi (PW-4), which does not jnspire confidence and trustworthy. According to their ~r-- ^-ayj?- .y" evidence, Laiman has ased axe, but no injury relating to sharp edged weapon was found pver the body of the deceased. It shows confliction between the incident and ocular ond medical evidence. 9. On the other haind, learned counsel for the State opposed the petition and submits that the conviction is based on •ttie evidence of « .. eye witnesses Chanchala Bai(PW-l), Jagmohon(PW-2), Ramdayal (PW-3) and Balbhagirathi(PW-4), who hwe seen the incident. Their evidence inspires confidence and is trustworthy to rely. 10. In order to appreciate the arguments advanced on behaif of the prosecution, we have examined the material available on record. In the present case. homicidal death as a result of ante mortem fatal injury to 6hanshyam has.not been substantially disputed by the oppellant, on the other hand, it is established by the evidence of &r. R.R. ©ajabhiye(PW-9) and autopsy report Ex. P/21 and injury report Ex. P/19 and that the death wcas homicidal in nature. 11. As regards complicity of the o.ccused/appellants in crime in question is concerned, ghanchala bai (PW-1) has categorically deposed that at tha time of incident, appellants were holding stick and axe cind they-have dssaulted ©honshynmover his head. 5he rushed'"to save Ghanshyam, but they pushed her. She shouted for ~s / help then some persons came and Ghanshyam was a9onizing. They '-— immediately took Shanshyam to the Police Station and hospital. She has lodged FER vide Ex. P/l. Balbhagarathi (PW-4) husbond of Chonchala bai (PW-1) has substantially corroborated theeyidence of Chanchaldbai. 'k •,^>s^, ••'. i;"1:;ly!'?'' 'v^!'::.. ;':»»!»• ^l|j :'?a.»f^ w 12. Defence has cross examined this witnesses at length, but has not been able to elicit anything in their cross examination to discredit their testimony. In.the present case, no incised wound was found over the body of Shanshyam ond according to the evidence of aforesaid witnesses, appellonts have used stick and axe over the head. In case of repeated injury by the blunt object, incised wound is not necessary and ds cn attack made by the blunt object, incised wound appears to be the lacerated wound. Even otherwise, the conviction is based on the evidence of eye witnesses, whose evidence inspires confidence and is trustworthy. The ocular evidence is not conflicted with the medical evidence in totality. 13. After cppreciating the evidence availabte on record, the learned Additional Sessions has convicted ond sentenced the appellants as aforementioned. The conviction is based on credible and clinching evidence, sustainable under the law. The leamed Additional Sessions Judge has not commiUed ony illegality in convicting and sentencing the appellants. 7, •V-. 14. Consequently, the appeal being devoid of merits is liable to be and is hereby disinissed. The appellants are on bail. They shall surrenfler themselves immediately before the Additional Sessions Judge, Moinendragarh for serving the remaining sentence in S.T.No.61/1991. Sd/- T.P. Shanna Judge Sd/- R.L. Jhanwar Judge