<i/3M rTii IRT nc CMMflTTIRrt&RM &T Rl' A?5p! JB n!i^>Si'"s w,;siufUi°r-iL 3 WF' ^^"jF'i^1^ t UiS!^M;-%.r^..f'% i E3in»MtSr'iJ?^.. .! ^~..s-../t^S %:?n < -^^ Cl .-<-? fn'ftA'iB? ^nrf^nai APP€!BIr^c '. •^•b^..o? zuy^ Mr't-eL.L ^. &. S TA fWa S O Orra Pr^k^^t' iL'bA-^rf ;; i %nnl PF^;^ i^uiiucif itateofC.G. JUDGMENT Sd/- Dhirendra Mishra Judge ^•n.^T9?.^ ^.i^t^T .Ti??^T-T:rti?. T. r^. ^i-?^n.no ^A's s^^sie 'sss.'&.x.^i. w'"».?'i-P £jL'.k-i-A^' ii^a'ilu/a A?&',a.?A,A"''3i^'Srf' i?f a^u^^ Sd/- L.C. Bhadoo Judge ^s!Tt l^'Hi^ .iiir^fSiif^^T1 ^fi? (J ..n^^.nn' i^ S. s? '•^S.'s!, ^f V S.^^^i'SS. S:^ ^.'S S. '8»^>ai'iS ' 1 •"1ut';^"r&' Sd/- DHIRENDRA MISHRA judge HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal ApDea! Nos.468 of 2002^ APPELLANTS Versus RESPONDENT Om Prakash Sahihs S/o. Bhikham Sahihs Aged about 20 years Occupation-labour Labha Sahu S/o. Darbari Sahu.Aged 48 years, Occupation-1-abour Both r/o. village Kamroad, f Mahasamund, Distt. Mahasamund State ofC.G. Through Police Station Mahasamund DB: Hon'ble Shri L.C.Btedoo & Hon'ble Shri Dhirendra Mishra, JJ. Smt. Uma Tiwari. Advocate forthe appellants. Shri AkhilMishra, P.L. for the State. JUDGMENT (Deliveredon 11-5-2007) Per Dhirendra iVIishra. J The appetiants have preferred this appeai under Section 374(2) of Cr.P.C. against the judgment dated 2nd March 2001 passed By 1st Additional Sessions Judge, Mahasamund in S.T. No.308/20QO whereby tearned Additional Sessions Judge after hplding fhe appeilants guiltyfor abducting deceased Munshi Lal in order to murder him andl thereafter murcfered hirn and in order to screeningthemselves from legal punishment caused disappearance of the dead body of Munshi Lal, convicted accused Om Prakash under Section 364 of IPC and senteneed to undergo imprisonment for life., to pay fine of-Rs. 20Q/-, in defauit of payment of fine to further undergo two months additional Rl. Accused appellants Om Prakash & Labha Sahu both have been convicted for offertce Under •>,§.ection 302 read with Seetion 34 and 201 of IPC'asd senlenced to undergo imprisonment'for life, tp pay a fineof Rs. 200/-, in Idefault of payment of fine to fyrther undergo two months additional Ri and seven years Rl, to pay a fine of Rs. 200/- in default of payment of fine to further undergo frwo months additional Rl respectively. All the sentencss have been directed torun concurrently. ~ 2. Case of the prosecution, in brief,isthatappellant Om Prakash abducted Munshi Ram, ten years old son of corhplainant Nirbhay Sahu *? with a purpose of offerihg h&man sacrifice for unearthing hidden treasure and thereafter murdered him iri association with appellant Labha Sahu and hid the dead body in the bushes. According to prosecution complainant Nirbhay Sahu lodged missing report No. 19/2000 inpoliee station Mahasamund on 3.05.2000 at about 2.30 a.m. mentioning therein that accused Om Prakash of his village had taken his son on his bicycle thereafter his son is missing. The Station House OfRcer after registering the missing report prgceeded to the village and recovered the dead body of the deceased on.the basis 6f disclosure statement of Ex. P-2 of appellant Om Rrakash vide dead body recovery memo of Ex.P-3. Inquest over the dead body of the deceased Ex.P-9 was prepared in presence of witnesses and thereafter dead body was sent for aufopsy to Govt. Hospital, Mahasamund vide Ex. P-TS^^^w^ Dr. Ghahshyam Lal Chandrakar PW.-8 GO'nducted post mortem and submitted ihis report vide Ex. P-15. Buds of Bidi lying nearttie piace of incident wasseizedfrom accused Labha Sahu vide Ex. P-4. Fresh Bidis were also seized from Labha Sahu on his production vide Ex.P-5. Blood stained BesftramBush was taken into possession vide Ex.P-6. One bicycle was seized from Gendu Ram Sahu vide Ex. P-7. A pieee of stone was taken into possession vide Ex.P-8. Bicycle hire register of Ex.P-10(C) was also seized, btood stained baniyan was taken into possessjon ifrom appeHant Labha Sahu vide Ex.P-12. Blood stained baniyan was taken into possession from Om F'rakash vide Ex. P-13. Spot map of Ex. P-14 was prepared byS.I-t.O. Dehati Nalishi ofEx. P-15 wasgiven by Ihvestigating Officer regarding death of Munshi Ram after recovery of dead bQdy, on the basis of wliich merg intirrration was registered in the| poliee station. .Thereafter FIR of Ex. P-16 was recorded in the police statipn. Seized articles were sent for chemjcal examinatioh to FSE.Raipiir vid^ ExiP-21 and report of FSl, is Ex. P-25: After completing1he'inves|tigation chai^e ?sheet was filed in the Coyrt of Chief Jydicial IVIagisti^ Ma|ras8muhd wh& irf turn committed the case ^ the Sessions Judge.MaHasamuhd fr^ E^SS?GSKis^^^3^^ ::11: where the learned Additional Sessions Judge received the same on transferfortrial. 3. Charge under Sections 364, 302 read with Section 34 and 201 of theiPC was framed a'gainst appellant Om Prakash whereas charge under Section 364 read with Section<34,302 and 201 of the IPC was framed against appellant Labha Sahu. The ^ccused persons abjured their guilt. 4. Prosecutioninordertoestabljshthechargesagainsttheappellants examined 11 witnesses in all. Thereafterstatements of accused persons were recorded under Section 313 ofthe Cr.P.C. in whichthey denied the circumstances appearing against them in prosecution evidence and submitSed thatthey are innocent apd they have been falsely implicated in the crime in question. Learned Additiohal Sessions Judge after hearing the counsel for the respective parties convicted and sentenced the accused persons as mentiohed above. 5. Homicidal death of deceased Munshi Lal is not in dispute. Even otherwise from perusal of statement of Dr. Ghanshyam Lal Chandrakar P.W.-Swho has conducted the post mortem and has given his repori: Ex. P-15in which hetias mentioned that the tongue was between the teeth, sound of broken bone is heard from temporal regionon being hit.abrasion in size of 12 cm. x 3cm. Qn left elbow, abrasion in size of 11cm x 1.5 cm. extending towards inside ofthe left elbow, abrasion in size of 1.5 cm. x 1 cm. on back side ofthe left hand, two abrasions on left hand in size 6f 2.5 cm. x 2 cm. and 1 cm.x 1cm.; all the injuries have been observedas ante mortem caused by hard and blunt object, on internal examination, he found that bone was depressed in frorrto parietal region, membrane of brain wascongested and brain material was coming outof the plaee of injury, the doctor opined that cause of death was fracture of skull bone and cardiac arrestdue to respiratory failure, homicidal death ofaeceased is established. ^ < 1 6. Learned Gaunsel forthe appellants submits thatthe eas^ is based -'•:.' 1 J/:' ':: ' on circumstantial evidence and the circun'istances dre of last seen tbgett'ier and recovery of dead bocfy of the deoeasea at the instance 6f the •appeUants, howevsr, the prosecution has failed to establish Uie above cireumstance by leadmg cogent evidenea and the dead bodyfias been B t's, B i^ ^^ sa 'K^ 'K'i^Sa !3 ! l.^- y.^4 ,Slii i;U ris >: 113:s K'i Bfl aa -f •—^' ;;1 recovered from open place. There is no evidence against appellant Labha Sahu and even then, he has been held guilty on the basis of memorandumof co-accased Om Prakash. 7. On theotherhand, leamecfcounsel for the State supportsthe judgmentofthetrialCourt. , <•.< ; 8. There is no eye witness to the ineident and the case of the prosecution is based on circumstantial evidence that appellant Om Prakash was seen taking the deceased in a bicycle but of the village on the date of incidentin moming. Me returned aione and on enquiry he said that he did not know anything about Munshi Lal as tie had left him near Banyan Tree. Oh memo ofappellants.bodyofMunshiLaiwasrecoyered from the bushes on being pointed oyt by both the appellants. Blood stained baniyan was setzed from the possession oftHe appellantsand as per the report of the FSL,;°it contained blood. 9. Sofarastheabovecircumstancesareconcerned, P.W-2Punni Bai who is motherofthe deceased, has stated that her son was sitting in front ofthe house aftertakingtea.Om Prakash came from theside ofhis home and stopped near her son and took him towards outer direction of the vitlage on his bicycle. At that time, her son was putting up half shirt and half pant and slippers. Whentie did not retyrn after an hour she searched him in the vicinity with other villagers. Her husband also returned home and asked whether Babu (Munshi) has taken his meals whereuppn she tpld him that he has gone with Om Prakash affei- takingteaand till now he has not returned. Both of them searched their son and jn the Rrocessthey metOm Prakash. On enquiryQm Prakash saidthat he had left Munshi Lal near Banyan tree. He has not beaten him. Thereafter they went with Sarpanch and Kotwar to lodge missing report and on the following day, the police came to the village then she learnt that Munshi Lal has been thrown in Barradabri field after murder. In cross-examinatiQnthis witness has admitted that there was no animosity between Om Prakash and her before the incident and she is not aware as to whichplace Om frakash hastaken herson ahdlefthjm. 10,. P.W.-3 Nirbhay Ram Sahu has corroborated the evidende ofP.W. 2 PunmBail Wifness in materia! particularsand has furtherstateclthatinthe process of searching his son, he had gone to the house of Om Pratash and asked him about his son as he had taken him from his home, however he replied that he haa left his son nearthe banyarTtree and he does not know about him and stated that "do you think that we have murdered him?" His parente also retorted in anger. Thereafter he searched in the vicinity and in the village <as also in the relations in nearby viilages but whereabouts of his son could.not be traced. The Sarpanch of village had gathered the villagers and he was searched by forming teams of villagers. When returnedfrom village Pacheda, he sawthat numberof villagers had gathered near his house and they were asking Om Prakash about his son. However Om Prakash only said that he had taken Munshi Lal on his bicycleand left him near the banyan free and ultimately missing report was lodged and thereafter police came in the village, they enquired from villagers whereupon'-Om Prakash statecf that he along with Labha Sahu had murdered MunshitLal and led the police to the bushes where dead bodywaslying. 11. P.W.-4 Bhuwan Sahu, Sarpanch is witness ofmemorandum EX.P- 2and he has stated'that dead body was found on the information of appellant Om Prakash. He has proved the document Ex.P-2, Ex.P-3 & Ex. P.4. He is aiso the witness ofseizure memo of Ex.P-6and recovery memo of Ex. Ex.P-9. He has also stated that Punni Bai had informed him that Om Prakash took her sonon a bicycle, they searched for Om Prakash by forming teams till 7 O'clock in the night and Om Prakash had admitted that he took the deceased on bicycle but said that he teftthe deceased near banyan tree. 12. P.W.-5 Gendu Ram Sahu has stated that.Om Prakash had taken a bicycle on hire on 2.05.2000 at about 7 O'clock in the momingand had returned'the same at 9.00 a.m. P.W.-6 is also a witness of Ex.P-4, Ex.P-5 & Ex.P-6, However, he has been declaredhosti'e. in cross examination he has admittedthat Om PrakashJiad informed the police that he along with Labha Sahu would lead to the dead body of Munshi^-al thereafter both of th6m went to the place where the dead .body wasihidden. The investigating Officer Sant Ram Nlrmalkar R,W.-10 hafr proved the -ihvestigation including recording of merfioarid recovery njlemo of dead body; Frarn cross-examination of these witnesses the defence has not ^ been able to elicit anything which makes their evidence doubtful or untrustworthy. 13. Thus, from the evidence available on record the prosecution has been able to establish that the appellant Om Prakash took the deceased Munshi Lal on his bicycle in the morning towards outer direction of the ., <t . - _ . . ' : Village and thereafter he reiurned alone. On being queried by the parents ofthe deceased he admitted that-he took Munshilal however he gave false explanation that he left him near the banyan tree. Search was made by the parents of the deceased as also the villagers but the deceased couid not be traced and in these circumstances report was lodged by P.W.-3 Nirbhay Ram Sahu, father of the deceased mentioning therein that appellant Om Prakash had tak,en Munshi Lal on his bicycle and since then he is missingwhich ig recorded in the RojnamchaSanha and thereafter on the basis of memorandum ofappellant Om Prakash dead bodyof Munshi Lal was found near > bushes. Thus, in our considered opinion, the prosecution has established by clinching cireumstantial eyidence that appellant Om Prakash abducted 10 years'old Munshi Lal with intention to murder him and took him out of the village and caused his death and disposedofthe dead_body near bushes. In these circumstances, offence as against appellant Om Prakash is established beyond reasonabte doubt and we have no hesitation in holding the appellant Om Prakash guilty for offence under S^ctions 364,302 and 201 of I.P.C. 14. However, so far appellant Labha Sahu is concerned, the trial Court has convicted him for offence under Sections 302 with aid of Section 34 and 201 of I.P.C. and has acquitted him of charges under Section 364 with the aid of Section34 of I.P.C. His conviction under 302 read with Section .34 and also under Section 201 of I.P.C. cannot besustained because there is no admissibie evidence against this accused except statement under Section 27 ofthe India Evidence Act of the co-accused Om Prakash, huts of bidis lyisg on the place of incident and fresh bidis taken into possession from him were ofthe same variety and the baniyah seized from him was stainsd with bloodand asper F.S.L. report, presence of blo.od has been confirmed. So far as recovery of!,dead body is > : . : ' - ^' 1 ; : ,'concemecl, the recovery was made 'on the basis of| memorandum stetemeRt of appellant Om Prakash and since Om Prakash had already given information regarding the place where the dead body was disposed of, the mention of name of this appellant is of no consequence. Origin of blood group of blood. present in Baniyan of Labha-Sahu is not confirmed whether it was human blood, that too, of the same group of the deceased Munshi La!. Th6 fact that buts of bidis found near the place of incident and the fresh bidis seized froRg appellant Labha Sahu were of same variety is also of noconsequence. In these cireumstances, the prosecution has not been able to establish involvement ofappellant Labha Sahu in the crime in question. In the result, conviction of appellant Labha Sahu under Section 302 with the aid of Section 34 and 201 of I.P.C. cannot be sustained. Accordingly, appellant Labha Sahu is entitied to be acquitted of all the charges by extending benefit ofdoubt. 15. tn the result, appea! preferred by appellant Om Prakash is dismissed. He is convicted under Sections 364, 302 and 201 of I.P.C. and sentenced as imposed by the trial Court. The appeal preferred by appellant Labha Sahu is allowed. He is acquitted of ail the charges. He be set at libertyforthwith if not required in any other case. Sd/T L.C.Bhadoo Judge Sd/- DHIRENDRA MISHRA Judge