:te.ir "^. ^i ,^^^^B (M) Hariram s/o Clim.taram., R/o Sakari, P.S. Palari, Tehsil Baloda Bazar, District Raipur (MP} (Now CG) State of Madhya Pradesh (Now Chhattisgarh) Maataru s/o Jagamiatb Sahu, R/o Sakari, P.S. Palari State of Madhya Pradesh (Now Chhattisgarh) Shri Praveen Dhuraadhar, Advocate appears ia Cr. Appeal No. 769/1989 on behalfofShri N.S. Dhuraadhar, counsel for the appeUant. Shri Manoj Mishra, Advocate appears iu Cr. Appeal No. 846/1989 for the appellant. Shri Rabesh Kuinar Jha, Dy. Goverameut Advocate -. / appears for the State iu bofh fhe Crimiual Appeals. Hoa'ble Shri T.P. Sharma,& Hoa'ble Shri R.L.Jhaswar.JJ :;1 '..^ ws^ j -y/ ^.'Lr 2 ^fl (10.03.2010) 1. Crmunal Appeal No, 769/1989 (Hariram Vs. State) aud Criminal Appeal No. 846/1989 (Mantaru Vs. State) are beiag disposed of by fhis conunon-judgiuent as both the appeals arise out of the same judgment, passed by the Third Additional Sessioas Judge, Raipiir, Caiup Baloda Bazar on 8.7.1989 in Sessions Trial No. 253/ 1986. 2. ChaUenge in fhese two crimiTial appeals is to the judgment of conviction and order of sentence dated 8.7.1989, passed by tlie Third Additional Sessions Jiidge, Raipur, Camp Baloda Bazar in. S.T. No. 253/86, whereby and whereunder, the leamed Additional Sessions Judge, while acquitting ttie co-accused Shyainlal, coavicted fhe appeUaats- Hariram aad Maataru under Section 302 read wifh Section 34 of fhe IPC aad sentenced to undergo R.I. tmprisorumcnt for Ufe for comTnission of culpable honiicide amountiiig to m.urder of deceased Jaiikibai. 3. The judgiuent is impugned on the gl'ound fhat wifhout auy iota of evidence, Court below has convicted aiid seuteuced fhe appellaiits as afoi^nientioned aiid fhereby pnmmittprl illegality. 4. The briefca.se offhe prosecution is that on the fateful night of 21.7.1986 at about 10 -11 p.m., Smt. JaaJd Bai (since deceased) was sleeping ia her house along with her son (PW-1) Tilakramy'daughter Kamlabai (PW-4) and other ineinbers of fhe family i.e. Narayaa and Kasturi. The appellaat Maataru is the husbaad of Kamlabai (PW-4). Kainlabai has left her husband aad she was living in fhe house of Tilakaram. The appeBants and co-accused Shyaialal entered iuto the house. Bofh were ••••;?; ..^Sf ^ tW BISlfl holdiag knives. T'hey dem.anded keys froia Tilakram on ibe poiat of kaite and snatched wristovateh froni him. At that time, the deceased Janki Bai woke up and started sbouting. Kamlabai woke up and cam.e therc aad switched on the light. The appeUaiit Maataru assaulted Kamlabai and he also assaulted Janld Bai by the knife. Kamlabai started shoutiiig for help. Then Gangotri woke up and switclied on the Ught. Hariram assaulted Tilakram by the knife. When fhe fanuly lueiabers started shoutiag, fhe appellants aud fhe co-accused fled away from. the spot. After hearing cries, Kanduram, Soninafh and Susheel, neighourers cam.e to their house. Jaaki Bai chased fhe appeUants and fell down at soiae distance and she iminediately died. Tilakram (PW-1) went to the PoUce Station aad lodged F.I.R. at 3.45 a.ni. iu fh.e night vide Ex. P/ 1. He also lodged nierg vide Ex. P/2. The Investigating Of&cer left for fhe scene ofoccurrence aad after suTnmoniag witaesses vide Ex. P/3, inquest over dead body ofJaxLki Bai was prepared vide Ex. P/4. The dead body was sent for autopsy to fhe Govemrnent Hospital, Baloda Bazar, where Dr. R.P.Pandey (PW-8) conducted autopsy vide Ex., P/21 and found foUowiag injuries: i. One iacised wound of 1 x '/2 x 'A" over left haad ii. One incised wound of 1 x 'A x IA" over left haad iii. One incised wound of l '/2 x '/2 x 'A" over lefl: hand iv, Oae iucised wound of 1 x 'A x Va over left side of the chest v. One iucised wound of 1 x Y2" over middle offhe chest up to abdoiaen vi. One incised wound of 2 x */2 x W over abdonien vii. One incised wound of 1 A x Va upto abdoininal deep and ..oi^entuni came out viii. Qae iacised woynd of 1 x '/z" on flie left side of the abdonien upto abdoinirial deep. ix. Intestuie and blood vessels were found cut. / ® x. Cut iajuiy was found on the siuall aad large iatestine. Mode ofdeathwas shock. BIood staiiied soil aad plaia. soit was recovered froin fhe spot vide Ex. P/5 aiid Ex. P/7. One application Ex. P/9 liled by Kamlatoai to fhe Coiasiittee was seized vide Ex. P/8. Pahvari prepared spot niap vide Ex. P/ 27. Receipt of fhe wristavatch Ex. P/ 12 was seized vide Ex. P/ II. . One big ktufe (Katar) was seized frosi the accused- Mataru vide Ex. P/ 13. One buttoned knife aiid v/ristiv'atch was seized froin tiie accused- Hiraram vide Ex. P/' 14. Oae big knife (Katar) was seized from. aaother co-accused Shyajnlal v-ide Ex. P/15. Blood stamed clothes of iajured Hariram. were seized vide Ex. P/ 17. Blood stataed clofhes of Shyainlal aad Mantaru were also seized vide Ex. P/ 18 aad Ex. P/ 19. Sealed clothes of the deceased after autopsy were seized vide Ex, P/20. Seized articles were examiaed by the Doctor aad finaUy it were sent for chemical examination vide Ex. P/31. Preseiice of blood over the knife (Katar) was confirm.ed vide Ex. P/32 and P/33. Statenients of fhe witaesses were recorded under Section. 161 of ftie Code of Crimiaal Procedure, 1973 ( in. short"fhe Code"). 5. After coinpletion of investigation, charge sheet was filed before fhe Court of J.M.F.C. Baloda Bazar, who ia tum, coinnutted the case to fh.e Court of Sessions, Raipur, from. where fhe leamed Additional Sessions Judge received the case on transfpr for trial. 6. In order to prove tiie guilt of fhe accused/appellants, prosecution exaiained as uianv as 13 witnesses. The accused was ex'ainined under Section 313 ofthe Code, whei-e fhey denied the circum.staiices appeftHng against fhein, iiuiocence and false iiupUcation in the crune io. question was pleaded. »!«B|BltS BI 7. After aSbrdiag opportunity of hearmg to fhe parties, fhe leamed Additional Sessions Judge, wliile acquitting fhe co- accused Shyamlal, convicted and sentenced fhe accused/ appeUauts as aforeiiientioned. 8. We have heard Sliri Praveen Dhuraiidhar and Shri Maaoj Mishra, learned counsel for fhe appeUaats aad Shri RaJkesh Kura.ar Jha, leamed Dy. Goverainent Advocate for the State aiid perused fhe judgraent impugned aad record ofthe Court below. 9. Leamed counsel for both tfae appeUants veheinently argued that fhe present appeUants had not conuiutted fhe offence, They were not found ia the house of TUakram (PW-1). Appellaat Mantaru is the husbaad of Kamlabai, who has left his wite. Therefore, Kamlabai (PW-4) aud her brofher TOakram (PW-l) were having eniaity witb Mantaru aud on account of such enniity they have fatsely iaiplicated fhe appeUant- Mantaru aud his friend Hariram. Tbey argued fh.at prosecution has not proved the presence of huinan. blood on the weapon of oftence. Seizure of weapon fi-oin the appeUants has also not been proved by the prosecution. Prosecution has tainpered ia recordiug fhe tiine of incident iii Merg intuaation Ex. P/2, which does not contaia ffae narae of any of the appeUant. The counsel further aiyied that soxne urtkuown persoas have comiiutted tbe ofFence aitd on the ;round of ennuty, fhe appeUaats have been falsely ituplicated ia the criiue in question, 10. On fhe other hand, leamed counsel for the State veheiaenfly opposed fhe petition and subniitted fhat fhe case is based cn the evidence of eye-witaesses aad injlired witnesses Tilakram (PW-1) aad Kamlabai (PW-4), who were present at fhe tirue of iacident and have seen the iucident in the electnc light. a " "3S^ I ^..!fv^ tl.^s&y' Ht They were having suliicient opportunity of seeing to the appeUants. The appellants are not uiiknown to fhem.. 11. Ia order to appreciate fhe arguiaeuts advaaced on behalf of fhe parties, we have examined fhe evidence adduced on behalf of fhe proseciition. In fhe present case, homicidal death as a result of aute inortera. fatal iujuiy to Janki Bai bas not been substeiitiaUy disputed by fhe appellants. On fh.e ofher hand, it is estabUshed by fh.e evidence of Dr. R. P. Paadey (PW-8) and autopsy report Ex. P/21, which revealed fhat the fatal iajuiy found over abdomen, including the iujuiy on the siuaU aad large intestines, were hoiaicidal ui nature. 12. As regards fhe coiaplicity of fb.e accused/appeUants tn. crijne ia question, the conviction is based on the evidence of eye witaesses Tilakram. (PW-1) and Kamlabai JPW-4), wbo are fhe iujured witaesses. Tflakram (PW-l) has deposed in his evidence tliat oa 21.7.1986, at about 10-11 p.m. in the niglit, he was sleepiag on his cot. His inottier and sister were also sleeping. Gaagotri, Kainlabai, Kasturi aud Narayaa were also sleepiiig in fhe house. The appeUaats caine to him, holding knife aad deinanded keys on fhe poiiit of kaife and caused iajury over his left wrist. Again, they deiaanded keys froin bis laofher, who was sleepm.g; she UITCTV fhe keys ia front of fhe appeBaats. The appeUaats asked his mofher to show tbe AImirah and on her refusal, aU fhe appeUaats assaulted her by knife. She cried for help 'bachao bachao'. On hearuig fhe cries, Kamlabai (PW-4), Narayaa(PW-5) aiid Kasturi woke up and switched on fhe light of fhe room., which the appeUaats switched off. Again, Kaialabai (PW:-4y switehed ou tlie light then the appellaat Mantafu assaulted her by knife; His sister Gangofa-i woke up aad atter opeiiiag fh.e door cried for help. Thereafter, the appellaats tried to assault hxm. and Qed away fi-om. fhe spot. They cliased fhe -& ^ ^SK^ l --:.i| 1 s^'./ ^ w !i»a;:MBiia :?*iil;^a appeUsmts along wiffa their luoflier JanM Bai, but at soine distaiice Jaaki Bai fell down and died on the spot. Thereafter, they went to PoHce Station and lodged fh.e report vide Ex. F'/l. Kanilabai (PW-4) sister of Titakram. (PW-1) aud wife of Maataru, has substautially corroborated flie evidence ofTUakram (PW-1). She has speci&cally deposed fhat ftie appeUants have caused latal injuiy to her inoth.er. In retaliation., they also caused uijuries to the appeUants. Narayaii (PW-5) son of tfae appellaat Maataru aad Kamlabai (PW-4) has also corroborated fhe evidence of Tilakram (PW-1). But in cross examiuation para 3 he has admitted fhat he was tutored by his coiinsel. He is a child witaess aged about 11 years. Consideriag para 3 of his cross exaiainatioa, his evidence is not reliable. 13. Defence has cross exaiuined Tilakram (PW-1) iu detail, but has not been able to elicit anything to discredit his testiia.ouy. Defence has also cross exainiaed Kamlabai (PW-4) in detail, but has not been. able to elicit aiiyfhiag ia. her cross rxammatinn to diseredit her testtm.onv. Both fhe witaesses have denied fhe suggestion that they have falsely unplicated fhe appellants on account of erunity. They have also denied the suggestion fhat they have identi&ed aiid were not able to identify the appeUants. There is difference ia m.erg intimation i^lating to time, but no name has been inentioned in. the nierg intimation Ex. P/2. TUakram (PW-1} has lodged fhe F.I.R. at 3.45 a.m. i.e. within 5 hours of the incident at Police Station Palari, 9 kms away froni the place of incident. The evidence of Tilakrain (PW-1) and KamJabai (PW-4) has been weU supported by the pronipfty lodged F.I.R. Ex. P/l aud fhe m.edical evidence of both fh.e \vitnesses / revealed that bofh. the appeUants caused fatal irijury to Janki Bai, even otherwise bofh fh'g" witaesses have speci&caUy deposed that both the appeltauts were present in their house. They were holdiug krufe. Oa fh.e basis of atbresaid circuiastances, it is I sufficient for drawtng an mference that they had coiiiniitted ftie offence tn sharing cormiion iatention. Ofhem'ise, fheie was no reasoa to go to the house of TUakram. (PW-1) at 10 p.ia. ia the night that too wifh. fhe knife. -14. After appreciatmg fhe evidence available on record, the leamed Additional Sessions Judge has convicted and sentenced fhe appeUaiits as aforeiaentioned. On close scrutiny of the evidence, we are of the view that the conviction of the appeUants is based on reliable aad credible aud substantial evidence sustaiuable under the law. 15. For fhe foregoiag reasons, we do not find any illegalily or iafimaity in the conviction and sentence of fhe appellaats. Consequentty, Cr. Appeal No. 769/1989 aad Cr. Appeal No. 846/1989, beiug devoid ofsaerits are liable to be disinissed and arc hereby disinissed. ~~—, —— —_-__ Sd/- T. P. Sharma Judge Sd/- R.L. Judge 11 ?' •-13 '^t/yr^-i^ YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 15:13:53 +0530