HIGH COURT OF CHHATTISGARH, BILASPUR CTimiaaI Appeal No.707/2007 Podiyami Maso, s/o Podiyami Ando, aged about 30 years, occupatioa Agiiculture, r/o vfflage Gumadpal, Dargapara, P.S. Darbha, Distt. Bastar (C.G) , ycrsits RESPONDENTS State of Chhattisgarh through PoUce station Darbha, Distt. Bastar CriminalApp^l No.708/2007 Podiyatni Lakho, s/o Podiyatiu Ando, aged about 28 years, occupation Agriculture, r/o viUage Gumadpal Dargapara, P.S. Darbha, Distt. Bastar Versws RESPONDENTS State of CIihattisgarh through Police station Darbha, Distt. Bastar Criminal Appeal No.709/2007 Podiyami Aado, s/o Podiyanu Batti, , aged about 48 years, occupatioa Agnciiltiire, r/o viBage Gumadpal Dargapara, P.S. Darbha, Distt. Bastar ?C.G) Versus RESPONDENTS State df Chhatdsgarh through Police station Darbha, Distt. Bastar Shri Saadeep Shrivastava, coiinsel for appeUaat Podiyami Maso in Cr.A.No.707/2007 Shri Vijay Kumar Pandey, counsel for the AppeUaiit Podiyami Lakho in Cr.A.No.708/2007. Shri Viaod Kuniar Shanua, counsel for the appeUaat PodiyamiAndo m Cr.A.No.709/2007. Hoa'ble Shri Justice L.C. Bhadoo, Hon'ble Shti Justice SuaU Kumar Siaha, JJ ORAL JUDGMBNT (11.10.2007) The foUowing judgment was deUvered by L.C. Bhadoo, J, (1) Crimiaal Appeal No.707/2007 ffled by Podiyami Maso, Cr.A.No.708/2007 ffled by Pqdiyami Lakho aad Cr.A.No.709/ 2007 ffled by Podiyami Ando are beiag disposed of by this coTnmon judgment as atl fhese appeals are arisiag out of fhc judgment dated 26th July, 2007 passed in Sessions Trial No.74/2007 by the Court of Sessions Judge, Bastar. (2) These appeals -are idirccted agaiust the judginent of conviction and oider ofsenteiuce dated 26*h ofJuly 2007 passed by fhe Sessions Judge, Bastar at Jagdalpur ia Sessions Trial No.74/2007 whereby the learned Sessions Judge after holdiug fhe accused appeUants guilty of the offence puaishable u/s 302 of I.P.C., fbr coiiLmitting the inurder of Bisu, sentenced each of the accused appeUaats to undei^o imprisoruaent for life aiid to pay a fine of Rs.500/- each, ia default of payment of fine, to further luidergo R.I. for 5 nionfhs. (3) The case offhe prosecution, in brief, is fhat ou 27.4.2007 at about 10.35 p.in., Lakhino (P.W.l) lodged the report iu PoUce station Darbha to fhe effect that Maso, Lakho aad Ando, who are the residents of village Guinadpal jiave coxiunitted fhe niurder of his father Bisu by attacking him with stone aad a wooden haadle of the Plough sayiug fhat he is practicing witchcraft. The iacident has been wituessed by Budri (P.W.2), Kade (P.W.3), Dundi (P.W.6) aitd Lakhmj.. Receiviug this report, the Station House OfBcer, PoUce Station naaiely Ramdev Sethiya (P.W.9) registered fhe ineig jxitunation (Ex.P.9) as also First Information Report (Ex.P.8) and left for the place of occurrence. After giviag notice (Ex.P. 10) to tlie Panchas, he prepared iaquest Ex.P.11 on the body of Bisu. He prepared tbe site plaa Ex. P.12. WhUe ia poUce custody, Maso gave ineiaoranduia Ex. P.14 regarding place where fhe stone aad fhe woodeu haadle were lying, accused Lakho gave ineinoranduin Ex. P.15 regarding stone and wooden handle, accused Ando gave meinoranduia Ex. P.16 aad-in pursuance ofthat one stone stained 1-^-- ,;?3a% % ^ys^^^^k ^ '^2'g;^^^-^ ^ h '^'^/ '•^ssaS^1'' r^: wifh blood was seized uiider Ex.P.17 on beiag produced by Maso. Another blood stamed stone was seized under Ex.P.18 on being produced by Lakho and a wooden handle ofplough under Ex. P.19 was seized on beiag produced by Ando. The blood stained aad plam soilwas taken iato possession under Ex.P.20. The clotfaes of the deceased were seized uuder Ex.P.21. The body offhe deceased was sent for postmorteni examiaation to fhe Commuaity Health Center, Daroha, where Dr.Y. Markajm conducted fhe postmortein aad opined fhat cause of deafh was shock due to head injiuy, (intra cranial heuiorrhage) wifh fi-acture of ribs, tbe death was hoinicidal iu nature and his report is Ex. P.1. TIie stones aad the wooden handle were sent for examination by the Doctor under Ex. P.2, 3 & 4. ' The site plaa Ex.P-5 was prepared by HaUca Patnrari. (4) After completion of fhe iavestigation, the charge sheet was filed ia fhe Court ofJ.M.F.C. Jagdalpur, who in tura coinmitted the case to the Sessions Judge, Jagdalpur, where the trial was conducted. The prosecution itt order to establish fhe charge agamst the accused persons has examiaed 9 witaesses. The stateiaents offhe accused persons were recorded u/s 313 I.P.C. ia which they denied the inaterial appearfng agaiast fhem aud stated fhat fhey are ianoceut aad fhey have beeu falsely iinpUcated in the crune. The leamed Sessions judge, after heariag counsel for fhe respective parties, convicted aad sentenced fhe accused appeUants as aforeineationed. (6) We have heard leamed couasel for fhe appeUaats namely Shri Sandeep Shrivastaya, Shri Vijay Kuniar Pandey & Shri Vinod Kumar. They have not disputed the liomicidal deafh of Bisu. More over, P.W.7 Dr.Y.Markam has stated tfaat on 27.4.2007 he conducted fhe postmortein on the body of Bisu and noticed the foBowing injuries: (i) au abrasion with contusioa on head, above left ear lobe, ia size of7cm x 2cm; (ii) one contusion on the right side of the chest io. size of 4cm. x 12.cni; •: (iii) an iacised wound near the left eye outside m size of 2cm x 2cin x 2cm.. On the dissection of the body, it was found fhat the skuU was crushed, m.axilla, laandible, frontal aad parietal bones were totaUy fractured. Clotted blood was present in fhe bram. Left side ribs 1 to 5 were fractiired. AB fhe nyuries were ante-mortem ia nature and caused by hard and blunt object. The iajuries were sufficient ia the ordtaaiy course of nature to cause deafh, the cause of deafh was shock as a result ofthe head injuries aud braia hemorrhage and fhe death was hamicidal in. nature. (7) The above iiiediipal evidence is corroborated by fhe ocular evidence of P.W.l Lakhmo, P.W.2 Budri Bai, P.W.3 Kade, P.W.5 Maso, P.W.6 Dundi who have stated that the accused Ando attacked fhe deceased with tiie wooden handle of the plough whereas the accused Maso & Lakho attacked wifh stones, therefore, ia view of the above ocular aad inedical evidence it is established that the deafh of Bisu was hoBaicidal in nature. As far as fhe iavolvenient of fhe accused persons iu fhe cnine iu question is concemed, Mr. Shrivastava argued fhat the witnesses have stated fhat fhe incident took place in the court- yard whereas fhe Investigattag Ofiicer has stated fhat the place of incident was on fhe street, fherefore, in view of fhese contradictions, the evidence 'of prosecution \vitn^esses caruiot be believed. He further subinitted that the witaesses have stated that at tfae tune of incident, they were sitting ui side the house; fherefore, it was not be possible for them to wituess the iacident. In order to appreciate fhe argumeiits advanced by Mr. Shrivastava, Mr. Sharma and Mr.Paadey, we bave perused fhe evidence. P.W.l Lakhino has stated fhat on the fateful day, fhe accused persons present in fhe court attacked Bisu with stone aad wood. Lakho and Maso attacked with stones whereas Ando attacked with wood on the backside of fhe head as also on parietal region. At that tnne, he was in fhe house and when he rushed towards his father, fhe accused persons said that fhey wiil beat him also. They attacked his fafher ui fhe courlyard and his fafher died spontaneously. Thereafter, fhe accused raa away. At fhat tiiae, s^w^^ •^^ -\ '%. ''•"1^^ .,.•-$'- sssss"-' her uncle Chappe also saw fhe incident. Smular is the evidence of P.W.2 Budri Bai. She has also stated that accused Ando attacked Bisu with wooden handle whereas the accused Maso & Lakho attacked with the stones aad the incident took place in the court yard. P.W.3 Kade has alSo corroborated fhe above evideuce. P.W.5 Maso aad P.W.6 Dundi have further corroborated fhe above evidence aad stated fhat the accused persons have attacked fhe deceased with wooden haadle aad stones. We have perused the site plaa (Bx. P.12) prepared by fhe Investigating Officer. A perysal of the said site plau shows fhat fhe body ofdeceased has b^en shown at portion no.2 which is lyiag on \s the side ofthe road aadtia front offhe house ofMaso and near the house of Chappe. It is stated that on fhat day, some festival was being celebrated in the village wheie all fhese persons have gathered aad in their presence ouly the accused persons have attacked. There is nothing on record to show that fhe courtyard of tiie house was demarcated from the house upto the road. The space is open fherefore, the ai^uinent of the leamed counsel for fhe appeUaats regardiag variance in respect of the place of occurrence as per the evidence of eye witaesses and fhe investigating ofScer has no force. After perusal of the site plan, we are of fhe considered opiaion that fhere is no variaiice regsu-duig fhe place of occurrence because ia liDnt of the house, there is au open place and that abuts to fh£street shown in the map. As far as the second ai^ument that the witaesses were sitting in side the house, therefore, fhere was no opportunity for them to witness the criine is concemed, a perusal of fhe map shows that fhe house of Maso is openiag towards the place of occurrence aad Chappe's house is also adjoining. The tiine of fhe iacident was in the evenitig at 5 p.in. diuiag the inonth of April. There was lot of Ught and irtunediately when the accused persons started attackmg, the witnesses cam.e out of fhe house and saw them attacldng the deceased, therefore, it caanot be said fhat they _were not able to witaess the iacident. Therefore, evidence of P.W. 1 Lakhmo, P.W.2 Budri Bai, P.W.3 Kade, P.W.5 Maso and P.W.6 Dundi is clear, corisistent and impeccable ia respect of the attack i§ii © ||;1!^11' niade by the accused persons with wooden haadle and stone and to fhis extent, we do not find aay illegality or uifirmity in the findiag ofthe tdal Court. (11) Learaed coiinsel for fhe appeUants further argued fhat the quarrel started on a petty matter aud fhere was no iatention of fhe accused persons to cause the deafh of deceased. It is true ttiat fhere is no clear, cogent evideiice avaflable on record regardiag the intention of fhe accused, but where no direct evidence is available regardiag intention of the accused fhen fhe intention can be ascertamed froin fhe evidence avaUable on record reRarding the weapon of offence useci, the place of fhe body chosen where fhe attack was inadey fhe liature of weapon as also tbe force wifh which the assault was inade and the nature of injuries inflicted. P.W.7 Dr.Y.Markam has stated that there were injuries on fhe chest, head and fhe whole head was crushed, inaxiUa, iQaudible fi-ontal aad parietal boaes were sinashed coiupletely, left side ribs 1 to 5 were fractured and clotted blood was present, therefore, fhe nature of injuries itself show fhat the accused persons attacked aad gave beatings inercilessly. His whole skuU bone and facial bones were sinashed. Even left side 5 ribs were also fiactured. A perusal of Ex.P.2, P.3 & P.4 whereby fhe stones and the wooden haadle were sent for examiaation by fhe Doctor shows fhat one stone was weighiag 11 Kgs., fhe ofher stone was weighing 7 Kgs. and wooden handle was weighiag 5 Kgs. It has come on record that when Bisu feU down^ even thereafter they attacked wifh stones aad wooden haadle. Lookuig to fhe weight of fhe stones and the haadle, it shows fhat when the deceased was attacked by these weapons, his whole skuU bone and facial bones were sinashed, even the left side ribs 1 to 5 were fractured and as a result of which, he died spontaneously. Therefore, the nature of the weapoas, the place of fhe body chosen where the attack was inade as also fhe nature of fhe injuries aad the maiuier ta which fhe attack was made estabUsh the inteation of fhe accused persons. It is because of the serious injiuies caused by the accused persons, 'Bisu. died spontaneously and fhe Doctor has also stated fhat the injuries were-sufficient ia the ordiaaiy course of nature to cause •^apSiagaSiK^li^^^ffeK:^.,^.^^-'^ ,^'saT's>< .,. i'-"ia* €) cause deafh, therefore, the intention of fhe accused persons was writ large to conunit fhe murder of Bisu. (12) In fhe result, we do not fiud any substance and nierit ia fhese appeals. They are liable to be disinissed aad are hereby dismissed. Th'- (14) Copy of the judgment be suppUed to fhe accused persons, free of cost, as per the practice. Sd/- L.C. Bhadoo Judge Sd/- Sunil Kumar Sinha Judge Sjwl ;ll(lgil 'i'r&SSftl^ iiiii im::ri:]':fiNff--;-,- 'l i d ^ ^' i