@. CFob-o6%'^' ^ ^^'(^ IN ,®IiiIGH CCXJK.T QS1' £>HYA PRWSSH XT .JAff^iPim .^> CrlndLnal Appeal i;f@, ^os' •• /9€ ^- -^os;b Appell^nt ^ (In Ja.il ) B^GES^I &.LIAS LBI3& B&K S/e Bhaiyyalal mth^re^ Age6 afojtat 25 years^ R/0 vxll^ge Bach.arwar^ jgawapara^ P^:S^ Penara^/c EA stt M.1aspar Na.dhya Pxlade^i, v@.?.ia..s il-gSS^ Kesssaadeot <- '.Qi® State t®f Madhya praaerj-i CRIffl^L M-'PE2'^ XJE^ER SECZIOM 37€(2)<©F E C E OF_Cm:HX£aL;,P^CEDU^, ^11^ ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 205 of 1994 APPELLANT Bagesh @ Lekha Ram VERSUS RESPONDENT State of Madhya Pradesh Criminal Appeal No. 106 of 1994 APPELLANT Budhdhi Bai VERSUS RESPONDENT State of Madhya Pradesh Shri K. A. Ansari Learned Senior Counsel with Shri Ankush Mishra for the appellants. Shri Vaibhav Goverdhan PL for respondent/State. '/ CRIMINAL APPEALS UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (15.06.2010) Since the aforesaid two. appeals arise out of the same judgment dated 24.01.1994 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 472/91, they are disposed of by this common judgment. 2. By the judgment impugned the appellants have been convicted under section 304 (Part - II) read with Section 34 IPC and sentenced to under go rigorous imprisonment for four years. 3. Case of the prosecution in brief is that on 23.8.1991 FIR Ex. P-15 was lodged by Buddhu Rathore (PW-11) to the effect that on that day at about 8 p.m. deceased Kalesh Ram was brutally assaulted by the present appellants and another accused nameiy Ghanshyam who has been acquitted by the Court below and the injuries sustained by him ultimately resulted in his death. After investigation challan was filed by the police against the present appellants and one Ghanshyam who has been acquitted by the Court below on 6.9.1991 for the offence punishable under Section 302 IPC and their prosecution proceeded accordingly. L: —-2.- 3. So as to hold the accused persons guilty, prosecution has examined 13witnesses in support of its case. Statements of the accused persons were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted the other accused namely Ghanshyam of the charges levelted against him. The present appellants have also been acquitted of the charge u/s 302 IPC but convicted and sentenced as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellants submits that the entire case of the prosecution is manipulated one for the reason that according to the prosecutioncase the incident had taken place on 23.8.1991 at 8 p.m. and the report was lodged on the same day at 11.30 p.m. but before lodging the report the police party had inspected the place of incident and arrested two of the accused persons. He submits that on the basis of the evidence of prosecution witnesses in particular the statement of Buddhu Rathore (PW-11), it is clear that- the-FIR has been manipulated and the accused/appellants have been implicated in a false case. He submits that when on the same set of evidence co-accused Ghanshyam has been acquitted by the Court belowand once thestatements ofthe eyewitnesses have been disbelieved by the Court below while awarding acquittal to him, the present appellants also should have been given the same treatment by the Court below. He submits that seizure of battle axe vide Ex. P-5 has been made from an open place and that the weapon so seized has not been sent for serological examination, therefore the same loses its worthiness of credence. More so, according to the counsel for the appellants there wa& no motive on the part of the accused/appellants to commit the murder of the deceased. 7. On the other hand repudiating the arguments advanced by the counsel for the appellants, it has been argued by the State counsel that there are three eyewitnesses to the incident namely Bhaiyalal (PW-2), I .. -3^ Bisahu Ram (PW-3) and Buddhu Rathore (PW-11) and all of them have categorically supported the case of the prosecution. He submits that the minor discrepancies in the statement of Buddhu Rathore (PW-11) with respect to certain timing of the incident have to be ignored for the reason that the Court statement of this witness was recorded on 9.11.1992 i.e. one year after the incident and he being a rustic villager is not supposed to keep the things alive figuratively in his mental firmament. As regards acquittal of co-accused Ghanshyam, counsel for the respondent/State submits that the accused/appellants cannot derive any benefit from the same as the allegations against him were that he had caused injury to the deceased on chest but in the medical evidence no such injury was noticed thereon. He submits that from the memorandum of accused/appellant Bagesh (Ex.P-4), it is apparent that he had killed the deceased with the help of battle axe which was seized from the other side of the bund. In respect of motive, counsel for the appellants submits that there was previous enmity between accused Bagesh and the deceased who was his real brother and for this he was killed by him in which other accused/appeIlantBuddhi Bai had helped him. 8. Lalua (PW-1) has stated in his evidence that on the date of incident after hearing commotion when hewent to the spot, he saw that the dead body of the deceased was lying there. He has further stated that he was informed by Buddhu Rathore (PW-11) that the deceased was assaulted by the present appellants and the other accused who has been acquitted by the Court below. In cross examination, this witness has stated that the deceased and the accused/appellant Bagesh were real brothers. He has stated fhat as there used to Ipe dispute between the two brothers, their father had partitioned the property and since then they were living separately. Bhaiya Lal (PW-2) - father of accused/appellant Bagesh and that of the deceased has stated in his evidence that after hearing the cries of the deceased when he came out of his house, he saw that accused/appellant Buddhi Bai had caught hold of his neck and on being exhorted by her accused/appellant Bagesh chopped off the leg of the deceased with the help of battle axe as a result of which he died.In cross examination also, this witness has notcome out with anything new and remained stuck with what he has stated in the examination in chief. /-^\ ^— -9- Another eyewitness Bisahu Ram (PW-3) has stated that on the date of incident he had gone to the shop of one Jagdjsh and after hearing the voice emanating from the side of his house when he went there, he saw that the accused/appellant Buddhi Bai had held the neck of the deceased and at thesame time accused Bagesh hit on the leg of the deceased with battle axe and when the father ofthe deceased went for his safety, he too was assaulted by co-accused Ghanshyam with the help of knife. Buddhu Rathore (PW-11) supporting the caseof the prosecution has also made similar statement describing the manner in which the deceased was assaulted by the accused/appellants. Shiv Prasad Rathore (PW-5) is the witness of memorandum Ex. P-4 and seizure Ex. P-5. Baijnath Rathore (PW-6) is the witness of inquest and he too has supported the case of the prosecution. R.R. Patanwar (PW-7) - Patwari of the village who had prepared the spot map has also supported the case of the prosecution. Jagdish (PW-8) has stated in his evidence that on the date of incident after hearing the voice of the deceased when he went to the spot, he saw that dead body of Kalesh was kept near the door. Dr. R.K. Gupta (PW-12) who had conducted post mortem examination of the body of the deceased has categorically stated that his left leg was chopped off and the said injury could have been caused with the weapon seized by the prosecution. B.N. Tiwari (PW-13) is the investigating officer and this witness has also supported thecase ofthe prosecution. 9. Thus from the aforesaid discussion it is apparent that the entire incident has been supported by almost all the witnesses examined by the prosecution. I find no force in the argument of the counsel for the appellants that on account of the discrepancies in the timing of the incident and registration of the FIR, accused/appellants are entitled for acquittal. Admittedly, the incident had taken place at 8 p.m. and the FIR was lodged on the same day at about 11 p.m. The mere fact that Buddhu Rathore (PW-11) has stated that before 11.30 p.m. the police had reached the spot and done part of the investigation, does not falsify the entire case of the prosecution. Similar is the position with recovery of the battle axe. In his memorandum Ex. P-4; accused Bagesh hasstated that after commission of the offence he had thrown the battle axe near the bund and vide seizure memo Ex. P-5 the same was seized there-from. Moreover, Dr. R.K. Gupta 'o^ (^ ^.. blNlN^' 'rc^\ I-^.. ^ '% % ^^ -s.. (PW-15) who had conducted the post mortem examination on the body of the deceased has clearly stated that the injuries sustained by the deceased could have been caused with theweapon so seized by the prosecution. This Court also finds no force in the argument of the counsel for the appellant that there was no motive on the part of the appeltants to commit the murder of the deceased because some of the witnesses have categorically stated that there existed some dispute between the deceased and some of the accused/appellants. 10. In view of the aforesaid factual discussion, this Court has no hesitation to say that the prosecution has estabtished its case by adducing all cogent and clinching evidence and the impugned judgment being based on due appreciation .of the same appears to be just and proper warranting no interference there with. 11. Consequently, the appeals have no merit at all and the same are therefore dismissed. Appellants are already on bail. Their bail bonds stand cancelled. They be sent to jail to undergo the remaining part of their sentence. Sd/- Pritinker Diwaker Judge