^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P.SHARMA fic HON'BLE MR. R.N. CHANDRAKAR. JJ. Cr. A. N0. 546/2005 APPELLANTS In Jail 1. 2. VERSUS RESPONDENT Beko Aaytu S/o Laxman Madia Aged about 32 years, R/o Village Raikot, P.S. Kodenar, Distt. Bastar (C.G.) Beko Hadme W/o Aaytu, aged about 25 years, R/o Village Raikot, P.S. Kodenar, Distt. Bastar (C.G.) State of Chhattisgarh; Through P.S. Kodenar, Tahsil Jagdalpur District Bastar (C.G.) CRIMINAL APPEAL U/S. 374(2) OF CODE OF CRIMINAL PROCEDURB. Present:- Ms. Usha Chandrakar, Advocate for the appellants. Ms. Madhu NishaSingh, P.L./Additional Public Prosecutor for the State/respondent. ORAL-JUDGEMENT (Passedon 02/02/2011) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 9/6/2005 passed by Third Additional Sessions Judge, Bastar at Jagdalpur in Sessions TrialNo. 114/2005 whereby and where under after holding the appellant Beko Aaytu guilty for the comraission of offence of culpable homicide amounting to murder of Madkami Aaytu and concealing the evidence of y c criminal case in sharing common intention with co- accused Beko Hadme, convicted the appellant Beko Aaytu under Sections 302 8& 201 read with Section 34 of the Indian Penal Code and sentenced imprisonment for life with fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year & rigorous imprisonment for 5 years with fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year and also convicted the appellant Beko Hadme (wife of Beko Aaytu) under Section 201 read with Section 34 of the Indian Penal Code and sentenced rigorous imprisonment for 5 years with fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellants, Courts below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful intervening night of 31/12/2004 at about 11:00 P.M., appellant BekoAaytu assaulted Madkami Aaytu by axe and stick and caused his death thereafter both the appellants with intent to conceal the evidence of criminal case concealed the dead body of Madkami Aaytu. Marg intimation was recorded by PW1 VijayvideEx. P-1. Finally Dehati Nalishi wo.srecordedvide ••^:^.^^^" c. Q 4. Ex. P-10. First Information Report was lodged vide Ex. P- 11. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-9.Inquest over the dead body of Madkami Aaytu was prepared vide Ex. P- 8. Blood stained and plain soil were recovered from the spot vide Ex. P-7. Dead body was sent for autopsy to Community Health Center, Kilepal where doctor conducted autopsy vide Ex. P-21 and found following injuries:- (i) Incised wound of 3.5" x .5" x .7" over right occipital region. (ii) Incised wound of 3" x .5" x .7" over left side of parietal bone. (iii) Abrasion of 5" x .5" over right side of eyebrow. (iv) Fracture of occipital and parietal bone was found. Mode of death was coma and death was homicidal in nature. During course of investigation, appellant Beko Aaytu was taken into custody and he made discloser statement of stick and axe vide Ex. P-2, same was recovered at the instance of appellant Beko Aaytu along with Sari vide Ex. P-3. Sealed cloths of deceased was seized vide Ex. P-4. Spot map was prepared vide Exs. P-17 & P-18. During course of inci<dent, appellant Beko Aaytu also received injuries i.e. two abrasions over his body who was examined on the basis of requisition (Ex. P-19) vide Ex. P-25. Sealed articles were sent for chemical examination vide Ex. P-20. •^ 'c.. <c 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur who in turn committed the case to the Court of Sessions, Jagdalpur from where learned Third Additional Sessions Judge, Bastar at Jagdalpur has received the case on transfer for trial. 6. In order to prove the guilt of the appellants prosecution examined as many as 7 witnesses. Appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication in crime in question are claimed. 7. After affording an opportunity of hearing to the parties, learned Third Additional Sessions Judge, Bastar at Jagdalpur hasconvicted and sentenced the appellants as aforementioned. 8. Ms. Usha Chandrakar, learned counsel for the appellants and Ms. Madhu Nisha Singh, P.L./Additional Public Prosecutor for the State/respondent are heard. Judgment impugned and record ofthe Court below perused. 9. Learned counsel for the appellants vehemently argued that in the present case, prosecution has not adduced any evidence to connect the appellants in crime in question. c- PW3 Smt. Budri, wife of deceased Madkami Aayfu who is hostile witness who has not supported the case of the prosecution, she is denied the factum of extrajudicial confession made by appellants before the Panchayat on the ground that appellants were not present before the Panchayat Prosecution has not collected any other evidence relating to concealing the evidence of criminal case. Consequently, in absence of any legal, clinching and credible evidence conviction and sentence of the appellants are not sustainable under the law. 10. On the other hand, learned P.L./Additional Public Prosecutor for the State/respondent opposed the appeal and argued that evidence of PW3 Smt. Budri is sufficient for drawing an inference that present appellant Beko Aaytu has committed culpable homicide amounting to murder of Madkami Aaytu she has admitted in Para-3 of her cross- examination made by defence. This shows that defence themselves has admitfed commission of culpable homicide amounting to murder of Madkami Aaytu by appellant Beko Aaytu. 11. In order to appreciate the arguments advanced on behalf of the parties, w,e have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of injury found over the body of deceased Madkami Aaytu has not ..^^ ^- IJ y c been substantially disputed on behalf of the appellants on the other hand,otherwise also established by the evidence of PW1 Vijay, PW2 Mitkobai, PW3 Smt. Budri, PW4 Ramu and autopsy report Ex. P-21 and death was homicidal in nature. 13. As regard the complicity of appellants in crime in question, conviction of the appellant Beko Aaytu for Commission of culpable homicide amounting to murder of Madkami Aaytu has been substantially based on the evidence of PW3 Smt. Budri who has initially not deposed that she has seen the incident but in Para-4 of her cross-examination, when she cross-examined by defence has specifically admitted that she has seen the incident and appellant Beko Aaytu has assaulted her husband i.e. Madkami Aaytu and caused his death. These evidence are syfficient for drawing an inference that appellant Beko Aaytu has caused culpable homicide amounting to murder of Madkami Aaytu. 14. As regard the concealing the evidence of criminal case is concerned, no credible and clinching evidence has been adduced on behalf of the prosecution to proof the concealing the evidence of criminal case against present appellants. The evidence adduced on behalf of the prosecution only sufficient for drawing an inference that present appellant Beko Aaytu has committed culpable homicide amounting to murder of Madkami Aaytu but evidence adduced on behalf of the prosecution is not sufficient for both the appellants have concealed the evidence of criminal case. 15. For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellants namely Beko Aaytu and Beko Hadme under Section 201 read with Section 34 of the Indian Penal Code is hereby set-aside, Conviction and sentence of appellant Beko Aaytu under Section 302 ofthe Indian Penal Code is hereby maintained. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge