3^eT "i|l<ll<7')<l, »Tf1^'l<S, fs|^|yy *41*1^1 shNleh an^?T ii^? (ipf^?ti) STI^F ?H ft'ti'h '^STT STT^T^qf^ TOiiw^fesn^i HIOH COURT OF <t;HHATTISGARH BILASPUR CRIMINAL APt DreiSION BENCH APPELLANT HOH'flLE SHRX L.C. BHADOO. & HON'flLE SHRI DHIRENDRA M1SHRA, JJ Persus RESPOHDENT Present Mr. Subhash Yada|v, Mr. G.D. Vaswaru,| ORAL (5ttt Per Dhirendra Mishra, J This appeal is directed order of sentence dated 26tl) AdditLonal Sessions Judge, Jaj after holding fhe accused/apj Section 302 offhe IPC of causln; ^>t^Td<ft'l 'RFRff ^f^st' <Fa1^1'< '^sfRnsii^r ^- ^ 'EAL N0. 742 OP 3061 2-°°2. ^\^ Naro alias Narendra S/o Sukhadev, Halba, aged about 3& years, R/o KarLker Lanka Sarpanch Para, P.S. Bhairamgarh, Distt.-Daiitewada (C.G.) State of Chliattlsgarh, Through : P.S.-Bhairaingarh, Distt. Dantewada (C.G.) f, counsel for the accused/appellant. G.A. for fhe State/respondeat, JUDOMEHT July 3007) igainst fhe judgdieat of conviction and June 2002 whereby tiie learned LV ;dalpur ia Sessions Trial No, 289/2000 peUaat Naro @ Naraidra guilty under ng death of Kam.lu Telga sentgiced hiixL_ XI-HC—78 ~3^s ^witft-tf, vn!\wie, [sfflwy. ^IWdl **41* an^yr XRR; (Tj«if^5?T) sn^i JKS h-uch '?TSTT SfFT^T sft+lich TRIIW ^lf?3 311^1 cM^tl^l-T HIH<'1? ^fjfe^ <f<f|+$|< ^aiRnaii^r to undergo iniprisonmeut for paytuent of fine to further und^r ]|ife, pay a iine of Rs.500/-, in defau.it of ;o six nionfhs R.I. Danteiya'Ba hofae df recogr|izui: husljand 2. Case of fhe prosecutioB); Sukniati lodged a report.7(E: BhaiTauigarh, Distt, (20.3.2000) shewas in her and her husband Kam.lu ha4 p.in. flie voice of shoutkig Sarpanch Pai-a that "run, Nari side of fhe axe". She outside fhe house along with ^ fhere and saw that her Sarpanch Sukdev. There wasj head, blood was oozuig and there. On enquiry Shyacab^ tamariud tree along with fhe| infonned her fhat Naro Heartng fhis she rushed thert father, who was lying on ftie fhe axe fhrice, as a result mjuries and succuiubed to th^ his head. Around 7.00 p.m. and Sukdev of fhe vUlage cauli husband and her daughter dav Panchavat was convenef |, ia brief, is that wife of fhe deceased t.P/1) on 22.3.2000 in PoUce Station ^a inentiorung fherein fhat on Monday her son had sone to Dantewada fare gone to Matopara. Around 2.00-2.30 her daughter Shyanibati came froni has attacked her fafher froia fhe blunt the voice of her daughter came ^er younger son Chamsingh aad reached was lying dead near fhe house of grievous uijury on fhe back side of fhe her daughter Shyambati. was weeping niforiaed that she was under the cluld, at that time Shiv of flie viUage is assaulting her Baba (father). :, at that tiine Nareadra assaulted her ^round, on his head froiu blunt side of wrhich her father sustained grievous same. Excessive blood was oozuig frora. ISubernafh, Kokekopa, Sonku, Balsuigh ie there, fhey saw the dead body of her fhe iucident to them.. On the next 11 and in. fhe said Panchavat persons bkti N4rendra (tf nslrrated —78 7S^:-WvPf, S'Tfly'IS, (sjrtlUy til^dl 9hNI+ SW^V 'VI^; ( lj<ilf-[«l({8T) sii^r ?ii R;'ii+ '?TSTT 3?T^T^)+iiqi '^wre'^fean^r chl'4F<?t<fll *<Hdf ^t^t ^(<t^T< ^srRiqsii^r dde [ineritioned above were also prese4t |fha'e along wifh axe aad discl| lassaulted Kamlu froin the blunt las a result of which he died du.d| |Panchayat, Thereafter, she |took the dead body of fhe Kamlu) |her husband aad Naro to fbe poli) |fhe basis of above report offeaci |registered against the accused |intunation of Ex.P/ 12 was registejt |toy Siikhiaati on 22.3.2000. |the witnesses iaquest (Ex.P/2) prepared. Site plan was ,j Iplaiii soil were taken. iato possesi [axe was seized under Ex.P/6. Ipostmortem exainination to 'H.L. Thakur (PW-6) conducte^ deceased and prepared his rep( weapon of offence axe, bloodsi cheruical examination to Forea^i Ex.P/ 13 and report offhe F.S.L. charge sheet was ffled iu the Dantewada, who in turn coiuniitl Judge, Jagdalpur and the sam|< learned Additional Sessions Juds antl Duiiui: olver .prepa^ed Priinjary ;, fhey catted fhe accused, who came fised before the Panchayat that he oftheveiy same axe on his head, he surrendered fhe sald axe in fhe (ig wifh above persons of the vitlage |, the axe wifhwhich Naro assaulted :e station and lodged the report. On under Section 302 of fhe IPC was tl the iavestigation coiuiaenced. Ma'! jred on fhe basis of information given invisstigation, after due notice to fhe person of fhe deceased was vide Ex.P/4. Bloodstahied and ^ion under Ex.P/5. One bloodstaiued Dead body of Kamlu w?as sent for Healfh Ceater, Gidam where Dr. postmortem over the pa-son of ^rt of Ex.P/ 10. Seized articles i.e. [ained & plaui soil, were sent for |ic Science Laboratory, Raipur vide Ex,P/ 14. After usual uwestigation Sourt of Cbief Judicial Magistrate, ted the case to the Court of Sessions was recrived on transfer by fhe |i, for trial. 1s XI-gC—78 ^vBf ri<|q|irt<), ®Tfl+)'IS,(sKrtl^y Wt{v\{ sbNI* 3TI^I W fc;-fi°h '^siTT 'STT^T ?ti*li<^ ant?r TI^ (ijcif^^sr) ••m. ?^iiWHf??i sn^i 3. To establish fhe charj examined 7 witnesses in aU.. recorded under Section 313 inaterial appearing agauist hjin rf . ianoceace and false impUcati^n [e agaiiist fhe accused fhe prosecutlon IThereafter, statement of the accused vras of the Cr.P.C, ui wllich he derried the i]ini ui the prosecution case and pleaded dfp. in. criine in question. 4. Learned Additional Sess respective pardes convicted ruentioned above. (ions Judge, after hearuig counsel for fhe 4nd sentenced the accused/appeUant as 5. WehaveheardMr. of fhe accused/apgeUant State/ respondent. Subfiash Yadav, counsel appearing on behalf dnd Mr. G.D. Vaswam, G.A. for the 6. Hoinicidal death of froin the postmortem report H.L. Thakur (PW-6), in whicl^ size 2" x 3" x 3" on the left niaterial was coniing out and^ fractured aad cause of deafy shock and nature offhe deatlb^ deafh of Kamlu was the honiil: 7. Learned counsel forl conviction is based on fhe Subernafh. ShyatnbatL has she has turned hostile as s9< '41^1<rf41'l ^l^^l* ^'f^t •<:f^l^fi( ^sfRmsn^t Kaiulu in not in dispute. Even otherwise, c|f Ex.P/ 10 which has been proved by Dr. idt he has found two lacerated wounds of te)nporal region, as a result ofwhich braui on dissection, teniporal bone 'was found was opined as excessive hem.orrhage & was hoinicidal. it is estabUshed fliat the tidalin aature. fhe accused/appdlant argued that sltatemaits of PW-2 Shyambati aiid PW-3 BJot supported case ofttie proseeution and has inade contradictory^s.tateKnents^m. XI-HC—78 T5ET ^WW-ti, •Q-^W'ie, fs|01'Ml}< 3n^?( w l^-fi'* ^^i sn^r ?c>Hicti Hl^ylt *t<l* "^ aiR(9T ^ra^ (^Fga?w) 'FRIW ^f?!r sn^r her examuiation-ia-chief evidence of Subernath is judicial confession, howevet accused had defeate^ fhe election of fhe vUlage Sarp4 deceased and PW-2 Shvaml adm.ittedly present iu fhe accused did not niake aivj Panchayat, version of caruiot be relied upon. ahid coilicerned, ^>i*i[<n'ift^ +iiH<;if Tf,fs'<t <i^i<^K ^? siRn aii^r cross-exam.ination. So far as the 1, he is said to be a witness of extra ', in view ot the fact that niother of fhe wife of fhis witness iu a receafly held ha,ch and that PW-1 Sukniati, wife of fhe sati, daughter of the deceased,who were ;, have categoricaUy stated tfaat fhe ^ coirfessional statenieat before the said regardiag extra judicial confession Subdrnath 8, On fhe ofher<<haad,^earned counsel for the State supported judgment offhe trial Court. 9. Conviction of fhe acci.1 of PW-2 Shyambati and P%] ^sed/appdlant is based on the statemaits [-3 Subarnath. Shyanibati is stated to be an evewitness of fhe incidleat whereas Subernafh. is a witness of aUeged extrajudicial confessf.on. PW-1 Sukmati, wife of fhe deceased, has stated tb.at her husba<id had gone to Matopara on the date of incident where her daught^r Shyambai resides. When her husbaad was assaulted Shvam.bati of Naro, she went to tlie pla had ah-eadv died. He had r came weeping and tnformed that fhe accused has assaulted Katallu. Kamlu was assaulted near fhe house ;e of incident and found th.at her husband sceived injuries over head aad left cheek. Shyaolbati resides near fhe jplace ofiacident. Shyambati had seen the assault and narrated to h|ef. Whai she reached there except her XI-HC—78 3-5ir ^wwii, wiS\v'i6, [^v^wy. ^Wv{\ sh^l<* ®n^rw R-fi'h ?TS?T 3TT^T ?hHI^ laiaiWtljt an^r traq; (1pf^?w) "WI. 200 ^giw^ifeiOT^r husband nobody was present| she has stated that Panchaya) came as he was called, the Paacbavat she retumed her <j. aayttung before Paachayat fe she has adinitted that fhe ac^ she has denied fhe suggestiot. Sarpanch, therefore, fhey are paragraph - 9 she has admitted wife of Subemath had contesl ia the said election moftier of [fh.ere. In paragraph 3 of her evidence it was convened where the accused also a^cused came along with fhe axe. After Ihoine. The accused did not disclose ]her presence. In her cross-examiuation j;us'ed is son offhe Sarpauch, however, that since they have quarrel with the (nipUcating the accused iu this case. In fhat inother of the accused and the ;d tiie elections ofviU^e Sarpanch aad Ihe accused had won. towahls 10. PW-2 Shyambati, daug^ti the date of nicident she was sjt her ctuld. At fhat time Shiv in&rmed that the accused is| Hearing this, she rushed who is assaulting her fathe4 assaiilted her father thrice it occiu-rence. Her father on ooly one place. He shout^d niother Sukmati aad brotherl theia fhat fhe accused after of the vicinitv also came fherel 1 noon. In tbe evenins also cam.e there atong witih. sustaifaed Paach|ayat axe <DN[d41i +ii*i^f ^l^st' <Rif^i< ^3TRpT3n^r g4ter of the deceased, has stated that on jttixig under the tamarind tree along with >fhis neighbourhood canie runniug aad beatm.g her father with legs and fists. the place of uicident and asked as to The accused took out the axe and nth it and thereafter, left the place of injury on the r^ht side of his head and caUed her mother whereupon her Chaiu Singh came fhere, she mfoniied a^saulting has run away. Other persons liacludm.g her husbaad Jailal, it was 12- was convened ia which the accused and iu Paachayat the accused^said "I r^^^^-'^^r-'-^" XI-HC—78 S^ET^I'Mlrt^, Snfl'M'lfi, RlOI'My ^IMdl shNI* Sil^l ?5I f<;-1 TT^ 3TT^?T ^>*i|ch W^T ^RK (Ipf^S^B) 200 TOIIW ^fe 311^51 have spoiled the m.atter, I wil^ stated that fhere was no q4 accused assaulted. In para^raph say that in Panchayat th& ajc unplicated, he has not niurdeij^d. fhe persons (viUagers) told th^t poUce station" and took the ai| paragraph 15 of the cross-e^ that she had not seeii fhe whatever she stated earlier father before her, is not coi^i Panchavat the accuseS did no| 11. PW-3 Subernath, has s( Sarpanch, came to his house] assaulted Kamlu with axe. Thereafter, he along with where dead body of Kamlu head. Shyarubati, Sukinati Suigh were also sitting near on the next dav of death. of fhe Paiichayat Sukmati, Shyambati vras asked as Shyambati replied that Naro was also called in fhe axe and disclosed in Panchavlat Paiich^yat tM<l^^l TffH??t' '^J^1^ •(^$(1 ^? siRiT SIT^I ;o to poUce station". She has furfher (arrel aad she does not know why the 6 she has stated fhat it is true to :cused stated that he has been falselv It is correct to sav that iu Panchavat "you have coniniitted inurder, coine to |cused to the poUce station. However, ni camiaation she has categorically stated [ccused Naro assaulting her fafher and regarding the accused assaulting her ect aad she has furfher stated that ui niake any confessional statement. 8a|-panch if-ated that fath.er of fhe accused Sukdev, laad in&rmed him that his son Naro has fes a result of vrbich Kamlu has died. wait to the place of occurrence lying and there were injuries over his |aad fhe son of Sukmati namely Cham dead body. He has furffaer stated th.at Pamlu, Paachayat was convened and iii S^iyambati were catled. In Panchayat ]to who inurdered Kamlu, on which lias assaulted with axe. Thereafter, Naro Naro caiae tn the Panchayat with that he has assaulted Kaia.lu vffth axe_ w&s tbe XI-HC—78 'S^ '^ww'ti, •s^v'Ko, IsKii'yy Ml^yll (hNt* sn^rw R-ii=h 'cTSTT ^FT^T »)^?<=h tii.^ie^t 3n^r>ira^ (ipf^g^a; TOiiw^rf?gsii^i on his head. This witness Panchavat election unsuccessl |has admitted fhat his wife contested .4iUy against the inofher of the accused. fconfessidnal 12. Thus, from fhe evidenc^ <j. evident fhat she had uiadA fhat she had seea fhe incidat that she had seen the accuseift cross-exatuuiation she deniedl fhat whea. she reached fhe dead. PW-1 Sukmati, wife of| Panchayat has categoricaUy confessional stataaent ui herl Shyambati has also stated in did not inake any Relying upon the statements 4; if we scrutuiize ftie statemen^ accept tbe varsion given by higUy nnprobable that fafher| disclose that his son has m.ur| wife had coatested elections secondly, that the version supported by PW-1 & PW-2.| opinion fhat it would not be extrajudicial confession siadej PW-3 Subernath. Rest of supported fhe prosecution cas) corltradictorv pVpLC st^ted thjs <=M^T<nqh TfFl^f '^\'feT3t' ^i^.i< 'ii 3lRPT 311^1 of aUeged eyewitness Shyanibati., it is •^tradictory statemeats regarding the ta.et ^t of assault. At one place, she stated assaultuig her father, however, in her that she saw fhe incident and stated ;e of occurrence, her fafher was lyhi^ the deceased, who was present in fhe that the accused did not inake any preseace before the Panchayat. Evea Ithe cross-examiiiation fhat the accused statement before fhe Panchayat. }f PW-1 Sukmati aiid PW-2 Shyambati, of FW-3 Subernath, we are unable to js witness firstly on fhe ground that it is of fhe accused would coine to him and llered Kamlu in view of fhe fact fhat his against fhe wife of fhis witness and Igiven by fl'us witness has not been Therefore, we are of fhe considered to base the conviction on fhe aUeged by fafher of fhe accused as stated by |flie prosecution witnesses have not and they have turned hostile.__—— sbfe XI-HC—78 3^f ^WW^, »Tfl<rl'l(5, Rltfiiyy W^vi\ sb^t* ••••"••••-••••••-••••••••"•••"•••--••-•-f^ 200 \ an^w 'qa?? C'3?^^ff) SW^V W R-li«h ^^ STT^T ff>^ t^iiwofCT aii^r cbl*l[<n41l +1M<lf ^IT^ ^•(^K '^aifipTan^r y/ afores4id 13. On fhe basis of opiruon that the prosecution fhe accused/appeUant ia crtm) aad findings offhe trial Court analvsis, we are of the considei-ed h|as failed to estabUsh fhe involvement of in question beyond reasonable doubt jnfhis regard caunot be sustained. a]|)peal 14. In the result, the accused/ appeUant under Sectijin fhereon, are set aside. He is| directed to be set at Uberty succeeds. Convictioa of the 302 ofthe IPC and sentence imposed acquitted of fhe above charge. He is if not required in any other case. fortbwith Sd/- Dhirendra Mishra Judge L.C. Bhaduo Judge