fS IN THE HIGH COURTOF JUDICATURE AT BILASPUR CHHATTISGARH Cr.A. No. /2003 APPELLANTS (IN|JAIL) <-1 / (-•• !.^[- f^.E.^-:'^^ ~v^-(-'^ (•k^^:'"' ' ••••--"i' ( ft^-^-\ ,,,^caW .|;,...\JS»'" ^ oc &.<-° o.»-,- ^ RESPONDENT : 1. Hiru Ram, aged about 20 years S/o./Sagnu Ram, CasteGond 2. Suresh Kumar, aged about 23years, S/o. Shyam. Sai BothR/o. ofVUlage Urjhe, P.S. Manpur,Distt. Rajnandgaon (C.G.) VERSUS The State of Chhattisgarh ThroughP.S. Manpur District Rajnandgaon (C.G.) I. CRIMINAL APPEAL U/S. 374 (21 OF CODE OF CRIMINAL PROCEDURE /"l.-.iL^-_____._-„ ^ .,'i-t ^-•SfKl HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRIR.N. CHANDRAKAR. JJ 'CrA.No.l048 of 2003 Present: Mrs. Usha Chandrakar, counsel for Uw ai^ieUants. Mr. Sandeep Yadav, Dy. Govt. Mvocate fbr the State. Orat tjudainwit (161nJuly,2010) PefDhffencfra Mf^wa. J 01. The appellants have preferred this appeal under Sectton 374@) ef the Code of Criminal Procedure against the ju<^|msnt of convteUon and order of sentence dated 1 Augu^, 2003 passed in S.T.No.52/03, whereby teamed Sessions Judge, Rs^nandgaon, after holing ttie appetlante guiNy of commitUng murder <rf TMaram, has convteted appellant HiNram under Sections 450 & 302 <rf the IPC and sentenced to undergo Rl for five years and llfe imprisonment, and appellant - Suresh Kumar under Section 450 and 302/34 of the IPC and sentenced to undergo Rt for five years and life imprisonment. Both the sentences have been directed to run concurrently. 02. Case of the prosecution, in brief, is that there was a partitlon dispute of ancestral property b^ween the deceased and appellant - Hiruram and because of the aforesaid disputs, Hiruram accompanied by appellant - Suresh Kumar went to the house of ttie deceased on SC^ January, 2W3 with a crowbar and assaulted him 3-4 times on his head, eyes and ears, as a result, he sustained numeioys injuries. At that time, appellant - Suresh had eaugtit the Appellants 1. Hiru Ram, aged about 20 years, S/o Sagnu Ram, Caste Gond. "27 Suresh Kumar, agwt about 23 yews, S/o Shyam Sai Bofli R/o of Vill^ie Urjhe, P.S. Ma(^>ur, Dtett. Rsgnandgaon (CG) Versus ,'•./ Respondent The State of Chhattisgarh, Through P.S. Manpur, Dtetrict Rajnandgaon (CG) "<^; deceased. The deceased died on 31st January, 2003 on way while being taken to hospital for treatment by bullock cart. 03. Report of thevincklent was lodged by Jaitobai (PW-1) on 3t* January at about11 .20 am against the appellante. Aftw registerir^i the offence vhte PR of Ex.P/1 and merg IntimaUon of Ex.PQ, the police proceeded for the scene of occurrence, performed inquest over the peraon of ttie deceased vide Ex.P/4 and thweafter, sent the dead body to Govemment Hospital, Manpur for postmortem, where Dr. D.P, Thakur Q3W-3) conducted postnwwtem and gave his report of Ex.P^A;/ Btoodstained weapon of offence - crowbar and bloodstained wearing.apparels of Hiruram were taken into possession on being produced by him vide Ex.P/5. Site plan was got prepared by Halka Patwari vide Ex.P/7. The invesUgatir^ officer also prepared spot map of Ex.P/13. Crowbar and wearli^ apparels of appeltant - l-1iruram and other artictes setzed durtng investigation were sent for chemical examination to Forensic Science Laboratory, Raipur and as per report of Uie F8L of Ex.P/18, crowbar, pant and shirt seized from U»e appellant contained btood. 04. After completing investigaUon, charge sheet vias fited in the Court of Judicial Magistrate First Class, Amabgarh Chcwki, who, in tum, committed the case to the Court of Sessfons Judge for trial. 05. Leamed Irial Court framed charge under Seclfons 4S), 302 & 302/34 ofthe \PC against the appeflants, who abjured their guilt The prosecution, in order to establish charges against the appellants, examined 6 witnesses in all. Thereaftw, statements of the accused were recorded under SecUon 313 of Cr.P.C., In whteh ttiey denied the clrcumslances appearing agatnst them in the prosecution case, and pteaded innocence and feilse hnplicatkwi due to old animosity. Appellant - Hiruram further pteaded ttiat he was not present at the Cme of incident. SimUariy, appeUant - Suresh pleaded that he was also not present at the time of incktent and he has been falsely Implicated in the aforesaM offence as family members of the deceased nourished grudge agalnst him since he had appeared as a wibiess on behalf of Hiruram in a court case between Vne deceased and l-1iruram. /^'^ 06. Leamed trial Court after hearing counsel for the respecUve parfies, convteted and sentenced the appeltants as described In para-1 of thisjudgment. 07. Homictdal death of deceased Ttlaram is ncrt tn dispde. Even otherwise, PW-1 Jattobai, who is an eyewttness of the incident, has deposed that she saw the appellant - Hfruram assautt her husband/deceased by crowbar on his head in her house. Dr. D.P. Thakur (PW-3) who has conducted postmortem and proved hte report of Ex-P/SA, found (bllowing injuries on the person of the deceased: • ,'/ 1. one inGised wound betow right eye tower tid lateratly <rf size 3x 1 x4cm of ^)indte shape. 2. incised wound on the right side <rf parotid regton of size 2x1 x 3 cm of spindte shape. 3. incised wound on right sKte of parietel regfain tateratly of size 5x1 x % cm <rf spindte shape. 4. incised wound on the right side of parirtal region anteriorty from the lateral wound of sto 5x1 x % cm ofspindleshape. On intemal acamination, brafn membrane was tom, intemal part of the brain was damaged and ctotted btood was preswrt. He also Tound pari^al and sthenotei bones fractured. He ateo opined that all the injuries were antemortem in nature and sufRcient to cause death in Ure ordinary course <rf nature. The deceased died as a result of shock due to exc^swe bleeding on accoimt <rf injuries described in fte postmortem report and death was homicidal in nature. Thus, from the evidence of eyewitness Jaitobai and the evidence of Dr. D.P. Thakur, homteidal death of deceased TUaram is established. 08. Smt. Usha Chandrakar, leamed counsel for the appellants, submits that the trial Court has convicted the appeltants by placii^ implicit reliance on Uie evktence of Jaitobai (PW-1), Uie alteged eyewitness of the incident. However, there are material contradicUons and omissions in her depositun. Ner version is also not corroborated from the medteat evklence as she has stated that ^ 4?(£/ ^l. Sjil appellant - l-1iruram gawe onty two blows on his head, whereas the doctor has found four injuries on his head. She did not dtectose about the incident to PW-2 Shyamlal immediately after the incident. Moreover, report of the incktent was lodged after 18 hours of the incident without any explanation for delay. She also aryies that appellant Suresh Kumar has been falsely implicated in the case. There is rro allegation against Suresh Kumar that he was canying any weapon with him or he participated in the assault However, he has been convicted only on the altegatton that he had caught the decease^l. Thus, tooldng to the role atfributed to appellant ~ Suresh 'Rumar, the triat Court was not justKied In convicting Suresh Kumar wth the aid ofSecUon 34 ofthe IPC. 09. On the otder hand, tearned counsel for the State has supported the impugned judgment of the trial Court. 10. We have heard learned counsel for the parties and perused the materials available on record as ateo impugned judgment. 11. PW-1 Jatobai - complainant is the wife of the deceased. The sum and substance of evidence of this witness is that appellant Hiruram is son of her father-in-law. A case is pending In the Chowki Court behween appellant Hiruram and the deceased m relafion to some incident, which occurred before two years. On the date of incictent, at about 10 pm when she was serving meals to her hirebaml and children, appellant l-1iruram came to her house witti Suresh. Hiruram was carrying crowbar, whereas Suresh was em{^/ handed. Suresh had caught her husband and Hirursun assaulted him twtee with crowbar on his head, as a result, the head was torn and blood started oozing. She narrated about the incklent to Ramprasad and Shyamlal in the night itself. When she was going to calt Patel, the appeltents were hkling under <he tree. Her husband died on the way while being teken ta hospital by buttock cart. She lodged the report of Ex.P/1 and merg intlmatton of Ex.P/2. In her cross-examination, some trivial and insignificart omissions regarding number of assautt and time (rf death have been pointed out. However, on careful scrutiny of Uie evidence of tttis witness, we find that ftie defence could not elicit anything in her lengthy cross-examination, whteh makes her evidence urrtmstworthy or unreliabte. 1-ter yeraion is duly corroborated from ^'.1 ..,. ^v^".' s la'nttB't the medical evidence as the doctor has opined ttiat the injuries present over the person of the deceased coutd be caiaed by crowbar seized from a(^)ellant - Hiruram. Her version is ftirther corroborated from the FIR as also from the evidence of Sh^imlal (R/V-2), who tes ateo deposed that on the date of incident, Jaitobai came to his house at about 10 pm and infbrmed him that her husband has been murdered. Though he has stated in the firat paragraph crf the deposftion that she dkl not tell name of the assailants, however, in para-2, he has categorfoally stated that Jaitobai told him that her nephew Hiruram assauttsd her husband •ll- with crowbar, whereas' other accused Suresh had caught her husband at that time. • 12. So far as delay in lodging the FIR is concemed, the incadert occurred at 10 pm. PW-2 Shyamlat, in para-7 of his deposWon, has categorically stated that Uiey did mrt lodge report in the night as the road from the place of incident to police station goes through forest and distance of potice station is 7 km. 13. Leamed counsel for ttie appetlants, relying upon the judgment in the matter of Sripaffii & offrers Vs. Stata of KamaMsa reportad in 2009 AIR SCW 5927, has argued that tfte onty aDegatton against appellant- Suresh is that he had eaught the deceased and the assautt te attributed to appeltant - Hiru and ttierefore, it camict be said that appellant - Suresh accompanied Hiru to the house of ihe deceased wtth a common intentkm to commit his murder and as such, his conviction under Sectton 302 with the aid of Section 34 of the IPC was unjustified. 14. In the cited judgment, it appears that allegation against the Ihree accused persons was that they caught hokl of the deceased on being asked by the main accused and thereafter, <he main accused suddenly brought'out a knife from his pocket and ^abbed the deceased. Thus, considering the fact <rf that case and ttie fact that the main accused was having knife in his poclcet, vi<ilch he suddenly broi^ht out and assaulted the cteceased, convictkm of other three accused persons wtth Ihe help of Section 34 of the PC was set aside with an observation ttat the prosecution has falted to prove common intention of these three accuse3 persons to commit rriurder of the cteceased. •' (. a IB HB 15. However, in the instant case, from the eyidence ayailabte on recwd, we find that btrth the appetlants went to the house of the deceased at 10 in the night; appellant - Hiruram was hohlhig crowbar in his hand and he gave several blows on his head while appellant - Suresh had caught hold of ttie deceased. hi para-10 of her deposiUon, Jaitobai has ateo deposed ttiat she had reque^ed the appellants to spare her husband, but they did not pay any haed to her request. Thus, from the evidence of this witness, we are of the opiniqn that the trial Court has rightly convicted appeltant - Suresh Kumar under Section 302 read wtth Section 34 of the IPC. tj. :1. 16. Since the offence was^admittedly, committed in the hoiBe of Uie deceased, convicUon of the appellants under Sectk>n 450 of Bie IPC is a|so established. 17. For the aforesaid reasons, we are of the o|Mnion that the triat Court has righUy convicted and sentenced the aj^iellants under Section 450, 302 & 302/34 of the IPC. There is no illegality or tnfirmtty in the impugned judgment. The appeal is wtthout any sub^anee, the same deserves to be and is, accordingly, dismissed. Since a(^»etlantNo.2 - Suresh Kumar is on bail, therrfore, his bail bonds are cancelled and he is directel to be taken into custody forthwith. sd/- Dhirendra Mishra Judge Sd/- . ^IM. Chandrakar Judge t~