@ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & ’HON’BLE MR. R. L. JHANWAR, JJ. Criminal Appeal No. 14112004 APPELLANTS 1. Kanchu S/o Khora Uraon, aged ACCUSD hbout 60 years, Caste Uraon, (In Jail} occupation—Agriculture. 2. Smt. Nira Bai W/o $hivnath, aged «u: about 24 years, Caste Uraon occupation Agriculture 81; House holding. Both are residents of village Kerta, Police Station Pratappur, Distt. Surguja (C.G.). 3. Smt. Niraso Bai W/o Mangal Sai Urao, aged about 35 ‘years, occupation Agriculture 8a House job, resident of village Kebara, Police Station Pratappur, Distt. Surguja (C.G.). p» .v, 5.. RESPONDENT STATE OF 'CHHATTISGARH. APPEAL UNDER SECTION 374 [2] OF THE CODE OF CRIMINAL PROCEDURE. Present :- Shri Manoj Mishra, Advocate for the appellants. Shri Rakesh Jha, Dy. GIA. for the State/respondent. ORAL-JUDGEMENT (Passed on 28/01l2010) The following judgment of’the Court. was passed bv T.P. Sharma, J:- D Challenge in this appeal is to the judgment of conviction and order of sentence dated 13/ 1/2004 passed by lllrd Additional Sessions Judge (Fast Track Court) Surajpur, Distt. Surguja (C.G.) in Sessions Trial No. 295/2002 whereby and Where under after holding the appellants guilty for the commission of culpable b homicide amounting to murder of Ramlal in sharing common intention after committing criminal tress pass convicted the appellants under Sections 448 and 302 read with Section 34 of the Indian Penal Code and sentenced Simple Imprisonment for 1 year, Imprisonment for life and fine of Rs. 500/— in defauldof u f ‘ payment of fine amount, additional rigorous imprisonment for 3 monghs each; 2. Judgment is impugned on the ground that Without any iota of ~ evidence sufficient for conviction of the appellants Court below has convicted and sentenced the appellants aforementiOned and thereby committed an illegality. 3. The brief case of the prosecution is that on fateful day of 31/3/02 at about 6. a.m., at village Kerta Police Station Pratappur District Ambikapur deceased Ramlal was sitting in his house. Appellant Kanchu along with appellants Smt. Nira Bai and Smt. Niraso Bai came with stick. Appellant Kanchu assaulted the Ramlal by stick over his head other appellants also assaulted the deceased Ramlal, Ramlal fell down. PWI Suran took the injured for treatment at Ambikapur and lodged First Information Report vide Ex. P—. 1. During Course of treatment deceased died in the hospital. _Marg was intimated to Police Station Ambikapur Vide Ex. P-4. Marg was recorded by the Police Station Pratappur Vide Ex. P-4A. After summoning the witness Vide EX. 112, inquest over the dead w: a body of the deceased was prepared vide Ex. P—3. Dead body was sent for autopsy to District Hospital, Ambika'pur vide Ex. P- 15. Autopsy was conducted by PWIO Dr. RN. Gupta vide Ex. P~12 and found following injuries:- (1) Ante—mortem lacerated wound over left parietal area of head of 5 cm. x 1 c.m. x skin deep (2) One abrasion over left side of head of 3 c.m. x V4 cm. (3) Ante- moxgem abrasion over left leg of 2 cm. x 1/2 cm. (4) Depressed fracture of left parietal bone of head was found. Cause of death Was c‘oma as a result of head injury; Death was homicide in e nature. 4. Appellant Kanchu was taken in to custody he made disclosure statement of stick vide Ex. P—7. Stick was recovered at the instance of appellant Kanchu Vide Ex. P—6. Smt. Nira Bai was also taken in to custody she made disclosure statement of stick vide Ex. P—8, same was recovered at the instance of Smt. Nira Bai vide Ex. P—9. One stick was also recovered from the Smt. Niraso Bai vide Ex. P— 10. Plain and blood stained soil were recovered vide Ex. P— 1 1 from the spot. Spot map was prepared vide Ex. P—13. 5. Statement of the witnesseswere recorded under Section 161 of the Code of Criminal Procedure, 1973 (inshort ‘the Code’). After completion of the investigation charge—sheet was filed before the ,DAdditional Chief Judicial Magistrate, Surajpur who in turn committed the case to the Court of Sessions, Ambikapur. Learned Additional Sessions Judge received the case on transfer for trial ;iv " I {F . @ 6. In order to prove the guilt of the accused/appellants prosecun‘on examined as well as 19 witnesses. Accused persons were examined under Section 313 of the Code Where they denied the circumstances appearing againSt them, innocency and false 1 implication is claimed. Accused persons had also examined defence Witness DW1 Banshigiri who has deposed that on the date of incident Smt. Niraso Bai was present at village Kerta. / a s w 7. After aifording an opportunity of hearing to the parties learned 3rd " w: Additipnal Sessions Judge, convicted and sentenced' the appellants aforementioned. 8. .Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. 9. Learned counsel for the appellants vehemently argued that the conviction is based on evidence of highly interested Witnesses their evidence does not inspire confidence and are not safe to rely. The evidence of witnesses are self contradictOIy and reveal that they have falsely implicated the appellants No. 2 8t 3 namely Smt. Nira Bai and Smt. Niraso Bai even according to the case of the prosecution except one injury no injury was found fatal and if the case of the prosecution is admitted in its face value then the case ,pu of only appellant Kanchu does not traveled beyond the scope of Under section 304 Part —II of the Indian Penal Code. On the other hand, learned counsel for the respondent/State pposed the appeal and submits that case is based on direct evidence of-ey’ewitnesses Whose presence on the spot at the time o @ of incident was natural, They have catagorically deposed that appellants have assaulted and cauSed injury resulting into death of deceased Ramlal on the ground of previous enmity of the land. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of fatal ante- mortem injury of deceased Ramlal has not been substantially disputed by the appellants on the other hand, otherwise also established by the evidence of PW 10 Dr. RN. Gupta and autopsy t r report EX. P—12 which reveals that fatal injury over the head including the depressed fracture of partial bone was found and death was homicidal in nature. 13. As regard the complicity of the appellants in crime in question is concerned, the conviction is based on direct evidence of eye witnesses PW7 Sohari Bai, PWS Mularo and PW9 Chhatarsai. PW7 Sohari Bai has deposed in her evidence that at the time of incident she was cleaning her house adjoining to the house of the Chhatarsai. Chhatarsai and deceased Ramlal were sitting on platform (Chabutara). The appellant Kanchu came with stick and asked to Ramlal that why he has called him in the morning and Dbefore answering by the Ramlal he assaulted the Ramlal by stick thricely over his head, Ram lal fell down then appellants Smt. Nira Bai and Smt. Niraso also came there and assaulted the deceased by stick over his body. Chhatarsai took the injured Ramlal for y r w: xnit. @ treatment but fmally his dead body was brought from the hospital. Another eye witness PWS .Mularo daughter-in~1aw of the deceased \ ‘ 1 has deposed in his evidence that his husband Suran was adopted ‘ by the deceased Ramlal. At the time of incident Chhatarsai and deceased Ramlal were sitting on the platform adjoining to their house. She was clean her house. A11 appellants came with stick . r ‘ appeilant Kanchu the elder father-in-law of this witness assaulted / u f the Ramlai by stick over his head, other appellants also assaulted the She for Ramlal. shouted help only Chhatarsai was present there who tried to‘intervene and tried to save the Ramlal. They took the injured Ramlal to Hospital and finally he was died. 14. PW9 Chhatarsai who was present with the deceased and were sitting on the platform at the time of incident has deposed that all appellants came with stick suddenly appellant Kanchu assaulted the Ramlal over his temporal part, Ramlal fell down then appellants Smt. Nira Bai and Smt. Niraso Bai assaulted him. Ramlal become unconscious. They took to him to hospital at Pratappur and Ambikapur finally Ramlal died. In her cross examination PW7 Sohari Bai has admitted in Para -2 that appellant Smt. Nira Bai and Smt. Niraso Bai have not assaulted .M the Ramlal but they were present with stick at the time of incident. In her detail cross examination she has specifically /“ \ stated that appellant Kanchu was a person who has assaulted the deceased. 15. Defence has also eross examined PWS Mularo who has denied the suggestion that she has not seen the incident she has speciiically stated that Kanehu has assaulted thm'ce by the stick, Kanchu and Ramlal were real brother. There was some dispute relating to the land. In the previous night they decided to convened the meeting on second day but second day morning incident took place” She had denied the suggestion that Kanchu and Ramlal quarreled at u f the time‘of incident and both the persons assaulted to each other. w/ PW9 §hhamrsai has admitted in Para-2 of his evidence that firstly appellant Kanc‘hu came and thereafter appellants Smt. Nira Bai i and Smt. Niraso came to the spot. He has also admitted that Kanchu has assaulted twice over the head of the Ramlal but denied the suggestion that appellants Smt. Nira Bai and Smt. Niraso Bai has not assaulted the deceased. He has stated in Para~ 3 of his cross examination that ’Smt. Nira Bai and Smt.Niraso Bai tx— has assaulted the Ramlal over his leg by stick, these witnesses are t relatives of appellants as well as of deceased. Appellant Kanchu and Ramlal were real brother. Husband of PWS Mularo was adopted by the deceased as a son. Evidence of these witnesses reveal that there was dispute relating to the land. Presence of these witnesses was natural at the time of incident. Evidence of this witness speciiically reveals that appellant Kanchu firstly came with stick and has assaulted thrice to the deceased Ramlal. According to the autopsy report only 3 injuries were found over the body of the deceased. No other injury was found over the dead \‘Y \k, @ body. Evidence of these witnesses also reveals that appellants Smt. Nira Bai and Smt. Niraso Bai came afterwards. PW7 Sohari Bai has admitted in Para-2 of her evidence that Smt. Nira Bai and Smt.‘ Niraso Bai were holding the stick but she had not seen that whether they also assaulted Ramlal or not. Evidence of these witnesses relating to the injury caused by appellants Smt. Nira Bai and Smtt Niraso Bai are not consistent although their a *3 presence‘on the spot is not disputed. There are discrepancy and inconsistency‘relating to the part played by the appellants No'. 2 3 in the evidence of aforesaid witnesses but they have specifically stated that appellant Kanchu has assaulted the Ramlal: Injury found over the‘body of Ramlal has been corroborated by the medical evidence. Appellants Smt. Nira Bai and Smt. Niraso Bai are daughter of the appellant Kanchu. Only 3 injuries was found over the dead body and injury caused by Smt. Nira Bai and Smt. Niraso Bai does not nnds support from the medical report. The evidence of PW7 Soheri Bai, Pws Mmaro and Pw9 Chhatarsai are sufficient for drawing an inference that appellant Kanchu has caused injury to the deceased Ramlal. But same are not sufficient to draw the inference that co-accused/ appellants Smt. Nira Bai and Smt. Niraso Bai caused injury to the deceased their version is also not supported by the medical evidence. The evidence of these r l ‘ ”“ twitnesses shows that deceased was sitting on the platform adjoining to the house but prosecution has not adduced the §‘ :g Ham & @ \ evidence to show that appellants have committed criminal mess pass. 16. As regard the question of motive is concerned the motive is only aid in criminality and loses its importance In case of direct evidence even otherwise motive can be inferred on the basis of the nature of injury, part of ther body Where injury was caused, weapon used and other like circumstances. a t V 17. In the present case deceased Ramlal was sitting and was not holding£ any weapon, appellant Kanchu came with stick and repeatedly caused 3 injuries shows his grave intention of causing the death of the deceased. In the present case, defence witness Banshigiri has not deposed anything relating to commission of the od‘ence his evidence is of no use. 18. After appreciating the evidence adduced on behalf of the parties learned Additional Sessions Judge has convicted the appellants under Section 302/34 and under Section 448 of the Indian Penal Code but has not considered the most material aspect of the case that evidence adduced on behalf of the prosecution is not sufficient for drawing an inference against the appellants Smt. Nira Bai and Smt. Niraso Bai for commission of murder and also relating to the commissn of criminal tress pas by the appellants io s and thereby cotted an illegality. mmi «J In the present case, appellant Kanchu has been convicted under ction 302 read wi section 34 of the Indian Pena Code but the Se th l case and evdence shows‘that appellant Kanch is a person who i u 10 has caused the death of deceased Ramlal. Sumcient opportunity had been provided to the appellant Kanchu to defend himself and he has defended him self. The evidence adduced on behalf of the prosecution is sufflcient for drawing an inference that appellant Kanchu has committed culpable homicide amounting to murder of deceased Ramlal and has not committed murder in sharing the common intention with co-accused. u f 20. For the‘ foregoing reason, the appeal is partly allowed. Conviction andlsentence‘ of the appellants Kanchu, Smt. Nira Bai and Smt. Niraso Bai under Section 448 of the Indian Penal Code are hereby set aside. Conviction and sentence of the appellants No. 2 & 3 namely Smt. Nira Bai and Smt. Niraso Bai under Section 302 read‘ with section 34 of the Indian Penal Code are also set aside. They shall be set at liberty at once. Conviction of the appellant Kanchu under Section 302/34 of the Indian Penal Code is altered into under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 500/- in default of payment of fine amount, additional rigorous imprisonment for 3 months. Sd/- T.P. Sharma Sd/- R.L. Jhanwar" Judge \N‘ Judge