IGH COURTI'OF CHHATTISGARH, BILASP Criminal 'Aggeal NoL13 of 2005 APPELLANTS: 1. Ramadhar S/o Shrlram Kashyap, aged abut (In Jail) 60 years ‘ ‘ ‘ 2. .‘Kheekram S/o Ramadhar Kashyap, aged _ about 25 years 3. Gangotrl Bal W/o Ramadhar Kashyap, aged about 55 years 4. Rath Bar W/o Kheekram Kashyap, aged ‘ ‘ about22 years AII ' resrdent of Village Junadlh Chawarabhata PS Sheonnarayan Drstnct Janjglr-Champa (C G ) ‘ " r a” I I Versus i NON—APPUCANT‘ The State Of Chhattisgarh ’ & ‘ {Appeal under Seetion 374 (2) of Cr.P.C.} ‘ Present: I Mr; Somhath Verma, counsel for the appellants. I Mr. Ashish Shukla, Govt.Advocate forthe State/respondent. a Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr Chandrakar, JJ ORAL JUDGMEN (26-11—2010) - T.P.‘Sha‘rma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 15-12-2004 passed by the 3'd Additional Sessions Judge (F T C) Janjgir In Sessrons Trial No 244/2004 whereby & whereunder learned Additional Sessrons Judge after holding the appellants guilty for commissmn of culpable homiCIde amounting to murder of Bihari Kurmi, convicted the appellants under’Section 302 of the l.P.C. and sentenced each’of them to undergo imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo R.l. for two months. ~ r it . Conviction is impugned Von the ground that without any iota ofeviderice, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. H UR . R.N. T l . i iii l.v ) 3. Case of the prosecution, in brief, is that on the fateful day of 28—4-2004 at about 1O a.m. Bihari (since deceased) — son of appellant No.1 Ramadhar &lappellant No.3 Gangotri Bai, brother of appellant No.2 Kheekharam, and elder brother-in-law of appellant No.4 Rath Bai; was called by his I father Ramadhar, after‘ marriage of another accused Binda Bai for partition of property Bihari went to the house of the appellants along 'Wlth his wrfe Shamta Bal (PW 8) and demanded 50 decrmal land and one part of house on which the appellants quarrelled wrth Bihari and firstly assaulted him With hands & fists thereafter With sticks as a result of which Bihari fell down The accused/appellants also assaulted ’ Shamta Bai (PW-8) who shouted for help, thereafter she went to the Police Station and lodged F l R Vide Ex P 20 Merg was recorded Vide Ex P 2% Shamta Bai (PW 8) was sent for medical examination She was examined by Dr. Anita Dhruv (PW-11) who found one lacerated wound ouer left oCcipital bone in the size of 4" x 3“; swelling over face; and multiple bruises on face & neck vide EXP-23. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-8, prepared inquest over the dead body of the deceased vide EXP-9. Bloodstained soil, plain soil and broken piecesvofj’, . bangles Were seized from the spot vide Ex.P—14. Dead body was sent for autopsy to Primary Health Centre, Salkhan vide EXP-24. Dr. N; Prasad (PW-12) conducted autopsy vide Ex.P—25 and found following injuries: ‘- (1) Swelling over face. , (2) Right mandible damaged. ‘(3) Occipital bone fractUred. (4) Lacerated wound over parietal region. (5) Left tibia and fibula bones were found fractured. (6) Right radius ulna wa‘s also found fractured. v(7) Testis was ruptured. cause of death was coma due to head injury and death Was homicidal in nature. During the course of investigation, appellant Kheekharam was taken into custody, he made discloser of stick vide EXP—1 and same was I 'recovered at the instance of appellant Kheekharam vide Ex.P-17. Appellant Ramadhar made discloser statement of stick vide Ex.P—10‘and same was recovered at the instance of Ramadhar vide Ex.P—15. i Appellant Gangotri Bai also made discloser statement of stick vide Ex.P- 11 and same was recovered from Gangotri Bai vide Ex.P-16. Appellant. \. ‘i i ._ Rath Bal aiso made discloser statement of stick Vlde Ex P 12 and same was recovered from Rath Bal Vlde Ex P 19 Clothes of Ramadhar & Kheekharam were also serzedylde Exs.P 15 & P 17. Sealed clothes of the deceased were seized vide Ex.P-23. Seized artiCIes were sent for ’ _ chemical examination vide Ex P-31 and presence of blood on stick recovered from Ramadhar clothes of Ramadhar stlck recovered from Kheekharam and clothes of Kheekharam was confirmed vrde Ex P 32 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C.. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class Janjgir who committed the case to the Court of Sess10ns UanJgIr from where learned Additionalt Sess10ns Judge received the case on transfer for trial t“ .. .5. In order to prove the gurlt of the appellants, the proseCution has examined as many as thirteen witnesses. The accused were examined under Section 312’: of the. Cr.P.C. in which they denied the Circumstances appearing against them pleaded innocence and false implication v 6. Appellant Ramadhar has examined himself as defence Witness (DW-1) and has deposed that deceased Bihari his son had come to his house for demanding partition and during the course of discussmn Bihari took out kuda/I and tried to assault him and therefore he has pushed Bihari ‘With a View to save himself as a result of which Bihari fell down on a stone and sustained injuries, thereafter he died on the spot and they' have not committed any offence Appellant Kheekharam has also examined himself as defence Witness (DW—2) and has corroborated the eVIdence of Ramadhar (DW—1) Raghunandan (DW—3) has also corroborated the eVIdence of Ramadhar (DW—1) 7._ Afteraffording opportunity of hearing to the parties, learned AdditiOnal Sessions ‘ Judge convicted & sentenced the appellants, as aforementioned. y . 8.‘ We have heard learned counsel for the parties perused the Judgment ‘impugned and record of the trial Court .tl// i 9. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of Shamta Bai (PW-8) — wife of deceased Bihari. As per her evidence, relations between the appellants! & Bihari i.e. sons and brothers were cordial, but on account of dispute l m 1~9 £. i" l a relating to partition of immovable property when the deceased illegally i l l i demanded more than the expectedshare and took out kudali for causing I injury to appel|ant Ramadhar, then with é view to save himself Ramadhar has pushed the deceased as of result the deceasedidashed with a stone and'sustained injuries and therefore the appeiiants have not committed _ L any offence Learned counsel further argued that as per the eVIdence of the prosecution blood stained sticks have been seized at the instance of ‘the appeiiants which were examined by chemicai expert Vide Ex.P-32 which confirms that blood was not found on the sticks recovered from' appellants Gangotri Bai ‘& Rath Bai which shows their innocence in the crime in question Learned counsel also argued that there was no intention for causmg murder of s'on of Ramadhar by Ramadhar or by brother Kheekharam but they have used force on a sudden quarrel on the s‘pur of‘the moment without any pre-meditation. Therefore, if the evidence of Shamta Bai (PW-8)is considered in its face value, even then the act qf the appellants does not travel beyond'the scope of Section 3:04p ,, 7 it , Part—ii ofthe I.P‘.c.x ' ‘ ~ 10.0n the other hand, learned State counsel opposed the appeal and submitted that in the present case,. all the appellants have caused injuries to Bihari and also to Shamta Bai (PW-8) in their house which V shows the grave intention of causing culpable homiCide amounting to murder of Bihari.- After appreciating the evidence available on record, I the trial Conrt has rightly convicted & sentenced the appeiiants. . 11.ln order'to appreciate the arguments advanced on’behalf of the parties, ;w We have examined the evidence adduced on behalf of the partiesn >4 i K 12 In the present case homICIdai death of deceased Bihari has not been substantially disputed on behalf of the appellants The appellants have taken defence that when Ramadhar pushed Bihari Bihari sustained injuries on account of dash With a stone and died HomICidal death of ‘ h I ‘ Bihari as a result of ,multiplesiniuries has been established by the. evidence of‘Dr. N. 'Prasad (PW-12) and-autopsy report EXP-25. 13As regards compIICIty of the appeiiants In the crime in question conVIction of the appellants is substantially based on the eVIdence of Shamta Bai (PW 8) Wife of deceased Bihari As per her eVIdence shev is eyeWItness to the inCident and she has seen the inCIdent As per her i eVidence all the appellants have caused injuries to her husband by sticks and when she tried to rescue her husband her mother—in law i i Gangotri Bai assaulted her also over her head on which she fled away from the spot and went to the house Of Kdtwar. Thereafter, ‘she went to the Police Station and lodged F.I.R. in her detailed cross—examination, she has admitted in para 11 that relations between both’the parties were cordial ‘however in para ~12 she has stated that the incident took place on account of dispute of partition As per her evrdence her husband was called by appellant Ramadhar to deCIde the dispute of partition and when they went to the house of Ramadhar the appellants started Infllcting injuries upon her husband Blharl She has lodged F l R Vide Ex P 20 on the same day Withln 2 1/2 hours of the InCIdent In which she has mentioned that when they went to the house of the appellants her husband demanded 50 deCimal ofland and a pait of house on which the appellants quarrelled With her husband and firstly, assaulted him with hands '& fists and thereafter, they assaulted him with sticks. 14.As per the evidence of Investigating Officer K.S. Rathiya (PW—13), sticks have béen recovered at the instance of the appellants and same were sent fOr chemical” examination vlde ExP 31 As per the chemical examination report Ex P 32 blood was found over the sticks recovered ' from Ramadhar & Kheekharam but blood was not found on the sticks recovered from Gangotri Bai & Rath Bai. ‘ ' r 15iWhen all the accused persons have used sticks for caUsing injuries and had caused several fatal injuries to Bihari, it was impossible that» blood wOuld onlybe found on the sticks used by Ramadhar & Kheekharam and not on the sticks used by Gangotri Bai & Rath Bai Absence of blood on . the sticks recovered from appellants Gangotri Bai & Rath Bai shows that they have not used sticks for causmg injuries to Bihari Appellants Ramadhar & Kheekharam have taken speCific defence that Ramadhar r pushed Bihari With a View to save himself but the autopsy report reveals that there were several ,inJuries resulting in fracture of skull bone mandible and leg which disproves the pOSSIbility of pushing the deceased by appellant Ramadhar upon stone t6;As per F.l.R. EXP-20 and evidence of Shamta Bai (PW-8), after the )marriage of sister of Bihari appellant Ramadhar called his son Bihari to resolve the dispute of partition and on the date of moident Bihari went to the house of Ramadhar and demanded 5O deCImal of land and also a part of house on which the quarrel took place whereupon Ramadhar & Kheekharam assaulted Bihari With sticks This shows that the inCident took place all of a sudden and on the spur of the moment Without any ;u ... ‘ ;k. w “\ 1 pre—meditatiOn resulting in homicidal death of Bihari. This also shoWs that appellants Ramadhar & Kheekharam have not caused any injury to V Bihari — son of Ramadhar & brother of Kheekharam, with intent to cause his death, but they haVe caused injuries on‘a sudden quarrel on the spurw ,. ., of the moment without any pre-meditation, in sharing commonintention. Therefore, their act does not travel beyond the scope of Section 304 Part-ii of the i P.C. 17 Whiie conVIctIng the appellants under Section 302 of the i P C the trlal Court has not conSIdered the materiai document EXP 32 relating to absence of blood on the sticks recovered from appellants Gangotrl Bai & Rath Bal and has also not considered the fact that the inCident took place all of a sudden Virtually, at the instance of the deceased when he demanded 50 decimal of land and a part of house, and thereby“, V committed illegality 18 Consequently, the appeal is partly allowed Conv1ction & sentences s imposed upon appellants Gangotri Bai & Rath Bai under Section 302 of the l.P.C. are hereby set aside, they are acquitted of the said charge and they be set at liberty at once Conviction of appellants Ramadhar & Kheekharam under Section 302 of the l P C is altered to Section 304 Part—ll read With Section 34 of the IP C Appellant Ramadhar aged about 65 years, was in custody Since 29—4—2004 till 24-9-2008 for about 4 years 5 months Likewise appellant Kheekharam is in custody since 29- -2004 till date thereby he is in custody Since 6 years 8 months ConSidering the age of appellant Ramadhar and his period of detention i further sending him to Jail would not serve any purpose. Consequently, appellant Ramadhar is hereby sentenced to imprisonment for the period already undergone by him i.e. for the period from 29-4-2004 to 24—9- ‘ 2008 Appellant Kheekharam is also sentenced to the period already undergone by him Since 29 4-2004 till date He be released at once Sd/- ii T. P. Sharma l Judge; i i l Soma ' :i‘. i" (