^^ HIGH COURT OF CHHATTISGARH, BILASPUR D.B. Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. CRIMINALAPPEALNo.1130of2002 Karam Qas @ Dolamani Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunii Kumar Sinha Judge •i^^^.^K^. Hon'ble Shri Justice Rajeev GuptaATr" Sd/- Chief Justice ^' /08/2008 ? Postfor Judgment :4J08/2008 Sd/- Sunil Kumar Siuha Judge IIS'a:;;si;ss-S»!tSd:.-/ '.^••.i^-S-'-®!^:^^?^ ^--^:;-;:?^i^^^a^ HIGH COURT OF CHHATTISGARH, BILASPUR \ D.B. Hon'ble Shri Raieev Gupta.C.J, & Hon'ble Shri Sunil Kumar Sinha, J. CRIMINAL APPEAL No.1130 of 2002 APPELLANT RESPONDENT Karam Das alias Dolamani, S/o Dasi Ram Patel, Aged about 32 years, R/o village Doomer Singha, P.S. Saria, District Raigarh (C.G). 'i^ Vs. './ State^of Chhattisgarh, through Police Station Saria, Distt. Raigarh (C.G). APPEAL U/S 374(2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shri V.P. Gupta, counsel for the appellant. Shri U.N.S. Deo, Govt. Advocate/A.P.P forthe State. JUDGMENT ..08.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) Appellant Karam Das @ Dolamani has filed this appeal against the judgment of conviction and order of sentence dated 05.9.2002 passed by the III Addl. Sessions Judge (FTC), Raigarh, in Sessions Trial No.177/2001 whereby he has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. (2) The facts, briefly stated, are that the agricultural fields of the deceased Chamar Singh and appellant Karam Das are situated in close vicinity in village Doomer-Singha. On 17.7.2001, at about 8.30 a.m., Chamar Singh had gone to see his fields. He saw that his field was full of rainy water. With an intention to drain out the excess water from his 1; Si. 1 •t 1.^1 J iS^ ^ ^'' Criminal Aopeal No.l 130/2002 (DB) »- /' field, he dug a drain from the periphery (Medh) of his field and the water •V so stored was released and got accumulated in the fields of the accused. On the said incident, a quarrel took place between Chamar singh and the accused which was intervened by Baijnath (P.W.1) and Neelambar (P.W.4), but the accused gave one spade blow on the skull of Chamar Singh, who fell down on the ground and thereafter the accused gave repeated Mows/to Chamar Singh who sustained many injuries resulting in his instantaneous death. This information was given to Thanuram Patel (P.W.5), who lodged the First Information Report (Ex.P.9) in the concerned police station. A merg intimation was also lodged vide Ex.P.10. On receipt of the said information, the Investigating Officer left for the scene of occurrence. He gave notices to Panchas vide Ex.P-2 & P-3 and a Panchnama of the dead body of the deceased was prepared vide Ex.P.4. The dead body was sent for postmortem examination to Primary Health Centre, Baramkela and the postmortem examination was conducted by Dr. S. Toppo (P.W.8), who gave his report, Ex.P.12. He noticed the following injuries: (i) Lacerated wound on the left side of the face admeasuring 1" x% cm x 1 cm; (ii) Lacerated wound on the chin admeasuring 1 % " x % cm x % cm. (iii) Lacerated wound on the right side of the face admeasuring 2" x 1" x 1" having a fracture of mandible bone; (iv) Lacerated wound on the skull admeasuring 2" x %" x brain deep having multiple fractures of skull bones; (v) Abrasion on the left shoulder admeasuring 2 cm x Vzcm; He opined that the cause of death.was hemorrhagic shock due to injury over head andface and the death was homicidal in nature. In further l's"^.. s>. Criminal Appeal No.l 130/2002 CDB) '$/ yss'tf^^e^ m^^^ investigation, after taking the accused/appellant into custody, his memorandum u/s 27 ofthe Evidence Act (Ex.P.6) was recorded which led to discovery of the weapon of offence i.e. spade, on which, a blood stained spade was seized under Ex.P.7. •» (3) After completion of the usual investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Sarangarh, who in "•f. turn committed the case to the Court of Sessions Judge, Raigarh, from where it was received on transfer by the III Addl. Sessions Judge (FTC) Raigarh, who after eonducting the trial, convicted and sentenced the accused/appellant, as aforementioned. (4) The conviction of the appellant is based upon the testimonies of the two eye witnesses namely Baijnath (P.W.1) & Neelambar (P.W.4) supported by the testimoriies of many other witnesses including Thanuram Patel (P.W.5), who lodged the First Information Report. The trial Court also found that the testimonies of these eye-witnesses were corroborated by. the medical evidence as also the memorandum and seizure made at the instance of the appellant and on the face of above evidence on record, the trial Court disbelieved the testimonies of the two defence witnesses namely Makardwaj (D.W.1) and Minketan (D.W.2). (5) Learned counsel for the appellant argued that the testimonies of eye witnesses are unreliable; therefore, the conviction based upon such testimonies cannot be sustained. (6) On the other hand, learned State Counsel opposed these arguments and supported thejudgment ofthe trial Court. Criminal Aopeal No.l 130/2002 (DB) ^. ^- S t^ y^ys^ > tB>i?sr'<;ln"'s!te-s (7) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (8) Ifwe look into the testimonies of eye-witnesses, P.W.1 Baijnath deposed that on the fateful day, he saw that a quarrel was going on between the accused and the deceased and when the deceased saw him, he was called by him and he said to him to see his fields and the drain. By that time Neelambqf', P.W.4 also reached to the spot and he also saw the fields. He suggested the deceased to get the dispute resolved through Panchayat. When he was just to leave the scene of occurrence, he saw that the appellant gave one spade blow on the skull of the deceased as a result of which the deceased fell down on the ground. Thereafter, he gave 3-4 repeated spade blows to the deceased. At that time also, Neelambar (P.W.4) was standing there. He rushed to the deceased andsaw many injuries on his skull and face and the blood was oozing out from the injuries. By the time, he could reach to the deceased, the deceased has already died. Neelambar (P.W.4) has fully corroborated the evidence of Baijnath (P.W.1). He deposed that when he reached to the scene of occurrence, he saw that the accused was having spade in his hands. At that time, Baijnath (P.W.1) was also present there. The accused gave one spade blow on the skull ofthe deceased, as a result ofwhich, the deceased fell down, and blood started coming out from the wound. Seeing all this, he ran away to the village to narrate the incidence and he disclosed this fact to Chitki, wife of deceased Chamar Singh and Bhogilal. (9) We have gone through the entire evidence of these two witnesses and we are satisfied that even on lengthy cross examinations ' of these witnesses, the defence has not been able to elicit any such •••Cl . •IJT iMiFi. ^^•^^ •^^!.l: ; ;Jt l% ?l Criminal Acpeal No.l 130/2002 (DB) 11'Lf;:-^^^ ;r;i"s-»jlsrt circumstance on which their testimonies may be discarded. In fact, these witnesses appear to be the natural witnesses of the scene of occurrence, because they have given almost similar versions regarding the chronological events, which took place at the scene of occurrence. The defence has not taken any plea of animosity between these witnesses and the accused. Even, no foundation has been laid down by the defence to challenge tjie veracity of these witnesses on any other ground like the ground of they being interested witnesses etc., therefore, the version of these two witnesses appear to be fully reliable. (10) The version of these two eye witnesses is further corroborated by the medical evidence of Dr.S.Toppo (P.W.8), who conducted the postmortem examination of the deceased and found the above 5 injuries. The postmortem report Ex.P.12 also supports the version of these two witnesses which shows the corresponding injuries on the skull and face of the deceased. The version of P.W.1 Baijnath and P.W.4 Neelambar is also corroborated by the version of P.W.5 Thanuram Patel, who lodged the FIR, Ex.P.9, which contains that he was told by Dhaneshwar that the deceased Chamar Singh was assaulted by the accused with spade on his head, as a result ofwhich, he died on the spot. (11) If we examine the versions of the defence witnesses in light of the above material available on record, they do not appear to be reliable. D.W.1 Makardwaj has, in fact, said nothing in support of the defence. So far as the incident part is concerned, he only deposed that during the course of investigation, the police took his signature on 2-3 documents and that the appellant did not disclose any fact to the Police. .iiilll) nB III BH niiii:i asK %t w '^^^y/ Criminal AppealNo.l 130/2002 (DB) :^?i^§£ The other witness Minketan (D.W.2) has tried to establish that it was heavily raining on the date of incident, therefore, every villager was in his house and nobody had gone to work in the fields. Such version of / this witness is too vague to believe his testimony. More over, he has nowhere said in his evidence that the accused/appellant was through out with him for whole of the day so as to draw an inference that he had never gone to his fields on the said day and had not participated in commission of the murder of th^ -deceased. The trial Court has disbelieved the testimonies of the defence witnesses and has recorded a finding that in faet the accused dealt with repeated spade blows on the skull and face of the deceased, who fell down and died on the spot. The spade used by the appellant was having the iron portion of 18 % cm x 19 cm and the wobden portion of 89 cm with a projected back portion of 4 V-i cms. If the. accused appellant has dealt with repeated blows by such an article on the head and face of the deceased and the consequent blows to the first blow were given when the deceased fell down on the ground after first blow, then the act of the accused/appellant shall amount to none less than an offence punishabte u/s 302 of IPC. (12) In the opinion ofthis court, in the facts and circumstances ofthis case, the trial Court has rightly held that the accused/appellant was guilty of the offence punishable u/s 302 of IPC and no interference is required in this appeal. Therefore, the appeal filed by the appellant has no merit. The same deserves to be and is accorctinaly_d^ismissed. Sd/- Snail K| ! ^—.»i 'stuiia Sd/- Chief Justice snaitKu^si^ 'Kaol