HIGH COURT OF CHHATTISGARH : BiLASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARIVIA AND HON'BLE SHRI R.L.JHANWAR. JJ. Criminal appea! No.1116of 2002 APPELLANT RESPONDENT APPELLANTS (in iaill RESPONDENT Etawaru @ Rajkumar, S/o Pyari Gond, aged about 25 years, resident of Chatakpur. Police Station Rajpur, Dist. Surguja. VERSUS State of Chhattisgarh, Through Police Station Rajpur, Dist. Surguja (Ambikapur) (C.G.) Criminal appea! No.1196 of 2002 1. : Jeetan Ram s/o Rameshwar Gond, aged about 28 years, Occupation- Agriculture. 2. : Efriwaru alias Rajkumar S/o Pyari Gond, aged about 25 years, Occupation agricutture. Both are the R/o village - Chatakpur, P.S. Rajpur, District Surguja (C.G.) VERSUS State of Chhattisgarh, 7^ CRIMINAL APPEAL U/S 374 (2} OF CR.P.C. Appearance: Shri Manoj Mishra, counsel for the appetlants. Shri D. K. Gwalre, G.A. forthe State. ORAL JUDGMENT (Passedon 07.04.2011) Per T. P. Sharma. J. Since Criminat Appeal No. 1116 of 2002 preferred by appellant Etwau and subsequent Criminal Appeal No.1196/2002 filed on behalf of Jeetan Ram and Et\varu are arising out of same Sessions Trial No. 266/2002, they are being disposed of by this common judgment. ^- 2. Challenge in this appeals is to the judgment of conviction and order of- sentence dated 08.10.20)2 passed by the Sessions Judge Surguja (Ambikapur) in S.T.No.266/2002 whereby and whereunder after holding the appellants guilty for commission of culpable homicide amounting to murder of Shankar in sharing common intention and concealing the evidence of criminal case, the Court be!ow convicted the appeltant- Etwaru under Section 302 of the I.P.C. and for the appellant-Jeetrin the Court betow convicted him under Section 302/34 of the I.P.C. ahd sentenced them to imprisonment for iife. Similarly, the Court below also cpnvicted the appeliants under Section 210 of the I.P.C. and sentenced them to undergo 5 years R.l. each. 2. Conviction is impugned on the ground that without an iota of evidence on record, the Court below convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, the present appellants assaulted Shankar by Spade (Fauda) and axe and caused his instantaneous death on 31.03.2002 bet^veen 8.00 to 9.00 a.m. at viliage Chatakpur,^ P.S. Rajpur. After commission of murder of Shankar, with intent to conceal the evidence of criminat case, the appeltants buried the dead body of Shsnkar in the field. P.W.1 Surendra witnessed the spot of incident. Thereafter, when the dead body was noticed by the villagers, then this witness v/ent to police station Rajpur and lodged F.I.R. vide Ex.P.1 and atso lodged merg intimation vide Ex.P.2. Investigating officer left for scene of occurrence and exhumed the dead body and thereafter summoned the witnesses vide Ex.4. Vide Ex.P.5 the Investigating officer also prepared inquest. Bloodstained and plain soils were recovered vide Ex.P.10. Request for conducting autopsy on spot was made. Dr. Rajendra Bansaria P.W.5 conducted autopsy vide Ex.P. 23 and found fotlowing injuries: i. Most of the parts of the body were eaten by animals. ii. One lacerated wound was foynd over the neck and its size is 10cm. x 3 cm. long. Injury was ante-mortem and Seft hand was missing. iii. Most of the bones were visibte. '6 / Mode of death was syncope as a resuit of excessive haemmorhage and death was homicidal in nature. During the course of investigation, accused Jeetan was taken into custody, he made disclosure statement of axe vide Ex.P.6 and the same was recovered vide Ex.P.7. Blood stained cloths of Jeetan were seized vide Ex.P.8. One packet stained with blood was sieved on the spot vide Ex.P.9. One blood stained Kudali was seized from Surendra vide Ex.P.3. Bloodstained cloths of the appellant-Etwaru were seized vide Ex.P.11. Sealed cloths of the deceased were also seized vide Ex,P.14. Spot map was prepared vide Ex.P.17. Seized articles were sent for chemical examination vide Ex.P.18 and presence of blood was confirmed on the cloths ofthe appellant Etwaru, Spade and cloths of Jeetan vide Ex.P.21. 4. Statements of witnesses under Section 161 of the Code of Criminal Procedure (for short "the Code") were recorded. After comptetion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Ambikapur who in turn committed the case to the Court of Sessions, Ambikapur. 5. In order to prove the guilt of the appellants, prosecution examined as many as 5 witnesses. Appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded their innocence and false implication. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 7. Shri Manoj Mishra, learned counsel for the appellants and Shri D.K.Gwalre, learned counsel for the State heard. Judgment impugned and record ofthe Court below perused. 8. Learned counsel for the appellant vehemently argued that conviction is substantiatly based on the evidence of P.W.1 Surendra, who did not state anybody about the incident for 5 days. Evidence of P.W.1 Surendra does not inspire confidence and trustworthy and is not sufficient for drawing definite conclusion that appellants have committed the aforesaid offence. He further argued that as per F.I.R., present appeltants ®S| \^ ^.^ have assaulted deceased Shankar by axe but as per evidence of P.W.1 they did not cause any injury to Shankar. Jeetan wa.s holding Shankar while Etwaru caused fatal injury to the deceased. Evidence relating to act attributed to the appellant Jeetan is contradictory and no definite conclusion would be possible on the basis of contradictory evidence relating to act. 9. On the other hand, learned counsel for the State opposed the submissions and submitted that the evidence of P.W.1 Surendra inspires' confidence and trustworthy and is safe to rety upon. He was not silent for 5 days. As per evidence and material collected on behalf of prosecution, he has seen the assault made by the appellants and thereafter he \vas not sure whether Shankar died or alive. When the dead body was found on 4th of April, 2002, then he himself has lodged report on second day morning at 9.30 a.m. Even otherwise the defence has not asked any question relating to his silence. His evidence is sufficient for conviction of the appellants for commission of murder of Shankar. 10. In order to appreciate the arguments advanced on behalf of the parties, we have perused the evidence adduced on behalf of ihe prosecution. In the present case, homicidal death as a result offatal injury found over the neck of the deceased has not been substantially disputed, by the appellants but on the other hand established by the evidence of P.W.5 Dr. Rajendra Bansaria and autopsy report Ex.P.23 which revealed that injury caused to the deceased was ante-mortem and death was homicidal in nature. 11. As regards complicity of the appellants in crime in question. the conviction of the appetlants is substantially based on the evidence of P.W.1 Surendra. As per his evidence, he has seen the incident and at the time of incident, appellant Jeetan was holding Shankar and appellant Etwaru assaulted deceased by spade over his jaw and neck. Thereafter, both the appellants left the place of incident and threatened Surendra. As a result of assault made by the appellants, Shankar fell down and he was not in a position to talk. As awitness, P.W.1 Surendra was under threat and went inside his house. On second day, he informed about the incident to one Vishnu and at that time the appeltants were shouting after / f ^- ..^ ../ / / consuming tiquor. House of Shankar was closed when this witness and others saw towards his house about the arrival of Shankar's mother, who was present in village. At that time father of appeltant - Jeetan was present and told this witness that let the mother of Shankar return and lodge report thereafter. On the next day. Maniram informed about the partial buried dead body and then on the next day he went to police station and lodged F.I.R. Defence has cross-examined this witiiess at length and has suggested that on account of previous enmity this witness has falsety implicated the appeltants, which this witness has denied. Defence has atso suggested this witness that on account of darkness. he v/as not in a position to identify as to who was quarrelling. As per evidence of this witness, he was present at the time of incident. as a result of injury, his uncle Shankar fell down and Shankar was not in a positionto talk. This witness was threatened by the appellants, then he went inside his house. On 3 day the dead body was found in a field, then he lodged F.I.R. on 4 day. Evidence of this witness revealed that after the incident the dead body of Shankar was not found near the place of incident and it was missing. On 3rd day after incident, Maniram has seen the partial buried dead body in the filed. This shows that P.W.1 Surendra was not sure about the death or fatal injury of the deceased and the dead body of the deceased was seen only thereafter and he has lodged F.I.R. In these circumstances. it is difficult to presume that this witness was silent for 3 - 4 days and has not informed anybody about the incident or has not lodged report. However, on the ground of delay in lodging the F.1.R,, case of prosecution or evidence of P.W.1 Surendra cannot be discarded. As per evidence of this witness, the appellant Jeetan was hotding Shankar and appeltant Etwaru has caused fatal injury by spade. Thereafter, the appeltants have threatened this witness and then the dead body was found missing. The incident took place in front of house of Shankar i.e. deceased. As per inquest report Ex.P.5 Investigating Officer who has prepared inquest report has noticed the presence of blood drops from the house of the deceased upto the place where the dead body was found partially buried. This is sufficient to infer that dead body was taken from the place of incident i.e. in the house of Shankar to placewhere it was buried. As a resutt of injury. Shankar fell down and he was not in a position to talk which shows its seriousness and subsequently the dead ^i^- ^ ^' 'y '^•^.^ ....^' body was found buried in the field. These dircumstances are sufficient to draw an inference that only these two appellants have buried the dead body in the ditch in order to conceal the evidence of criminal case. 12. As per evidence of P.W.1 Surendra, present appellant Jeetan was holding the deceased whereas Efr^aru assaulted him but as per Ex.P.1 F.I.R. lodged by this witness, Jeetan also assaulted by axe to the deceased and he was holding the deceased. The evidence relating to aet attributed to appellant Jeetan is contradictory and it is difficutt to hold that whether Jeetan assaulted the deceased or was holding the deceased at the time of commission of incident. In the absence of any definite evidence, it is difficult to hold that Jeetan has participated in the commission of aforesaid culpable homicide amounting to murder of Shankar. If it is considered that at the time of commission of incident Jeetan waspresent, then even the same is not sufficient for his conviction but in sharing common intention, the second part of offence i.e. secret disposal of dead body by burying the same in the ditch shows his involvement in criminal offence which is punishable under Section 201 of the I.P.C. The evidence relating to Jeetan as stated in the evidence pf P.W.1 Surendra relating to his involvement is separable from other piedest of evidence and rest of the evidence of P.W.1 Surendra is safe to reiy on for the conviction ofthe appellant Etwaru. 13. While convicting the appellant Etwaru under Section 302 and 201 of the t.P.C. the Court below hasnot committed any illegality but while convicting the appellant Jeetan underSection 302/34 and 201 ofthe t.P.C. the Court has committed grave illegality and has not considered the insufficiency of evidence. 14. For the foregoing reasons, Cr. Appeat No.1196/2002 is partly allowed. Conviction of the appellant-Jeetan under Section 302/34 of the I.P.C. and the sentence awarded thereunder are hereby set aside whereas conviction ofthe appellant Etwaru under Section 302 ofthe I.P.C. and the sentence awarded thereunder are hereby maintained. However, conviction of both the appellants under Section 201 ofthe I.P.C. is hereby maintained. Appellant - Jeetan was detained in jail since 7.4.2002 till 8.10.2002 and again from 8.10.2002 till his release on 25.8.2004 i.e. two :<:~^•i: xi.-,.^r^, ? ^^^'^ ';. < ^' ••:( <'.;•-..•..-•"' . years four months and eighteen days whereas appellant - Etwaru was detained since 7.4.2002 titl his release on 25.8.2004 and again from 22.2.2010 till date. The sentence of 5 years each R.l. awarded under Section 201 of the I.P.C. to both the appellants is reduced to R.l. for the period of their detention i.e. two years four months and eighteen days incarceration of Jeetan and three and half years incarceration of Etv/aru. Appeltant - Jeetanbe released from jail, if not required in any other ca^. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge