CF0000062193 ^w^y^w^ ^ ^'^'^ ^ ^ <. s4^^nn^<?^»n^^^^.^..^-^w:^-^^..^'^/^^•^^- ffi_IHB H3]&Il_COL%T OF JIIQICATQBE A3? JABALP® Crlminal Appeal No._^^_of 1999 APP^UJSI ^-^^T ' EB^'''"'..^- ^^^ RESP08]3@KT BhondUi son of lara^ aged 5^ years^ restdentof Tillage HflQai.ilai, post: &P<S* Bhanpuri ©istt.Bastar(Mp)« Tersiis State of M.P. throygh p«S» Urla, ©istt.Raipur(®.P.) CaiMIHAL APPEAL IMDE& SECTIOH 574(2) ©F'E|ffi_C©DE_©F_ G&IMIH^L ^©^EDURE ^Jh^ E^ XI-HC-78 ^n^T^Tf^it^ cT8TT3TT^T$b^lcb (Tm^TT5S*IIcb 3^ ^TFTT^PT, ^TH^4l<o, f®«ni<My Cr^.^. ^^]^ TW————*^ 200 ^ 3ni(?T q^ra? (^crf^^r) ^<n"^K^1^r^?T <=hl^Id41^ ^i^<nT^'tet^t<^i^i< ^3Tf^H3T^?T DB: HON'ttLB 8HRI L.C. BHADOO AMD HON*BLB feHRI DHIRBNDRA MI8HRA. JJ Crinj Appellant Responder^ tnal Appeal No. 668/1999 Bhondu Versus t: State of Madhya Pradesh (now Chhattisgarh) Shri Sachia Singh Rajpjut, Shri G.D. Washwani, A^3 OR {: Per Dhirendra Mishra, J Advocate for the appeliant. idl. Public Prosecutor for the State. L JUDGMEWT Accused Bhondu has 3-12-2006) preferred fhis appeal under Section 7th Additional Sessions Judge 374(2) of Cr.P.C. agamst tb|e judgment of conviction aad onler of sentence dated 5-2-1999 m $.T. No. 234/98 passed by the leamed Kaipurwhereby the ieamed Additional Sessions Judge after holdiag ^ccused-appeUaat gmlty for commission of offence punishable under $ection 302 of I.P.C, sentenced him to undergo imprisoument for Ufe tii ofpayment offiine, to further i^ndergo R.I. for six monfhs. and a fine ofRs. 1,000/- and in default <<^' XI-HC-78 w^T^rRRf^ cCTW^TsbHI^ v-^ v>-^ S^T^INId^, ^Tfl^Ko, (^<nwy <41+1^1 ShHlch ^ 200 311^1 ysi* (<??f3^ar) ^<TTW5Hf?cf^n^T yoiinger brother Siimaat alias <=hl4?d41^ ^l^dT^te^'<Rl«l< ^3:rf^R'3:n^T 2. Case of ffae prosecuti^n in brief is that on 10-3-1998, complaiaant Kamal Narayaa ^ahu P,W, 2 lodged a report fhat his Konda is a nientaUy retarded person. In fhe eveniag when he was i|i fhe laae of viUage, some feinale folk naaiely Gaagabai, Sahotui B\ shoutuig aad mfonned that a near a taak whereupon he nmtiediately proceeded towards fhe tanlc, he saw that crowed had gafhe club in both of his haads and aad fhrowmg stones towaids stones etc. ia fhe process ofcal d, Savitri Bai, Vimla Bai etc. came iidefis assaultmg Alakhram ia a field red and one thief holding an axe aiid also stone was ranniag after viUagers them. ViUagers also started peltiag ofcal|ching hold ofhim aad Bhiikhaa Sahu caught hold of him, however ^ie managed to free himself. However subsequently he was caught ^pid fhereafter he was beaten by fhe villagers. At that time, Narsmgl^ Kenvat asked bim to see his brother Konda whefher he is dead or apve, whereupon he saw Sumant aUas Konda lyiag on his stomach aa< pl blood was ooziag from his neck. On the basis of fhe rcport of the a|)mplabiaat, iaitiaUy Dehati Aalishi of Amiexure P"5 was registered a^id thereafter on the basis of Dehati Nalishi, F.I.R. ofEx. P-20 was r^gistered. Inquest over fhe dead body XI-HC-78 3TT^T°FTf<^ich ^^fT^i ($-.' *11+K'n j;h*1|ch 3:^';':2TPTRPT, ©Tn^^lto,(cldl-y^ .c^:.^^o-^^/^ ^[ 200 v^^ ?;E<1TW^f?cT3T1^T body of Konda was sent f< cbi^f<n4)Ti ^i^<viT^'teT^t'<f^«i< ^3Tf^T3T^?T of Konda was performed aftc|r due notice to witaesses aad thereafter Raipur where Dr. Sanjay nt Ki autopsy to Medical CoUege Hospital, morteni aad submitted his ^eport of Ex. P-29, During post mortem, he found 11 injuries over P-7 were taken into possessj P-8. A club was taken ia lumiar Dadu (P.W, 26) conducted post the person of fhe deceased, During iavestigation plaae soU an|d blood stained soU were taken in.to possession vide Ex. P-3. On^ shirt vide Ex. P-6 aad one axe vide Ex. lon from Kamal Narayaa Satiu. Sliepers, Lungi, Shawl and tenycot s^iirt were taken mto possession vide Ex. LO possession vide Ex. P-9 i5:om Keju Maiiara]. Spot m.ap of Ex. p-10 was prepared, Seized articles were sent for chemical exainiaatio^L to Forensic Science Laboratory, Raipur vide Ex. P-26, After coinpl^tion of iavestigation, charge sheet was ffled in fhe Court of Judici^l Magistrate First Class, Raipur who ia tura committed the case td fhe Court of Sessions Judge aad tiie saaie was received on traiisj|er by Additional Sessions Judge, Raipur for tdal. Charge under Secti|on 302 of I.P.C. was framed ^amst the accused who adjured his F.T.O. XI-HC-78 3T1^H'^Tf^TW cTSTT 3TTW ^HTO 3:°9T:::lwn^pT, tSTH'M'Ko, (cidi'y^< , Cr-A.^0. C>^h^ +ii*iw st»+iic»»•*•****»»***•«*«*•*** ^r^ 200 3ll^l ^si«t»(1ic<^a«^6T) ^c<TTW^f?cT3TI^T chi^^41-i ^iH<nT^?teT^t<f^«i< ^3Tf^1T3TT^T 3. Pmsecution ia ord^r to establish fhe charge against fhe accused exainiaed 28 witn^sses, thereafter statement of accused was recorded under Section 31^ of Cr.P,C. ia which tiie appeUaat denied fhe circunistaaces appea^ing again.st him io. prosecutiou case, However he stated that surrounded him aad were false implication. He also |at fhe tmie of iacident, vfllagers had |>eatmg him aad he pleaded uuaocence aad ^xamined defence witnesses Sampat Ram aad Gadra Rani in hte d< fence. Learaed tdal Court after hearing counsel for the respectiv^ parties, convicted the appeUant aad sentenced Tiim as above, 4. We have heard leajmed counsel for fhe parties. We have perused tiie inipugned judriment and record. 5. Learaed counsel for ^ the appellaat submits fhat conviction of the appenaat is based OE| statement of P,W, 10 Narsmgh who is aUeged eye-witness of fhje iacident It is farther based on the statements ofP.W. 21 Smt| and chasiag viU^ers at Gangabai, P.W. 2 Kamal Narayan, P.W. 5 Alakhram, P.W. 1F Santui|am Sahu and P.W. 16 Bhukhan who arc witaesses of circumstance^ fhat fhe accused was beating Alakhrami \he tiine of iacident. However, jfroni the XI-HC-78 W^TcpT^Jch <W 3TI^T $F)HT^ v h^N^ cy ^^ *11+1WI St»*1ich r^Nld«,^^1$, I®tdiyl|< Qr,A^o (^^/^ ^ 200 t5T Tsra? (i^c<i^<s<<^T) ?^TTW ^f^T 3TT^T evidence of fhese witaesses place of iacident is establish|ed in causing death of fhe witaesses except P,W. 2 earUer statements, ia fheir cross-exaimnation, Klamal therefore |fhey aay incruniaating circuiasta|ice him with fhe offence ia scrutinv of fhe evidence of fbese not reUable witaesses as thek?r fheir exammation-m-chief b^ by the defence and the Coiii|t statemLents of fhese witaessds 6, On the ofher haiid, 1( the icapugned judgment subtnits place of iacident is estabU^] iacident by fhe villagers aa^ poUce who reached fheir ijn: Narsmgh is eye-witaess wtj^o chl^t<n4i'l WT^ff ^ fe^ ^RTK ^3Tf^T3TT^T |fhough presence of the appellant at fhe lishjed, however iavolvexxient of fhe appellaat ^ecease is not proved. Almost all fhe Narayaa have resiled from their have been declared hostile, however Iprosecution has not been able to eUcit agaiast fhe appellant which connects qu^stion. He further submits that by close witaesses it is evident fhat they are have made contradictory stateinents in fbie prosecution and cross-exaimnation below was not justffied to rely upon fhe ^amed counsel for fhe State supportmg 3tnits fhat presence of ffae accused in fhe i^hed, He was caught firom the place of they beat him aad handed over to the i|nniediately after the incident P.W. 10 has seen fhe incident and who has -f^- L[^ XI-HC-78 W^T ^r f^rf^ crSTTW^T$b^ich ^ -' *11N^I J»»^RT^ 3^Tr^i^i<n«,^T{I<M^<O, t®i<r<i<iy ^_ cr.a-^'^fc^9d) ^[ 200 3TT^5T<raW (^^3^!ET) ^cTTW^cf^TI^T <=bi^t<n41'i ^i^cnT^:te^t'<i^^K ^3Tf^T3TT^T stated ia his cross-exaccunation by tihie prosecution that fhe accused was fhe person who was pre| described by him who assaufrted fhe deceased, 7. Homicidal death of Ko|ada alias Siiniaat is not io. dfepute. Even ofherwise lookiag to fhe statement ofthe P,W. 26 Dn Sanjay Kumar Dadu who has conducted deceased Sumaat and has a result of head iD^juries, ioj ^ent ici fhe place of iacident aad fhe fliief post m.0rtexui over the dead body of bund foUowuig injuries on his person of deceased aad has stated th^t cause of death is excessive bleediag as juries were caused by sonie hard, sharp aad heavy object, deafh of ^ieceased was hoiaicidal in nature as fhe injuries present on person| ordmary coiirse of natur^ established:- of fhe deceased were sufficient in fhe to cause deafh, homicidal deafh is i Impact abrasio3|i over niasion ia middle size 2.5 x 0.5 c.m. vertical. ii Impact abrasioiji prcsent just above medial end of right eyebrow size 1,5 c.m, ||liameter uregular, lii iaipact abrasic|n over laid forchead rcgion sUghtly towards right size 3.0 ^m diameter irregular. (" '3°.-' XI-HC-78 ^n^n'oFT^icb cTSTT 3TR?T ^TW h^-- tTTWTF a»*<Tcb 3^'^NIC1^,\9TH<111<?, [®<^1Wy ^.or;A:.^.?..^.^,,, 3TI^?T q^? (^d^cK^T) sg^TW^Nw^T w. Multiple mipac1| tuberosity aad around pinhead to 1,5 cni diaxA< v. Impact abrasion size 3 x 0.3 c.m. trans^ vi. Incised wound p^ above tip of ri^ht iaas4: Slicmg medially smd flai vii. Anofher iacised \t abmsion present over r^ht tibial |m aa area of 8.0 c,m. size vaiyiag fi-om ;ter UTegular. [prcsent just above left Tibial tuberosity terse. size 2.5 x 0.5 c.m. vertic vui, Auofher iacised eJ obliquely vertical size 3 ix. Anofher incised 8 extendiag from its sUcing medialty, flappin^ x. Lacerated wound mastoid aiid 2.0 c.m, c,ni. diameter irregular <=t)i^?ci41Ti ^ii^dT^fte^^^K ^3Tf^T3T[^T ;sent on r^ht parietal region, 10.0 c.m. s1|oid size 5 x 0.5 c.m. obliquely verdcal. |3ping lateralfy scalp deep. round 1.0 c.m. medial to injmy no. 6 |tal, scalpdeep, ^tendmg fiTom lower end ofmjmy No. 7 (t 0.5 c.m. scalp deep. ^oiiad present just medial to m]uiy no. n^id obliquety vertical size 4 x 0.5 cm lateralfy. |triangular 10.0 c.m. above left tip of p^sterior on left parietal region size 1.5 sjcalp deep. P.T.O. XI-HC-78 3:n^?T ^>Tf<4i4) c^TT3TT^T$b^l<=b h*"^ \/' '' ^; s 3^T ^( M l^t^^ Wl^41 <o, [®1<rt l^y, +11+1^11 $b+1|ch ^200 3<i^i ^cb (^di^<si<^T) ^FcTT^K ^f?cT ^rTI^T xi, Lacerated wound c.ni, diaoieter irregula|r^ underaeath mjuiy scal^ right lambdoid suture goiag towards If, Sid^ lambdoid suture than^l foreann magnum size of size between fhe U] 4,0 c.m, below injury no. 10 size 3.5 ila|r, scalp deep. Scalp heavily ecfymosed showiag linear fracture extending from. |at point 5.0 c.m. right lateral to lambda ia traasverse plane crossing fhe lefifc downwards upto left lateral border of [20.0 c.m.long. Another depressed piece Udibs of lainbdoid suture size 6x2.5 cxn traasverse irregular. M 8, Conviction of fhe appepaiit w^s prosecution, fhe incident saw a quarrel between fhe a<[ scene of occurrence shoutin^ near taiik. To estabUsh <=bi^I<<i41-i ^i^<nT^te^<^<-di< ^^T^TT^n^T temages healthy, is based on fhe stateiaents of P.W. 10 Narsingh, who has seen ti|ie incident aad also on fhe statement of P.W. 2 Kamalaarayan Saliu, 16 Bhiikhan and P.W. 2l| P.W. 5 Alakhram, P.W. 11 Santu, P.W. Gangabai. As per llie case of fhe first witaessed by women folk who ^cused aad Alakhram and fled fix^m the fhat sonie fhief is assaulting Alakhrami f^is, prosecution has relied upon the statenient of P,W. 21 Gaagal|)ai, who has stated that she along with ofher ladies ofvill^e had gor(e to pick up cow duiig m the field where XI-HC-78 -. ^' ^n^T^TfN^ ?raT3TT^Tg?qW h-^ 3%T ^T'T^I^'STi^7^,^^ 9 <-nfl^ll Sin^icn ^200 341^1\l5|tb (<i«^<sK^T) ^RTrW^fScTW^T fhey saw fhat one fhief hold cbi«Td41^w^'^ fe^ <^I^K ^ 3:rf^T OT^T pig brick m his haad was comiag fnom iront side. The accused prc^ent in the Court is fhe same person whom fhey had seen m fhe f^eld. He after seemg fhem chased fhem by showing bnck, as a rcsi^lt of which they fied towanls vill^e shouting thief, fhief. At ftiits stage, she was declared hostile. In par^graph 4 of her statement,] she has stated tiiat they had not seen the fhief in fhe village before ^ad it is correct to say that fhey could not recognize the thief. She Ii|as further stated that it is true to say that she is witaessiag the ac|cused for fhe first tioie aiid she had never seen him beforc. P.W. lp Naraiagh has stated tihat on the date of iacident, women folk of|viila^e were comiag from taxik side shouting fhief, fhief, whereupo|a he along wifh Bhola went there and on way fhey niet Parmeshwar aad Munu. Near the tank Alaldiram also met, Alakhram iaformed t|iat fhief has come and he is chasing persons. He further stated tiiall he cannot say with certamly that he was the same person or not|because he fled firom the scene of occurrence. He had fiirther sta1|ed fhat who has assaulted Konda, he does not rccogxuze. In cross-ex^mmation by the prosecution ia para 4, he has farther stated fhat th|e person who was prcsent there w^as XI-HC-78 W^Tcpr^i^ cPTT3TR?T$h^|cb d-a=[ '<11<IIC1*1, WTH^'Ko, (s)diy^< 10 fll+1^11 St»*<|Ct» ^ 200 ^T q^q? (^q^q^r) ?;^<TTW^f5cT3:n^T beating Konda. Thus we flnd fhat this witaess is not a reUable witaess as he has taken fhereafter ia cross-examia^ d^fence cross-exammation by the to place reliance upon fhe 9. P.W. 11 SaD^turam S|ahu has stated fhat the accused was stfetement holdin^g club and axe and advanciag towards hifn and gafhercd aad fhey stated that fhe accused pres| had done fhe iacident as a f| surrounded 6 ofcross-examination by ftj say fhat on fhe place ofmci(j fhere, the accused present whom he does not kaow. chased fhein aad the accud chi<Mfd41Ti *4i^c'iT^:tel:^'<(^«« ^3Tf^T3Tr^T a soxnersault ia examiaation-ia-chief tion by tiie prosecution and agam in aad Court below was not justified offhiswitaess. j^ne stone, he was chasiag the persons [was fhreatening fheni, GraduaUy crowed him and he was caught He fiuther |ent m fhe Coiirt is fhe same person who f|iief on the date of iacident, In paragraph [e defence, he has stated that it is tnie to ^ent, soine 100-150 persons were present |n fhe Court was caught. Who assaulted |P.W. 16 Bhukhan has stated that on hearing of fhe incident he ^ent towards fhe taak and reached fhe field where Sheshnarayan u|iforDaied Tiim fhat fhe fhief is there at a distaace of 2-3 field, Whenl the villagers advaaced towards him, he ed who is present m Court is fhe same c^ XI-HC-78 W^T^Tf^TT^ cT8TT3TI^T$b^ich Fn~^ *11*1^11 $bHT<^» 3^T;:^F[l^PT, ^Tfi^41<o, KdKiy ^^M^<a^/°>^ ^ 200 11 3TT^?T <T3?R' (licli^<s|<^T) ig^TTW ^cT ^n^fT person whom he had seen as| stated fhat when fhe villageji accompaaymg them, howeveit he rctunied his house, He cross-exaxnination by fhe pr^. fhe prosecution he has stat^d asked by Toprsmi Sahu aad kiUed a person by axe, how^ver whom he has killed. In cro^ stated fhat when he reachdd Bhodu at a distaxice of 2-1; gathered fhere, fhey had reacf thief. It is farther stated fhatl reached towards him, he tool^ embellishiag in his defence he caught him fronx behiad the axe from him, In para 9, accused did not make confesj he has killed by aa axe. cni^f^41ri tTm^rf^ fe^t <fa<^« ^3Tf^R'3T1^T a fhief m viBage Guma. He has further rs went to apprehend Bhodu, he was Bhodu chased viUagers aad fhereafter ^as declared hostile aad subjected to >secution and m. cross-examiaation by fhat it is true to say fhat on beiiig others, Bhodu had stated fhat he had he does not recognize fhat person is-examination by the defence, he has fhe place of iacident, he could see 3 fields, some 150-200 persons had bied towards him shouting fhat he is the it is true to say that when the persons up an axe tying m the field axid started when he was trying to save hinisetf, after them Kamal Narayaa snatched fhis witaess has fiirther stated fhat the atad a|nd don before Topram Sahu aad ofher fhat ) XI-HC-78 3TT^rT ^T f^TT^ cCTW^Tsh^icb F^' iiiii^. ^^ •^Nl<1<4, t?TQ<-l<t<o, {s|C(t'H^< 12 +11+1^1 Sti+lich ^ 200 ^i ^ra^ ?^<rreR:^rf?cr3rTT^T 10, P.W. 2 Kaman Naraya|n is brofher of fhie deceased, He has stated fhat after leamiag jfroija wonian folk about fiie thief fhat he is assaulting Alaldiram in the where 40-50 people were ga surrounded fhe fhief, The and aii axe in other aad was SuiaaD^t was lyiag. WIien he chased him, Sin.ee his brofh^ [field, he went to the place of iacident (hered, out of fhem 10-20 persons had acc|used was holding stone in his one hand [standmg m fhe field where dead body of who were fhe persons presei^t with axe. The crowed prese4 aad one person from viUagje Kaaialnarayaii caught him axe as a result of which ^ h|e W^LS fhereafter viUagers snatched accused, Atfhattiine, poUce Merg intimation of Ex. P-4 P-5. In cross-examiaation, iacident and he had received chasiag persons aad beating <=bi^I<n41-i Hi*4cnT^tel^'<(^i«i< ^^STf^TW^T reached near fhe accused, ffae accused T was dead he was not in senses as to there when the accused was chasiag [t ihere pelted stones towards accused Pataura caught him and fhereafter )[^ neck. The accused assaulted him by sustaiaed itijury over his neck aad fhe axe axid fhey started beating fhe feached on the spot Qn his information, recorded as also Dehati Nalishi of Ex. Die admitted fhat he has not seen fhe |only fhis mformation that soiae thief is ^lakhram, "^ XI-HC-78 3TT^Tcprf^ri^ cy^T3T1^Tsb^ich Vv *11+1W »»*TTct» 3^T ^NKrt^, ^T(1^4l<o, (®«nwy _ r^^-^- u^l^_ ^*^./^.:.,........;^ 200 13 3Tf^Tcra"9T (<5^t3^ST) ^RTTW^iN^n^T Ihat 11. We have already held witaess and evidence of P.Wt. P.W. 16 Bhukhan also does nbt given dijGFerent version in theijr evidence of P.W. 16, we fin4 fhan 100 rushed towards fhd fhe field aad waved fhe circuxnstances, the axe was y by the prosecution, There is regardinig pardcipation of fhe| Consideriag fhe fact fhat cause deafh of tiie deceased l^ing ia the filed has not been explained i|io credible evidence avaOable on record adduced by fhe prosecutio|ii considered opiaion, fhe Courf ofdoubt to the appeUaat 12. On the basis of abovel opiaion that the iastaat be atlowed, Accordiagty thc judgment convicting the app4 chi^f<n41<rt ^iHdT^tec^'<fa<^i< ^3ri^R'3TT^T P.W, 10 Narsmgh is not a reUable 5 Alakhraxa, P.W. 11 Santiiram. aad iaspire confidence because fhey have statexnent. Ifwe closefy scrutinize fhe that when villagers nuinbenng raiore accused, he picked up aa axe lyiag ia same io. his defence. Under what fhelre appellant ia assaultmg fhe deceased, was no motive for fhe appeUaiit to sjnd further considermg patchy evidence to establish fhe charge, in our below ought to have extended benefit discussion, we are of the considered appes|l preferred by fhe appeUant deseryes to appeal is allowed. The impugned ^Uant under Section 302 of I.P.C. aad '^t XI-HC-78 W^T^f^TW cT8TT3TT^T$b^|cb f^k) r V-\' <Sxc| H1+<dT^»*1|ctl r<<i<<w^i, t$>TH^4i<o, f6«niy^< ^,^ M^- G(.^l^>^ ^ 200 14 t?T ^ra^F? (yii^<si^) ^cTTW^cTW^T sentenciag him to iindergo 1000/- is set aside aad it i^ Uberty forfliwith if not require|d Ghi^f<n41<r< ^iH<nT^'tel:^'<Rt<^i< ^3:rf^iT3:n^T Imprisoninent for life wifh fine of Rs. directed fhat the appellaiit be set at m aay other case. Sd/- L.C, Bhadoo Judge Sd/- Dhirendra M:ishra Judge (^ ^^ P.T.O. '>>