I-HC-78 3^ ^i^ii^i^, ^Tn^i^Ko, fsi<ni^< ^ ^^g^&..A:.(.?.? 311^1M5|tft ('{cli^cl^ST) ^ 200C^ 3T]^T^rf^T cT§TT3TR?T^RT^5 1; IRESPONDENT/: ?^TTW^f?cT^?T KPPELLANT/: Accused) (In Jail) (Prosecution) {Criminal appeal under Sect^on 374 (2) ofthe Code ofCriminal l^cedure} Prl Division Bench: Hon9ble Mr. L.C. Bhadoo and Hon'ble Mr. Sunil Kumar Sinhal, 16-4-2008 Miss Minu Banerjee, coun^ Mr. Ravindra Agrawal, Pan Oral judgment dictated on | L.C. Bhadoo, J: This appeal is directed against t| sentence dated 11th September, Judge, Dhamtari in Sessions Tri{ learned Additional Sessions Jucl; guilty for commission of offenc|( committing the murder of Man^ him to undergo imprisonment f|: ^i^Icn^-i Hm^if^ te^t<Ri^i< ^3Tf^T3TI^T ersus,- Rohidas, S/o Dengaram Gond, aged 45 years, R/o Village Borai Kotpara, P.S. Sihava, Distt. Dhamtari (C.G.) State of Chhattisgarh, Through Distt, Magistrate, Dhamtari (C.G.) JJ. |el for the appellant. el Lawyer for the State/respondent. IDais. le judgment of conviction and order of !002 passed by the Additional Sessions il No.287/2001 whereby 85 whereunder ^e after holding the accused/appellant under Section 302 of the I.P.C. for i Bai, Kunti Bai & Tejram, sentenced >r life and pay a fine of Rs.1,000/-, in P.T.O. I-HC-78 3^ ^I^M^, ^TH<r1JI(o, Rldl^< *11+1C11 Sh^lch 3TT^TXRR7 (({c|ijs|<^") ^ 2003> W^T^TR^Jch cT§TT3TT^T$hHlcb T ?^TTW^?cT^TT^T +l^fd^^ WRff ^" fei^<Rf^|< ^ ^3T{^T3Tr^T jdefault of payment of fine to [separately for each murder. H|( learned Additional Sessions Jud^ [run concurrently. Case of the prosecution, in briefj 11 p.m. Roop Singh lodged repoft in Police Station Sihava to the effect that on that day, he went to U^argaon and returned to his house at about 7.30 p.m., he saw that i^ Fagnu Ram & Soona Ram were| further undergo R.I. for one year, ^wever, in para 43 of the judgment, ke ordered that all the sentences shall is that on 30th March, 2001 at about nobody was in the house, villag^rs and his daughter Hembai informed him that at about 3 p.m. Rohida; and thereafter, he attacked hei with axe and has committed th^ the dead bodies ofhis family m^ saw that the dead bodies of his| i front of his house former Sarpanch, sitting. When he entered his house, ^ first quarreled with her mother, sister mother, sister Kunti & child Tejram Ar murder. Thereafter, he went to see mbers, along with the villagers and he wife Manai Bai, daughter Kunti Bai & Tejram, five months' child of Kjjinti, were lying in front of the house, there were injuries on the bodi|es of the deceased persons and lot of blood was present on the injurie^. Receiving the above report Del| Officer, Police Station Sihava re^ Merg intimation Ex.P-27, Dehat| 8s Dehati Merg Ex.P-4. The In| occurrence, after giving notice the body of Manai Bai, Ex.P-8 lati Nalishi Ex.P-1, the Station House ;istered F.I.R. Ex.P-22. Merg intimation Ex.P-26 was given by Roop Sinjgh. He also gave Dehati Merg Ex.P-2, Merg Ex.P-3, Merg intimation Ex.P-28 |vestigating Officer left for the scene of ix.P-5, he prepared inquests Ex.P-6 on 3n the body of Kunti Bai 8& Ex.P-10 on P.T.O. Xl-HC-78 3^ ^TPTI^PT, ^Tfiy^|(g, Rldl<-lll< ffl^g^..fe,,i..(^.S^. 3ll^l^5|tt»(^f^^ST) ^) ^200 3 ^?T^)TR^i<=h ^l $b^T^5 4. ^<TrW:^rf?cT3Tr^T [the body of Tejram. Body ofd\ Imortem examination under Ex.PI Dr. S.K. Nag (PW-7) conducted death was due to head injury in| report Ex.P-13. Body of K^ cbi^?cri41-i ^iHc?iT^te^<^di,< ^3Tf^T3TT^T ; ^ceased Manai Bai was sent for post- -23 to the Govt. Hospital, Nagri where ^ost-mortem and opined that cause of Lra cranial haemorrhage. He prepared nti was also sent for post-mortem ^ examination under Ex.P-24 to povt. Hospital, Nagri where the same doctor conducted post-mortem head injury intra cranial haem^ Body of Tejrani was also sent fo^ 25 to Govt. Hospital, Nagri w^ mortem and opined that cause haemorrhage. He prepared repcf seized under Ex.P-18 from the was prepared. Bloodstained soi| Opinion of the doctor was so^ injuries found on the bodies of |and opined that cause of death was |)rrhage. He prepared report Ex.P-15. post-mortem examination under Ex.P- [ere the same doctor conducted post- |of death was head injury intra cranial |rt Ex.P-17. Weapon of offence axe was place of occurrence. Site plan Ex.P-19 & plain soil were seized under Ex.P-21. ght under Ex.P-29 as to whether the the deceased persons could be caused by the axe in question. The docj:or opined that the injuries found on the bodies of the deceased personsjcould be caused by the axe in question and the axe was stained witH blood. Seized articles were sent for chemical examination to Forei|isic Science Laboratory, Raipur under Ex.P-30 from where report Ex.P After completion of investigatio^ Judicial Magistrate, First Clas^ case to the Sessions Judge, Sessions Judge received the ca^ -31 was received. \i, charge sheet was filed in the Court of >, Dhamtari, who in turn committed the Raipur, from where learned Additional »e on transfer for trial. P.T.O. €S3^, g[ ~"^ ^, I-HC-78 ^l+ldl Sh*1|ch 3^^j^l^1^, ^Ti-)^|<g,;f^TRTy •^"^•^-^.oo^ 3ii^l <.(5l«t»(l<ilijcl<^T) W^T^T^TT^ cTSTT3TT^T$t)^|cb ^-^- - ^-' 6. 7. 8. ^<TTW:^f?cT3n^r! |The prosecution in order to e; examined eleven witnesses. 81 under Section 313 of the CrJ appearing against him in the prc innocent, he has been falsely im] Learned Additional Sessions Ju< parties, convicted and sentence< We have heard Miss Minu Ban| accused and Mr. Ravindra Agrs the State/respondent. Miss Minu Banerjee has not disj Kunti Bai 85 Tejram. Moreoverj evidence that on 31st March, body of Manai Bai, there wer^ occipital bone was fractured a^ report is Ex.P-13. He has fu| conducted post-mortem on the| above right eye, injury on occip^ pieces, injury was in^oval shap|( injury and death was homicid^ the ordinary course of nature tc^ has further stated that on the the body of Tejram and foun^ occipital region, skull bone w^ ^T^T^ nwff^ te1^" ^R^TI ^3Tf^RT3TT^T; ^tablish charges against the accused :b.tement of the accused was recorded .C. in which he denied the material dsecution evidence and stated that he is >licated in the crime. Ige after hearing counsel for respective the accused as aforementioned. ^rjee, learned counsel on behalf of the |wal, learned Panel Lawyer on behalf of mted the homicidal death of Manai Bai, Dr. S.K. Nag (PW-7) has stated in his 301 he conducted post-mortem on the injuries on occipital; region of head, id death was homicidal in nature. His rther stated that on the same day he body of Kunti Bai, there was abrasion tal region, skull bone was fractured into k, brain material was coming out of the in nature. Injuries were sufficient in cause death. His report is Ex.P-15. He ame day, he conducted post-mortem on that there was an injury on head on is fractured, cause of death was head P.T.O. i ::;-^- ^ '^ I-HC-78 ^73C( •^ii<tii^)'4, •8>Tfl'y<i<o, Jcldl'yy: ^l+ldl sb^lcb ----«-..-..^f.. 3ll^lM5|th (l{c||^st<^,T) ^2003 ^n^rwf^TNF ^l $b^T^' 9. 10 ^ ;?^<TT^K;?rf?cf3TT^T injury, ante-mortem in nature a report is Ex.P-17. Above medic^ evidence of the eyewitnesses Bheekhrai (PW-3), Sona Bai categorically stated that they persons. Therefore, in view of tl is established that the death o: honiicidal in nature. As far as complicity of the concerned, conviction rests on Damyantin (PW-1), Bheekhrai (I Kum. Damyantin (PW-1) is ag^ after assessing the understarj questions examined this witnes she was competent to give evi<| that the accused is known to| Kunti Bai 8& Tejram were also fateful day, she along with Jair|i order to eat fruits, there werej Jaini reached near Tendu treej Bai 85 son of Kunti were ^ quarrelling, during that period,| brought an axe and attacked blunt side of the axe, as a res|i injuries, fell down and died. chl^f<v1^1-l ^l^^*^:te1^<f^^|< ^3Tf^TT3TT^Ti ^ -- .Ad death was homicidal in nature. His evidence is corroborated by the ocular namely, Kum. Damyantin (PW-1), (PW-5) 8s Jaini (PW-6) who have iw the accused attacking the deceased ie above medical and ocular evidence, it Manai Bai, Kunti Bai 85 Tejram were iccused in the crime in question is the testimony of eyewitnesses Kum. |W-3), Sona Bai (PW-5) & Jaini (PW-6). 'd about 10 years, learned trial Court tding of the witness through putting having reached to the conclusion that ?nce. She has stated in her evidence her and deceased persons Manai Bai, known to her, who have died. On the at about 2 p.m. wenf to Tendu tree in other trees also, when she along with ihe saw that Rohidas, Kynti Bai, Manai resent there, Rohidas 85 Kunti were the accused went to the house of Guha, VIanai Bai, Kunti Bai 8s the child from ilt of the attack, all the three sustained 'hereafter, she along with Jaini went to P.T.O. ^ 'M-y ". ^ L /XI-HC-78 ;3:^'"41-4 i<n-i.)i,diT{i^^<d,i[c|dl^^< +ll<-(ni St»*lich *^«*..*.—.... >^*< * ,yp^ 200^ ^l <-«3|<t> (11^3^'^') ^n^T^T^FF^- cT§Tf3TR?T9h^l<=b ^cTTW-RlwW^Tl 11. 12. the house of Jaini in order to in: Rohidas after attacking the dec street. CM^Foi41^ ^i^^^te^i^R^Tt ^3Tf^R'3TI^T^; fp brm her mother and they brought her. ;eased persons ran away towards the Learned counsel for the appelljant argued that in cross-examination Kum. Damyantin (PW-1) has st^ted that on that day, she went to the school, therefore, it was not po^ on the place of inciderit. In para 6 of her evidence, this v^ school at 10 a.m, and on the school, but there is no further c|t sible to this witness to remain present itness has stated that she used to go to date of incident also, she had gone to ross-examination as to whether she was in the school till the incident tcjok place or till the evening. Unless the witness is speciflcally asked th^t at the time of incident she was in the school, it cannot be inferred tl-iat she was in the school, particularly when this witness has categoi|ically stated that at about 2 p.m. she along with Jaini went to eat fr^iits, there they saw that the accused & the deceased persons were pr^sent, there was some quarrel between Kunti 8s the accused, thereaf(:er, the accused went'to the house of Guha, brought an axe and atta< Sona Bai (PW-5), wife of \ categorically stated in her evic| her residence, at about 3 p.m. sitting at her residence, they came to her house, picked up| [;ked the three deceased persons. [^uha, has been examined, she has [ence that on the fateful day she was at she along with Jethu & Bheekhram were were talking, at that fime, the accused the axe lying in the Parchi and left the house, then, she went outsi<|le and saw in the street that Rohidas P.T.O. /-,.';"^.^:-^ I-HC-78 ^r^i^ld^, ^ww,^w^ .^^.g^ .^.^:!^,,^ ^^ ^Tq'^y (^dijsl^iST) ^n^TW^Tt^ ^T^I^I sb^)i+ ?^TTW:^f5cT3Tr^T^ 14. 15. attacked Manai Bai ion her K thereafter, she did not; see anythj Therefore, the evidence of Kum the evidence of Sona Bai (PW-5) Guha froni where he brough^ persons. This fact has been cc| Guha. Moreover, Bheekhrai (PW-3) h wrfcN^w^^fe^^)^, %3Tf^T3TT^T!^ i, ^' (ead, seeing this she i ran away and ^ng. i Damyantin (F\V-1) is; corroborated by that the accused went to the house of the axe and attacked the deceased rroborated by Sona Bai (PW-5), wife of is stated in his evidence that on' the fateful day at about 3 p.m. (Fri^ay) he was at the house of Guha. This fact has been established by|Sona Bai (PW-5), wife of Guha, that Bheekhrai (PW-3) was at her r^sidence. Bheekhrai (PW-3) has further stated that at that tirpe, Rohida the axe lying in the tiouse of O^ accused and saw that accused her head and Kunti Bai on her| her lap, seeing this incident he| again went on the sppt and sa\ |s came to the house of| Guha, picked up luha and went outside. He followed the Rohidas attacked Manai Bai with axe on head. Kunti Bai was holding a child on ran away. He has further stated that he the dead bodies of Manai Bai, Kunti Bai 8& child of Kunti. Therefore, th|is witness has categorically stated about the attack made by the acc^sed on the deceased jpersons, at least Manai Bai & Kunti Bai with ^xe. He is an independent witness. In cross-examination of this wltness, defence has not been able to establish that this witness has| deposed against the accused on account of animosity or on any other the evidence of this witness. ^round. There is no reason to disbelieve P.T.O. '/'.r'""" \. 'ter"^\ .!___ ., ^^•—i|. J^-HC-78 '^ '^^^ WB^FTsb^lcb 3:SF^ i^ i^i^i^ ^tily^IAJ^^I i<y^< ,.&..a..t^g^ ^ m^woo^ ;3i t^'l^sich (^c<^|<*^F) ^n^T^TfN^^ cT^TT3TT^T^^ich 16. ,' • ^g^fTW: ^rf?cf 3T^?ri 17 corroborated by the evidence of °bNld^^ ^l^<v<1"^^^<|^^, DT •?'':;;PT^:'%3Tf^T3TT^TJ^;'nT^ •[- Evidence of Kum. iDamyant^n (PW-1) 8& Bheekhrai (PW-3) is Sona Bai (PW-5) from whose house the accused took the axe, Iwent outsjide and attacked the deceased persons. Sona Bai (PW-5) has tetated in }-ier evidence that she saw the accused attacking Manai Bai with the a^ frightened and ran away. Evij further corroborated by the evic^ Damyantin (PW-1) has stated t| eat Tendu fruits, there they s^ tce on her head, thereafter, she became dence of the above tNree witnesses is |ence of Jaini (PW-6) about whom Kum. lat she along with Jaini (PW-6) went to LW the accused attackmg the deceased persons. In cross-examination ^f these four witnesses also, nothing has been brought on record to disbe|lieve their evidence. i In the circumstances, from th| Kum. Damyantin (PW-1), Bhe^ (PW-6), it is established that) ? evidence of these four witnesses viz., khrai (FW-3), Sona Bai (PW-5) 85 Jaini they saw the accused attacking the deceased persons. Apart from ^at, Ram Singh (PW-4)| has stated in his evidence that on the jfateful da^ being Navratri he was at his residence, he was performing Puja, at a^out 3 p.m. when he heard the cries of Hembai, daughter of Manai, h^ went near Hembai and enquired as to what has happened, she disclo^ed that the accused attacked Manai Bai, Kunti Bai 85 Tejram. She further indicated tow^-ds the side the accused went, he followed and| saw that the accused entered the house of Soonaram where Soonaram|85 wife of Soonaram Gandai were holding the hands of the accused. He| enquired from the accused as to why he has attacked the deceased pe^sons, on which the accused said that he has committed the Jmurder ojf all the three. Thereafter, he held the P.T.O. , !',^ r Xl-HC-'78 ^^;^N i^i''-is^&iTi'l'y*i'i&,i-fc)^ l<y<^ ^?Ti?rw-^ri^-- &><-tt:JSS^ ,3l^'l^(®|eh(^cll^cti^ ^moo 3 ^T^T^T.^R'NFh cT§TT3TT^T$b^|ch ^-<- ^l v 18. 19. 20 ^c<rraT^T3TT^TJ accused, took him to the Kotws accused to the Police Station. Soonaram (FWr-9) has i corrobor; In para 8 of his evidence, he judicial confession before him al child of Kunti Bai. He has a] entered his house, thereafter, accused were stained with bloo< witnesses viz., Ram Singh (FW- that the accused madjs extra ju< independent witnesses and ther| accused in a false case. ^ed the evidence of Ram Singh (PW-4). h^s stated that the accused made extra |out attacking Manai Bai, Kunti Bai and >o stated that the accused came and J^am Singh also came.! Clothes of the Therefore, the evidence of these two -|4) 85 Soonaram (PW-9)|also establishes licial confession beforejthem. They are ^ is no reason for themi to implicate the were examined by tho Investiga .date of incident, therefore, their But we do not find |any sub^ instance, these witnesses werjc counsel for explaining the Investigating Officer,j nor the examined on this asptect in ord{ recorded under Section 161 ol Even the defence counsel hasl circumstance in the cross-( the statements were recorded w|i GM^f^i41Ti ^i^^ifte^^fN^ti Fsro;';^^rf^T3TT^Ti -KTii^ ]Y and thereafter, three of them took the Learned counsel for the appella^it argued that most of these witnesses i|ting Officer about two months after the testimony cannot be believed. fcance in this argument. In the first not cross-examined j by the defence delay in their examination by the Investigating Officer has been cross- ?r to explain as to whyltheir statements the Cr.P.C. were recorded with delay. not been able to brinjg on record any of these witneases that in fact, .th delay. 1 RTO. exartiination ,^^\ /1-^-^;\ 10 •V ' -HC-^78 W^[^\^l^l^, ^•cfi^^^,1^<-t|^^< ?N^^lF*N|cb --«*.<*.«..*<WfPrl^H^:-iii200^ (3^ l^^jl ^;ch (^i^fl^l^ ^^T^T^t^ cT§TT3TR?Tst)^l<=b Soma 21. 22. .^cTTW: ^rf?cT 3TT^Ti d0 For the foregoing reasons, we the judgment of the tri|al Court. the evidence ofthe eyewitnesses) befbre whom the accujsed made| ground before us to interfere witlji In the result, the appeal being and it is hereby dismissed. Sd/- L.C, Bhadoo Judge chl^l^41T1 ^l^<r?l*^tel:^|<Rl^^T?p i;^jF fB- 'mw^ 3^q- 3TT^T J^r^ -^c T^ not find any illegality or infirmity in Conviction of the appelant is based on f as also the evidence of^those witaaesses extra judicial confession. There is no the finding of the trialj Court. evoid of merit is liablejto be dismissed Sd/- Sunil Kumar Sinha Judge P.T.O.