^T ^ •^ •: -^•-l.,,...^ .^./' HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri T.P. Sharma & Hon'ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 810 of 2008 ll.i Appellants Respondent Vs. Abhay @ Abhayram and two others. State of Chhattisgarh through the Police Station Dhamdha, District (CG). JUDGMENT FOR CONSIDERATION Sd/- R.N. Chandrakar Judge Hon'ble Shri T.P. Sharma, J. ff5 - cup-'—f ' •c»» POST FOR JUDGWIENT Qti1\\ -8-2011 Sd/- T.P. Sharma Judge S.d/- "^ .!K|& a :'"""% s .^' .J'' -'f f\ HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma & Hpnible^Shri R.N^CJiandrakari JJ, CrimlnalA@peal Jlo^810^of2008 Appellants (in jail) 2. Vs Respondent Abhay @ Abhayram s/o. Shankar lal Sahu, aged about 24 years, occupation - Agriculture. Khemlal s/o. Shankar Lal Sahu, aged about 21 years. Ravi Kumar s/o. Shankar Lal Sahu, aged about 25 years. State of Chhattisgarh through the Police Station Dhamdha, District Durg (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr.Malay Kumar Bhaduri, counsel for the appellant. Ms. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Delivered on ^ ''-8-2011) Per Rananath Chandrakar, J. 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 18-8-2008 passed in Sessions Trial No.201/2007 whereby learned 2"dAdditional Sessions Judge, -stfis Durg, after holding the appellants guilty for committing murder of Dhannuram, convicted them under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- each, in default of payment of fine to undergo further Rl for six months. Brief facts as projected before the trial Court are that deceased Dhannuram was father of Ashwani Kumar (PW/1) and Vijay Kumar (PW/2). On the fateful day of 11/9/2007 at 4.00 p.m., deceased along with his both sons was going to his new house situated near school in the village and when they reached to their new house, Godavari Bai, mother of the accused persons/appellants abused the deceased due to previous animosity and old rivalry. At the same time, accused/appellants came to the spot holding cricket bat and lathis from their house, firstly appellant No.1 Abhay assaulted with cricket bat on the head ofthe deceased, thereafter, appellants No. 2 and 3 assaulted with lathis on the head and other parts of the body of the deceased. The deceased fell down and the absconding accused- Prakash Sahu after snatching lathi from co- accused Khemlal also assaulted the deceased. The deceased died on the spot. When the sons of the deceased tried to intervene the incident to rescue their father the accused/appellants also scuffled and pushed them. The incident was witnessed by Shiv Prasad (PW/3) and Rajim Bai (PW/4). The incident was telephonically reported to the Police Station Dhamda by PW/1 Ashwani Kumar son of the deceased. The Police reached the spot, recorded DehatiNalsi vide Ex.P/1, merg :<>.' 4. intimation vide Ex.P/2, aftersummoningthewitnessesvideEx.P/3 prepared the inquest over the dead body of the deceased vide Ex.P/4 and sent for autopsy to Primary Health Centre, Dhamda, vide Ex.P/28 where Doctor Sanjeev Kumar Agrawal (PW/10) conducted postmortem report vide Ex.P/21 and found the injuries; i) lacerated wound over right occipital region with fracture of occipital bone in the size of 6"x3"x3"; ii) lacerated wound over right frontal bone just 2" above the right eye brow with fracture of right frontal bone in the size of 1"x1"x1"; iii) lacerated wound at the upper part of nose at the side of right eye; iv) lacerated wound 1" above the tragus of right pinna, zygomatic bones of both the sides of the scull were fractured; v) lacerated wound over chin of 3"x1"x1" and opined that cause of death was coma due to head and brain injuries and death was homicidal in nature. The first information report was lodged by Kheerdas Kurre (PW/12) in Police Station Dhamda vide Ex.P/31 and the matter was investigated. During investigation spot map was prepared by Investigating Officer vide Ex.P/6. Patwari also prepared spot map vide Ex.P/7. Blood stained soil and plain soil were recovered from the spot vide Ex.P/8, memorandum of appellant No.1 Abhay was recorded vide Ex.P/9 and cricket bat was recovered at his instance vide Ex.P/14. Appellant No.3 Ravi Kumar made a disclosure statement of lathi vide Ex.10 and the same was recovered at his instance vide Ex.P13. Appellant No.2 Khemlal Sahu made a disclosure statement of lathi vide Ex.11 and the same was recovered at his instance vide Ex.P/12. Clothes of appellant No.1 ^6 ''lli'i1 '*' 'E'.^TpK-^" Abhay were seized vide Ex.P/15 and clothes of the deceased were seized vide Ex.P/16. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur vide Ex.P/32 and a report thereofwas received vide Ex.P/33. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions Judge for trial. Learned Additional Sessions Judge, received the case on transfer, who framed charge under Section 302 read with Section 34 of the Indian Penal Code against the appellants who abjured the guilt. 6. In order to prove the guilt of the appellants, prosecution examined as many as twelve witnesses. Accused/appellants were examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances appearing against them and pleaded innocence and false implication. The appellants also examined Shiv Kumar Verma (DW/1) and Dhan Sai (DW/2) in their defence and appellant No.3 Ravi Kumar took the plea of alibi that at the time of incident he was not present on the spot and was on duty according to attendance register of school vide Ex.D/6. 7. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties and perused the refcord ofthe trial court as also the impugnedjudgment @ 9. Mr. Malay Kumar Bhaduri learned counsel appearing for the appellants vehemently argued that the trial Court has convicted the appellants by placing implidt reliance on the evidence of Ashwani Kumar Sahu (PW/1) and Vijay Kumar (PW/2) who are sons of deceased and alleged eye-witnesses Shiv Prasad (PW/3) and Rajim Bai (PW/4). There are material contradictions and omissions in their depositions. Learned counsel further submits that PW/1 Ashwani Kumar and PW/2 Vijay Kumar being interested witnesses, their evidence are required to be corroborated by independent sources. In absence of corroboration from independent source, statements of solitary eye-witnesses are not safe to rely for conviction of the appellants. PW/3 Shiv Prasad and PW/4 Rajim Bai are tutored witnesses, therefore, their evidence is not reliable. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellants have caused death of deceased. He further submits that there was no premeditation, preparation and intention to cause death of deceased. The incident took place on a spur of moment due to sudden provocation in a heat of passion, therefore, no case was made out under Section 302 ofthe IPC. 10. Per contra Ms. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that the appellants came to the spot holding cricket bat and lathis and assaulted deceased, as a result ofwhich he died which shows their grave intention of causing homicidal death of deceased and the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, homicidal death of the deceased Dhannuram is not in dispute. Even otherwise also it is established by the evidence of PW/1 Ashwani Kumar, PW/2 Vijay, PW/3 Shiv Prasad and PW/4 Rajim Bai who are eye-witnesses to the incident and have deposed that they saw the appellants assaulting the deceased Dhannuram by cricket bat and lathis on his head and other parts of the body which is corroborated by the evidence of Doctor Sanjeev Kumar Agrawal (PW/1 0) and autopsy report (Ex.P/21), death of Dhannuram was homicidal in nature. 13. As regards question of intention is concerned, conviction of the appellants is based on the evidence of alleged eye-witness of PW/1 Ashwani Kumar, PW/2 Vijay Kumar, who are sons of the deceased and PW/3 Shiv Prasad and PW/4 Rajim Bai. As per evidence of PW/1 Ashwani Kumar, on the date of incident when he along with his father i.e., deceased and brotherVijay Kumar (PW2) was going to their new house situated near School in the village and reached to their new house, Godavari Bai, mother of the accused/appellants abused them and at the same time accused/appellants came there holding cricket bat and lathis from their house and assaulted on the head and other parts of the body of his father and caused death of his father. When he and his -V. , -••-• ^- 'tf 14. 15. brother tried to intervene the incident to rescue their father, the accused/appellants also scuffled and pushed them. PW/2 Vijay who is son of deceased and eye-witness of the incident also narrated the same version. As per evidence of PW/3 Shiv Prasad who is alleged eye-witness of the incident, he was present on the spot at the time of incident and saw the appellants Abhay, Khemlal and Ravi Kumar assaulting the deceased with cricket bat and lathis due to which he fell down and died on the spot. When Ashwani Kumar (PW/1) and his brother Vijay Kumar (PW/2) tried to intervene to rescue their father, the accused/appellants also pushed them. PW/4 Rajim Bai also narrated the same version. These witnesses also corroboratedthe evidence of PW/1 Ashwani Kumar and PW/2 Vijay Kumar. On a close scrutiny of the evidence of the aforesaid witnesses, it is crystal clear that at the time of incident all theaccused/appellants came to the spot holding cricket bat and lathis and assaulted deceased, as a result of which he died. When the sons of the deceased tried to intervene the incident to rescue their father, appel!ants also scuffled and pushed them. Thisshows their grave intention ofcausing homicidal death ofdeceased. So far as the plea of alibi taken by appellant No.3 Ravi Kumar that he was not present on thespot at the time of incident is concerned, he did not adduce any evidence on this behalf and defence witnesses have not stated that they saw him in the school at the time of incident. That apart, it isadmitted by the DW/1-Shiv Kumar Verma that the school closes at 4.00 pm whereas, the incident also ^ 16. took palace at 4.00 p.m. and the place of incident was very near to school. Thus, presence of appellant No.3 Ravi Kumar at the time of incident on the spot cannot be overruled and there was every likelihood of his being present there in absence of any conclusive proof of his alibi. Therefore, the evidence of the eye-witnesses PW/1 Ashwani Kumar, PW/2 Vijay, PW/3 Shiv Kumar and PW/4 Rajim Bai that they saw the accused/appellant No. 3 Ravi Kumar assaulting the deceased withlathis and caused death of Dhannu Ram, inspire confidence and trustworthy. Thus, from the evidence of these witnesses, we are of the opinion that the trial court has rightly convicted the appellants under Section 302 read with Section34ofthelPC. On a close scrutiny of the entire evidence available on record and considering all the aspects of the matter, we do not find any illegality or infirmity in the impugned judgment. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. :]U Sd/- T.P. Shai-ma Judge Sd/- R.N. Chandrakar Judge