HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLEMR.T.P.SHARMAAND HON'BLE MR. RANGNATH CHANDRAKAR, JJ. tl» APPELLANTS (InJail) c •< RESPONDENT: C r,A._NO, 676/2008 Divas Mandal, Son of Deepak Mandal, aged about 22 years, R/o Village Ajirma, P.S. Jainagar, District Surguja Sandeep Kumar Gupta, S/o Murari Prasad Gupta, aged about 22 years, R/o Village Mahavirpur, P.S. Jainagar, District Surguja (C.G.): VERSUS State of Chhattisgarh, Through S.H.O. P.S. Jainagar, District Surguja (C.G.). Appellant (In custody) Respondent AND CR.A. No. 721/2008 Sanjay Rai, S/o Shri Jatin Rai, 23 years, R/o Village Mahavirpur, Police Station Jainagar, District Sarguja VERSUS State of Chhattisgarh, Through District Magistrate, Ambikapur, Sarguja (C.G.) CRIMiNAL APPEAL UNDER SECTION 374(2) OF THE CRIIVIINAL PROCEDURE CODE. Present: Mr. D.N. Prajapati, Advocate for the appellants (in Cr. A. No. 676/2008). Mr. Prafull N. Bharat, Advocate for the appellant (in Cr. A. No. 721/2008). Mr, Ashish Shukla, Govt. Advocate for the State/respondent. < JUDGMENT (Passedon 10/10/2011) The followinq iudflment ofthe Court was passed bv T.P. Sharma^J: - :i- l yiwy?^ •^,^^ ^^ 1, ^. ^ ^\ s^^/^ w^v^^"^^' tS»^: ~^^.!^y - ^^^-^^^•" Criminal appeal Nos. 676/2008 & 721/2008 filed against the judgment of conviction and order of sentence dated 14/7/2008 passed by First Additional Sessions Judge, Surajpur, District Sarguja (C.G.) in Sessions Trial No. 333/2006 are being disposed of by.this common judgment. By Criminal appeal No. 676/2008 appellants Divas Mandal and Sandeep Kumar Gupta and by Criminal appeal No. 721/2008 appellant Sanjay Rai have challenged the legality and propriety of the judgment of conviction and order of sentence dated 14/7/2008 passed by First Additionat Sessions Judge, Surajpur, District Sarguja (C.G.) in Sessions Tria! No. 333/2006 whereby after holding appellants guilty for the commission of offence of culpable homicide amounting to murder of Udyaram Kushwaha in furtherance of conspiracy with by committing road robbery and concealing the evidence of criminal case convicted the appellants under Sections 302, 120B, 394 & 201 Part-1 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 200/-, imprisonment for life and fine of Rs. 200/-, rigorous imprisonment for 10 years and fine of Rs. 200/- and rigorous imprisonment for 5 years and fine of Rs. 100/- in default of payment of fine amounts additional rigorovs imprisonment for 6 months, 6 months & 3 months respectively. Ifi^; Judgment is impugned on the ground that without any iota of evidence sufficient-of conviction of the appellants, Court below has convicted and sentenced the appetlants as aforementioned and thereby committed an illegality. As per case of the prosecution, appellants with intent to commit road robbery near Birpur forest they tied cable wire with two trees standing opposite sides of the road. In the intervening night of 14/2/2004 & 15/2/2004 unfortunate Udyaram Kushwaha (since deceased) came by motorcycle at night, he came into contact with alleged cable wire planted ir-^,% '^ L .'V- .^s^ M^^"^.~<y^ IS?^tf"^ i( MJl tsigl '^4^^^' "•s^-1.: by appellants and fell down on the spot. Appellants assaulted him and after causing his death, they buried the body in the ditch, after committing robbery of motorcycle they fled from the spot. Broken cable wire tied with one side of tree was found near the place of incident. PW2 Jagdish Prasad Kushwaha relative ofdeceased lodged Dehatinalshi \j\de Ex. P-3 on the basis of Ex. P-3 First tnformation Report was lodged vide Ex. P-26. Dehati M'arg was recorded vide Ex. P-4 and numbery Marg was recorded vide Ex. P-27. After notice to the witnesses vide Ex. P-1, inquest over the dead body of Udyaram Kushwaha was prepared vide Ex. P-2. Blood stained and plain soil, one hand glove, identification number were seized from the spot vide Ex. P-18. Broken cable wire tied with one tree seized vide Ex. P-19 from the spot. Spot map was prepared vide Ex. P-20. Dead body was sent for autopsy to Community Heath Genter, Vishrampur where PW9 Dr. K.K. Tamrakar conducted autopsy vide Ex. P-21 and found following injuries:- (i) Lacerated wound over right forehead of 10 x 2 C.M. x scalp deep. (ii) Lacerated wound on left side of nose up to upper lip of 8 C.M. x 1. C.M. x bone deep with fracture of left towerjaw. (iii) Looseness of two teeth. (iv) Lacerated wound over left side of the head of 3x2 C.M. x scalp deep. (v) Abrasion over right elbow joint of 10 x 7 C.M. (vi) Abrasion over left knee of 5 x 3 C.M. (vii) Abrasion over right knee of 3 x 2 C.M. (viii) Soil found inside mouth, esophagus, fayrings, stomach &. duodenum. Mode of death was asphyxia and death was homicidal in nature. 5. It was a case of blind murder and road robbery after lapse of two years on 4/8/2006 appellant Sanjay Rai was taken into custody, he made discloser statement of motorcycie vide Ex. P-7, same was recovered at % .;' the instance .of appeflant Sanjay Rai vide Ex. P-8. Appellant Sandeep Kumar Gupta was also taken into custody, he made disctoser statement oftwo number plates vide Ex. P-9, same was .recovered atthe instance of appellant Sandeep Kumar Guptavide Ex. P-10. Appellant Divas Mandal made disctoserstatement ofdickey of motorcycle vide Ex. P-11, same was recovered at the instance of appellant Divas Mandal vide Ex. P-12. Acquitted accused Tapan Mandal made discloser statement of cycle and knife vide Ex. P-13, same was recovered at the instance of Tapan Mandal vide Ex. P-14. R.C. book and driving license of decease.d Udayram Kushwaha were seized vide Ex. P-15. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge-sheet was filed before the Additional Chief Judicial Magistrate, Surajpur who in turn committed the case to the Court of Sessions, Ambikapur from where learned First Additional Sessions Judge, Surajpur, District Sarguja (C.G.) has received the case on transfer for trial. 7. In order to prove the guilt of the appellants/accused prosecution examined as many as 11 witnesses. Accused persons were examined ^S^^LC^\ . - .. -.-... »•. . . ..• . . . .. ' ^§^-::S:?^ under Section 313 of the Code where they denied the circumstances it ,-^ \ ^— tW \-^\ X'? .Iwi '^^:':'^.^ •^^SF©^y g'JI appearing against them, innocency and false implication in crime in ^?^ys^/^ question are claimed. 8. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge, Surajpur, District Sarguja (C.G.) has convicted and sentenced the appetlants as aforementioned. 9. Mr. D.N. Prajapati, Advocate for the appellants (in Cr. A. No. 676/2008), Mr. Prafult N. Bharat, Advocate for the appellant (in Cr; A. No. 721/2008) & Mr. Ashish Shukla, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of Court below perused. 10. Mr. D.N. Prajapati learned counsel for the appellants in Cr.A. No. 676/2008 submits that evidence adduced on .behatf of the prosecution if admitted in its face value then only inference would be possible that two number plates have been recovered from appellant Sandeep Kumar Gupta.and one dickey has been recovered from appellant Divas Mandal but prosecution has not adduced any evidence to connect the articles with the motorcycle or offence. In absence of any evidence conviction of the appellants under Sections 302, 120B, 394 & 201 Part-l of the Indian Penal Code is not sustainable under the law. 11. Mr. Prafull N. Bharat learned counsel for the appellant in Cr.A. No, 721/2008. submits that evidence adduced on behalf of the prosecution may be sufficient to prove the fact that motorcycle found in possession of the present appellants was owned by deceased Udayram Kushwaha but this.evidence is not sufficierrt to connect the appellant for theoffence of commission of murder, conspiracy, robbery & concealing the evidence of criminal case specialty in absence of any connecting evidence. 12. Leamed counsel for the appellant further submits that even if the evidence of prosecution is considered as gospel truth then even act ff^^"^^'~-^y li^f t§-Y^ attributed by the appellant does not travel beyond the scope of under ^.^-1 .^^.. 1 ^u?i' ^-ffj^ ^^ '^. '^^'^•: Section 304 Part-11 ofthe Indian Penal Code. 13. Learned counsel for the appeltant placed reliance in the matter of Daya Nand v. State of Haryana1 in which Supreme Court has held that in order to prove offence of culpable homicide amounting to murder prosecution is required to prove that appellant has caused homicidal death with intent to cause death of deceased not with knowledge. 'AIR2008SC 1823 ••-^aiEa'^SS^v::"' ^,';'N'^ f-sy 14. On the other hand, learned Govt. Advocate for the State/respondent opposed the criminal appeals and submits that this is a case of road robbery and blind murder at night in which at the initial stage prosecution has investigated theoffence against unknown person but after lapse of2 years incriminating articles have been recovered from the appellants. Appellants were under obligation to offer an explanation but they have not offered any explanation. In these circumstances, only presumption would be possible that present appellants have committed road robbery and murder of Udayram Kushwaha thereafter they have concealed the > evidence of criminal case. 15. In order to appreciate the argument advanced on behalf of the parUes, we have examined the evidence adduced on behalfofthe prosecution. 16. tn the present case, homicidal death of Udayram Kushwaha have not been substantially disputed on behalf of the appetlants on the other hand, otherwise also established by the evidence of PW9 Dr. K.K. Tamrakar and autopsy report Ex. P-21 which clearly reveals that multiple injuries were found over the body of Udayram Kushwaha includir presence of soil in the mouth, esophagus, fayrings, stomach & duodenum and death of Udayram Kushwaha was homicidal in nature. ^^ttcc^;, 17. As regards the complicity of the appellants in crime in question, ^s-r.—-'-._•'y^y ^\^ W }'S»Vi conviction of the appellants is substantially based on the evidence of PW4 Rajesh Kumar & PW10 Rajendra Singh before whom present appellants made discloser statement of the articles and articles have been seized at their instance. As per evidence of these two witnesses, appellant Sanjay Rai made discloser statement of motorcycle Ex. P-7 on 4/8/2006, on the basis ofdiscloser statement motorcycle beaFing chassis No. DFFBE408464 & engine No. 31MBFH68119 has been recovered Ex. P-8 likewise as per discloser statement of appellant Sandeep Kumar -^s*^?: F)/'f IBI .11 liil ...^ ^\^^; ^&fc^ ^41P 5~^ l-^-^ lwl yi' -'-'"'' '• r- ...'y ^•^^^ c. - Gupta Ex. P-9 two number plates were seized Ex. P-10, As per their evidence appellant Divas Mandal also made discloser statement of dickey Ex. P-11, same was recovered at his instance Ex. P-12 except this evidence, prosecution has not collected any other evidence to connect the aforesaid dickey and number plate with motorcycle seized from the appellant Sanjay Raior stolen from Udayram Kushwaha. As per documents Exs. P-3, P-4, P-26, Marg intimation, First Information Report, Exs. P-18, P-19 & P-20 seizure from the spot specially broken cable wire tied with tree standing one side of the road only inference .would be possible that cable wire was tied with tree standing opposite side of the road was only with intent to commit road robbery, other circumstances further supports that basically it was a case of road robbery and homicidal death of Udayram Kushwaha. Documents of motorcycle have been seized from PW2 Jagdish Prasad Kushwaha vide Ex. P-15. As per Ex. P-15 seizure of documents of motorcycle and Exs. P-7 & P-8 disctoser staternent and recovery of motorcycle, motorcycle seized at the instance of appellant Sanjay Rai was owned by deceased Udayram Kushwaha who left Kumda Colliery on 14/2/2004 at 10:45 P.M. By aforesaid motorcycle which finds support from the evidence of PW3 ^fycc^'^ : • /^^-""^•^O^ Shivprasad, if these evidence are considered together then only ;^/ Wi \^ • ^ij inference would be possible that road robbery was committed by using cable wire on the place of incident on road and thereafter homicidal :!:. v.y-A €'S '•::"^'\ •...^•:/' v-'%\ ^--?-^-^ ^^i^ death of Udayram Kushwaha. Dead body of Udayram Kushwaha has been hidden in ditch. Motorcycle of Udayram Kushwaha which he was using at the time of incident has been recovered from appellant Sanjay Rai on the basis of his discloser statement after lapse of two years of the incident. ^ ^ .^;?^^^. ,^.^-E^ ^^•:yy^ ^W t&IN'^ \"yA\ 18. Definitely, this is not a case of recent recovery of motorcycle but as per . case of prosecution, this is a biind case of road robbery and murder by using cable wire. Normally, the case of road.robbery, dacoity and blind murder prosecution would not be in position to investigate the offence immediately but on the aforesaid ground no adverse inference can be drawn against the prose.cution. Appellant Sanjay Rai has not offered any exptanation of the possession of motorcycle. Entire evidence of prosecution clearly pointed out the fact that for the purpose of road robbery cable wire tied with the tree standing on the opposite directior^of the road and deceased fell down and afso received injur.y as a result of such failing and assault, he died, the dead body was buried which clearly reveal that intention of miscreants was to commit road robbery but at the time oftiding the cable wire they were having knowledge that by their act persons driving by cycle or motorcycle with sufficient Speed may fell down and die. Aforesaid act and circumstances attributed ciearly reveals that act of miscreants does not travel beyond the scope of under Section 304 Part-fl ofthe Indian Penal Code. 19. As held in case of Daya Nand (Supra) in order to convict the appetlants under Section 302 of the Indian Penal Code prosecution is required to prove the fact that accused has committed homicidal death that too with intent to cause his death and not with knowledge. Evidence adduced on behalf of the prosecution is sufficient to prove the offence punishable under Section 304 Part-11 of the Indian Penal Code along with Sections 394 & 201 Part-l of the Indian Penal Code against appellant Sanjay Rai but in absence of any connecting evidence of articles seized from the appellants Sandeep Kumar Gupta & Divas Mandal with motorcycle seized from the appellant Sanjay Rai or owned by Udayram Kushwaha, evidence adduced on behalf of the prosecution is not sufficient to '^ . . .;'^.- "-^•\ ^ ^.:,'v:-.... " ,.. ^:/ connect the appellants Sandeep Kumar Gupta & Divas Mandal for the offence punishable under Sectiohs 302 or 304 Part-11 ofthe Indian Penal Code even with the aid of Sections 120B, 34or 107 of the Indian Penal Code. While convicting and sentencing the-appellants aforementioned, Court below has not considered the aforesaid facts and circumstances and thereby committed an illegality. 20. For the foregoing reasons, criminal appeal No. 676/2008 is allowed. Conviction & sentences of the appellants Divas Mandal & Sandeep Kumar Gupta under Sections 302, 120B, 394 & 201 Part-l of the Indian Penal Code are hereby set-aside. They are acquitted of the charges. Appellant Divas Mandal is in bail but appellant Sandeep Kumar Gupta is in custody, he be released forthwith if not required in any other case. 21. Criminal appeal No. 721/2008 is partly atlowed. Conviction of the appetlant Sanjay Rai under Sections 302 & 120B of the Indian Penal Code is altered into under Section 304 Part-11 of the Indian Penal Code but his conviction under Sections 394 & 201 Part-t of the Indian Penal Code are hereby maintained. Appellant Sanjay Rai is sentenced under Section 304 Part-11 of the Indian Penal Code rigorous imprisonment for 7 years and fine of Rs. 200/-, under Section 394 of the Indian Penal Code rigorous imprisonment for 7 years and fine of Rs. 200/- & under Section 201 Part-l of the Indian Penal Code rigorous imprisonment for 5 years and fine of Rs. 100/-, in default of payment of fine amounts additional rigorous imprisonment for 3 months, 3 months & 1 month. Sentences shall run concurrently, he is in custody since 4/8/2006, he is entitled for set offfor aforesaid period ofdetention. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Tiwari