DIVISION BENCH CRAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal AQQeaI No.883 of 1993 ‘e PELLANTS: Munna @ Pardeshi and others Versus RESPONDENT: State of MP. (now C.G.) JUDGMENT FOR CONSIDERATION ‘/)* // xsa’llxr O -.m»*, NT. P. Sharma . Judge HON’BLE MR. JUSTICE R.L. JHANWAR 3qrf3/Q JUDGE [C -3-2010' Post for Qronouncement of iudqment on 16th March, 2010 Sd/— T. P. Sharma Judge O AP ‘ ,x / ' HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.883 of 1993 APPLICANTS: 1. Munna @ Pardeshi aged 28 years, S/o Jagatram Satnami 2. Shiv Singh aged 35 years, S/o Bisahu Yadaw, 3. Shiv Ram @ Bullu aged 30 years, S/o Sukhcharan Satnami. All R/o Village Boeerdoha P.S. Palaari, u“ Tahsil Baloda Bazar, Distt. Raipur, M.P. (now C.G.) Versus RESPONDENT: . State of MP. (now-CG.) {Criminal appeal under Sectiori 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Atul Pandey, counsel for the appellants. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. JUDGMENT (16m March, 2010) The followinq judqment of the Court was passed by T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of 0 sentence dated 22-6—1993 passed by the Additional Sessions Judge, Baloda Bazaar, Sessions Division, Raipur, in Sessions Trial No.304/90, whereby & whereunder learned Additional Sessions Judge after holding V the appellants guilty for commission of culpable homicide amounting 9 murder of Baratu,‘ convicted the appellants under Section 302 of the l.P.C. and sentenced each ofthem to undergo imprisonment for life. 2. Conviction is impugned on the ground that without iota of evidence to connect the appellants with the crime in question, the Additional \ \ Sessions Judge has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 27-7-1989, Baratu (since deceased) came back from Baloda Bazaar after attending the case pending in a Court, while he was going to village Boeerdoha from Balodi with Bhukhau, the appellants restrained him, they were holding betel axe and assaulted Baratu with betel axe, Baratu fell down and ‘died on the spot instantaneously. Maniram (PW—13) — son of Baratu wentt‘b‘the Police Station on same day at about 10.45 p.m. and lodged F.l.R. vide EXP-9. Merg was also recorded ovide EXP-30. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-10A, inquest over the dead body of i Baratu was prepared vide EXP-10. Dead body was sent for autopsy to Primary Health Centre, Baloda Bazaar vide EXP-19A. Dr. Ashok Kumar Jhanwar (PW-16) conducted autopsy vide Ex.P-19 and found following injuries: - (1) Incised wound on face below mouth up to neck in the size of 5 c.m. x 2.5 c.m. x 2 c.m. (2) incised wound on right side of neck in the size of 10 c.m. X 3 c.m. up to depth of structure of neck; trachea, esophagus, blood i‘ vessels and jugular vein were found cut. (3) Incised wound over right shoulder in the size of 6 c.m. x 6 c.m. x bone deep. (4) Incised wound over left pinna up to face in the size of 1O c.m. x 4 c.m. x bone deep, bone beneath the injury was found cut. ' (5) incised wound over‘lefLside of neck in the size of 2 c.m. x 2 c.m. x muscle deep. (6) incised wound on back of injury No.5 in the size of 2 c.m. x 2 c.m. x muscle deep. (7) Incised wound over left shoulderjoint in the size of 8 c.m. x 5 c.m. (8) Bruise over left fore arm in the size of 3 c.m. X 3 c.m. um—MAWH (@ (9) incised wound over left wrist in the size of 1.5 c.m. X 2 c.m. X 2 C.m. 1 (10)Incised wound over left abdomen region in the size of 1 c.m. x 1 c.m. x 0.5 c.m. (11)incised wound over back of skull in the size of 1 c.m.‘x 0.5 c.m. x 0.5 c.m. Injuries were ante-mortem, mode of death was syncope and death was homicidal in nature. 1T 4. Blood stained & plain soil were recovered from the spot vide EXP-29. Spot Lnap was prepared vide EXP-28. Patwari prepared spot map vide Ex.P-1. One cycle rent register Article ‘A’ was seized fromv Dilip Kumar vide; Ex.P-3. Three Hero cycles were seized from Mukhiram vide Ex.P-4. During the course of investigation, accused Munna was taken into custody, he made discloser statement of betel axe vide Ex.P—13 and the same was recovered at the instance of accused Munna vide EXP-14. One handle of betel axe stained with blood was seized from accused Munna vide EX.P-15. One pair of plastic shoe was seized from accused Shiv Singh vide EXP-16. Clothes stained with blood were seized from accused Shivram vide EX.P-17. Blood stained clothes of accused Munna were seized vide EXP-23. Sealed clothes of the deceased were seized after autopsy vide Ex.P-24. Seized articles were sent for examination vide Ex.P—26 and presence of blood was found over betel axe‘ broken handle and clothes of the accused persons vide Ex.P-27. Statements of the witnesses were recorded under Section 161 of the d ‘vs Cr.P.C. v 5. After completion of investigation, charge sheet was filed before the Court \ of Judicial Magistrate First Class, Baloda Bazaar who in turn, committed the case to the Court of Sessions‘ Raipur from where the Additional Sessions Judge, Baloda Bazaar received the case on transfer for trial. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as 25 witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence & false implication. Defence has examined Tesulal Jaiswal (DW—1) who has deposed that co-accused Bhakla Ram was present with him on 27—7-1989 till 6 p.m. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting accused Bhakla Ram, convicted the appellants herein in the aforesaid manner. u¢ 8. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of Premlal (PW-4), Dayaram (PW-9), Maniram (PW-13) & Bhukhau Satnami (PW-19), but their evidence reveals that they have not seen the incident and they have deposed in speculation and assumption. Their evidence are self- contradictory and are not safe to rely. The prosecution has not examined any other evidence to unfold the story. In absence of credible and clinching evidence, conviction of the appellants is not sustainable d under the law. ex 10.0n the other hand, learned State counsel opposed the appeal and submitted that conviction is based on the evidence of eyewitnesses Premlal (PW-4), Dayaram (PW—9), Maniram (PW-13) & Bhukhau §atnami (PW-19), who hat/e categorically deposed that the appellants had caused fatal injuries to Baratu and committed the murder of Baratu. Evidence of the aforesaid witnesses are sufficient for'drawing inference £ 5 that the appellants were the persons who have caused culpabte E homICIde amounting to murder of Baratu 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced 0n behalf of the parties. 12. ln the present case, homicidal death of Baratu as a result of ante—mortem € (PW—16) & autopsy report Ex P 19 which reveal that fatal injuries were found over neck of the deceased up to depth of neck structure Vital part of neck was found cut and death was homICIdal In nature 13As regards complicity of the appellants in the crime in question conVIction is based on the ewdence of eyeWItnesses Premlal (PW 4) Dayaram (PW 9) Manlram (PW-13) & Bhukhau Satnami (PW-19). “MAS per the evidence of Premlal (PW~4), on the date of incident, he along with his wife Rajbai, father Bhukhau & deceased Baratu went to,Baloda Bazaar from village Boeerdoha for engaging a counsel in some case. ln the eVening he went to Balodi bus stand which is the nearest bus stand of village Boeerdoha to attend his wife. At about 5 p.m. his wife Rajbai & deceased Baratu came by bus. His father Bhukhau came from Baloda Bazaar to ‘Palari by bus and from Palari he came by cycle He along With his Wife Raibai proceeded for Boeerdoha by cycle while he was passmg u . beSides the ban/yen tree he met the appellants appeliant Shiv Singh was holding tabbal (betel axe) and appellant Munna was holding axe but he has not seen what appellant Shivram was holding Appellant Shiv Singh stopped him and asked about deceased Baratu that whether he is coming or not, then he told him that he is coming with his father Bhukhau and he proceeded for his village along with his wife. At about 7 p.m. he an ‘ ‘wiM heard that Baratu has been killed. He went to the spot and saw the brutally injured dead body of Baratu. In his detailed cross-examination he was stuck to his version that at about 5.15 p.m. whiie he was passing besides the baniyan tree he has seen the appellants who were hoiding weapons. 9 15.Another witness Rajbai (PW—8) — wife of Premial (PW-4), has corroborated the version of Premlal. 16.Dayaram (PW-9) has deposed in his evidence that before the incident the appellants were presentnear the baniyan tree situate between Balodi w . & Boeerdoha, they were holding weapons and they were asking about Baratu. He has also deposed that he informed‘ the same to.wife of Maniram i.e. daughter-in-iaw of Baratu. In his detailed cross- examination he was also stuck to his version. £ a 1.Maniram (PW-13) —- son of Baratu has deposed in his evidence that on 7 27-7-89 at about 6 p.m. he proceeded from Palari to Boeerdoha by bicycle and while he was going to his village by bicycle, he saw that his father Baratu & Bhukhau were going on foot towards their village, Bhukhau was holding cycle in his hand. The appellants hide in a temporary hut, they came out of the temporary hut and went near his father, appellant Shiv Singh was holding sword, appellants Shiv Ram & Munna were holding betel axe and all the three appellants assaulted his father with sword & betel axe. His father fell down. While he was going 'near his father, appellants Munna & Shiv Ram chased him on which he fled away. He has fUrthierq’geposed that other accused persons were also standing near the temporary hut. He has also deposed that Shiv Ram & Munna threatened him on which after leaving the cycle he fled away from the spot. Again after an hour, he came to the place where the w dead body of his father was lying wh injuries, thereafter, he went to it village Boeerdoha and informed Kotwar Ratidas and other persons. 18.Another eyewitness Bhukhau Satnami (PW-19), who was coming with deceased Baratu, has corroborated the evidence of Maniram (PW-13). He has specifically deposed in his evidence that while crossing temporary bridge (rapta), the appellants, who hide in temporary hut, came, Shiv Singh was holding sword, Munna & Shivram were‘holding betelaxe, firstly Shiv Singh assaulted Baratu over his face with sword, then Munna assaulted Baratu over his hand and Shivram assaulted Barat‘u‘vvith tabba/ over his abdomen, thereafter, the appellants caused repeated injuries with sword & betel axe. Thereafter, he fled towards the village. He met the son of Baratu namely Balkishan, on the way to whom he narrated the incident. Other persons also met him on the way to whom also he narrated the incident. Thereafter, they went to the Police Station where Maniram has lodged the report. In his detailed cross- examination, Bhukhau Satnami (PW-19) has deposed that by the time when he reached Balodi, his daughter-in-law Rajbai & son Premlal had already left for village Boeerdoha from Balodi by cycle, even he has not seen Maniram at Balodi. Defence has cross-examined this witness in detail and in his detailed cross-examination he has specifically stated that he has “narrated the incident to police in his statement Ex.D-6 recorded under Section 161, but'according to Ex.D—6, his previous statement recorded on 28-7-89, he was not present at the time of incident and he was informed by Maniram (PW-1 3). six ,J M r i 19.ln his detailed cross-examination, Maniram (PW-13) ~ son of deceased Baratu, has deposed that on the fateful day after purchasing some household articles from Palari he was coming to his village by bicycle. In \l his detailed cross-examination, this witness has specifically deposed that \ he has seen the incident and the appellants assaulted his father with sword & betel axe. According to his previous statement recorded under Section 161 of the Cr.P.C. EXP-11, he was present at the time of incident and he has witnessed the incident. He has lodged the F.l.R. vide Ex.P-9 and merg vide EXP-3O which reveal that he was present at the time of incident and the appellants assaulted his father. ln para 44 of his; cross-examination, he has deposed that while going to the Police Station along with ten persons, he has not narrated them that as to who has killed his father, but it will not effect his credibility because according to the ‘evidence of this witness & other witnesses there was talk in the village that his father has been murdered. He is relative witness and son of the deceased.~ He has lodged the report promptly in which names of the appellants have been mentioned as assailants. His evidence is well corroborated by medical evidence which reveals that most of the injuries found on the body of the deceasedvwere incised wounds which were possible by sword & betel axe. He is solitary witness who has seen the incident. There are some omissions & contradictions in his evidence and the statement recorded under Section 161 of the Cr.P.C. The statement recorded under Section 161 of the Cr.P.C. is a brief statement and the evidence recorded in the Court is a statement in detail. Omissions & a contradictions are natural in both the statements, but only on the ground of omissions & contradictions, the evidence of Maniram (PW-13) cannot be discarded. His evidence finds support frOm medical evidence and the promptly lodged F.l.R. He has specifically deposed in his evidence that as to who has Caused injurLes to his father and by which weapon. This witness has also told the names of other persons as suspected accused, but has specifically deposed that they were simply standing near the temporary hut, having opportunity of implicating them he has not ‘K \ is implicated them. His evidence inspires confidence and it is trustworihy relating to the role attributed to the appellants herein. 20.The prosecution has adduced another set of evidence relating to recovery of weapons and presence of blood on weapons & clothes. ? Although this is corroborative piece of evidence, but in the present case, evidence of solitary eyewitness Maniram (PW-13) is sufficient for drawing inference that the appellants are the persons who had caused injuries to Baratu and as a result of such injuries, Baratu died on the spot I V " 21.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellants under Section 302 of the l.P.C. and sentenced each of them to undergo imprisonment for life. Considering the injuries sustained by the deceased, Weapons used and evidence of Maniram (PW-13), we are of the view that conviction of the appellants is based on substantial, credible and clinching evidence sustainable under the law. Learned Additional Sessions Judge has not committed any illegality in convicting & sentencing the appellants. 22.For the foregoing reasons, we do not find any substance in the appeal, the appeal is liable to be dismissed and it is hereby dismissed. Appellant No.1 Munna has been released after serving the sentence, but appellants No.2 & 3 namely, Shiv Singh & Shivram, respectively, are on bail. Shiv Singh & Shivram shall surrender before the Additional Sessions Judge, Baloda Bazaar, immediately, for serving remaining sentence imposed upon thew i Sd/- Sd/- 7. ; R.L. Jhanwar T. P. Sharma a, ; . \\\ Judge Judge 16-3-2010 Soma