m m HIGH COURT OF CHHATTISGARH BILASPUR Criminal Aggeal No.67 of 2001 APPELLANT: (In Jail) 4O Sukhchand, yrs., R/o S/o Salainagar, Kanthiram, PS. aged Sitapur, about Distt. Sarguja, Chh. Versus The State of Chhattisgarh, Through PS. Sitapur, Distt. Sarguja, Chh. RESPONDENT: {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Shakti Raj Sinha, counsel for the appellant. Mr. Rakesh Jha, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma & R Hon’ble Mr. R.L. Jhanwar JJ ORAL JUDGMENT (184-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order .of sentence dated 11-12-20!”:0 passed by the 1“ Additional Sessions Judge, Ambikapur in Sessions Trial No.138/1993, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of homicidal death of Dulliram amounting to murder, convicted the appellant under Section 302 read with Section 34 of the l.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.3,000/—, in default of payment of fine to further undergo R.l. for two years. 2. Judgment is impugned on the ground that without any evidence of sharing common intention by the appellant in commission of murder, the Court below has convicted & sentenced the appellant and thereby committed illegality. 1L‘V‘v @ . Case of the prosecution, in brief, is that on the fateful day of 20-1 1-92 at about 3 p.m. deceased Dulliram was present in his field; accused Ramdhani (since deceased), his son — juvenile offender Dhela‘ and the appeHant herein went to the neid of Dulliram; Ramdhani was holding axe and Dhela was holding stick. They quarrelied with Dulliram which was intercepted by Rambharose (PW-3), Baijnath & Ghursai (PW-4) on which the accused persons went away. While they were going back towards the village, brother of deceased Dulliram namely, Jaganram asked the appellant herein & other two accused that why they were quarrelling on which Ramdhani & Dhela chased Jaganram whereupon Jaganram fled away from the spot, thereafter, Ramdhani & Dhela chased Dulliram. Ramdhani assaulted Dulliram with axe and Dhela assaulted with stick. l The appellant herein was standing there. Thereafter, the appellant herein along with other two accused fled away from the spot. Dulliram died on the spot as a result of head injury. Rambharose (PW-3) lodged F.l.R. vide Ex.P-4. Merg was also recorded vide EXP-9. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-10 inquest over the dead body of the deceased was prepared vide Ex.P-11. The dead body was sent for autopsy to Community Health Centre, Sitapur vide Ex.P-1A and autopsy was conducted by Dr. C.R. Agrawal (PW-1) vide Ex.P-1 who found following injuries: - (1) lncised wound over left side of neck size 2" X 1 1/2” x 2". (2) lncised wound over front of neck size 1 1/2" x 1 1/2” x 1 1/2 (3) lncised wound over chin size 1 1/2" x 1" x 2". Mandible was found cut. (4) lncised wound over right side of head size 1 1/2" x 1" x 2". Fracture of parietal bone was found beneath the injury. (5) lncised wound over chest size 2" x 1 1/2” x 2". Fracture of parieta’l bone and fracture of third rib ill/Ere found. b1 3) Death was due to shock as a result of multiple injurie's and homicidal in nature. Blood stained & plain soil were recovered from the spot vide Ex.P-5. Accused Ramdhani (since deceased) wasrtaken into custody, he made discioser statement of axe vide Ex.P-6 and the same was recovered at the instance of Ramdhani vide Ex.P-7. Blood stained ciothes of Ramdhani were seized vide Ex.P-8. Other accused Dhela made discioser statement of stick vide Ex.P-12 and the same was recovered at the instance of Dhela vide Ex.P-13. Sealed clothes of the deceased were seized after autopsy vide Ex.P-14. Seized articles were sent for chemical examination vide Ex.P-17 and presence of blood over axe & clothes of Ramdhani was confirmed vide chemical examination report EXP-18. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was med before the Judicial Magistrate First Class, Ambikapur, 'who in turn, committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial. Q} 3) . In order to prove the guilt of the appellant, the prosecution has examined as many as seven witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. Defence has also examined Dr. Kishore Kumar Dutt (DW-1) who has deposed that he has examined Ramdhani on 21-11-92 and he was complaining pain over the body. . After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. .‘ We have heard Iearned counsel for the parties; perused the udgme 6 jnt impugned and record of the trial Court. 7. Accused Dhela was tried by the Juvenile Justice Board, accused Ramdhani died during the pendency of trial and the appellant herein has been convicted under Section 302 read with Section 34 of the l.P.C. . Learned counsel for the appellant vehemently argued that in the present case, the appellant herein has not caused any injury to the deceased, he was not holding any weapon and the prosecution has not proved any overt act by the appellant to establish the fact that in sharing common intention, Ramdhani (since deceased) has caused fatal injury to the deceased. Only on the ground of presence of the appellant, conviction of the appellant for commission of homicidal death of Dulliram amounting to murder in sharing common intention is not legally sustainable under the law. 9. On the other hand, Iearned State counsel opposed the appeal and submitted that the prosecution has proved the case against the appellant herein and. in sharing common intention, the appellant has committed the murder of deceased Dulliram along with other accused. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11.ln the present case, homicidal death of Dulliram has not been substantially disputed by the appellant, otherwise also established by the l evidence of Dr. C.R. Agrawal (PW-1) and autopsy report Ex.P-1 which reveal that five fatal injuries including fracture of frontal & parietal bones and mandible were found over the body of the deceased and the death was homicidal in nature. 12.As regards complicity of the ap‘pellant in the crime in question, I Rambharose (PW-3) has deposed that at the time of incident Ramdhani, Dhela & Sukhchandan went to the tiled of Duiliram, Ramdhani was holding axe and he assaulted Dulliram with axe over his head. and also assaulted Dulliram 4-5 times. Appellant Sukhchandan assaulted the deceased with leg. Ghursai (PW-4) has also deposed that Sukhchandan also wentwith Ramdhani and assaulted Dulliram with leg. Jaganram (PW-5), brother of Dulliram, has also deposed that the appellant was present at the time of commission of the offence. 13.Rambharose (PW-3) has lodged the F.l.R. Ex.P-4 in which it has been specifically mentioned that in the first part of the quarrel, all the three accused persons were present, thereafter, they were going back and when they were asked by Jaganram, brother of the deceased, Ramdhani & his son Dhela chased Jaganram on which Jaganram fled away from the spot, thereafter, again Ramdhani & Dhela chased Dulliram and assaulted him with axe & stick. Appellant Sukhchand was standing there. 14.F.l.R. Ex.P-4 reveals that the appellant has not assaulted the deceased or he had not played any part except that he was present on the spot. But Rambharose (PW-3) has deposed in his evidence that the appellant has assaulted the deceased with leg. He has admitted in para 13 of his cross-examination that the appellant was standing near the place of , incident. He has also deposed in para 14 of his evidence that at the time 'of lodging the report he had told the police that the appellant has assaulted the deceased with leg, but the same has not been mentioned in the F.I.R. Ex.P-4. ln paras 16 & 17 of his evidence he has further admitted that Ramdhani has also sustained injury at the time of incident E l 15.Ghursai (PW-4) has admitted in para 5 of his cross—examination that Dulliram has assaulted Ramdhani with bahanga (heavy wooden piece) and Ramdhani & Dheia assauited with axe. 16.The promptly lodged F.I.R. Ex.P-4 reveals that at the time of incident the appellant was present on the spot and he was standing there. No overt act of the appellant is shown in the F.l.R. though the F.I.R. is not the substantive piece of evidence and attaches only corroborative value. Substantive witness Rambharose (PW-3) has deposed in his evidence recorded on 1-12—95 after three years of the incident that the appellant has assaulted the deceased with leg which does not find support from any other source. V\ KB) 17.ln the light of the F.l.R. lodged by Rambharose (PW-3) within 3 hours 15 minutes of the incident, the evidence of Rambharose (PW-3) relating to the assault made by the appellant to the deceased does not inspire confidence and the same is not supported by the promptly lodged F.l.R. The F.l.R. Ex.P—4 reveals that the appellant went to the field along with other accused, after quarrelling with the deceased they came back, thereafter, two accused quarrelled with Jaganram, they chased the deceased and assaulted him. Definitely, the appellant was present with the other co-accused persons in the first part of the incident when they quarrelled with the deceased. But in absence of any overt act, it is difficult to hold that the appellant herein has participated in the' commission of the offence of homicidal death of the deceased which took place in third part of the incident. Mere presence of the appellant on the spot is not sumcient to prove any overt act of the appellant or commission of the offence in sharing common intention. 7} 18.The Court below has convicted the appellant under Section 302 read with Section 34 of the l.P.C. but has not considered the most material aspect of the case that the prosecution has not proved any overt act of the appellant and that presence of the appellant on the spot is not sufficient for drawing inference that in sharing com‘mon intention the appellant has caused homicidai death of the deceased amounting to murder, and thereby committed illegality. 19.For the foregoing reasons, conviction of the appellant under Section 302 read with Section 34 of the I.P.C. is not sustainable under the law, as such, conviction & sentence of the appellant are liable to be set aside. 20.Consequently, the appeal is allowed. Conviction & sentence of the appellant under Section 302 read with Section 34 of the l.P.C. are hereby set aside and the appellant is acquitted of the said charge. The l l i i [i J. l appellant is on bail, his bail bonds are discharged and he need not surrender before the Court. l Sd/- Sd/- R.L.Jhanwar T. P. Sharma ‘ Judge ' i' l Judge i