.^ l-ii(3H COURT OF CliHATTiSOARH AT BiLASPUR DB: Hon'bie Snri Dhirendra Mishra & Unn'hla^Rhri 0 M Chanrfrakar .!,! ?~"VS is?;^ i>i?EiS3 i't.Bi'SE "•n'BiiiSi^i Si^Si < W= Criminai Appeai No. 140/2003 APPELLANTS fln Jain 1. Uderam alias Udavram. son of Ghasirasrs, aged about 28 years, resiueni of Vflltegs - Chind, P.-S. Sai-ngarh, dislt- Raigarh (Chhattlsgarh) - 2. ,';' Grhaslram ailas Chuhaku, Son of Gangaram .• SaSnami, aged about 55 years, resident of Viiiage - Chind, P.S.- Sarngarh, Distt. - Raigarh (Chhattisgar'n) Vs. ResDondent State of Chhattisgarh. Through P.S. Sarngarh, uisu. Kaigarn (Chhattisgarh) (CrjmlnalAPDeai underSeclion 374(2) oftheCr.P.CJ Fresent; Shri Shrawan Agrawai, counsel ror the appeiiants. Shri Ashish Shukla. GQ'A. Advocate for the State. O RAL JUDGMENT (09.08.2010) The roliowing judgment or the Court was delivered by Dhirendra Mishra, i). l. The appeiiants have preterred this criminal appeal under Section 374(2) Qt the Code of Criminai Procedure against the judgment of conviction and order of sentence dated 24.10.2002 passed in Sessions Trial No.42/02, whereby Seamed 3"" Additiona! Ssesslons Judge, Raigarh after hoiding the appeliants gu'ity of cQmmitting murder of Chindram, has convscted the apDeiiants under Section 302 read with Section 34 of the iRdian Penai Code and sentenced them to underao iife imprisonment. ?&SliKBI 1.1 ^.s^.^, 8!sS;ass;=? 4. -,;^^;^^ Case of the prosecution, as projected in the impugned judgment, is that deceased Chindram had some dispute with his sister regarding agricuttural iand. The appeliants had taken the disputed iand from Chindram's sister for sowina paddy and there was dispute betuveen the deceased and the appeiiants with respect to the crop sown in the iand. The appeliants on account of the same dispute, stopped the deceased op. the ciate and time of the incident,, Appeilant Ghasiram caught both his /(. hands and pushed him on the ground, whereas, appettant Udayram assautled him with sharp edged weapon on nss neck, as a resutt, Chindram died on the spot, Report of the incident was iodged by Aghoridas, Viilage Kotwar (PW-1). On the basis of which, mera intimation (Ex-P/1) and first information report (Ex-P/2) was registered. After performing inquest over the person of deceased (Ex-P/5), body was sent for autopsy to Primary Health Centre, Sarangarh, where, Dr. J.N. Shukla (FvV-5) conducted pQstmortem and gave his report vide (Ex-P/7). svtemorandum statement of appeiiant Ghasiram was recorded vide Ex- P/9 and pursuant thereto, weapon of oftence - sword, blood stained ahoti, fuil shirt, fuil pants and T Shirt belonging to appeliant Udayram were seized vide Ex-P/10. On memorandum of appeliant Udayram (Ex- P/11), his nai!s of aii the fingers of the hands were taken jnto possesston videEx.P/13. 5. Articles seized during investigation including biood stained wearing appareis, naiis of the accused persons and weapon of offence - sword were sent for chemicai examination to Forensic Science Laboratory, Raipur. However, report of FSL is not available on record. ^ i;':~a^fe??-??^ 6. After compieting investigation, charge sheet was flied in the Court of Judiclal Magistrate First Ciass, Sarangarh, who in turn commltted the case to ths Court of Sessions Judge, Raigarh and the same was receiyed on transfer by AddittQnal Sessions Judge, Raigarh. 7. The Additionai Sessions Judge, Raigarh framed charge under Seciion 302 read with Section 34 of the indian Penai Code against the appeiiants who abjured their gutlt. „ 8. Prosecutlon in order to establish its case, examined 11 witnesses in ali and thereafter, statemen! of accused persons were recorded under SeciiQp. 313 of the Code of Criminal Procedure in which thev denled the circumstances appearing agatnst them sn the prosecution case and p'eacied innocence and taise implicatlon. ihe appeliams nave also examined Gokui (CW-1) in their defence. 9. The trial Court, after hearina counsel for the respective parties, convicted and sentenced the appeiiants as mentioned in paragraph one of this judgment. 10. Homicidai death of Chindram is not in dispute. Even otherwise, from the eviaence of eyewitnesses, nameiy, Katkahin @ Shivanbai (PW-10) and Kaser Satnami (PW-11), who ciaimed to have witnessed the assautt by sword on his neck and aiso consldering the evidence of Dr. J.N. Shukia (PyV-5), who conducted and proved postmQrtem (Ex-P/7), in which he iound the foilowjng injuries over the person of deceased and opined that injuries were ante-mortem in nature caused by some hard and sharp edged weapon and the deceased died due to shock and coma as a resuit of injuries sustained by him on the neck and the same is homicidal "n nature, homicidai death of Chindram is established.- IS*<-^ 4 External Iniuries (1) incised wound on the upper portion of the neck of size 4cm x 1cm x muscle aeep (2) incised wound over ieft shoulder of size 2 cm x 0.5cm x muscte deep (3) incised wound over rlght sKoutder of size 4cmx 1 cm x bone deep (4) cut injuries over neck slightty below to the middle part cutting ail the skin, subcutaneous tissues, muscles, arteries, nerves veins trachea, esophagus go'ng desp ti!! 5 a"d 6th cep/toa! bones. Who!e of neck is cut ieaytng on!y posterior fisctepart taying oyer She cep/tea! bones. 6h cervicai bone has aiso got cut in.yjry mark over body. Vv'hoie area of neck 's tuii of biood ciots and some musctes. (5) abrasion of size 3 em x 1 cm on the "eft side of the right anMe. ii.Snri Shrawan Agrawal, learned counsei for the appeilants argued that prosecutton has faiied to atEribute any motive to the appellants for the comm'ssion of the offence. The ailegation of assault by sworct is only against appeiiant Udayram and aiiegatjon against appeiiant Ghasiram is that he caugnt bQth the hands of the deceased. There is no aiiegation that Ghasiram actuaiiy assauited the deceased on any part of his body arsd thus, iooking to the ro'e attrtbuted to appeiiant Ghasiram, his convict'Qn under Section 302 read with Section 34 of the iPC 's erroneous and the offence does not travei beyond Section 304 Part! or ti of the iPC. 12.0n the other hand, learned counsei tor the State supported the impugned judgment. iS.'v'Ve have hearca iearned counsel for the parties and perused the record as also the impugned judgment. i4.CQnvictlon of the appeiiants is mainiy based on the evidence of eyewitnesses Katkahin @ Shivanbai (PVV-10) & Kaser Satnami (PW-11). •S-* g? ib.Aghoridas (PVtf-1), has todged first information report (Ex-P/2) naming the appeiiants as perpetratoi^s of orfence. He has deposed that he todged the report, as famiiy members of the deceased were noi prepared to iodge the report on account offear. i6. Tuiaram Sahu (PW-6) is the witness of memorandum of seizure from appetiant Udayram. He has also deposed that on the memorandum of appeiiant Ghasiram, sword tike weapon and blood staineci wearing apparels were seized from him vide E)?:-P/10. 17. (PVV-9) Kaushalya Sahy (Sub-lnspector) is the investigating oftteer. She has aiso proved recovery of weapon of Qffence and biood stained wearing apparels at the instances of appeilant Ghasiram vide Ex.P/1 1. 18. totKahin @ Shivanbai (PW-10) has categorically deposed that on the date and time of the incident, she was returning home after taking bath. The deceased was also returning. The accused persons were coming behind deceased Chindram. When they reached near her door, the accused persons stopped Chindram. Ghasiram caught his arms and both of them made Chindram sit on her verandah. She asked them not IQ quarrel in front of her house and go away, whereupon,the accused persons dragged the deceased near Kaser's house. Ghasiram pressed Chindram and Udayram assauited him with sword iike weapon and severed his neck. Blood was visible on the weapon. i9 Simiiar is the evidence of Kaser Satnami, before whose house the incident took place. These witnesses have been cross-examined by the defence, however, the defence has not been abie to eiicit anything which make their version untrustworthy or unreiiabie. Their verslQn is further corroborated from the evidence of Dr. J.N. Shukla (PVV-5) who has .^-?yA-aeu%..... ..---* ;?i;;S-^"'." i'"'% !] " ^^^ •<-^-'' conducted pQstmortem and found that neck or the deceased was severed. Names QT' the apRetlantsalso appear in the promptly lodged first infQrmation report by (PVV-1) Aghoridas. 20. Derence wreness Gokul is sort of appeiiant Udayram. He has been examined as witness of aiibi ana on tne date ana time of inciaent, nls father and grandfather Ghasiram had gone to Saikhan in the house of Nandkumar, whlch is at a distaace of 40 k.m. from viiiage C-hinc!. However, on the basis of the evidertee of this witness, who is son of appellant Udavram, the svidence of evewitnesses cannot be discarded. 21. On appreciation of the evidence of above witnesses, we are of the Qpinion that the prosecution has proved tne InvQivement Qf the appeiiants in the crime in question beyond reasonabie doubt. 22. SQ far as the araument of iearneci counsel for the appeiiants that the conv'ction of appe'iant Ghasiram with the ald of Section 34 IPC is erroneous is concerned, from the evidence of eyewitnesses, we find that ihe deceased was returning from the pond, whereas, both the appeliants were foiiowing him and appetlant Ghasiram caught both the arms of the deceased and appeiiant Udayram gave fatal blow by sword over his neck. As regards the argument that the prosecution has faiisd in estabiishing any motive of the applicants for commission of offence, where, there are eyewitnesses to the incident, the question of motive for commission of offence becomes irreievant. 23. Taking into consideratiQn the evidence available on record against bQth the accused persons, we are unabie to accept the argument of learned counsei for Ghasirgm that his CQnvlction under Section 302 read with Section 34 of the iPC is erroneous and he ought to have convicted under bit^i 'u. SectiQR 304 Part II of the iPC. We have already mentioned that both the accused persons foitowed !he deceased up to the house of i<atkah!p. Bal ipyv-10) and thereafter, they dragged him up to the house of Kaser Satnami, where appeilant Gnasiram caught both his hands and appeilant Udayram assauited him by^word on his neck. 24. in the result, the appeal being devoid of any substance, deserves to be and is accordinaiv dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge c'' -'•'•-''^s