l w CK? 9 HIGH COURT OF CHHATTISGARH AT BILASPUR Crimina! Appeal No. 1115/1993 APPELLANT Tihiu alias Premlai s/o Hari Chouhan, aged 25 year's, R/‘o Karichapar‘ P5. . Chakmdharnagar VER$U$ .§ 1 w. REsPGNDEN-r S‘m‘re of Mcdhya Praéesh (Now " Police ‘ ; ¢ Chhaf‘risgarh) Through Police STa‘I'ion— Chakmd'nornagar. Appearance: 5hri R.K.Jain, counse! for the appeiianf. M Shri Rajendm Tripa‘rhi: Panel Lawyer for The S‘m‘l’e. Division Bench:- Hon‘bie Shri T‘P. Shar‘ma & Hon’bie Shri R.L.3hanwamJJ $3E§ 7 ’ ORAL JUDGMENT (31.03.2010) Per- T.P.$harma‘_ 3" 1. Chailenge in This appeal is To The judgmen+%f conviction and order of sem‘ence da'red 20.7.1993, passed by ihe Sessions Judge, Raigar'ia in Sessions Trial No. 32/1993, whereby and whereunder', The I learned Sessions Judge offer holding i'he appellon‘l’ guil‘l‘y for commission of culpable homicide, amoun'iing to murder of Fulchand of culpable and causing simple iniGry To Manchit by knife, convici’ed 'i'he» ‘appellan‘l' under Sec‘i'ions 302 and 324 of The IPC and sentenced 1'0 undergo imprisonmem‘ for life and‘RI. for 3 months respecfively. € HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1115/1993 APPELLANT Tihiu alias Premlai s/o Hari Chouhan, aged 25 years, R/‘o Kurichapar, P.S. . Chakr-adharnagar VERSUS ‘u‘ Sm're of Madhya Pméesh (Now ChhaT‘l’isgarh) Through Poiice STaTion- Chakmd'narnagar. REsPONDENT a Appearance: Shri R.K.Jain, counsel for fhe appelian'l'. Shri Rajendm Tripa‘rhi, Pane! Lawyer for The STafe. Division Bench:— Han'biz Shri T.P. Shamn & Hon'ble Shri R.L.3hanwar‘,JJ om. JUDGMENT (31.03.2010) Per T. P.5harrna,_ Jo 1. Cimilenge in This appeal is 'ro 'rhe judgmenféo’f conviction and order of senfence dared 20.7.1993, passed by ‘rhe Sessions Judge, Raigar-i'x in Sessions Trial No. 32/1993, whereby and whereunder, ‘rhe learned Sessions Judge af‘rer holding i'he appellant guilTy for commission of culpable homicide, amounting ‘l'o murder of Fulchand and causing simple miur‘y To Manchi‘r by knife, convic'l'ed ‘rhe‘ lappellani' under Sec'i’ions 302 and 324 of The IPC and sen‘renced 'ro undergo imprisonmen'r for life and‘RI. for 3 monfhs respecfively. 0 G? E 2. The conviction is impugned on fhe ground ‘I'haf wi'rhouf any credible and clinching evidence, The Cour‘l‘ below has convicTed and sen‘renced ‘I'he appellan‘l' as aforemen‘rioned and fher'eby commi'f‘red iliegalify. 3. Brief case of "the prosecu‘rion is Tha'r on 15.10.1992, a‘l' abom- 9;.30‘p.m. whiie deceased- Fulchand, Nandial (PW-1) and Manchi‘r (PW-2) were going '?o Police Sla‘rion for lodging “the report, accused/ ohpellan‘r suddenly come, who was hidden besides The road, holding a knife and assaull'ed Manchif by ‘the knife and caused repea‘l'ed injuries ‘l'o Fulchand, as a resulf of which, Fulchand fell down and died on The spot Nandlal (PW—1) went 1'0 Police Sm‘rion and lodged The FIR. vide~ Ex. P/1. Merg was recorded vide Ex. P/2. The Invesfiga‘ring Officer left for The scene of occurrence and afTer summoning The wiTnesses, inquesT over The dead body of Fulchand was prepared vide Ex. P/15. Injured ManchiT was examined by Dr. Narayanchandra Nande (PW—10) and found following injuries i. Incised wound of 3 x 1" over lefT hand ii. Incised wound of 1 x 2,- over lefT hand iii. Incised wound of 2 x 3 1 II x ~2- 1 u over chesT 4‘ iv. Incised wound of 1 x i x g over lefT side of The chesT v. ' Incised wound of 2 x % “ over righT side of The chesT. Dead body of Fulchand was senT for auTopsy To GovernmenT KG. HospiTal, VRaigarh vide Ex. P/16. Dr. R.K. MasTa (PW-12) conducTed auTopsy' vide. EX??/25 and found following injuries. i. incised wound of 2 x r over lefT side of chesT 1n 1n 1n 1n ; 43 ii. S‘rab wound of 2 x % x 3 % “over The righ‘r side of chesf on sfer'num i3i. Lungs were found cu1'. Mode of dea'rh was coma and dea‘rh was homicidal in namre. Blood sfained soi! and plain soil ‘was recovered from 'rhe spof vide Ex. P/4. Dried blood was recovered from The road vide Ex. P/5. Cycle was seized from the spot vide Ex. P/3. Spo‘l' map was prepared vide Ex. P/17. The accused/appellanf was Taken info cusfody. He made disclosure sfaf‘emen'r of knife and cloThes vide ExiP/IS. Knife was seized of fhe ins‘l'ance of 'rhe accused vide EXP/6. Clofhes were seized from The accused vide Ex. P/19. Sealed clo‘rhes of The deceased were seized vide EXP/20. Bed Head Ticket of Manchif was seized vide Ex. P/21. Knife was sen? for examina‘rion to Docfor and Doc’ror examined ‘rhe same. Seized arficles were sen'l' for chemical examina‘iion To F.5.L. vide Ex. P/23. Presence of blood over fhe knife and clo‘l’hes of fhe accused was confirmed vide Ex. P/24. S‘l'a‘remenis of The witnesses were recorded under Sec‘rion 161 of The Code of Criminal Procedure, 1973 (in shorT The Code). 0 4. AfTer compleTion of invesTigaTion, charge‘osheeT was filed before The Judicial MagisTraTe FirsT Class, Raigarh, who in Turn, commiTTed The case To The CourT of Sessions, Raigarh, where The Trial was conducTed. ‘i‘ a -4: 5._ In order ,To prove The guilT of The accused/appellanT, prosecuTion has examined as many as 12 wiTnesses. The accused was examined under SecTion 313 of The Code, where he'denied The % € ciréumsfances appearing againsf him, pleaded innocence and fabe implication in The crime in quesfion. 6. Affer‘ affording oppor‘runi‘ry of hearing +0 fhe par‘ries, The learned Sessions Judge has convici’ed and sen‘renced fhe appellan‘r as aforemen‘l'ioned. t g i" 7. We have heard Shri R.K. Jain, learned counsel for 1'he apfaellazrr and Shrj Rajendra Tripafhi, learned Panel. Lawyer for The Sfafe, perused ‘rhe judgmenf impugned and’record of fhe Courf below. 8. Learned counsel for fhe appellanf vehemen‘rly argued fna'l' parrof like sfafemenfs of Nandlal (PW-1) and Manchif (PW-2) does no‘l’ inspire confidence and are safe To rely. They are fhe inferes‘red wifnesses having enmi‘ry wi'rh 'rhe appellant In #he present case, prosecu‘rion has concocfed fhe s‘rory and even fhey have no? r t produced fhe alleged knife seized from The accused. He furTher submiTTed ThaT The evidence of Dr. Narayanchandra Nande (PW—10), specifically in para‘7 revealed ThaT prosecuTion has nod' produced The knife before The CourT as arTicle A, which he haswexamined vide Ex.P/14 shows Thaf prosecuTion has Tampered The evidence To show The convicTion. 9. a- peTiTion and submiTTed THa‘T The convicTion is subsTanTially based on The evidence of eye wiTnesses Nandlal (PW-1) and ManchiT (PW-2), , The injured wiTness. On The oTher hand, learned counsel for The STaTe opposed The 10. In fhe presenf case, homicidal dea‘rh as a resulf of cm‘re mor‘rem fan! injuries To The deceased- Fulchand and incised wounds' caused‘ f0 Mancini-f (PW-2) has noi’ been subs‘ran‘rioily disputed on J behalf of the appellan‘r, on The ofher' hand, i'r is established by The evidenbe of Dr. R.K. Masfa (PW—12) and au‘l'opsy reporf Ex. P/25, evidenbe of Dr. Narayanchandm Nande (PW-10) and injury repor‘l‘ Ex. P/12 and dea1:h of Fuichand was homicidal in nafur'e: 11. ‘As regards corhplicify of The accused/apbellanf in crime in quesTion is concerned, ‘rhe convicl'ion is subsTanfially based on ‘rhe evidence of Nandlal (PW-1) and Manchi‘l' (PW—2). Nandlal (PW-1) is an eye wi‘l'ness and Manchi‘l’ (PW-2) is an injured eye wifness. Manchi‘l' (PW-2) has deposed fhal' while They were going To Police Sfafion, ’rhe appellanf suddenly came and assaul’red The Chowkidar and Thricely To Fulchand by knife and assaulTed him over his chesT, abdomen and hands and caused repeaTed injuries. 12. l Defence has cross examined This wiTness aT lengTh, buT has noT been able To eliciT anyThing in his cross examinaTioniTo discrediT his TesTimony. Nandlal (PW-1) has subsTanTially corroboraTed The evidence of Manchi‘l' (PW-2) and has deposed ThaT The appellanT, who was hiding himself besides The road, suddenly came on The road and assaulTed ManchiT and Fulchand. Fulchand died on The spoT as a rresulT of such injuries. iQejence has also cross examined This wiTness aT lengTh, buT has noT been able To eliciT anyThing in his cross examinaTion To discrediT-his TesTimony. Evidence of Nandlal {PW-1) and ManchiT (PW-2) is sufficienT for drawing an inference ‘”t‘ . (z ‘77 g .,.,,,,c.,,.,aur.ic“ G fha‘i- The appeilan‘r was a person, who has caused fa‘l'al injuries f0 Fulchand and simple injuries 1’0 Manchi‘r by knife, sharp edged weapon. AH'hough evidence of Dr. Namycnchandm Nande (PW—10) revealed 'HmT The knife sen'l' 1'0 him for examinafion and examined by him has no? been produced by The'pr-osecu‘i'ion before fhe Cour‘r. In such sm‘i’e of affairs, fhe prosecufion is no? appreciable and fhis ‘ c fyp‘e of evidence, The Sessions Judge has aiso no1' faker: info I; corisiderafion. AfTer a lapse of 17 years we are ngf of The view 'l'o inferfere wi‘rh such affairs. 13.‘ Affer appreciafing ‘rhe evidence available on re'cord, learned Sessions Judge has convici’ed and sen‘renced ‘rhe appellan‘r under Sec-Hons 302 and 324 of The IPC. Convicfion of fhe appellanf is based on credible, clinching and legal evidence susfainable under fhe law. Cour‘r below has also imposed minimum sen‘rence prescribed under fhe law. 143 On close scrutiny of The evidence, we do no'l' find any illegalify orlscope for inferference in The judgmenf impugned. Consequenfly, fhe appeal being devoid of meri‘l’s, liable 'l'o be andé‘is accordingly dismissed. i R.L. Jhanwar Judge Sd/- Sd/- ‘ T. P. Sharma Judge ‘g‘xwnihm ,