v?“ HIGH COURT OF CEHATTISGARH AT BILA$PUR CRIMINAL APPEAL H0. 517 OF 2001 DMSIOE BENCH: HON’BLE SHRI LC. BHADOG & HON'BLE $HRI BHIRENDRA MI$HRA, J KAWAL 8A1 AND ANOTHER £LPP§ELLANTS VERSU$ ‘ r THE STATE OF CHEATTISGARE RESPGNDENT yVi‘ $ u JUD GMENT FOR CONSIDERATION ._ // ig/ i D HOEq’BLE SHRI L.C.BHADOO, J /—/’x Sdl- L.C.BHADOO Judge .01 2007 POST FOR JUDGMENT ON §9+3ULY, 2007 W sal— DmBENDR—A MISHRA Judge J IIIG-H COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 517 0f 2601 3ivision Bench : Hon’ble Shri LC. Bhadoo & Hon’ble Shri Dhirendra Mishra, JJ saPPELLANTS : 1. Kawal Sai, Sf 0 Kumvar Sai Uraon, Aged about 30 years. Shiv Prasad Sf 0 Kunwar Sai Uraon Aged about 26 years. All reSident of village D60 Nagar, Thana Surajpur, District-Sarguja (0.9-) b3 Versus \ RE$MDENT : The State 0f ChhattiSgarh. Pr€S€nt: Shri RP. Tripathi, learned counsel for the appeHantS. Shri G.D. Vagvani, learned GA for the State; respondent. JUDGMENT - 7. (Delivered 0112‘! 107/ 2007) Per Dhirendra Mishra, J This criminal appeal is ‘ directed against the impugned judgment dated 30th April 2001 passed 1'11 S.T.No. 10 1199 whereby the learneci Additional Ses sions Judge,Surajpur District Sarguja after holding the accused] appellants guilty of causing homicidal death of deceased Nandu: has convicted each of them under Section 302 and 302} 34 of the Indian Penal Code and sentenced them to undergo life imprisonment, pay a tine of Rs. 1000f —each and in default of payment of iine, to further undergo R.I. of ten months. Appellant Shiv Prasad has also been convicted under Section 323 of die IFC and sentenced to undergo RI. of six months. All the sentences imposed far commission of the odence, have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 4.9.1998 around 9.00 p.rn., the day of Karma festival in village Devnagar, deceased {Nandu after having his dinner was proceedings towards his new house situated about one furlong away from his 01d house when accused persons Shiv Prasad, Kanwal Sai and Kunwar Sai assaulted him with iron rod-and’kicks. Hearing his shouts his wife Jaimani {FW— l] and Dhansai (PW—2) went there and tried to intervene: on @ k)‘ which accus€df appellant Shiv PraSad assaultsd Dhansai also with iron rod. Nandu (sirw6 deceased) diéd at about 2.00 in the night, as a result of griovous injurieS sustained by him. Morg intimation (EXP; 1) and First information Report (EXP/2} were lodged on following day in Po]ice Station Surajpur by PW—2 Dhansai, nephew of Nandu. lnquest report of EXP] 5 was prepared in the presence of witnesoes. Blooclstajned and plain soil was taken into possession vide EXP; 6 nom the place of occurrence. Bloodstained iron rod. was taken. into possession nom accused Kanwal Sai vide Ex.Pj7. Spot map ‘of EX.P;‘ 8 was got prepared by PW—8 Ram Gopal, Halka Patwari. injured Dhansai was sent for meéical examination to rCommunity Health Center, Surajpur vide EXP} 9 where Dr. lnclrajeet Gupta (PW‘ 10) examined him and gave his report of Ex.Pf9-A. Dead body of ‘ Nandu was sent for autopsy to Community Health Center, Surajpur vide Exf’f 10 Where Dr. lndrajeet Gupta {PW-10) conducted posnnortem and submitted. his report of EXP; lO‘A. Site plan was prepared by the investigating ofEoer HarishchandraNaharkar [PW-9). Iron rod, weapon of oEence, was sent for examination to Dr. lndrajeet Gupta, C.H.C., Surajpur vide EX?! 12, on which the doctor after examination of the weapon opined that injuries present over the deceased Nandu could be caused by the said rod vide his report of EXP; 12-A. Seized articles i.e. bloodstained 8o plain soil and iron rod were sent for chemical examination to Forensic Science Laboratory, Sagar vide EX.P/ 16 and report of the F.S.L. is EXP] l7. a 3. After completing investigation charge sheet was tiled against '1i1e accused persons in the Court of Additional Chief Judiciai Mag'strate, Surajpur who in turn committed the case to the Court of Sessions Judge, Ambikapur, Sarguja and the same was received on transfer by learned Additional Sessions Judge, for trial. 4. Charge under Sections 302 or in the alternative 302,! 34 of the IPC was framed against the accused} app ellants and accused Kunwar Sai. In addition to the above, charge under Section 323 of the’IPC W‘as also framed against accused} appellant Shiv Prasad. The accused persons abjured their guilt. Prosecution in order to establishthe charges against the accused persons examined 10 Witnesses. Thereafter, statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the ,v‘J: , V \7’0 material appeari‘ng against them in thC prosmution ca$e and pleaded hmocmqce and false imp1icati011, They also 6xamj11€d Bixldc$hwar (DW—l) aim Dr. Kouahkndra Nath Sharma {DW—Q) as defenca wifnesSes . 5. Learned Additional Sessiens Judge after hearing counsel. for both the parties convicted and Sentenced the accusedf appeHantS. as mentioned in narag‘aph —1 of this judgment. However, accused Kunwar Sai was acquitted 0f all the charges. 6. Homicidal death of deceased Nandu is not in dispute. Even otherwise, from the statements' of Jaimani (PW-1),, wife of the deceased, Dhansai (PW—2) and Dr. lndrajeet Gupta {PW-10) who conditcted [lostmortem and proved his report of ExJJ/ lO—A in which he noticed following injuries and opined that“ cause of death was coma aa a result of brain hemorrhage and it was homicidal in natui‘e, it isi established that death of Nandu was homicidal in nature. Cn externai em’mination (i) lacerated woun 3" X lj8" x 1; 10” on trout left leg at middle. (ii) Lacerated wound 2 V2” X if 8" x 1f 10" on front of left leg below injury No. one. (iii) Lacerated wound 1” X 118” x 1] 10” below leg. (iv) Lacerated wound 2" x l] 8" X1] l0” on nont of right leg. (o) Lacerated wound 2 V2” x 1f 8" x l; 10” above injury No. four. (vi) Bruise 4" X 8" on left Shoulders. (vii) Bruise 3” x 2 ‘é" on left side chest. (viii) Left femour bone was fractured at middle. (ix) Bruise 4” x 3” plus Heamatoma on right temporal bone and the temp oral bone was slightly depress ed. On internal esamination (i) Right temporal bone was fractured at two places, hrst is ' a» a xlinear and second l 1 1’2 a: linear. (ii) Right parietal bone was fractured in front part close to temporal bone l” x linear. Brain Heainorrhage was found in both the Hemisphere. (iii) Left femourbone was fractured at middle. ae ~ We r ew 7. Learned counsel for th€ accugedf appellanis submitted that all the three accused parsons ware prosecuted under Section 302i 34 of the IPC and case of the prosecution is that they all assaulted deceased Nandu with a common intention of causing his death, however, on the similar evidence the Court below has acquitted co— accused Kunwar Sai: therefore, it is evident that the prosecution has failed to prove common intention of all the accused persons for causing death of deceased Nandu. It is further argued that the alleged eyewitness PW—l Jaimani, wife of the deceased, in her court evidence has stated on oath that‘appellant Kanwal Sai assaulted her husband with hammer and appellant Shiv Prasad with rod, hut in her diary statement of EXDI l this fact is missing. The fact that she reached the place of incident and intervened is also missing. Similarly, witness Dhansai (PW—2) who has also claim ed himself to be an eyewitness and lodged the F.I.R., has made material improvements in his deposition before the Court. 8. ‘ Reliance is placed on the judgment in the matter of Halim Mian and others Vs. The State of Bihar reported in AIR 1971 $11.7 1826 and it is submitted that where the prosecution fails to prove the common intention and there is no evidence to ascertain that any particular accused caused any particular injury, the question of constructive liability has to be ruled out and none of the accused persons could have been convicted. 9. Further relying upon the judgnent in the matter of State of West Bengal Vs. Vindu Lachmandas Sakhrani alias Den! reported in AIR 1994 S.C. 772. it is argued that where common intention under Section 34 is a core of charge, one of the accused has been acquitted of the above charge, no independent charge under Section 302 of IPC is framed against the another accused and there is no evidence showing that the another ac cused independently committed the crime, another accused cannot be convicted for the odence. 10. Learned counsel also placed reliance on the judgment reported 9 in 1997(1} M.P.W.N. 94, in the matter of Kheek Ram Vs. State of M.P. and argued that police statements under Section 161 of Cr.P.C. are the very foundation of prosecution case and no witness can he relied on for a fact which he has not stated in his police statement. tm, 11. On the other hand, lsarnecl counsel for ths Statefrespondent supportéd impugned judgment of the trial Court. 12. We have heard learned ceunsel for the respective parfies and have perused the material available on record. 13. PW—2 Dhansai is_the injured eyewitness. He sustained injurieS 1'11 the same incident and. was examined by Dr. Indrajeet Gupta (PW— 10) Who ha‘s proved his injury report of EX.P{ 9~A. He has also lodged the ELR. naming the accused persons as assailants. Thus, presence of this witness on the spot at thedjme of incident is established. This witness has stated that on the date of incident, wife of deceased Jamiam came to him around 8—9 p.131. and told him that accused persons Shiv Erasad, Kanwal $ai are assaulting her husband, whereupon he went to the place of incident and saw that Nandu was lying on‘the groun‘d, Kanwai Sai and Shiv Prasad were as saulting him and Kunwar Sai, the acquitted accused, was standing at a distance. When he tried to lift Nandu, Shiv Prasad assaulted him with a rod on his head, as a result of which he became unconscious and he was taken to home. In the morning at about 4.00 wife of Nandu again came to his home and informed that Nandu has died. Thereafter he along with watchman went to Surajpur police station and lodged Merg intimation of EX.P]1 and F.I.R. of EX.P}2. He has also stated that he was referred for examination to the doctor Where the doctor had given him preliminary treatment and stitched the wound over his head. This witness has been cross—examined at length by the defence counsel, however, he has stuck to his claim that he had seen the incident and the appellants assaulting deceased Nandu. The defence has not been able to elicit any circumstance which makes the evidence of this witness untrustworthy or unreliable. The statement of this witness is corroborated, in material particulars, by the statement of PW—l Jaimani who also claims herself to be an eyewitness of the incident. Though there are some inconsistencies in the statement of PW—l Jaimani, however, We are of the considered hpinion that the statement of PW—Q Dhansai, the injured eyewitness who lodged the F.I.R. promptly inspires conhdence. His version is corroborated by the promptly lodged FIR as also h‘om the statement of Dr. Indrajeet Gupta. (PW— 10) who has proved the postmortem report. 14. NOW caming the judgménm cited by learxmd counSel f0r thc accused/appellants. In the matter of $tate of West Bengal Vs. Vindu Lachmandas Sakhrani alias Deru {supra}, no independent Charge under Section 302 of the IPC was framed against the accused persons and there was no independent evidence regarding participation of the accused who had been convicted in the said, 0&‘ence and in these circumstances, the Hon’ble Supreme Court in the absence of independent charge under Section 302 of IPC when the accused is charged under Section 302/34 of IPC and other accueed person is acquitted of the above charge, has held that in such circumstances, the another accused cannot be convicted for the ohenc‘e with’the aid of Section 34 of IPC. Similar is the law iaid down in the matter of Halim Minn (supra) and both the above cited i judgients are distinguiehable on facts. In the preeent case, accused 1(un‘war£Sai has been acquitted because injured eyewitness has not attributed any overt act to this accused as he was standing at some distance at the time of incident. ¢ 15. So far as the judgment in the matter of Kheek Ram (supra) is concerned, it is true that a Witness cannot be relied on for a fact which he has not stated before the police in his statement, however, as we have already pointed out in the foregoing paragraphs that there is no major omissions. or improvements in the statement of complainant Dhansai and the omissions pointed out are trivial in nature, which do not go to the root of the matter, therefore, simply on the basis of some trivial omissions in the diary statement of EXDf 2 of the complainant Dhansai, his evidence cannot be discarded. 16. For the reasons stated above, We are of the considered opinion that conviction of the appellants under Section 302 of the IPC and conviction of appellant Shiv Prasad under Section (L3 of the IPC, is based on proper appreciation of evidence available on record and‘the prosecution has been able to prove its case beyond reasonable doubt and there is‘no illegality or iniirmityin the impugied judgment of the trial Court. 17. In the result, the appeal being devoid of substance is liable to be dismissed and is accordingly dismissed. / Sdl— r. L.C.BHADOO sal— BA M‘sHM Judge Judge D / r /