HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. $HARMA & HON’BLE MR. RAKE-NAT}! CHANDRAKAR, JJ. CRIMINAL APPEAL NO. 287 OF 2007 APPELLANT Amardas Samami son of Shri (In Jail) Punnjdas Samami, aged about 3O years, ReSident of Village 1 Pardeshikanpa, Police Station Mungeli, District Bilaspur (C.G.) ‘ '«V State of Chhattisgarh, Through The Police Station Mungeli, Dismict Bilaspur (C.G.) RESPONDENT MEMO. OF APPEAL UNDER SECTION 374 (2) OF THE CODE OF ' CRIMINAL PROCEDURE, 1973. Prasent:— Mr. Vimal Tondey, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State] respondent. JUDGEMENT (Passed on 25/ 1 1/201 1) The following iudgment of the Court was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgnent of conviction and order of sentence dated 19/3/2007 passed by Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur C.G. in Sessions Trial No. 244,]2006 whereby and where under after holding the appellant guilty for the commission of otferrce of robbery 8s culpable homicide amounting to murder of Vimlabai, convicted the appellant under Sections 302 8r, 392 of the Indian Penal Code and sentenced - @mm» gm), Eatg-) wk” wig”, was: > ~ , , “ugw imprisonment for h‘fe & fme of Rs. 500/ -, in default of payment of iine amount additional rigorous imprisonment for 3 months and rigorous imprisonment for 7 years 65 fme of Rs. 500/—, in default of payment of fine amount additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 13/ 1/2006 at about 12:00 at noon at village Bhatapara while Vimlabai (since deceased) going towards field, appellant who use to play game, committed robbery of ornaments which Vimlabai was wearing and caused culpable homicide amounting to murder of Vimlabai thereafter he fled from the spot, when incident was an _ noticed to her husband PWI Ramu Rathore, he was immediately rushed to the spot, he requested PW7 Shatrughan Singh Rathore for lodgng report. PW? Shatrughan Singh Rathore went to the Police Station and lodged Marg intimation Vide Ex. P—6. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P—4, inquest over the dead body of Vimlabai was prepared vide Ex. P—S. ,la n sum; m 4‘ aimsmmdll WWWW‘ Ornaments were missing from the body of Vimiabai which she was wearing. One pair sleeper, one piece of Lungi and one axe lying near the spot were seized vide EX. P—7. Appellant was found at village Pandariya along with ornaments on the basis of report of informant, ornaments i.e. one silver Kardhani, one pair Toda, one pair Silver Anthi, 11 piece silver rupees (Katdar), one golden Fulli and one piece Dalda Kardhani found in possession of appellant were seized at village Pandariya Vide Ex. P-8. Roznamcha was recorded at village Pandariya vide Ex. P- l4. Ornaments were examined by Goldsmith vide Ex. P—11. Appellant was arrested vide Ex. P—9. He was examined medically vide Ex. P—16. Information relating to possession of ornaments was sent to other Police Stations vide Ex. P- 17. Dead body of Vimlabai was sent for autopsy to Community Health Center, Lormi vide Ex. P~ 13. PW13 Dr. D. Laj conducted autopsy vide Ex. P~12 and found injuries:— (i) Injury over neck. (ii) Fracture of cricoid cartilage 85 hyoid boner (iii) Fingerprint over neck. (iv) Abrasion over right elbow. Cause of death was asphyxia as a result of throttling and death of Vimlabai was homicidal in nature. ,/' , ‘ , will a (h) 1 ‘i S «éQXfdL- _> L 1 i i. gem meshes x Liam a gal mm ehxta wmwwm«w saw—“emmenu a 4. On the basis of inform ation received from Police Station Pandariya, property was placed for identification, PWI Ramu Rathorc 85 Dukhiyabai identifled the property as the property of Vunlabai vide Ex. P— 10. Finally, First Information Report was lodged Vide Ex. P-20. Spot map was prepared vide Ex. P- 19. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge—sheet was tiled before the Judicial Magistrate First Class, Mungeii who in turn committed the case to the Court of Sessions, Bilaspur from where learned Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur CG. has received the case on transfer for trial. 6. In order to prove the guilt of the appellant prosecution examined as many as 16 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him but has admitted the possession of ornaments, he has offered an explanation that his relative Bhuru was in possession of such ornaments/at his instance, he was with him for selling the same at Pandariya village, being asked by Police, Bhuru iled from the spot and Police has falsely implicated him in the crime in question. \ After affording an opportunity of hearing to the parties, learned Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur C.G. has convicted and sentenced the appellant as aforementioned. Mr. Vimal Tondey, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that conviction is based on substantial evidence of identification of ornaments, circumstantial evidence, his presence near the place of incident at the time of offence and the fact that he has fled from the place of incident just after commission of incident and the fact that ornaments has been recovered from the appellant Learned counsel for the appellant further argued that aforesaid evidence may be sufficient for creating doubt but not sumcient for definite conclusion that only appellant has committed aforesaid offence. Learned counsel for the appellant also argued that he has offered an explanation that Bhuru was actual possessor of the property and has discharged his burden. On the other hand, learned P.L. for the respondent/State opposed the criminal appeal and argued that initially Marg - intimation was lodged against unknown person, this is a case of robbery and murder on 13/ 1/2006. On 14/ 1/2006 appellant was found in possession of ornaments at Pandariya while he was trying to sell. Information was sent to all Police Stations, on the basis of aforesaid information, articles placed for identification and same was identified by husband of Vimlabai as the ornaments was Vimlabai. These evidence are suilicient to prove the fact that only appellant has committed robbery and murder of Vimlabai and Court below has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 14. In the present case, homicidal death of Vimlabai as a result of throttling has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PWIS‘ Dr. D. Laj & autopsy report Ex. P~12 and death of Vimlabai was homicidal in nature. l5. question is concerned, prosecution has adduced following sets of evidence:- (i) Vimlabai was wearing ornaments. As regard the complicity of appellant in crime in (ii) (iii) Vimlabai has been killed on 13/ 1/2006 at about 12:00 at noon. Ornaments which she was wearing was not found over her body. Soon before incident and after incident, witnesses has seen the appellant near the place of incident and after incident, he fled from the place of incident. ‘ On 14/ 1/2006 i.e. second day of such incident, appellant was found in possession of ornaments at village Pandariya. Ornaments identined by husband of Vimlabai as the ornaments of Vimlabai which she was wearing at the time of incident. Evidence of PWI Ramu Rathore, husband of deceased Vimlabai, PW7 Shatrughan Singh Rathore & Marg intimation Ex. P—6 are sumcient to establish the fact that on 13/ 1/2006 at about 12:00 at noon Vimlabai died in the field, she was wearing ornaments but which was not found in her body and somebody has killed Vimlabai. Prosecution has examined PW 14 Rajesh Joshi, Inspector who has deposed that on 14/ 1/2006 he received information from mfdrmant that appellant was in possession of ornaments and was present at village Pandariya then he seized the ornaments fmm he appellant Ex. P—8 and recorded RoznamchwEx. P- 14. Ornaments were examined by Goldsmith Ex. P—11. Appellant was arrested vide Ex. P—9 and he was examined medically Ex. P-16. Radio message was v (Vi) t issued to Merent Police Stations relating to such ornaments Ex. P—17. These evidence fmds corroboration from the evidence of PW9 Ramprasad, PWIO Horilal 8s PW12 Baldau Soni before Whom ornaments were seized and ornaments were examined. Defence has cross-examined these Witnesses at length but has not been able to elicit anything in their cross- examination to discredit their testimony especially relating to such seizure and possession of aforesaid ornaments. Nothing has been suggested to these witnesses by the appellant that ornaments were in possession of his relative Bhuru. Appellant has not examined any witness to prove the fact that ornaments were in possession of Bhuru. 17. Prosecution has adduced another sets of evidence of PW4 Rampal Rathore & PW5 Narmadanand who had deposed that at about 10:30—11:45 A.M. Vimlabai was going towards field, appellant was also went towards field where Vimlabai had gone thereafter within 15-20 minute, they heard Vimlabai was murdered thereafter they saw the appellant who was running towards Lormi. Defence has cross—examined these Witnesses at length, there is some contradiction and omission but they have clearly deposed that appellant was following Vimlabai and after incident, they saw the appellant .g while he was running towards Lormi. As per evidence of PWI Ramu Rathore, husband of Vimlabai and evidence of PWll N.K. Sharma, Tehsildar who conducted identjiication of omaments and PWI Ramu Rathore had identif1ed the ornaments, present appellant has not claimed property as his property, he has onered an explanation that property was in possession of his relative Bhuru but to discharge his onus, he has not adduced any evidence, heavy burden was not him but at least he was requixed to adduce some degree to show that Bhuru was in possession of aforesaid ornaments. In absence of such evidence or material, only inference would be possible that ornaments which Vimlabai was wearing on 13/ 1/2006 was found in possession of appellant on 14/ 1/2006 at village Pandariya. Vimlabai has been killed on 13/ 1/2006 at about 12:00 at noon and just before her death, witnesses have seen the appellant while he was following Vimlabai and also seen the appellant after incident when he was running towards Lormi. If these evidence are considered together then inference would be possible that only appellant has committed culpable homicide amounting to murder of Vimlabai and has committed robbery of ornaments which Vimlabai was wearing. After appreciating the evidence available on record learned Second Additional Sessions Judge (F.T.C.), Mungeli, District Bilaspur C.G. has rightly convicted and sentenced the appellant under Sections 302 85 392 of the Indian Penal Code. Conviction of the appellant is based on credible, clinching and reliable evidence sustainable under the law. While convicting and sentencing the appellant under Sections 302 & 392 of the Indian Penal Code, Court below has not committed any illegality. 19. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgnent of conviction and order of sentence. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed. / Sdl- Sd/"‘ y" T.P Shanna l R.N.Chandrakar Judge i _ Judge