I ¢RIMINAL APPEAL UNDER SECTION 374: CODE OF CRIMINAL PRbCEDURE; 1973 . «(a CF0000061749 UV“ ‘I‘S‘m QM». WM” ( m. rmzmaU _ IN THE HIGH COURT OF JUDICATURE AT JABALPUR Criminal No. ‘7‘“ o£ 1997 Appeal I APPELLANT .‘ “g“fkas Bai, agedf‘about 3O (yéars. W/o I TIN JAIL5 Shri Suresh Satnaml, . r/o Vlllage , Pacharl, . ‘ Tehsil Jgnjgir, Police Station - Akal;a’ra, / District BilaSpur, ‘5; VERSUS RESPONDENT z State of Maéhya Pradesh through the District Magistrate, BilaSpur. i" WW,n—qr,f§mgt m %>&z$63f3é7 Mi7$(‘?7 a1 26$ WW<W> O WWfI‘t‘s‘z‘TW ‘ WWW $Wm DMsion Bench - Hon'blz Mr. LC‘ Bhadoo and Hon'ble ‘ Mr. Dhirendm &&shm. J'g ._ 28-11 ‘ —2006 Mr. Abhay Tlwari ,counsel ’ fhe appellams in Cr.A.No.2363/1997. Mr. Vinod Tekam, counsel fo fhe appellam' in Cr.A.No.1741/1997. 3 V ‘ Mr. U.N.5. Deo, Addifional ublic Prosecu‘ror wifh Mr. Akhil Mishr'a, Panel Lawyer for The Sfa‘re/respandem. Per LC. Bhadoo J:- Criminal Appea! No.2363/19 7 filed by LaIJ'i & A§1ak Kumar' fhrough The Superinfendenf, Cenfr-al Jail, Raip and Criminal Appeal No.1741/1997 filed by Rasbai are being disposed of by his common judgment as these appeals are grising ouf of The same incidenf and fhe same judgment By fhese appeals accused/ ppellan'l's Lalji- Aéiok Kumar & Rasbal have quesfioned legalify and cor-rea A Oral. judgn‘en‘r dic‘rcfed on D is of the Judgmen'l' of conwc‘i‘ion and order of sen'lence dated 29-7-1997 passed by The Addmonal Sessions Judge Jarugir m Sessmns Trial No.402/95, where y learned Addmonal Sessions Judge afTer holding accused Lalji, Sukwara B Ashok Kumar, Dilharan & Rasbai guilTy for commission of offence under SecTi ns 148, 302 read wiTh Secfion 149, 302 read wiTh SecTion 149, 302 read wiTh S cTion 149 & 307 read wiTh SecTion 149 of The I.P.C., senTenced each of The acc “‘Ac.‘murder of Saheblal, RaTanbai & d To undergo imprisonmenf for life for each SanTkumm" and also sentenced each of The P.T.O. XI—HC—78 f m a, u. e XI—HC—78 ww,'m,W tJ~ . Wm (W) XI—HC—78 mm,m,mgt manna; a 200 WW(W) ¥ w$rm § WW%WI&F§K $Wm wifh his son Ashok Kumar, his wife Kamibai, wife of Laui, Sukwara Bai, Dilhc and oné more Indy wen? for sowing paddy in fh‘Fe dispufed agricuhuml field. On ming To know abouf this fact, a‘r abou‘l' 6 a.m. he?“ father Sahebial, morher Rd‘an ai, bro1'her' Sanfkumar & Shoukilal wen? Tojhe ag‘Hcuh‘ural field in order to ask finie, §he heard a commotion on w ich she along with her sister-in-law Kaushalya V Bel went to see. as to what is hop ening. On seeing them, Ashok Kumor, Lalji & Dilharan rushed towwds them ’m na+ To cumvafe their field. Affer some e attack them, therefore, they ran may. Thereofter, Ashok Kumar & Lalji I ft the field. Again she along with her sister- in-law went to the field to see t eir family members and they sow that her mother Rotonbai, father Saheblal elder brother Sant Kumm- were murdered by Lalji, Ashok Kumar: Dilharan, 5 kwora Bai etc. Hand & leg of Shoukiial were chopped. When they went to see, they saw that those persons were assaulting h them therefore, they ran away. Receiving this report EXP-1 the in—chorge out post Baloda forwm'ded the some to the station House Officer Police StationMkaltara Eased on that”; FIR. EXP-58 was registered by the S. O. for commission of offence under Sections 147, 148, 149, 307 di 302 of the I .C. Merg intimation EXP-2 was also given by Deendayal. Under EXP-3, the In estigoting Officer seized the chopped leg d: hand of Shoukilal md sent Shoukil l along with chopped hand & leg for treatment to Primary Health Centre, Bolodo, where Dr. V. Khetrapal prepared the report EXP—4. P.T.O. 1 m d XI-HC-78 EW,WW,W mama: m: 200 Wm (W) Maw WWW WW§WW mwm éawaném As iner The pos‘i-morfem repor‘r (Ex (i) i u " The body of scheblai W6 s n? for posf—mor‘rem examinafion fo Primary Heélfh CenTre, Baloda under Ex.P-5 here Dr‘. 5.6. Mishra (PW-5) conducfed posf- mor-i‘rem, prepared fhe post-mor1'em repor‘r Ex.P-6 and opined That The dea‘rh of 5aheblal was due To shock & haem hage and fhe dea'l'h was homicidal in nature. 5), fhere was one incised wo nd on The righf ieg 8 ems. beiow from knee joinf in The size of 8 cm . x 4 ems. x 7 ems. boih bones Tibia d: fibula were found cuT wiTh ail scies, veins, arTeries and leg was separaTed A from That place, margins ere clear cut: (ii) Two puncT‘ured wounds The cenTre of righT Thigh ouTer fronT side; upper 2 ems. x % ems. x 7 ms., lower 2 ems x s ems. x 7 cms. and There (iV) ‘M puncTur-ed wound in The si e of 5 ems. x i ems. x 7 ems. below chin; and incised wound on mid oeei iTal region in The size of 6 ems. x 2 ems. brai deep, fracTure of skull w present The body of RaTanbai was also senT for posT—morTem examinaTion To Primary HealTh CenTre, Baloda u der EXP-7 where Dr. S.C. Mishra (PW-5) condueTed posT-morTem, prepared T e posT-morTem reporT EXP-8 and opined ThaT The cause of deaTh was due To shoe & haemorrhage, and The deaTh was homicidal o r : . u n was fracTure of righT leg elow The injury; puncTured wound on The efT leg in The size of 5 ems. x 2 % ems. x 8 cms. boTh Tibia & fibula f eTured under The injury: (i) incised wound 3 ems. x % ems. x scalp deep on head righT side parieTal \\. region; P.T.O. XI—HC—78 mm (13W) m$rm mmm marwm incised wound on head 2 cr ris. back injury No.6) - 4 cms. x %; cms. x bone deep wiTh fracTure on parieTal region; comple‘re mpufa‘rion of righ‘r forearm from wris‘l' joim' 6 ems. above, ail veins, nerves & bones were complefeiy mmm-am éawm ‘_\\,‘ ?k (ji) (iii) 1 (iv) a ‘ i i i (V) skin muscles, arteries, separa‘i'ed; compiefe ampufation of 161 :1‘ Ieg 8 ems. from ankle joint all skin, muscle, hone, arteries, veins, ner leff radius and ulna fracf s compleieiy separai'ed: v ed from ihe cen'rre wifh accumulai'ed blood A clot, there was a frac‘i'ure under injury No.(ii). All injuries we‘re mTe-morfem in nai'ure. The body of Sanfkumor was en‘l' To Primary Healih Cen‘rre, Baloda‘, :under EXP-9 where Dr. 5.6. Mishra (PW posT-morTem reporT Ex.P-10. He w shack & haemorrhage and same was omicidal in naTure. He noTiced The following injuries on The body of SanTkumar: - incised wound on head f mmfer head bone fraci'ur incised wound 5 cms. x x brain head bone fracfur incised wound on Ief‘r pari bone fractured: Ieff leg complefely amp above lefi' ankle; ii) (ii) (iii) (3V) conducted posf-morfem and prepared The of The opinion thai 1'he dea‘i'h was due To mporal righT side 10 ems. x 2 ems. x b’rain d; d: from injury No.(i) on head 5 ems. x 2 ems. Tal bone 5 ems. x 2 ems. x brain maTTer head TaTed wiTh bones separated blood vessels P.T.O. HW,WW,W Wm .o.o. oooooooooooooooo as 200 5 ~ ) k mm,m,%amg{ . mmm 200 Wm (W) mmwm d ampuTaTed 13 cms. from wrisT joinT wiTh boTh (v) righ1’ forearm separafe ‘ skin wag cut i bone muscle vessels and 3, P-24 &P—25 To The Panchas, The InvesTigaTing .P—26 of The body of Saheblal, EXP-27 of The The body of SanTkumar. Under EXP-30, The gagesTigaTing Officer seized Th cloThes of Saheblal, kaTanbai & SanTkumar. ‘ Under EXP-3;, The I.O. seized on iron carpen'rer axe and one axe from fhe house I of accused Lalji. Clofhes of Lalji Bai were seizea under- EXP-33. mwawm aamm Affer‘ giving nofice Exs.P-2 Officer, prepared fhe inquesf Ex 1body of Rafanbai and EXP-28 o A ere seized under EXP-32. CloThes of Sukwara oThes of Adnok Kumar were seized under EXP- 34. House of Laiji was searche and search memo EXP-35 was prepwed._ One carpenfer axe and axe sfained wi h blood were seized. Plain soil and blood stained soil were faken info possession rom The place where Three bodies were lying. Under EXP-39, one axe, one bmi oo sTick’, one baT of Kulhadi, one Kulhadi and one Rampa were seized from The pla e of occurrence. Under EXP-40, one LaThi, one iron Barchi, one bamboo sTick a d one bamboo 6enda were seized. During The ‘ cusTody, Dilharan gave memormd m Ex.P-41 andkin pursuance of ThaT, his cloThes l were seized under EXP-42. One Kori, weapon of offence, was seized/under Ex.P- l 43. The siTe plan (EXP-44) of The place of occurrence was prepared by The Pafwari. Papers regarding The l AfTer compleTion of inve igaTion, charge sheeT was filed in The CourT of Judicial MagisTraTe, FirsT Class, anjgir, who in Turn, commiTTed The case To The Sessions Judge, Biiaspur, from l re learned AddiTional Sessions Judge, Janjgir, received The case on Transfer fo Trial. were also seized. a l e XI—HC—78 HW,€H1W,W . . ooooo¢oooo....o...oo. Wm<m) 33‘ WWW WWW E mmwm « esfabli$h charge agains1' fhe accused persons a ‘ The prosecmion in order to aimmined 14 wifnesses. S'I‘a‘l’emen‘l' ) WW§fwm agmm t x of fhe accused persons were recorded under SEction 313 of the Cr.P.C. Accused dick Kumor denied the incriminating material appearing against him in the pros ‘ 'tion evidence and stated that he is innocent, he has been falsely implicated on ccount of animosity. Rasbai also denied the in‘crjminafing maferial appearing shred fhérr she is innocent she animosify. A Affer' hearing counsel for n Judge convici'ed and sentenced eaci We have hewd Mr. Abhay Tiwari: learned counsel for accused/appellant Ashok Kumar: Mr. Vinod Tekam, Iewned counsel for accused/appellant Rasbai and Mr. Akhii Mishra; iearned Panei Law yer on behalf of the 5tate/r'espondent. Learned counsel for bo‘rh deafh of Sanfkumar, Ra‘i'anbai & (PW-2), the injured wi'rness, as alsc 5), it established that the deaths of Santkumar, Ratanbai & Saheblal were homicidal in na1'ure. :used/appellants Ashok Kumar & Rosbai in the rusal of the first information report (EXP-1) ows that the name of Rasbai has not been mentioned, only it has been menti ed that Lalji, Ashok Kumar, Dilharan, Sukwara a As far as invoivemenf of aci crime in ques‘rion is concerned, pe given by Kum. Purnima (PW-1) sh ainsf her in fhe prosecution evidence and has been falseiy implicated on account of aspective parties, learned Additional Sessions iof the accused as aforementioned. t e appellants have not disputed the homicidal eblal. Apart from the evidence of Shoukilal the medical evidence of Dr. 5.C. Mishra (PW- P.T.O. XI—HC—78 EW,W,W . WWW HE 200 WW(W) WWW mmm , wwwefrwm l WWWW a;mm 8H and ofhers murderéa Sanfkumar', Rafanbai & Saheblal. Even fhe perusal of fhe { eyidence of Kum. Purnima shows the? in fact she W$ no? *he eyewifness 1‘0 The inicidenf. While 'rhe accused persans were whacking the deceased persons, she o+ly went fo fhe place of occurrence affer fhe accused persons !eff .fhe place after The commission of crime. “F ‘ Shoukiiai (PW-2) is the ma-i'erial wi‘rness who was present in the field along also sustained severe injuries as his hand & leg were chopped in the incident. In h evidence as PW—Z, he has stated that all the five accused persons came in wh Rasbai was also there. In para 5, he has stated that Sukwara Bai d: Rasbai cked his mother Ratanbai with Barchi on her head. In the some para, he has a stated that Rasbai attacked her with a Lathi. In para 6, he has further stated t at Rasbai has broken his teeth by assault of Lathi. In cross-examination para 2 k he has stated that the me of Rwbai was not known at the time of incident, h r name was disclosed by his'sister and Rasbai was not seen in the village before he incident. In Ex.D-1, the police case‘diary statement, it has been written th Rasbai was throwing stones, how it/has/been written he does not knowi It is in orrect to say that Rasbai was not present at the scene of occurrence. It is also incorrect that there was no stick in her hand and she has not assaulted. It is a incorrect that Rasbai had not assaulted and broken his teeth, this was disclosed by him to the Police, but why it has not been mentioned in Ex.D-1, he does not now. When his statement was taken in the hospital by the doctor, he disclosed the name of Rasbai. Why the name of Rasbai has not been mentioned in the dying declaration recorded by Dr. 5.C. Mishra (PW- with the deceased persons and who i‘ i A ‘ i . _ R10. . 5),: he does not know. Whereas, pe usal of the dying declaration of this witness a l l WW,W,W WmooO¢otoooo§‘ooo0ooooo W; 200 Wm (W) WW§WW mmwm ' é;aT%Uan%3T recjorded by fhe doctor shows Thc‘r in para 4 if has been wri‘H‘en tha1' Ashok Kunjmr, Lalji, Dilharan & Sukwara ai and one hdy whose nme is no? known mfgacked, buf if has no? been disc sed by this wifness 1'o The doctor- fhaf the fifh‘i person, fhe lady, has affacked him wiih La1‘hi, broken his Teefh and. she has affhcked his mother Raianbai on r head. Whereas, in fhe police case dairy sfa‘remem (Ex.D-1) if is menfione Thai Rasbai wm throwing ear‘rhen clo‘i's. Therefore, ihis wifness has made i provemen‘r in his evidence before The Couri' and there is nofhing on record wh shows fhaf The feefh of ihis wifness were broken.‘ In The circumstances, in v of 'rhe above facfs, i‘he evidence of fhis wi‘rness (PW-2) in respecf of Rxb ' appears To be aggravaTed improvemenT and based on ThaT wiThouT any corrobor ion in moTeriai parTiculars by oTher evidence, Rasbai connoT be heid guiiTy for o nce under Secfions 302 read wiTh SecTion 149, 307 read wiTh SecTion 149 & [48 of The I.P.C. Therefore, convicTion and senTence imposed upon accused/appellani‘ ‘Rosbai is noT based on any iegai, ciihching evidence and finding of The Trial Count‘ To ThaT exTenT cannoT be susTained. As for as involvemenT ofaccused/appeiianf Ashok Kumor in The crime in quesTion is concerned, The name of Ashok Kumor has been menTioned in The F.I.R. Shoukilol (PW-2), The injured wiTness, whose hand 6: leg were chopped in The incidenT has sTaTed in his evidence ThaT There was a dispuTe beTween his faTher & Lalji regarding The agriculTural land. On The faTeful day, accused Lalji, Dilharan, Ad1ok Kumar 6i Sukwara Bai came 01 The field and They sTarTed quarreling wiTh Them. Ashok Kumor was carrying axe, he along wiTh Lalji & Dilharan aTTacked his P.T.O. i i i f e XI—HC-78 mw,mna,i%mmg{ 10 gwm..nn” ........m\ 200 WW (W) mav‘rm WWW WW§WW§ ‘ mmwm ém%n3n%v farher wifh The weapoik They wqwe carrying. Ashok Kumcr- attacked his father ‘ aljso affacked wi'rh the axe on the head of his brother- and the hand of his broi'her i i ‘ fTom fhe sharp edged side of the w<e on The head 0f his fa‘rher. Ashok Kumar w whs chopped by accused Ashok Kumar and ihereaf‘rer, his bro‘i'her- succumbed i0 ‘H'ie injuries susfained by him. II para 5 of his evidence, he has further stated 1 th‘at Ashok Kumar chopped leg & and of his mother Ratanbai. Thereafter, Adlak KLin‘iur‘ and Laiji rushed towards h to attack him and accused Ashok attacked him i ' with axe on his head, which was hown by this witness in the Court. His left leg was chopped by ac‘cused Ashok K mar by the assault of axe. The witness showed his leg also to the Court which as choyped below the knee. He ha further stated that they left him conside ing him dead and he became unconscious. After one hour, he regained conscious, is sister Purnima came and gave water to drink. Thereafter, he was taken to the hospitals at Baloda and Bilaspur. He remained admitted in the General Hospital Bilaspur for about 2 %—3 months. Mr. Abhay Tiwari, learned nsel appearing on behalf of accused/appellant Ashok Kumar, was not able to po out in cross-exgMation of this witness/(PW- 2) pnything to show that the evide ce of this witness in respect of Ashok Kumar is not trustworthy or reliable. Th evidence of this witness in respect of the involvement of Ashok Kumar stand corroborated by the medical evidence also and even hand & leg of this witness w re chopped by making assault with axe by this accused, which this witness had own in the Court. Even head injury was also inflicted by this accused on this tness, which also was shown by this witness in the Court. There is nothing to indicate that this accused hm been falsely P.T.O. u i i XI-HC-78 WW,W,W ‘ mm.ooooo.‘.¢o.o. .W 200 11 WW (W) WWW WWW WW§WW mmmm %3T%m3n%$ L Implicafed by this wH‘Fiess and fke evidence of ‘rhis wifness corroborafed by The medical evidence inspires confidence of ‘rhe Cour-t v Therefore, we do not finc any illegaiify or- infirmify in fhe finding of The llom Ashok Kumcr under Secfions‘ 302 read uiifh .Secfion 149 for each murde of Sahebial, Sani'kumar & Rmmbai & 307 read Wit‘h‘Secfion 149 of fhe I.P.C. f r affacking Shoukiial and atfempfing To commit . his murder, also under Seciion 1 8 of fhe I.P.C. for carrying deadly weapon while riiember of the unlawful assembly A In the circumstances, th is no merit in Criminal Appeal No.2363/1997 in respect of accused/appellant Ash k Kumar, same is liable to be dismissed and it is hereby dismissed. As far as Criminal Appeal No.1741/1997 preferred by accused/appellant Rasbai is concerned, same succe ds and it is allowed. Conviction and sentences imposed upon her for commissi n of offence under Sections 302 read with $ection 149, 307 read with Secti n 149 & 148 ofghe I.P.C. are set asidefshe is acquitted of the said charges. i i i 1 . i i i i i i i trial Court convicting accused/ i u i is already on bail, therefore, her bail bonds are discharged. She need not sur ender before the Court. Parties are entitled for ce tified copy of this order. Sdl- ‘ Judge \\ L.c. Bhadoo l P.T.O. e a . e e