HIGH COURT OF CHHATTISGARH : BILASPUR DIVISIQN BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. APPELLANTs RESPONDENT Criminal appeal No.317 of 1995 •1. Booti alias Bootai alias Bhuwal, S/o Mandhat Kanwar, aged 45 years. 2. Baljeet,.S/o Shivram Kanwar, aged 31 years. , Both residents of Village Khamriya, Police Station, Lakhanpur, District Surguja. VERSUS State of M.P. through D.M. District- Surguja a»? CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: r Shri Atul Pandey, counsel for the appellants. Shri Ashish Shukla, G.A. for the State. ,ORALJUDGMENT (Passed on 03.05.2010) The challenge in this appeal is to the judgment of conviction and order of sentence dated 17.01.1995 passed in S.T.No. 162/1994 by the 2nd Additional Sessions Judge, Ambikapur, Dist. Surguja whereby and whereunder after holding the appellants guilty for commission of culpable homicide amounting to murder bf Sumersingh, the Court below co'nvicted the appellants/undfer Section 302/34 of the I.P.C. and sentenced to imprisonment-1:or life. ^,. 2. The conviction is impugned on the ground that without credible, clinching and legal evidence, the Court belowconvicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the'case pf prosecution, on fateful day i.e. 28.03.1994 at about 9.00 a.m. while SumerSingh (since deceased) was coming from the l^ .- .f^f"^^ f ^s^ 1 '^^^^' -^' pond, the appellants, who were hiding themselves, came out. The appellant Booti Singh was holding axe whereas appellant Baljeet Singh was holding betel axe. The appellant Baljeet Singh assaulted Sumer Singh by betel axe on his neck, due to which, Sumer Singh fell down. The appellant Booti assaulted Sumer Singh and repeatedly caused injuries on his shoulder and head. Ultimately, Sumer Singh has died. P.W.3 Indro and P.W.4 Chintawan, sister and brother of the deceased - Sumer Singh, who were present on the spot, intimated the incident of murder to P.W.2 Ramkeshwar, who is also brother of the deceased, lodged F.1.R. vide Ex.P.2. Merg was recorded vide Ex.P.19. Investigating officer left the scene of occurrence and after summoning the witnesses vide Ex.P.3, inquest over the body of the deceased was prepared vide Ex.P.4. Plain and bloodstained soil was recovered from the spot vide Ex.P.5. Vide Ex.P.13A dead body was sent for autopsy. P.W.10 Dr. Mhinqleshwar P.W.10 conducted autopsy vide Ex.P.13 and found the following injuries: 1) Incised wound of 3" x V/z" x 1'/2" on the left side of face comprising cut fracture on mandible bone. 2) Incised wouad of,3" x 1Yf x 1 %" on the right side of face at mandible region comprising fracture of mandible bone. 3) Incised wound of 3" x 1 %" x 1 %" on upper part of neck. 4) Incised wound of 4 Vi' x 3" x 2" over neck. 5) Trachea and internal throat were found cut. 6) lncisedwound"of4 1/2"x2"x 1" over the left shoulder. Mode of death was shock and degth was homicidal in nature. During the course of investigation, the accused Booti was taken into custody; he made disclosyre statement of axe vide Ex.P.6. Bloodstained axe was recovered vide Ex. P.7 at the instance of the appellant Booti. Bloodstained cloths of the appellant Booti was seized vide Ex.P.8. One bjoodstained betel axe wasseized from the appellant Baljeet vide Ex.P.9. " Sealed ctoths of the deceased were seized vide Ex.P.10. Seized article were sent for ch^tinical examination and presence of blood over the cloths of the appellants and weapons of offence i.e. betel axe and axe was found vide chemical examination report Ex.P.12. 4. Statements of tHe witnesses were recorded under Section 161 of the .Code'of Criminal Procedure, 1973 (for short 'the Code'). After li. &.<•- completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Ambikapur, who in turncommitted the case to the Sessions Judge, Ambikapur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellants, the prosecution examined as many as 12 wltnesses. The accused appellants were also examined under Section 313 of the Code in which they denied the circumstances appearing against them.and claimed their innocence and false implication. The accused persons have examined D.W.1 Munendra and D.W.2 Kunti who have deposed that on the date of incident two strangers of other village have caused injuries to the deceased by betel axe andaxe. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aft)rementioned. ; ., ' 7. Learned counsel for-the appellants as well as respondent/State are heard at length. Perused the impugned judgment and record of Court below. ,, 8. Learned counsel for the appellants vehemently argued that this is a case of heinous offence of murder and prosecution is required to prove its case beyond all shadow of .doubt and heavy burden was upon the prosecution to prove its case. The conviction is solely based on the evidence of P.W.3 Indro'and P.W.4 Chintawan, sister and brother of the deceased, are the interested witnesses having inimical terms with the accused persons. The offence took place on 9 a.m. i.e. in broad day light aiyi for the reasons best known to the prosecution, the prosecution has not examined any independent witnesses to unfold its story. He further argued that th'e defence has examined D.W.1 -Munindra and D.W.2 Kunti, who have categorically deposed that offthe date of incident two unknown v^. persons frorri other village ha'% caused fatal injury to Sumer Singh by bietel axe and axe and thereby caused his death. The defence was required prove its case like the case of the prosecution and has proved its case in the present case as also cast suspicion upon the story of prosecution. In the present case, the evidence of D.Ws. is sufficient to i®"^:-. % *%t' B».^^ discard the statements of interested witnesses. Lastly, counsel for the appellant submitted that the appellants were in custody for more than 8 years and case squarely falls under the category of Section 304 Pt.l of the I.P.C. 9. On the other hand, learned counsel for the respondent/State opposed the appeal and submitted that in the present case, conviction is based on the direct evidence of P.W.3 Indro and P.W.4 Chintawan, sister and brother of the deceased. Their' presence on the spot is natural having seen the incident. They have intimated the incident of murder immediately to their brother Ramkeshwar P.W.2 who has lodge the F.1.R. in the police station promptly. The evidence of above said witnesses is sufficient for drawing an inference that the accused persons have caused fatal injury with intent to cause the death of Sumer Singh. The evidence of defence witnesses is contradictory. If the defence witnesses have not narrated the incident to any.person that they have seen the incident, then how the accused persons .came to know that these defence witnesses have witnessed the incideot. It appears that they are not telling truth and concealed the true facts. 10. In orde.r to appreciate the arguments advanced by the learned counsel for the parties, we have examined the material available on record. In the present case, homicidal death as a result of sharp fatal injury over the person of Sumer Singh has not been substantially disputed on behalf of the prosecution, on the other hand also established by the evidence of P.W.10 M.ahinqleshwarand autopsy report Ex.P.13 which reveals that fatal injury was found over the dead body of the deceased. 11. As regards the complicity of appellants in crime in question is ctincerned, the conviction of the appellants is substantially based on the evidence of P.W:3 Indro and P.W.4 Chintawan. Though both the witnesses'-arfe sister and brother of the deceased Sumer Singh, but their evfdence cannot be discarde4^nly on the ground of relationship. Even otherwise relatives are the persons reluctant to spare the real culprits and falsely implicate an innocent person. P.W.3 Indro has deposed in her evidence that she along with her brother Chintawan were going to call his brother Sumer Singh (since deceased) to have his meals. While they .reqched near the hbuse of Munni, they saw that their brother - Sumer Singh going with cattle from the pond. The appellant Booti was found sitting near the place of Kisun and was holding axe by saying that he will kill Sumer Singh. At the same time, co-accused Baljeet Singh also came out from his house holding betel axe and assaulted Sumer Singh on his neck by betel axe, due to which, Sumer Singh fell down and Booti Singh repeatedly assaulted Sumer Singh by axe. The appellants also chased them (this witness and her brother) upto their house. Thereafter, this witness and her brother P.W.4 Chintawan intimated the incident to their brother Ramkeshwar P.W.2, who werit to police station and lodged the F.1.R. Her evidence is substantially corroborated by the evidence of P.W.4 Chintawan, who was also present on the spot. The defence has cross-examined these witnesses at length but nothing has been brought out from the evidence bf P.W.3 Indro and P.W.4 Chintawan by the defence to discard the evidence of above prosecution witnesses. Moreover, the evidence of P.W.3 Indro and P.W.4 Chintawan is substantially corroborated by the evidence of P.W.5 Dubraj Singh, who after hearing the sounds 6f quarrel came out and saw that the appellant Booti standing near the dead bo'dy of Sumer Singh holding axe and was telling that whoever adduce evidence will be killed by him. 12. As per evidence of D.W.1 Munendra and D.W.2 Kunthi, two unknown persons from pther villa.ge assaulted Sumer Singh by betel axe and axe. In their cross-examination, they have deposed that they did not narrate the fact that they hav.e seen the incident to anybody, then how the accused persons came to know that these witnesses have seen the incident which shows- that these witnesses concealed the truth and they have deposed only to support the defence. Thus, the evidence of the defence witnesses does not inspire confidence and trustworthy. 13. After appreciating the evidence available on record, the learned Additional Sessidns Judge convicted and sentenced the appellants under Section''3rf2/34 of the I.P.C. The co.Rviction of the appellants is based on the credible, clinching and*tlegal evidence of P.W.3 Indro and P.W.4 Chintawan as also P.W.6 Dubraj Singh, whose evidence is corroborated to each ofher and is sufficient for conviction of the appellants. The appellants have caused repeated fafal injury to Sumer Singh while Sumer Singh was not-holding any weapon to combat them which shows that the grave Fritention of the appellants for commission of offence of murder. M 14. On close scrutiny of the material available on record, we do not find any illegality or perversity in the judgment impugned warranting our interference. Thus, the conviction and sentence of the appellants are affirmed. 15. Consequently, the qppeal being devoid of merit is liable to be and is dismissed. The appellants are on bail. They shall surrender immediately before the2 Additional Sessions Judge, Ambikapur who passed the judgment in S.T.No.162/94, for serving remaining sentence imposed upon them. —— Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge '. / ''*»- 1