HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. CHANDRAKAR, JJ. Criminal ApLeal No. 875 of 2002 Appellants/ 1. Madvi Phagnu, aged about 32 years (In Custody) son of Iate Shri Khuta. 2. Madvi Manu, aged about 28 years son of Iate Shri Madvi Khuta. 3. Madvi Manghru, aged about 25 years S/o Shri Rupa 4. Madvi Joga, aged about 35 years S/o Shri Madvi Sukda. 5. Madvi Paklu, aged about 27 years S/o Shri Madvi Rupa 6. Madvi Madda, aged about 28 years, S/o Madvi Sukda. All are agriculturists and residents of vitlage Pakhnar, Police Station-Darbha, Tah. Jagdatpur, Distt. Bastar (C.G.) Versus Respondent State of Chhattisgarh (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) IL< , Present:- Mr. Avinash K. Mishra, counsel for the appeltants. Mr. p.K. Gwalre, Govt. Advocate for the State. ORAL JUDGMENT (Passed on 19‘“ July, 201 1) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24.05.2002 passed by the , Speciai Judge, (S.C./S.T. Act)/Additional Sessions Judge, Jagdalpur, in Sessions Trial No.1 1/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of formation of unlawful assembly armed with deadly weapon having its common object to commit murder of Poyami Lakhmu and in furtherance of common object of untawful assembly caused culpable homicidal death of Poyami Lakhmu amounting to murder, convicted under Sections 302 read with section 149 and 148 of the lndian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 1000/- each, R.l; for two years and to pay fine of Rs.200/— each, in default of payment of tine to further undergo R.l. for one year and R.l. for six months, respectively. . Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & ”sentenced the appellants as aforementioned and thereby committed illegality. . As per case of prosecution, on fateful day of 11.12.2001 at about 5.30 p.m., all the appellants armed with deadly weapons came near the Pakhnar where deceased Poyami Lakhmu was present. All the appellants were sitting near mango tree and attacked upon Poyami Lakhmu on the ground that he is from other village. They assaulted Poyami Lakhmu with sticks and other weapons and caused serious injuries. On 12.12.2001, Poyami Mude (PW/6) went to the police station and lodged F.I.R. vide EXP/19. injured Poyami Lakhmu was examined by Dr. A.D. More (PW-3) vide EXP/27 and found following injuries: (1) incised wound over forehead of 7x1x1 cm. (2) lncised wound over right parietal region of 7.5x2.5x 1/2 cm. (3) incised wound over upper part of left ear of 1x V2 x 1A cm. . injured was referred to Maharani Hospital, Jagdalpur for x-ray and further treatment and on 13.12.2001 deceased Poyami Lakhmu succumbed to the injuries. Merg was intimated vide Ex.P/1. . investigating officer left for scene of occurrence, after summoning the witnesses, inquest over the dead body of deceased was prepared vide EXP-25. Dead body was sent for autopsy to P.H.C., Darbha vide EXP/15. Autopsy was conducted by Dr. A.D. More (PW/3) and found flowing injuries: (1) incised wound over forehead above root of nose of 7x1 cm. (2) incised wound fracture of skull bone and brain was damaged. (3) lncised wound of 7.5)<2.5x2 cm. over right parietal region. (4) Fracture of parietal bone and brain was damaged. (5) incised wound over right Ear of 1x 1/2 x 1/2 cm. Cause of death was shock and death was homicidal in nature. @ 6. During the course of investigation, the appeiiants were taken into custody. Appellant Madvi Manghru made disclosure statement of Huri vide EXP/’2, same was recovered at his instance vide EXP/3. Appellant Madvi Phagnu made disclosure statement of stick (Tangia) vide EXP/4, same was recovered at his instance vide Ex.P/5. Appellnat Madvi Joga made disclosure statement of stick vide EXP/6, same was recovered at his instance vide EXP/7. Madvi Madda made disclosure statement of stick vide EXP/8, same was recovered at his instance vide EXP/9. Appellant Madvi Manu made disclosure statement of stick (Bambu) vide EXP/10, same was recovered at his instance vide EXP/11.- Appellant Madvi Paklu made disclosure statement of stick vide EXP/12, same was recovered at his instance vide EXP/13. Clothes of appellant Madvi Phagnu was seized vide EXP/14. Spot map was prepared vide EXP/17. Deceased clothes were seized vide EXP/20. 7. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate 15’ Class, Jagdalpur, who in tum committed the case to the Court of Sessions Judge, Jagdalpur from where the learned Additional Sessions Judge, Jagdalpur received the case on transfer for trial. 8. ln order to prove the guilt of the accused/appellants, the prosecution has examined as many as six witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 9. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellants as aforementioned. 10.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 11.Shri Avinash K. Mishra, learned counsel for the appellants vehemently argued that conviction is substantially based on evidence of Poyami Mude (PW/6). initially, prosecution has examined Poyami Mude (PW/6) on 01.05.2002. She was not pi‘esent near the place of incident and prosecution has declared her hostile. Thereafter, on the basis of @ application fiied on behalf of defence that in place of Poyami Mude (PW/6) one Fagni Bai was identified herself as Poyami Mude for evidence and her evidence has been recorded in the name of Poyami Mude. Learned counsel for the appellants also submits that without any order of the superior Court, trial Court has recorded the statement of that wofnen, who had deposed in the name of same person Poyami Mude (PW/6). Therefore, second statement recorded in the name of Poyami Mude does not inspire confidence and trustworthy and not admissible in the evidence. Evidence of first statement of Poyami Mude (PW/6) dated 01.05.2002 reveals that present appellants have not committed any offence and she did not see the incident. Virtually this case is of no evidence but on the basis of second statement of alleged Poyami Mude (PW/6), Court below has convicted and sentenced the appellants aforementioned and thereby committed illegality. Learned counsel for the appellants further submits that the present appellants are in custody since last 11 years, nothing has been collected by the prosecution against the appellants Madvi Madda to connect him with the crime in question. He further submits that injuries found over the body of deceased reveals that act attributed to appellants does not travel beyond the scope of 304 Part ll of the IPC. 12.Learned counsel for the appellants also submits that as per record of the case, on O3.05.2002 Court below was having knowledge that one Fagni Bai has committed cheating of personation and has deposed in place of Poyami Mude, which was serious offence but the Court below has not taken any action against such Fagni Bai This shows that infact on 01 05 2002 Poyami Mude was examined by the prosecution but she has not supported the case of prosecution then on subsequent date the prosecution has produced the same Witness after same tutoring. 13.0n the other hand, Shri D.K. Gwalre, learned Govt. Advocate for State opposed the petition and submits that initially statement of one women has been recorded in the name of Poyami Mude (PW/6) on 01.05.2002, but on the basis of applicationtiled on behalf of defence person on 03.05.2002 that in lace of Poyami Mude (PW/6) one Fagni Bai deposed i in the Court. p 14.0n the basis of application filed on behalf of defence that too within three days (3rd day) of alleged statement, Court below has inquired into the matter especially relating to identity of the women whom the defence has produced as Poyami Mude and which defence, prosecution and other person of the village including sarpanch has identitied the women as Poyami Mude on 03.05.2002, thereby Court below has examined her on 14.05.2002. This enquiry and second statement clearly shows that on 01 05.2002 the correct person i.e. women witness Poyami Mude was not present another women Fagni Bai has deposed showing herself as Poyami Mude but within three days the aforesaid mistake was not pointed out by other person but by defence. Defence was also present on 01 05.2002. it was not possible for office of the prosecution to identify the witnesses who came from village but it was possible for the accused persons who are of the same withinity. However, on 01.05.2002 the accused persons have not disclosed this act but instead of Poyami Mude another women Fagni Bai has deposed, though they have corrected their mistake within three days on 03.05.2002. In these circumstances, the subsequent recording of the evidence of true person is neither vital to the prosecution nor unwarranted. 15.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 16.ln the present case, homicidal death as a result of fatal injuries found over the body of deceased has not been substantially disputed by on behalf of the appellants, even otherwise same is also established by the evidence of Dr. A.D.More (PW-3), medical report EXP/27 and autopsy report EXP/15(A) that death of deceased Poyami Lakhmu was homicidal in nature. 17.As,regards complicity of the appellants in crime in question is concerned, convictions of the appellants are substantially based on evidence of Poyami Mude (PW/6). First evidence recorded on 01.05.2002 in the name of Poyami Mude reveals thatshe was not present at the time of incident, she had not seen the incident but she showed herself as Poyami Mude. After two day, i.e. on 03.05.2002 defence counsel Shri Rajesh Bhadauria filed an application and produced Poyami Mude \\ >(6 before the Court. She did not appear before the Court on 01 .052002 but in prace of Poyami Mude one Fagni has deposed before the Court. Thereafter, after satisfying her identity, identified by defence, Sarpanch and other person, Court below recorded her statement on 14.05.2002. This clearly shows that on 01.05.2002 Court below has not examined Poyami lVlude and instead of Poyami Mude one Fagni had deposed'in the name of Poyami Mude, which was rightly pointed out by the defence by tiling an application. '18.These evidences are sufficient for drawing inference that only on 14.05.2002 Court below has examined Poyami Mude (PW/6) and not on 01.05.2002. Court below has not taken any action against Fagni, but only on the ground that court below has not proceeded against Fagni for the act of tiling of evidence as Poyami Mude, cannot be discarded. As per the evidence of Poyami Mude (PW/6) recorded on 14.05.2002, all the appellants including Mudda came out with deadly weapons like stick and knife, came to them and assaulted Poyami Lakhmu by aforesaid weapons. She was present on the spot. Appellant Mudda was holding her hand so that she could not intercepted and could not save the life of Poyami Lakhmu, she lodged report. Defence has cross—examined these witnesses at length and in her detailed cross-examination she has categorically deposed that aforesaid person came together with holding deadly weapons and caused fatal injury, resulted into death of deceased Poyami Lakhmu. Evidence of Poyami Mude (PW/6) inspire confidence and trustworthy and same is§umcient for drawing inference that all the appellants came together with holding stick, knife and stick (Bambo), caused fatal injuries over forehead of the deceased, as a result of which I deceased succumbed to the injuries. Aforesaid evidence is sufficient for drawing inference that present appellants have formed unlawful assembly with intent to causing murder of deceased Poyami Lakhmu and in furtherance of common object of unlawful assembly, they have caused death of deceased Poyami Lakhmu. 19. After appreciating the evidence available on record, the learned Special Judge has convicted and sentenced the appellants as aforementioned. § &31 appellants. 21. Consequently, the appeal bei dismissed and is hereby dismissed. may execute and be operative after de i cision in this appeal. VI l j n Sd/- T.P.Sharma SM ‘ Judge RnN.Chandrakar‘r Judge