•T HIGH COURT OF CHHATTISGARH: BILASPUR Division Bench : HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI RAJESHWAR LAL JHANWAR. JJ Appellant (In jaill Respondent Cr. Appeal No. 2062 of 1999 Dashmuram and another Versus State of M.P. (now Chhattisgarh) Appellant fln iail) Respondent . Cr. Appeal No. 149 of 2005 Deva Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- ^lJDGE ^ 4-09-2010 HON^BLE SHRI JUSTICE T.P.SHARMA Sd/- T.P. Sharma Judge Pronouncement of Judgment :-2.^.09.2010 Sd/- R.L.Jhanwar Judge • ^. HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. APPELLANTS In iail RESPONDENT Cr.A.No.2062of1999 1, Dashmuram, S/o Chamru, age 27 years, 2. Botiram, S/o Suklo Gond, age 37 years, All residents of Deogaon, Choki Makdi, P.S. Chodagaon, District Jagdalpur (M.P. now C.G.) VERSUS State of M.P. APPELLANT Injail RESPONDENT Cr.A.No.149of2005 Deva, S/o Dego Aged about 35-40 years, Occupation, Labour and Agriculture R/o Village Deogaon, P/S KondaGaon, Police outpost Makdi, Distt. Bastar (C.G.) VERSUS State of Chhattisgarh Through Police Station Kondagaon, Distt. Bastar (C.G.) CRIMINAL APPEAL U/S 374 (21 OF THE CR.P.C. Appearance in Cr.A. No.2062 of 1999 Shri R.K.Jain, counsel for the appellants No.1 & 3. Appearance in Cr.A.No.149 of 2005 Shri Prakash Tiwari, counsel for the appellant. Shri Sandeep Yadav, Deputy Government Advocate for the State in both the appeals. JUDGMENT (Passed on2.^.09.2010) Per R. L. Jhanwar, J. By this common judgment, Cr.A.No.2062 of 99 and Cr.A.No.149 of 2005 are being disposed of as the same are arising out of Sessions Case No. 380/98 wherebythe appellarifs-Dashmuram, Botiram and Deva stand convicted under Section 147 and 302 read with Section 149 of the '< >' ./V ?.•*-« ... \ ,'s^\ ' '%^ 1 -^ j %.^^y^ ":^.-^..^" ^ .^ ^ I.P.C. and sentenced to R.l. for one year under Section 147 of the I.P.C. and life imprisonment under Section 302/149 of the I.P.C. vide respective judgments of conviction and order of sentence dated 14.05.1999 & 10.12.2004 passed by Speciat Jydge, Bastar. 2. Brief facts of the prosecution case is that on 4 months prior to the date of 29.08.1998 one of the accused persons - Labha (since dead) in furtherance of common intention to commit homicide amounting to murder, caused injuries to Mudo by arrow and in this behalf a case was going on in the Court concemed. On 29.08.1998 at 12.00 noon, Ramo, one of the accused persons, came to Mudo and Dasru and told them to compromise the matter in Panchayat meeting but in the meeting no such discussion had taken place. While the injured Mudo and his brother Dasru were returning to their home, on way, the accused persons i.e. Labha @ Hadmo, Ramo (sincedead), Botiram, Dahsmuram and Deva met them and while Ramo (since dead), Boti, Dahsmuram and Deva caught hold of Mudo, appellant Labha (since dead) assautted Mudo on his chest and parietal region with axe. As a result of assault and injuries, Mudo died on thespot. The complainant - Dasru (brother of deceased) again reported the matter to the Panchayat and also todged a report at police outpost Makdi vide Ex.P.1 and on the basis of which F.I.R. was lodged vide Ex.P.22 at police station Kondagaon. Investigating Officer left the scene of occurrence. Merg intimation thereofwas recorded vide Ex.P.2. Spot map was prepared vide Ex. P.3. Inquest over the dead body was prepared vide Ex.P.4 and dead body was sent for autopsy to Primary Health Center, Makdi vide Ex.P.5 and vide Ex.P.22 autopsy was conducted Kondagaon by Dr. U.S. Navratan P.W.3 and found the following injuries: 1. Lacerated wound of 2" x 2" on right parietal region of skull.. 2. Lacerated wound of 1 14" x 1" over the left cheek. 3. Lacerated wound of 1"x 1" on occipital region of skutl. Fracture of skull bone was found. All the injuries were ante-mortem. Cause of death was opined to be cardio respiratory arrest due to massive hemorrhage of fracture of the parietal bone of skull. Death was homicidal in nature. During the course of investigation, all the accused persons were taken into custody on 31.08.1998 vide Ex.P.17 to 20. Accused Labha !/^-.-^, '^:^&.. made a disclosure statement of axe vide Ex.P.7 and the same was recovered at his instance vide Ex.P.8. Vide Ex.P.6 bloodstain and plain soils were recovered from the spot. Vide Ex.P.9 bloodstained shirt of accused Labha has been seized. Vide Ex.P.10 and P.11 bloodstained shirts of accused persons Dashmuram and Ramo were seized. Vide Ex.P.12 sealed cloths of the deceased were recovered. Sealed articles were sent to F.S.L. for its chemical examination vide Ex.P.21 . 3. Statements ofwitnesses were recorded under Section 161 of the Code of Criminal Procedure (for short 'the Code'). After completion of investigation, charge sheet has been filed before theCourt of J.M.F.C. Kondagaon who in turn committed the case to the Court of Sessions Judge. The learned Special Judge has received the case on transfer for trial. 4. In order to prove the guilt of the accused persons, the prosecution examined as many as 7 witnesses. The accused persons have been examined under Section 313 of the Code in which they denied the circumstances appearing against them and pleaded their innocence and false implication and led no evidence in defence. 5. It js informed thatacGused^perspns Ramp and Labha have died and accused Dashmuram is on bail. 6. We have heard learned counsel for the parties at length and have perused the record of Court below and impugned judgment. 7. Shri R.KJain, learned counsel for the appellants in Cr.A.No.2062 of 1999 and Shri Prakash Tiwari, learned counsel for the appellant in Cr.A.No. 149/2005 vehemently argued that there was no sufficient explanation in delay of lodging F.1.R. by the prosecution. Medical evidence did not support the prosecution version. The evidence of the prosecution witnesses did not corroborate with each other because of omissions found in their statements. The prosecution has not been able to prove the involvement of the present accused persons/appetlants in the said crime in question. If the evidence of prosecution is taken at its face vatue, then no prima facie case has been made out against the appellants especially under Section 147 of the I.P.C. Learned counsel for the .,^•^0.,^., '^•;;^.. J..J appellant in CrA.No. 149 of2009 placed reliance in the matter oi Adalat Pandit & Anr. V. State ofBihar, 2010 SAR (Criminal) 645. 8. On the other hand, while supporting the impugned judgment, the learned Deputy Government Advocate argued that the evidence of prosecution clearly shows the involvement of present appellants in the said in question. The learned trial Court has rightly dealt with the evidence and after appreciation of evidence adduced on behalf of the prosecution convicted and sentenced the appellants, as aforesaid mentioned. 9. Inorder to appreciate'the arguments advanced on behalf of the parties, we have carefully examined the evidence led by the prosecution. In the present case, homicidal death of the deceased as a result of fracture of the parietal bone of skull has not been substantially disputed on behalf ofthe appellants even otherwise itwas established by the medical evidence of P.W.3 Dr. U.S.Navratan and autopsy report Ex.P.22 which revealed the cause of death to be massive hemorrhagic due to fracture of parietal bone of skull and death was homicidal in nature. 10. As regards the involvement of the appellants in crime in question, the co.nviction is based on the evidence of Dasru P.W.2, who has specifically deposed that the deceased Mudo was his brother. Prior to 3 months, Panchayat meetjng was convened in his village and in meeting both this witness and his brother Mudo were present and suddenly the said meeting was cancelled. He has categorically deposed that while they were returning from meeting, theaccused persons met him and threatened by saying they will see hjm. Thereafter, accused persons Boti, Dashmu, Hadmo (Labha), Deva and Ramo caught hold of his brother Mudo and Hadmo gave a single blow upon the head of Mudo with axe. Thereafter, remaining accused persons caused injuries on parietal region and face of Mudo by assayiting one by one. Due to such assault, Mudo has died instantaneously. Then, this witness went to Makdi and lodged a report. In his lengthy cross-examination at paragraph 13, he has specifically stated that what he has seen has actually been stated in the Court. Therefore, the defence has not been able to bring anything to discredit his testimony. He was also cross-examined by the accused Deva. Even then nothing has been brought by the defence on behalf of s> Deva to discredit his testimony. P.W.4 Laxminath has also supported the evidence of Dasru, who told him that her brother was killed by the above accused persons whereupon he went to see the dead body of Mudo. Dr.U.S.Navratan P.W.3 has found three laceratedwounds on the body of deceased Mudo. The evidence of Dr. U.S.Navratan P.W.3 cannot be brushed aside because in paragraph 13 of his evidence, Dasru has specifically deposed that accused persons assaulted Mudo with axe on his back side, whereupon afraid of such blow on Mudo he also fled from the spot, which would show that the accused persons were continuously beating Mudo, due to that three lacerated wound were found on the body of the deceased Mudo. It was natural that brother of the deceased Dasru fled from the spot because he was also afraid of them and if he would have been there, then accused persons would have also assaulted him. 11. Now, coming to the seizures, according to P.W.4 Lakshminath, axe was seized from Hadmo @ Labho vide Ex.P.8 and cloths were also seized from Hadmo vide Ex.p.9. P.W.6 Ramji has also stated that axe and cloths were seized from Hadmo and other accused persons; Both these witnesses have admitted their signatures on seizures as well as on memorandum statements Ex.P.6, Ex.P.8 to Ex.P.11. 12. Thus, in view of theabove, it is clear that the prosecution has successfully led its ewdence beyond reasonable doubt in which it is crystal clear that accused persons, in furtherance of common intention made unlawful assembly, caught hold of the deceased and assaulted him after he was returning with his brother from meeting. First ofall Hadmo (Labha) gave a single blow upon the head and thereafter remaining accused persons assaulted him one after another, due to such assault by the accused persons one by one, the deceased Mudo died on the spot. The evidence of this witness is corroborated by the F.1.R. Ex.P.1 and the evidence of P.W.3 Dr. U.S.Navratan, who found three lacerated wounds on the deceased. Though now accused persons Labha @ Hadmo and Ramp were not alive, but the above said accused persons went to the deceased and his brother along with accused persons Labha and Ramo (since dead) by gathering unlawfully and took part in the alleged offence of commission of murder of Mudo. 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