HIGH COURT OF CHHATTISGARH BILASPUR 7 r2? Criminal Appeal No.77; of 2006 {Criminal appeal under Section 374 (2) Criminal Procedure Code} Present: Mr. Janak Ram Verma, counsel for the appellants. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. u Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.N. Chandrakar, JJ JUDGMENT (14—9-201 1) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 26-7-2006 passed by the 15‘ Additional Sessions Judge, Baloda Bazaar, in Sessions Trial No.75/2006, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of brother of appellant No.2 Dashoda Bai & brother-in-law of appellant No.1 Vidya Prasad @ Basant Puroha namely Khorbahra, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced them uto undergo imprisonment for life & pay fine of Rs.500/— each, in default of payment of fine to further undergo Rl for two months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial COurt has convicted & sentenced the appellants, and thereby committed illegality. APPELLANTS: 1. Vidya Prasad @ Basant Puroha aged 35 (in Jail) years S/o Dasha Ram Patel labourer . resident of village Gidhori Police Station Bilaigarh. 2. Dashoda Bai W/o Vidya Prasad aged 32 years Iabourer both resident of viliage Gidhori Police Station Bilaigarh District Raipur (C.G.) Versus RESPONDENT: The State of Chhattisgarh Through the (Police’Station Bilaigarh District Raipur) «a Collector Raipur. @ 3. As per case of the prosecution, on 18-10-2005 Khorbahra (since deceased) — brother-in—Iaw of appellant No.1 Vidya Prasad @ Basant Puroha & brother of appellant No.2 Dashoda Bai, went to the house of the appellants, the appellants caused fatal injuries to Khorbahra in the held of one Arjun near his. house and caused his instantaneous death by stick & .knife which was seen by Heeralal (PW-1) & Pardeshi (PW-3) who informed father of the deceased namely Ramleela (PW-2). Ramleela (PW-2), on second day, went to the police station and lodged FIR vide Ex.P-3. Morgue was recorded vide Ex.P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-4, prepared inquest over the’dead body of the deceased vide Ex.P- 5. Dead body was sent for autopsy to Government Hospital, Kasdol vide Q .. Ex.P—1‘9A. \Dr. Yogesh Kumar Sharma (PW-1.2) conducted autopsy vide Ex.P-19 and found following injuries: - (1) L%cerated wound 3” x 1" x bone deep with fracture of underlying bone situate‘d on left side of face extending anteriorly from a point about 4 c.m. away from outer campus of left eye, blood clots present in the wound. (2)Lacerated wound 5 c.m. x 3 c.m. x bone deep situated longitudinally over back of left ear. (3) Lacerated wound 10 c.m. x 5 c.m. x bone deep over left parietal region about 1” above left ear and 12 c.m. from left eyebrow, depressed fracture of underlying left parietal bone, blood clots and hairs present in vertically situated wound. (4) Lacerated wound 6 c.m. x 4 c.m. x bone deep vertically situated in occipital region left side just posterior to injury No.3. (5) Lacerated wound 2" x 1 c.m. x bone deep horizontally situated in right parieto occipital region about 9 c.m. above right ear and 17 c.m. above right eyebrow. (6) Lacerated wound 4 c.m. x 5 c.m. x skin deep over right parietal region about 10 c.m. above right ear and 11 c.m. above right eyebrow. (7) Lacerated wound 1" x 1/2 c.m. x skin deep just above pinna of right ear, pinna in upper part is also lacerated. (8) Lacerated wound 4 c.m. x 1/2 c.m. x skin deep over right parietal regioniabout 11 c.m. aboveright eyebrow and 16 c.m. above right ear. «,zh (W (9) Lacerated wound 2 1/2 c.m. x 1/2 c.m. x skin deep, 6 c.m. above right eyebrow and 9 c.m. above right ear. (10) Soft tissue swelling 4" x 3" in antero Iateral aspect of right shoulder, blood like stains over right forearm. (1 1) Contusion 4" x 3" over sternal region in chest. Cause of death was head injury and death was homicidal in nature. Red & blue pieces of bangies, blood stained cloth, chappal, bloodstained and plain soil were recovered from the spot vide EXP-19. During the course of investigation, accused/appellant Vidya Prasad was taken into custody, he made discloser statement of‘knife & stick vide Ex.P-6, but knife was J not recovered at the instance of appellant Vidya Prasad, however, stick waswr‘ecovered at his instance vide Ex.P-8. Panchnama of knife was prepared vide EXP-7. Blood stained cloth of appellant Vidya Prasad was seized vide Ex.P-9. Blood stained cloth and bangles were seized from amused/appellant Dashoda Bai vide Ex.P-11. Sealed clothes of the deceased were seized vide Ex.P-12. Seized articles were sent for chemical examination vide Exs.P-13 & P-14. Presence of blood over the clothes of the appellants was confirmed vide Ex.P-1 8. Broken pieces of bangles & bangles recovered from accused/ appellant Dashoda Bai were examined by the FSL and found morphologically one and the same. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was tiled before the Court of Judicial Magistrate First Class, Baloda Bazaar who committed the case to the C‘ourt of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. 5. ln order to prove the guilt of the accused/appellants, the prosecution has examined as many as twelve witnesses. The accused/appellants were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. )After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellants as aforementioned. a: l 7. We have heard‘learned counsel for the parties, perused the judgment impugned and record of the trial Court. i 8. Learned counsel for the appeiiants vehemently argued that he is not disputing the homicidal death of deceased Khorbahra. He further argued that evidence of alleged eyewitnesses Heeraial (PW-1) & Pardeshi (PW- 3) does not inspire confidence, their evidence is not trustworthy and not sufficient for drawing dehnite conciusion that the appeiiants have caused homicidal death of the deceased. 9. On the other hand, learned State counsel opposed the appeal and submitted that evidence of Heeraial (PW-1) & Pardeshi (PW-3) is sufficient for drawing definite conclusion that the appellants have committed homicidal death of the deceased amounting to murder with intent to commit his death. 10.ln orda to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.ln the pfesent case, homicidal death of the deceased as a result of fatal injuries found ove‘r his body has not been substantially disputed on behalf of the appellants. Even otherwise, it is established by evidence of Dr. Yogesh Kumar Sharma (PW-12) and autopsy report Ex.P—19 that death of the deceased was homicidal in nature. 12.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially based on evidence of Heeraial (PW—1) & Pardeshi (PW-3). The prosecution has examined them as eyewitnesses. As per evidence of Heeraial (PW-1), he was also residing near the place of incident at the field, the incident took place in the house of Arjun and thereafter the dead body was found in the field of Arjun. Pardeshi (PW-3) has corroborated the evidence of Heeraial (PW- 1). Defence has cross-examined these witnesses at length. ln para 7, 13.Heeralal (PW-1) has deposed that the appellants were quarrelling with the deceased, but in para 11 he has specifically deposed that on account of darkness, he has not seen the persons who were quarrelling, but he heard the sound. As per paras 9 & 10 of his cross-examination there was only one house of Arjun situate in the held and house of the appellants is away from the house of Arjun. f\» , 14.Pardeshi (PW-3) has admitted in his cross-examination that his residence is also near the place of incident. in" para 5, he has admitted I, that after hearing the sound when he came out from his house, he saw \/‘ l Heeralal but they did not go towards the field of Arjun where the incident took place, on account of darkness. He has specifically admitted in para 6 of his cross-examination that the incident took place in the house of Arjun situate in the filed. 15.As per evidence of these witnesses, the incident took place in the house of Arjun and in the field of Arjun. Arjun was having only one house. As per evidence of Deenbandhu Uike (PW-7), the investigating Officer, he has not recorded the statement of Arjun, his wife and son. As per evidence of Heeralal (PW-1) & Pardeshi (PW-3), they have heard the sound and they have not seen‘the actual culprits. The incident took place in the house of Arjun and in the field of Arjun, but for the reasons beskknown to the prosecution, the prosecution has not examined Arjun, his wife an‘d his son who were residing in the house where the incident took place they were the only best Witnesses to unfold the story However for the reasons best known to the prosecution the prosecution has not examined them. 16.Evidence of Heeralal (PW-1) & Pardeshi (PW-3) is sufficient to create doubt that the appellants may have committed the offence, but is not sufficient to prove the fact that the appellants have caused homicidal '- death of the deceased amounting to murder. The appellants were not having any motive against deceased Khorbahra forcommission of the offence of murder. Evidence adduced on behalf of the appellants is not sufficient to establish the fact that they have committed homicidal death of the deceased with intent'to cause death. Consequently, conviction and sentences of the appellants are not sustainable under the law. 17.For the foregoing reasons, the appeal is allowed. Conviction & sentence imposed upon the appellants under Section 302 read with Section 34 of the IPC are hereby set aside and they are acquitted of the said charge. They be set at liberty forthwrth If not reqUIred In any other case Sd/— ' ' T.P. SHARMA Judge ‘ ) ,‘t\ , Sdl_ ,_ ....,,.,,, l t V RN Chandrakar l l - ' Judge ' l 't Some .: i f ' l -