c^ sP' ?T"' '^ HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.1033 of1989 1. Johitram, son of Ramnath Yadav, aged 21 years. 2. Ramnath, son of Budhram Yadav, aged 50 years. 3. Punuram, son of Budhram Yadav, aged 55 years. All residents ofJamrao, Distt. Durg. Versus State of Madhya Pradesh (now Chhattisgarh) {Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Arvind Dubey, counsel forthe appellants. Mr. U.K. Singh Chandel, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble nflr. T.P. Sharma & Hon'ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (7-12-2009) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21-9-1989 passed by the 1 Additional Sessions Judge, Durg in Sessions Trial No.67/89, whereby & whereunder learned Additional Sessions Judge after holding accused/appellant No.1 guilty for commission of offence under Sections 302, 459 & 323 rea'1 with Section 34 of the I.P.C., sentenced him to undergo imprisonment for life, R.l. for ten years & R.l. for one year, respectively. Learned Additional Sessions Judge also convicted accused/appellants No.2 & 3 under Sections 455 & 323 read with Section 34 of the I.P.C. and sentenced each of them to undergo R.l. for five years &CR.I. for one year, respectively. All the sentences were directed to run concurrently. .^^^ '^~^-~^ ^. ^' Appellant No.1 Johitram was released on 18-12-2002 after serving the sentence. 3. Judgment is challenged on the ground that without any clinching and credible evidence, the Court below has convicted & sentenced the appellants in the aforesaid manner and thereby committed illegality. 4. Case of the prosecution, in brief, is that on 10-11-88 at about 2 p.m. deceased Nanda @ Nand Kumar was standing before the shop of Pyarelal Sonkar where some quarrel took place with appellant No.1 and appellant No.1 assaulted the deceased over his head on which blood came out. Nanda ran away from the spot, he was shouting for help, he went inside the house of Manglu (PW-1) and bolted from outside. After five minutes, the appellants came to the house of Manglu (PW-1) and asked Manglu about Nanda which Manglu refused. After opening the bolt of the door, the accused persons entered into the house of Manglu and dragged Nanda from the house and assaulted him with stick. Afterwards, appellant No.1 Johitram again came with knife (kataar) and caused stab wounds over both eyes & other parts of the body of Nanda. Nanda died on the spot. Manglu (PW-1) lodged F.I.R. vide Ex.P-1 and merg intimation vide Ex.P-2. The Investigating Officer left for the scene of occurrence. After summoning the witnesses vide Ex. P-3, inquest over the dead body was prepared vide Ex. P-4. The dead body of Nanda was sent for autopsy to D.K. Hospital, Raipur and autopsy was conducted by Dr. K.L. Gopawar (PW-8) who found twenty external injuries which are as follows: - 1) Bruise 22 cms. x 2 cms. on back vertically present on right side of back posterior fold. 2) Bruise 23 cms. x 2 cms. on back vertically present 3 cms. lateral to mid line on right side. 3) Bruise 22 cms. x 2 cms. parallel to injury No.2, 1 cm. lateral side. •^^&.z- "'^^1 ^ c? ">. •y •9s 6 4) Bruise 23 cms. x 2 cms. on right side of back obliquely placed extending from middle of shoulder. 5) Bruise 13 cms. x 2 cms. on right side of back behind the shoulder vertically placed. 6) Bruise 13 cms. x 2 cms. right obliquely placed on right scapular region of back. 7) Bruise 12 cms. x 2 cms. on back 5 cms. lateral to mid line at the level of thoracic seven spine. 8) Bruise 12 cms. x 2 cms. 1.5 cms. lateral to injury No.7. 9) Bruise 10 cms. x 2 cms. horizontally placed on right side of back 2 cms. lateral to outer border of right scapula. 10) Bruise 5 cms. x 2 cms. on tip of left shoulder obliquely placed. 11) Bruise 5 cms. x 2 cms. on right infra scapular region right obliquely placed. l2)Bruise 13 cms. x 2.5 cms. in middle of right arm anterior lateral aspect horizontally placed. 13) Bruise 12 cms. x 2 cms. on middle of left arm horizor.tally placed. l4)Abrasion 7 cms. x 3 cms. on dorsum of right hand. l5)Lacerated wound 'T' shaped on right parietal region 3 cms. x 2 cms., 3 cms. lateral to mid line. Scalp deep. Margin irregular. l6)lncised wound 8 cms. x 1 cm. x bone deep horizontally placed on skull right side just above the right ear temporal region. Margin sharp & irregular. 17) Incised wound 10 cms. x 1 cm. x bone deep right obliquely placed on left side of cheek and middle of frontal region of fore heard. Both nasal bones, left maxilla and part of frontal bone cut. l8)lncised wound 12 cms. x 2 cms. x bone deep, 3 cms. deep horizontally placed extending from right orbit to left orbit. Frontal bone, sphenoid bone and part of right & left maxilla bone cut. Both nasal bone and ethymoid bone cut. 19) Incised wound 10 cms. x 0.5 cm. x bone deep on left side offace. 2.5 cms. lateral to injury No.17 in middle of injury. 20)Lacerated wound 1 cm. x 0.3 cm. x bone deep on right side of cheek with bruise 2 cms. x 2.5 cms. 5. On internal examination, fracture of both nasal bones, frontal bones, left maxilla and ethymoid bones were found fractured. Injury over eye and fracture of aforesaid bones were sufficient for causing death and the •~^ L ^7<-^, death was homicidal in nature. Blood stained soil & p'ain soil were recovered vide Exs.P-6, P-7, P-8 & P-9. One bloodstained sari was recovered vide Ex.P-10. Blood stained clothes of the deceased were recovered vide Ex.P-11. Appellant No.2 Ramnath was taken into custody, he made discloser statement of stick & shirt of co-accused Johitram vide Ex.P-12 and the same were recovered at the instance of Ramnath vide Ex.P-13. One kataar- long knife, two pieces ofwood and bloodstained clothes were recovered from appellant No.1 Johitram vide Ex.P-14. Bloodstained baniyan & dhoti were recovered from appellant No.3 Punuram vide Ex.P-15. One bloodstained baniyan was recovered from appellant No.2 Ramnath vide Ex.P-16. Seized articles were also examined by Dr. K.L. Gopawar (PW-8) vide Exs. P-24 & P-25. Spot map was prepared by the Patwari vide Ex.P-19. Seized articles were sent for chemical examination and presence of human blood over the clothes recovered from the appellants, kataar & wooden pieces was confirmed vide Ex. P-27. 6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions, Durg, from where the 1st Additional Sessions Judge, Durg received the case on transfer for trial. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned. 8. In order to prove the guilt of the appellants, the prosecution has examined as many as nine witnesses. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the "-?^,, ^-L_- s"circumstances appearing against them, pleaded innocence and false implication. 9. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. lO.Learned counsel for the appellants vehemently argued that appellant No.1 has completed his sentences and he has been released on 18-12- 2002, but he has committed no offence. The prosecution has not adduced clinching evidence against appellants No.2 & 3. Statements of the interested & relative witnesses are not safe to rely upon. Appellants No.2 & 3 were in custody for more than one year, same is sufficient sentence and no purpose would be served by again sending theminto the custody. 11.0n the other hand, learned State counsel opposed the appeal and submitted that Manglu (PW-1) & Bisantin Bai (PW-2) are eyewitnesses and they have categorically stated about the incident. Statements of Manglu (PW-1) & Bisantin Bai (PW-2) are supported by the medical evidence of Dr. K.L. Gopawar (PW-8). Statements of Manglu (PW-1) & Bisantin Bai (PW-2) inspire confidence, their statements are trustworthy and safe to rely upon. The appellants have caused as many as 20 brutal injuries to the deceased. Appellant No.1 has caused fatal injuries over the eyes of the deceased. This shows the commission of offence by the appellants in cruel manner. 12.1n orderto appreciate the contentions ofthe parties, we have examined the evidenceavailable on record. 13.1n the present case, homicidal death of deceased Nanda is not substantially disputed by the appellants and otherwise, established by the medical evidence of Dr. K.L. Gopawar (PW-8) and his autopsy report ....scraB-^ ,l-y,K"~s-'8''^ •-"^?'?!;^ '. Ss I ".' ••y-&~^.^v' /.'~s/ T' s<"Ex.P-23 in which he has specifically deposed that twenty external injuries were found over the body of Nanda, fractures of bones were sufficient for causing the death and the death was homicidal in nature. 14.As regards the complicity of the appellants in the crime in question, Manglu (PW-1), who has lodged the report vide Ex.P-1 within four hours of the incident which is 90 kms. away from the Policc Station, has categorically deposed that on the fateful day he was present in his house, deceased Nanda came to his house, at that time there was injury over his head, he was shouting for help, he entered into his house and the house was bolted from outside by his wife. The appellants came to his house and asked about Nanda on which he told that Nanda is not here whereupon they opened the door of the room, entered into the room and dragged Nanda from the room and repeatedly caused injuries by stick. With a view to save Nanda, Bisantin Bai (PW-2) slept over Nanda in spite of that, the appellants assaulted Nanda after removing Bisantin Bai and they went away. After some time, appellant No.1 Johitram came with some iron weapon and caused stab injuries over eyes & others parts of the body of Nanda. Nanda died. He lodged the report. 15.Bisantin Bai (PW-2) has corroborated the evidence of Manglu (PW-1). Defence has cross-examined Manglu (PW-1) in detail. In oara 19 of his evidence he has specifically admitted that when Nanda came to his house, he was having injury over his head. In his detailed cross- examination defence has not been able to elicit anything to discredit his testimony. Defence has also cross-examined Bisantin Bai (PW-2) but has not been able to elicit anything to discredit her testimony also. Both the witnesses are eyewitnesses who have seen the incident. Their evidence find support from the promptly lodged F.1.R. Ex.P-1 and the medical evidence of Dr. K.L. Gopawar (PW-8). '•^ 1'6.Deceased Nanda was the son of daughter of Manglu (PW-1), close relative of Manglu. Bisantin Bai (PW-2) is daughter-in-law of Manglu (PW-1). However, the evidence of Manglu (PW-1) & Bisantin Bai (PW-2) cannot be discarded only on the ground of their close relation with the deceased. Normally, the relative witnesses are the persons reluctant to spare the real culprit and implicate the innocent person falsely. 17.The detailed evidence of Manglu (PW-1) & Bisantin Bai (PW-2) inspire confidence, their evidence is trustwori:hy and safe to rely upon. Their version has been corroborated by the medical evidence and the promptly lodged F.1.R. 18.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned. Conviction of the appellants is based on clinching and legal evidence sustainable under the law. Appellant No.1 has suffered the sentences imposed upon him. 19.As regards the question ofsentences imposed upon appellants No.2 & 3, appellants No.2 & 3 were in custody from 12-11-88 to 25-11-89, thereby they were in custody for more than one year 13 days. Taking into consideration the manner in which the appellants inflicted injuries over the body of the deceased and the fact that the number of injuries show their cruel manner of causing the injuries, learned Additional Sessions Judge has sentenced appellants No.2 & 3 under Sections 455 & 323 read with Section 34 ofthe I.P.C. 20.Considering the injuries over the body of deceased Nanda and the manner in which the injuries were inflicted, appellants No.2 & 3 do not deserve any sympathy in sentence. On close scrutiny, we do not find 8 any scope for reduction in their sentences even on the ground of their present age. 21.Consequently, the appeal is dismissed. Appellants No.2 & 3 Ramnath & Punuram, respectively, are on bail, their bail bonds are discharged, they shall surrender before the Chief Judicial Magistrate, Durg for serving the remaining sentences imposed upon them. _ _. - — Soma Sd/->^:" T. P. Sharma Judge Sd/- R.L. Jhanwfar Judge