^' HK3H COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1046 of 2004 APPELLANT (In Jail) RESPQNDXNT Ramkeshwar Khairwar, S/® Ramkhilawan, Age, 40 yeare, Agricutturist, Vlllage Marma, Police Station Basantpur, Distt. Surguja (CG). Versus State of Chhattisgarti, through P.S. Basantpur, Distt. Surguja (CG). & Criminal Appeal No. 1047 of 2004 Pitambar, S/o Patlram Age, 46 years, Agriculturist, Village Manna, Polic® Station Basantpur, Distt. Suiguja (CG). Versus State of Chhattlsgarh, through P.S. Basantpur, Distt. Surguja (CG). Criminal Appeal under SecUon 389 (2) of Criminal Procedura Code, 1973 DB: Hon'ble Shri Justice T.P. Sharma & Hon'ble Shri Justice N. K. Agarwal, JJ Present : Smt. Kiran Jain, Advocate for appeltant in Cr. A. No. 1046/04 & Dr. Shalfesh Ahuja, Advocate for appellant in Cr. A. No. 1047/04. Shri Ravindra Agrawal, Panel Lawyer for the State. APPELLANT (In Jail) RESPONDENT ORALJUDGMENT (Passed on 24th day of February, 2010) Per T.P. Sharma, J. Crimlnal Appeal Nos. 1046/04 and 1047/04 are arising out of the same incident and same judgment and sentence dsrted 30.10.2004, therefore both the Criminal Appaals are being disposed of by this common Judgment. Challenge in these appeals is to the judgmant of conviction & order of sentence dated 30.10.2004, passed by tha Addttional Sessions Judge (F.T.C.), Ramanujganj, Surguja, in Seasions Trial No. 35/04, whereby & whereunder leamed Additlonal Sesstons Juc^e, c f /-- *^_ after holding the appellants gultty Tor the offence punishable under section 302 of the Indian Penal Code, sentenced to undeigts imprisonment for llfe and fine of Rs. 10,000/- each and in detault additional Rt for one year and also directed to pay compensation of Rs. 15,000/- to the wife of deceased. Judgment is impugned on the grcund that without there being credible evidence to connect the appellants in tfie crime in question, the Court below has convlcted and sentenced the appetlants as aforementioned and thereby committed illegality. Case of the prosecutlon, in brief, fe that on the fateful day of 01.10.2003, the appellant Ramkeshwar a^ced Lealaveti (PW-3) i.e. daughter of deceased where-about his father, to which Leelavatl totd him that his father has gone for grazing the cattle. Then Ramkeshwar went towards the house of Pitambar. On evenlng the cattle of Devktthim came back to house Devkishun did not come back, his w'fe Pahahwania (PW-2) and hls grandson Jugesh (PW-8) alongwith other pereons of village wmt towards forest to search the deceased, where they saw, the appellants were holding axe and assaulting to Devkishun by Munt part of the axe and causing injury then they fled towarcfs the forest. Pahalwania (PW-2) sent Rajkumar (PW-8) to the village to inform about the incident and also to calt his tether i.e. son af deoea^d Rajkumar (PW-1). Rajkumar came to the spot, he saw hte Tather in injured position, he took him to the village and after somatime Devklshun died. Then he went to Police Station and lodged FIR vide Ex. P/2. Merg Intimation was recorded vlde Ex.P/1. The <7 •:/- Investigating Offteer proceeded for the scene of oocurrence and after summoning the witnesses, inquest over the dead body of deceased Devkishun was prepared vtele Ex. P/14. Dead body of the deceased was sent for autopsy to CommunUy HeaKh Centra, Wadrafnagar vkte Ex. P/15. Autopsy was conducted by Dr. R.B. Prajapatl vlde Ex.P/16 and found following hnjuries:- i. Lacerated wound over occipital rsgion size 4 cm x2cm x1 cm. ii. Contusion over left parietal region size 10cm x 8cm. iii. Contusion in front of tracheas size 10cm x 6cm. 5. Cause of death was shock and homicidal in nature. 6. Plain soil and bloodstained soil were recovered from the spot vide Ex. P/8. Sealed cloth of the deceased was seized vide Ex. P/12 & P/13. Spot map was prepared by the Patwari vide Ex. P/4. DMring couree of investigation, Ramkeshwar was taken into custody. Ha made disclosure statement of axe vide Ex. P/6, same was recovered from him vfde Ex. P/7. Accused Pitambar also made disclosure statement of axe vlde Ex. P/7, the same was recovened from hlm vide Ex. P/9. Axe was sent for examinatlon to doctor and doctor has examlned the axe vide Ex. P/17-A & P/18-A. 7. Statement of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code'). After completion of investigation, charge sheet was fled before flie Judicial Magistrate First Class, Ramanujganj, who In tum, commltted the case to the Sessiwis Judge, Ambtkapur, from where the Additional Sessions Judge (F.T.C.), Ramanujganj, received the case on transfer for trial. / ' y' 8. In order to prove the guilt of the appellantafaccused, the prosecution has examined as many as 18 witnesses. Statements of the accused/appellants werealso recorded under Section 313 of the Code where they denied the circumstances appearing ^alnst them and claimed innocency and false implication. 9. After affordlng opportunity of hearing to the partles, the AdcBtional Sesslons Judge has convicted and sentenced the appellants as aforementioned. 10. We have heard Smt. Klran Jian, counsel fbr the appellant in Criminal Appeat No. 1046/04, Dr. Shailesh Ahuja, counsel for appellant in Criminal Appeal No. 1047®4and Shri Rakesh Jha, Deputy Govt. Advocate for the State/respondent and pemsed the judgment impugned as also record ofthe Court below. 11. Leamed counsel appearing for the appellants vehemently argued that the present case is based only on the evidences of Pahalwania (PW-2) (wife of deceased) and his grandson Jugesh (FW-8) but actually they have not seen the incidertt, therefore, their witness are not reliable. They further argued that even according to the case of prosecutlon, the appellants were having axe and have used Its blunt part not used the sharp part of the axe, and this acts of appellants shows that their intention were not to kill Devkishun but may be to teach lesson by causing injury. Further, the appellants are in custody since 05.10.2003 and have completed more than 6 yeare of the sentence. Therefore, at the worst their act may be offence punishable under Section 304 Part II of the Indian Penal Code. e-~, / ^ .^-/ 12. On the other hand, leamed State counsel supported the judgment impugned and argued that the prosecution has proved ite case beyond all shadow of doubt and the present appellanta were the pereons who have committed the offence. 13. In order to appreciate the contentions of the parties, we have examlned the evidence available on record. In the present case, homicidal death of the deceased Devkishun as a result of fetal injury Is not substantlally disputed by the appeBants, even otherwise it is also established by the evidence of Dr. R.B. Prajapati vide Ex.P/16 who has conducted the airtopsy vkte Ex. P/15 which may be as a result of head ii^ury. Death was homicidal in nature. 14. As regards the complfelty of the accused/appellants In the crime in question, the prosecution has examtned evtelence of Patialwarfa (PW-2) (wife of deceased) and his grandson Jugesh (PW-8). 15. Pahalwanla (PW-2) has deposed in her evidence that on the date of incldent her husband was gone to forest for grazlng the cattle. When Devkishun did not come back, she alonyvtth her grandson Jugesh (PW-8) and other persons of village went to forest to seareh the deceased, where Uiey saw, the appellants were holdtng axe and assaultlng to Devkishun by blunt part of the axe and causlng injury then they fled towards the forest. Defence tas cross examined Rajkumar (PW-8). At the tlme o1 aceldent, Rajkumar's age was only 8 yeare, but after satistying It that the child witness was able to speak, court below has e)ramin^l this witness. Both the witnesses have categorically deposed ftiat when ^YS 6 they reached the place of incldent, they saw that both the appellants were assaulUng to deceased by blunt part of Vr»axe. In their cross examination, both the wltnesses are struck out into the version that the appellants were present at the time of incident who have caused injury to the deceased. 16. In the present case, FIR has been lodged by the son of the deceased in whteh name of the appellants have not been mentloned. FIR has been lodged agalnst the unknown persons. Rajkumar (PW-1) has explained in para 8 of his evidence that at that time he was under shock but after recording evidence of Pahalvania (PW-2) and Rajkumar (PW-8), both the appellants were taken into custody wlthin four days. Leelavati (PW-3) has also corroborated the evidence of Pahah^ania (PW-2) that on the fateful day accused Ramkeshwar was asking where-about of his father i.e. deceased Devkishun. 17. The above evldences are suffictent for drawing inTereni% that the appellants are the pereons who caused Injuries and homicidal death ofthe deceased Devklshun. 18. As regards the question of motlve is concemed, Rajkumar (PW-1) kxlged the FIR and Pahalvania (PW-2), Leelavatt (PW-3) and other witnesses have specifically deposed that when they reached the spot, the appellants fled away and at that time Devklshun was alive, thereafter he died and doctor's evidence also ahows thst only three injuries were found over the head of the deceased, but no grievous injury was found over the body of deceased. The appellants have not used the shsap part of the axe but has used its ^L -Ytas 19. blunt part whlch shows that they had no Intention to kiB the deceased but may be to teach tesson but while committing tWs type of offence they may have knowledge that DevWshun may dte. Therefore, above evtdence is not sufflclent drawing inference that the appellants have committed murder of the deceased. Thelr act does not travel beyond Section 304 Part II of the Indian Penal Code. While convincing the appdlants, the court below has not considered the case property and thereby committed lllegaBty tn convicting the appellants under Sectlon 302 of the Indian Penal Code. The judgment impugned is not sustainable under the law and it requlres modification. In the result, the appeats are partly allowed. Judgment impugned is partty modified and instead of convictlon under Section 302 of the Indian Penal Code, the appellants are convicted under Section 304 Part II of the Indlan Penal Code. The present appellants are in custody from (%. 10.2003 till today for more than about 6 yeare. Custodlal period of the appellants are sufficlent sentence under Section 304 Part II ofthe Indtan Penal Code. Accordingly, instead of imprisonment for life, the appellants are serrtenced imprisonment of custodial period i.e. about more than 6 years. They be released, if not requlred in any other case. Sd/- T.P. Sharma Judge Sd/- N.K.Agrawal Judge Sahu