^-^ HIGH COURT OF CHHATTISGARH, B1LASPUR APPELLANT: RESPONDENT: APPELLANT: RESPONDENT: Criminal Appeat No.614 of 2006 Jaggu, S/o Ghassu Gond, aged 35 years, Occupation Agriculture, R/o Village Chingnar, Police Station Benur, Distt. Bastar Versus State of Chhattisgarh AND Criminal Appeal No.615 of 2006 Mangal, S/o Massu Gond, aged 35 years, Occupation Agriculture, R/o Village Chingnar, Police Station Benur, Distt. Bastar Versus State of Chhattisgarh {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Dr. N.K. Shukla, Senior Advocate with Mr. Sudhir Verma, Advocate forthe appellant in Cr.A.No.614/2006. Mr. Hemant Kesharwani, Advocate for the appellant in Cr.A. No.615/2006. Mr. Akhil Mishra, Deputy Government Advocate for the State/ respondent. DivLsion Benchi- Hon'ble Mr. T.P^ Sharma and H^n'ble tUlr. R.N. Chandrakar, JJ JUDGMENT (18-10-2011) T.P. Sharma, J: - 1. Since both the above criminal appeals are arising out of the same judgment dated 7-8-2006 passed by the Sessions Judge, Bastar.at Jagdalpur, in Sessions Trial No.178/2006, they are being disposed of by this common judgment. 2. By filing aforesaid appeals, the appellants have challenged legality and propriety of the judgment of conviction and order of sentence dated 7-8- -<'•'"• \, / 2006 passed by the Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No. 178/2006, whereby and whereunder learned Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Kahru Ram in sharing common intention, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced each ofthem to undergo imprisonment for life. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution, on the ground of witchcraft, appellsnts Jaggu & Mangal went to the house of unfortunate deceased Kahru Ram at 10 p.m. on 23-2-2006, Jaggu called Kahru Ram from his house, at that time Mutai (PW-10) - wife of Kahru Ram was present in her house, appellant Manglu was standing in front of the house of Kahru Ram, the appellants quarreled with Kahru Ram, Mangal assaulted Kahru Ram by axe over head and caused his instantaneous death. Mutai (PW-10) tried to save her husband, but ultimately she returned to her house and informed herchildren. On second day, meeting ofvillage panchayatwas convened and the appellants confessed their guilt. Thereafter, Rajman Potai (PW-1) - son ofthe deceased went to the police station and lodged FIR vide Ex.P-1 and morgue vide Ex.P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-6 prepared inquest over the dead body of the deceased vide Ex.P- 7. Spot map was prepared vide Ex.P-3. Mutai (PW-10) was sent for medical examination vide Ex.P-5, but she refused for medical examination on the ground of trifle abrasion caused on her teg. Bloodstained and plain soil were recovered from the spot vide Ex.P-8. Dead body was sent for autopsy to Government Hospital, Kondagron vide Ex.P-19. Dr. S. Lonhare (PW-9) conducted autopsy vide Ex.!'-28 and found following injury: - Lacerated and incised wound on backside of skull of 20 c.m. x 15 c.m. x 10c.m. Cause of death was excessive haemorrhage. Death was homicidal in nature. During the course of investigation, appellant Mangal was taken into custody, he made statement of axe vide Ex.P-9 and same was recovered at his instance vided Ex.P-10. Appellant Jaggu made ,,.-^-.*i!-., "^^ •^yy 'Ste.A^' discloser statement of torch vide Ex.P-11 and same was recovered at his instance vide Ex.P-12. Patwari prepared spot map vide Ex.P-16. 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Narayanpur who committed the case to the Court of Sessions, Jagdalpur where trial of the case was conducted. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as ten witnesses. The accused were examined under Section 313 of the CrPC in which they denied the cireumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trialCourt. 9. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on evidence of solitary alleged eyewitness and relative witness Mutai (PW-10) - wife of the deceased whose evidence does not inspire confidence and is not trustworthy. As per her evidence, it was dark night on the date of incident and it was not possible to identify the persons on account of darkness. In these circumstances, it was not possible for her to see the assailants or to see the injury caused by the assailants on her husband. Even otherwise, the incident took place from more than fifty-five meters from her house and, therefore, it was not possible for her to see the incident. Evidence of this witness is based on conjectures and surmises which are not sufficient for conviction of the appellants. Learned counsel further argued that there is inconsistency between medical and ocular evidence. As per ocular evidence of Mutai (PW-10), 4-5 injuries have been caused by Mangal, but as per medical evidence, there was one injury. 10.0n the other hand, learned State counsel opposed the appeals and submitted that presence of Mutai (PW-10) in her house at odd hours was natural. The appellants have knocked and called Kahru Ram (since deceased) from his house and thereafter, they have kiiled Kahru Ram. 'w^yh 3 •^^ This witness has seen the incident. Although there was dark night, but it was not impossible for her to see the incident and even in dark night, person would be in a position to identity known person of his/her relation or vicinity. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.1n thepresentcase, homicidal death of deceased Kahru Ram as a result of injury sustained by him has not been substantially disputed on behalf of the appellants. On the other hand, it is established by evidence ',A S. Lonhare (PW-9) and autopsy report Ex.P-28 that death of tne deceased was homicidal in nature. 13.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially based on evidence of Mutai (PW-10) - wife of the deceased. As per her evidence, on the fateful day she was sleeping in her house along with her husband and children, at about 10 p.m. at night, appellant Jaggu along with Mangal came to her house, Jaggu called her husband, she heard the sound of Jaggu and identified him, her husband came out from his house, and appellant Mangal was standing in front of her house. After takingher husband Kahru Ram towards some distance, the appellants quarrelled with.^^h Mangal assaulted him by axe over back his back, Kahru Ram fell down. She shouted, thereafter, she was frightened and rushed to her house then she informed her children. She went to the house of her sister-in- law Jugri and gain came with Jugri and watched for dead body Qf her husband. Second day, she informed the incident to Kotwar. Defence has cross-examined this witness at length. In para 3 of her cross- examination she has deposed that there was complete darkness and identification of person was not possible, but on account of sound, she has identified Jaggu. Jaggu has not assaulted her husband and Mangal has assaulted her husband. 14.As per evidence of Mutai (PW-10), Mangal has caused 4-5 injuries to her husband from back. She has specifically deposed that when Mangal talked, she saw Mangal. She has denied the suggestion that Mangal has not caused injury to her husband and that her husband has died as a result of fall. As per her evidence, Mangal has caused four injuries to her -,/>' husband. But as per autopsy report Ex.P-28, the doctor has noticed lacerated incised wound over back of head of the deceased in the size of 20 c.m. x 15 c.m. x 10 c.m. caused by sharp instrument. Size and nature of injury i.e. lacerated wound with incised wound do not exclude the possibility of repeated assaults on same part of the body and it may be the case that Kahru Ram has been assaulted by axe more than once. 15.Mutai (PW-10) has specifically deposed that she has identified appellants Jaggu & Mangal also on the basis of their sound, they are residents of same village, they are not unknown to this witness, even it was possible to identify them on the basis of their sound, though she has specifically deposed that she has seen both the appellants. She has also followed them up to some extent at the time of incident. Even otherwise, as per her undisputed part of evidence, both the appeliants came to her house at 10 p.m. at odd hours at night, they called her husband and within short time, her husband was killed. In these circumstances, the appellants were under obligation to offer explanation as to who has killed Kahru Ram when he was in their active control and custody. There was no propriety for calling the deceased at 10 p.m. at night in odd hours. 16.The appellants were also under obligation to offer explanation that why they came to the house of the deceased, why they called the deceased and who has killed the deceased. However, the appellants have not offered any explanation. These circumstances alone are sufficient to prove the fact that only the appellants have caused homicidal death of Kahru Ram amounting to murder, without further support from ocular evidence. 17.After appreciating evidence available on record, learned Sessions Judge convicted & sentenced the appellants in the aforesaid manner. Conviction of the appellants is based on clinching and credible evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence requiring any interference. 18-Consequently, theappeals are devoid of merit, same are liabte to be dismissed and they are hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge