t :'!: !7 ./ .^ HiQH COURT OF CHHATTISGARH : BILASPUI DIViSIQNBi SHRi T.P.i KQN'BLE SHR! R.L. Subhash Yadav, S/o Dashrath Yadav, Affiicpn y^'^s/11^ ^,1 ^r iha fc^ "sr*,fftr^ styc^-i ii^iT^f <+ tk/^tdtL 34 "i irt^tirsn 1 UVfH. tf i^' i 1 agricuiture, R/o viHage Bhunsakhand, P.S. Chakiya, Distt. Varanasi (U.P.) presently residing at Chhalarang, P.S. Ordgy, dlstrict Surguja (C.G.) VERSUS State of Chnattisgarh, Through the Poiice Station Odgy, Distt. Surguja (C.G.) APPIALUNDIRSECTiON 37412^^ Shri Ashok KumarShukIa, counsel forthe appeilant. Shri J.A.Lohani, P.L. forths State/Respondent. ORAL.JUDGMENT ' (Passed cn 11.05.2011) 1 Chalienge in this appea! is to the judgment of conviction and order of sentence dated 24.03.2006 passed by the 2nd Additional Sessions Judge, Surajpur, Dist. Surguja in S.T.No.231/2004 whereby and whereunder after holding the appellant guilty for commission of culpable liomicide amounting to murder, the Court below convicted the, appellant under.Secfion 302 of the I.P.C.and Section 25 (1-A) of Arms Act and sentenced them to imprisonment for life with fine of Rs.500/-, in default tQ payment of fine to further undergo one month rigorous imprisonment under Section 302 of the I.P.C. and to further undergo rigorous imprisonment for three years with fine of Rs.500/-, in default to furthef undergo R.l. for one month. i 2. The conyiction is impugned on.the ground that: without sn iota o( evidence on record, the Court .below convicted and sentenced ti;< appe!lant as aforementioned andtherebycommitted illegality. ; I m ^ 3. As percase ofthe prosecution, on fatefui day of 26.1.2004 atabout 4.00 p.m. present appeliant open fire at Sukhai by country made pistol and caused his instantaneous death. Thereafter, he fied towards forest. On second day, P.VV.8 Loiar Singh went to police station Odgy, whlch is 40 y Kiiometers av/ay from the p!ace of incident, and iodged F.1.R. vlde Ex.P.6 and also iodged merg. Investigating Officer lefcfor scene of occurrence and after summoning the witnesses vide Ex.P.7, inquest over the dead body was prepared vide Ex.P.8. Spot map was prepared vide Ex.P.9. Patwari also prepared spot map vide Ex.P.10. Bioodstained and piain soils were recovered from the spot vide Ex.P.11. Dead body was sentfor autopsy to Community Health Center, Sonhat vide Ex.P.16. Dr. Sukfal Prasad Prajapati P.W.15 conducted autopsy vide Ex.R.29 and found one firearm injury of 1.5" diameter on the right chest below right nippie, two hoies were found in shawt, which was found in the body of the deceased and sweater and banian, worn by the deceased persoh at the time of incident, were a!so having holes. Mode of death was shock and death was homicidal in nature. During the course of investigation, accused jt person has been taken into custody and made disciosure statement of ' country made pistpl vide Ex.P.2 anci the same has been recovered at the instance of' the appeilant along with one llve cartridge of 12 bore and empfy cartridge vide Ex.P.1. Cloths of the deceased were seized vide Ex.P.14. Seized articles were sent for chemica! examination vide Ex.P.22 and Ex.P.24. Consent of prosecution of the appeliant was obtained vide Ex.P.29C. Presence of blood was confirmed on the cloths of the deceased vide Ex.P.30 and vide Ex.P.31 baltistic expert has opined that country made pistol used and recoveredfrom the custody of the appellai-at ,was in vu'orking conditlon but it is not possible for him to link the fired cartridge with countiy made pistol and the holes found cioths were caused byfiring. . • ; 4. Statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code') were recorded. After completion of mvestigation, charge sheet was filed against the accused person before the Court of Judicial iVlagistrate First Class, Surajpur, who in tiliF^i committed the case tothe Courtofieamed Sessions Judge, Surguja; Thp learned Additional'Sessions Judge has received the case on transfsr ^r: tnal. ^:%^1 ./ 5. In order to prove the guilt of accused person, prosecution has examined as many as 17 witnesses. The accused person was also examined under Section 313 of the Code where he denied the circumstances appearing against him and pleaded his innocence and false implicafion in crime in question. The accused./appeiiant also examined two defence witnesses namely Subhash D.VV.1 and Smt. Pyari Bai D.VV.2, who have deposed that P.W.8 Lolar Singh has committed murder of Sukhai on account of property dispute and they have falseiy Implicated the present appellant. 6. Atter providing opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned in paragraph 1 ofthisjudgment (supra). 7. VVe have heard learned counsel for the partles at iength and have perused the judgment impugned inciuding the record oftrial Court. 8. Shri.Ashok Shukla, learned counsel appearing for the appeilant, argued that conviction of the appellant is soleiy based on the evidence of relatives and interested witnesses namely P.W.6 Smt. N'anki Bai, wife of the deceased person - Sukhai Slngh, P.W.7 Sharda Singh and P.W.8 Loiar Singh, son ofthe deceased person - Sukhai Singh. Virtually P.W.7 Sharda Singh has not witnessed the incident and has deposed that at the instance of P.W.6 Smt. Nanki Bai and P.W.8 Lolar Singh. He further submitted that prosecution has not collected the evidence to connect the recovered arm used in crime in question and in the absence of such evjdence, no inference can be drawn against the appellant that appeilant has used the aforesaid country made pistol and has causea' jnstantaneous death of deceased by gunshot. He elso submitted that the appellant has examined defence witnesses and prosecution story is fuil of suspicious falsely jmpiicating the accused/appetlant on account of property dispute at the instance of P.Vtf.8 Lolar Singh. .He further submitted that defence is not required to prove its defence like case of prosecution but the defence is required to only throw suspicion on the story of prosecution. Suspicion cannot take place in legal evidence. i'i .^> L, ,i,j.,^U 9. On the other hand, Shri Jamil Akhtar Lohani, learned counsei • appearing tor the State, opposed the arguments and submitted that the appeilant has made gunshot fire at the deceased person Sukhai and then caused his instantaneous death. The evidence of P.W.6 Smt. Nanki Bai, P.W.7 Sharda Singh and P.VV.8 Lolar Singh is sufficient for drawin< definite conciusion thct onty the appeilant bimself has caused the hQmicidal death of deceased Sukhai. After appreciating the evidence availabie on record, the learned Court beiow has rightly convictedand sentenced the appellant. 10. In order to appreciate the arguments advanced by the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homieidai death of Sukhai on account 'of gunshot fire has not been substantially disputed on behalf of the appellant but on the other hand also established by the evidence of P.W.15 Dr. Suklal Prasad Prajapati and autopsy report Ex.P.29 which revealed that on account of injury caused by gunshot fire death of Sukhai took place and death was ( homicidai in nature. 11. As regards complicity of the appeliant in crime in question, conviction of the appellant is sybstantially based on the evidence of P.W.6 Smt. Nanki Bai, P.VV.8 Lolar Singh, mother and son of the deceased person and another witness Sharda Singh P.VV.7. P.W.6 Smt. Nanki Bai and P.VV.8 Lolar Singh are the relative and interested witnesses but their evidence cannoi be discarded only on the ground of their relation. Even otherwise, a close relative of the deceased wilt be reluctant to spare the real cuiprit and impiicate the innocent person falseiy. P.W.6 Smt. Nanki, who was present on the spot, has categorically and specifically deposed that present appeiiant was initiaily present near the deceased, thereafter again he came from his house and made gunshot fire upon her husbarad Sukhai, as a result of such fire mjury, the deceased died on the spot. S|ie has aiso deposed that after hearing sounds of gunshot, P.W.7 Sharcla Singh and P.W.8 Lolar Singh immediately rushed to the spot and they were trying to chase theappellant, who ran away from the spot. P.Vtfi.7 Sharda Singh and P.VV.8 LolarSingh have also corroborated the evidenee ofP.VV.6 Smt. Nanki Bai. Defence^has examined Smi. Nanki Bai in detpil 1 'l and there arecontradictions and omissions in her cross-examination and ! i; i|N II .,,;^.CT''''»'l::'. Kr4 "^ ||a|l:!) -•-:l:si>?' ^' A s her prevjous statement Ex.D.1 but she has categoricalty denied the suggestion that appellant has not made gunshot fire upon her husband. She has admittecf the fact that P.W.8 Lolar Singh is herson. Although she has denied that Mahabir was the father of Lolor Sihgh. She has aiso admitted the suggestion in paragraph 25 of her cross-examination that there was no dispute with the present appellant. -She has also denied the suggestlon in para 24 of her cross-examination that she along with her son Loiar Singh together have committed ths aforesaid offence. The defence has also cross-examined P.W.8 Lolar Singh in detail. There are aiso contradiction and omission in his statement and previous statement' Ex.D.2 but P.VV.8 Loiar Singh has specifically deposed that present appellant has caused death of his father by using the cquntry made pistol. P.VV.7 Sharda Singh has specifically deposed that he was present near the piace of incident and aiso heard sounds of fire, then he rushed towards spot where Sukhai was lying on the floor. He saw the buiiet injury OR his chest and biood was oozing and appeilant was runnlng away from the spot. After the incident he has not seen appellant on the spot. Evidence of aforesaid witnesses is sufficient for drawing definite conclusion that appellant has caused homicidal death of deceased by using gunshot fire which itself js sufficient for drawing an inference that death of deceased was homicidal in nature and the appeilant was in^ possession of aforesaid country made pistol. 12. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as; arorementioned. 1 1'3. On close scrutiny of the evidence, we do not find inj'ltegality and inrirrnity in the conviction and sentence imposed by the Court beiow upon; the appeiiant requiring interference by this Court in exercise of appellate lurisdiction. ' 14. Consequentiy, the appeal being devoid of merit and substance, is;| iiable to be and is hereby dismissed accordingly. Sd/- R.L. Jhanwar Judge Sd/- T.P. Sharma Judge ^l i3t i: ! a •°"«T"^~'aT-3ntn3nB8'^\T