@ HIGH‘ COURT OF CHHATTISGARH A'r BILASPUR 1 ‘ DIVISION BENCH i HON’BLgE MR. T.P. SHARMA & HON’BLE MR. MGNATH CHANDw JJ. céR‘Ahw: CRIMINAL APPEAL NO. 794] 2006 ‘APPELLANr‘ ‘(IN JAIL)§ Ramqshwar @ Badil Chouhan. VERSUS State of Chhattisgarh. JUD'gEMENT FOR CONSIDERATION 7—__—‘—,'7 ,MRH, sw— ,vl; J ‘ tasHAnMA. ~;.‘, f Judge '! :a -» //) f Post for J13Ei§ment on: 3 /1 1/20 1 Sdl- : 'T‘P.SHARMA. ”I Judge .. _w A% f w ¥ i ‘ 1 Hon’§ble: Mr. Rangnath Chandrakax J. i ‘ ‘ f I & ca‘ y‘wa. IJ\ Sd/_ A: 9f §R.N. Z “m“v‘ Chandrakar Judge t . HIGH COURT OF CHHATTISGARH AT BILASPUR Mu\ ‘ ‘ ‘APPEAL UNDER SECTION 37$2! OF THE CODE OF CRIMINAL PRQCEDImET, 1973. Present:- ‘: Shri Manoj Paranjpe, Advocate for the appellant. [ Shn‘ J.A. Lohan'i, P.L. for the State] respondent. JL'DGEMENT (Passed on 3 /1 1/201 1) The following iudmnént of the Court was passed by T.P. Sharma‘, J:- 1. Challenge in this appeal is t‘o the judgment of conviction and order of sentence dated 29/8l2006 passed by First Additional Sessions Judge, Balodabazar 0G. in Sessions Trial No. 58/ 2006 whereby and Where under after holding the appellant guilty for the commission of culpable homicide amounting to murder ,of Basant, convicted the appellant underr’Section 302 of the Indian Penal Code and sentenced imprisonment l for life and fine of Rs. 500/ —, in default of payment of i DIVISION BENCH l l CORAM: HON’BLE MR. T.P. SHARMA as § HON’BLE MR. RANGNAT CHAND JJ. CRIMINAL APPEAL N0. 794/2006 ‘ l APPELLNATE Rameshwar @ Badu Chouhan S/o (IN JAIL) i Jagdisti, Aged about 28 years, R/o Village Koliha, P.S. Kasdol, District Raipur (Chhattisgarhy ; l ‘ VERSUS RESPONDENT ‘ State of Chhattisgarh, Through: i - Police Station Kasdol, District £ ~ Raipur (Chhattisgarh). g9 1 § ‘ fline amount, additional rigorous imprisonment for 3 i months. ‘ Qonviction is impugned on the ground that without any ‘ iota of evidence sufiicient for conviction of th i appellant, court below has convicted and sentenced the § aippellant as aforementioned and thereby committed an illegality. ."f‘ A‘s per ca§e of the prosecution, Basant (since deceased) mas prose‘ctlted and arrested for commission of offence i i of rape with wife of appellant. After releasing on bail, " Basant came to his village Koliha Police Station Kasdol. On 24/9/2005. on account of such dispute, quarrel i teak place between appellant and Basant thereafter ~ i ~ appellant strangulated his neck and caused his homicidal death thereafter he fled hem the spot. PW2 Janiram Verma was present near the place of incident who has witnessed the incident and tried to save Basant. Dead body of Basant was found in the field where water accumulated. During course of- incident, appeilant was wearing Bahadur brand 'Hawai sleeper Which was found on the spot along with one small Spade (Rapll) and one pair sleeper of Basant. PWI Chandrashekhar,‘ uncle of Basant lodged Marg intimation vide Ex. P—l. “investigating Officer left for scene ‘of occurrence and after 'A summoning the e @. §Witnesses vide Ex. P- 14, inquest over the dead body of ‘EBasant was prepared vide EX. P— 15. One small spade 1‘ “Rapid, a pair of sleeper of Basant and Bahadur brand iHawai sleeper of appellant were found near the place of lincident were seized vide Ex. P- 18. Hans found in the hands of Basant were seized vide Ex. P— 19. Mud seized f éfrom the spot vide Ex. 13-2. Spot map was prepared vide tkf {Ex. ‘P—9.‘ Dehatinalshi 8s First Information Report were i 3§egistered‘ vide EX. P~13. Dead body of Basant sent for iautopsy to‘Block Medical Omcer, Kasdol vide Ex. P- 17. §PW8 Dr. Ramsewak Joshi conducted autopsy vide Ex. :P— 1 1 and found following injuries/symptoms:- i(i) Mud found over the body of Basant. (ii) Eyes were congested. (iii) Lacerated wound found over lips of 1/2 x 1/8 X 1 / 8 C.M. (iv) Tongue beaten by teeth. (v) Bloody froth was come in the nostril. (vi) Abrasion of 2% x 1 over upper part of the right eye. '(vii) Swelling over neck along with contusion of 19 C.M. in length. (viii) Linear abrasion over the neck. (ix) Multiple injuries over the neck. (x) Fracture of sternoelavicular join on right side. (xi) Blood found inside trachea 8s bronchia. Mode of death was asphyxia as a result of throttling and death was homicidal in nature5 l < l l l l gé 4. 1 Cm 25/9/2005 appellant was taken into custody he \ made discloser statement of cloths 85 Bahadur brand seven number Hawai sleeper vide Ex. P—3. Cloths stained with mud were seized from the appellant vide A EX. P—4. Hairs of head of appellant was cut and seized (ride Ex. P—5. Sealed cloths of deceased was seized vide Ex. P~6. Appellant was arrested on 25/9/2005 vide Ex. Vat P—7. ~Pattyari prepared spot map vide Ex. P— 10. During I egurse of‘ quarrel/incident, appellant also received injury, he Was sent for medical examination vide Ex. P¢ 12A. He was examined by PWS Dr. Ramsewak Joshi Vide Ex. P-12 and found linear abrasion of 21/2 x 1% C.M. over forearm. Seized articles were sent for Chemical examination vide Ex. P-22. Hairs were also sent for examination but no definite opinion has been L given on the ground of inadequacy of hairs seized nom hands of deceased Basant. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Balodabazar who in turn committed the case to the Court of Sessions, Raipur from where H learned First Additional Sessions Judge, Balodabazar; CLG. has received the case on transfer for trial. — t \ 1 In order to prove the guilt of the appellant/accused > l . . prosecution examined as many as 11 Witnesses. Aiccused/appellat was examined under Section 313 of tihe Code where he denied the circumstances appearing dgajnst him, innocency and false implication in crime 1n question is claimed. He has examined defense witness DWI Ganeshmm 8r. DW2 Jhanak Kumar Lahre grid has iaken the plea of alibi. A;$fter aiTording an opportunity of hearing to the parties iemned F11ist Additional Sessions’Judgg Balodabazar b.G. has convicted and sentenced the appellant as aforementioned. A Learned counsel for the appellant Shri Manoj Paranjpe and learned counsel for the respondent/State Shri. J.A. 'Lohani are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that conviction is based on evidence of solitary alleged eyewitness PW2 Janiram Verma whose statement under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) has been recorded after 4 days of the incident. He was relative of deceased Basant p and was present in the village. Marg has been originally registered against unknown person. At the time of ‘ registration of Dehatinalishi or First Information Report, yE hmliesflgating Officer was not having any material for i'regfistration of First Information Report against present §apbellant. Witnesses examined by prosecution of , E imember ‘g of Verma commumty , and . deceased was also ; $member : of Verma commumty . therefore, ev1dence . of PW2 Janiram Verma does not inspire conndence, itrnstworthy and is not safe to rely without further icdrroboratfon. Evidence adduced on behalf of the prosecution is suflicient for drawing suspicion that g . v gagipellant may have committed homicidal death of :Ba‘sant but is not sufficient for drawing definite i conclusion. Prosecution was under obligation to prove t its case beyond all shadow of doubts but prosecution is utterly failed to prove 'on‘ence against appellant beyond shadow of doubt therefore, appellant is entitled for acquittal. Learned counsel for the appellant further argued that even if the evidence of prosecution witnesses are considered in its face value then the act attributed to the appellant does nOt travel beyond the scope :of Section 304 Part-II of the Indian Penal Code. As per evidence of prosecution, appellant and Basant were quarreling and both caused injury to each other. Hairs of appellant was found in the hand of'deceased Basant” shOws that Basant has also caused injury to appellant. 1 1 4a? a Aprbellant has not used any weapon although Weéxpon/ small spade was present on the spot. v X x l On‘ the other hand, learned counsel for the Smite/respondent opposed the criminal appeal and argued that evidence of PWQ Janiram Verma is inspire :conlidence and trustworthy.'At the time of lodging First information Report, there was sumcient material {‘e‘f against the‘appellant. Appellant has been interrogated pnig5/9,l200~5> second day of the oifence, his sleeper Was found ne‘ar the place of incident. This is not the l ease in which appellant has been » interrogated or arrested after statement of PW2 Janiram Verma. Evidence adduced on behalf of the prosecution is sufficient for drawing definite conclusion that appellant has committed homicidal death amounting to murder of Basant. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced onibehalf of the prosecution. In the present case, homicidal death as a result of fatal injury found over the neck of Basant has not been substantially disputed by the appellant on the other hand, otherwise also established by the evidence of PW8 Dr. Ramsewak Joshi and autopsy report E3. P— 1 1. ‘ Death of Basant was homicidal in nature. ‘ " b @ 14.‘ As regard the complicity of the appellant in crime in Question is concerned, defence has tried to take defence cf alibi. Evidence of defence witness DW2 Jhanak Kumar Lahre Patwari is of no use in the present case. As per evidence of DWI Ganeshram, mltlally appellant Was not present in the village, he had gone to Mandla, he came back after 7 cto 8 days. On the date of incident, i%f appellant met him at village Lawan'where he also rgceived information that Basant has been murdered then he Went to village Koliha where Assistant Sub— Inspector Sahu was present and appellant was assisting the police in their investigation as a Kotwar. In Para—9 of cross examination, he has deposed that there was enmity between appellant and Basant but has sua—moto deposed \that after release of Basant on bail, appellant and Basant used to travel together and used to talk with each other. As per undisputed case of the prosecution, Basant was arrested and was kept behind the bar committed rape with wife of appellant but as per Para—9 of evidence of this defence witness, after release of Basant on bail, Basant and appellant used to visit together and used to talk with each other. The cause of arrest of Basant was the offence committed by him with wife of appellant that too of rapeRelatives of Basant have leveled commission of 9} offence of murder against the appellant on the ground v kof such previous offence. In these circumstances, t ;evi;dence relating to cordial relation of appellant with ‘ Basant does not appear to be natural, these alone are isu‘fflcient to discard the evidence of defence witnese lDWl Ganesmam. r 15. llnlthe present case, statement of PW2 Janiram Verma i 4. 7: §under Section 161 of the Code has been recorded after 4 gays of incident. As per evidence of PW2 Janiram fverma, he was present in the village but he was under I:threat therefore, he did not inform the incident to any person but finally he has informed the incident to the iPolice after 4 days. Undisputed facts reveal that Basant ‘~'- was kept behind the bar in connection with the commission of rape by him with wife of appellant and few days before the incident, he was released. These facts are suhicient for casting suspicion on appellant for commission of murder of Basant. Two pairs of " sleepers were found near the place of incident, one pair of sleeper was belonging to deceased Basant, hairs were also found in the hand of deceased Basant. These are sufficient allegations that some body has committed offence. Marg intimation was recorded on 24/9/2005 and on second day,‘ appellant was taken into custody, ‘ he Was interrogated and at his instance, cloths stained 10 @ Q; with mud recovered from the appellant. On 25/9/2005 dead body of Basant was found in the field stained with mud sumcient water was found in the field. This is an incident of rainy season, in rainy season, fields were filled with water is not unnatural. Recovery of cloths stained with mud from the appellant was suilicient for registration of First Information Report against the «w: appellant and investigation against the appellant. PW2 Janjram Verma has specifically & categorically deposed that initially he had seen the Basant who was coming from his med, he was holding small spade and he was wearing sleeper thereafter he saw sleeper upon bund of the field. Small spade was also lying near the :1 sleeper then he saw that appellant was pressing the neck of Basant, he reached near the place of incident then appellant threatened him then he fled from the spot. He was under threat therefore, he did not inform any other person or Police but alter 4 days of such incident, he informed the Police, other Witnesses have supported the investigation. All the witnesses have admitted that at the time of incident, agricultural operations were going on and villagers used to work in the f1e1d but no Witness had deposed any identified person was working near the place of incident at the time of incident. Aithough, statement of Pw2 Janiram J x {ml 11 @ Verma under Section 161 of the Code has been recorded after 4 ’days of incident but only on the ground of delay in recording such statement, his statement cannot be discarded if explained satisfactorily. This is not a case in which appellant has been arrested after recording the statement of PW2 Janiram Verma under Section 161 of the Code but in a f the present case, appellant was taken into custody on second day of the incident, incriminating articles have been recoVered from the appellant at his instance thereafter statement of PW2 Janiram Verma was recorded under Section 161 of the Code. Accusation of appellant was not on the basis of statement of PW2 Janiram Verma but prior to such statement, appellant was already under custody and investigation was in progress against the appellant. PW2 Janiram Verma has specifically deposed that he was under fear therefore, he was silent for 4 days. 17. In cases of Lalli alias Chiranjib Bhowmick son of Annada Chandra Bhowmick v. State of West Bengall, Dukhmochan Pandey and Others v. State of Bihar2, Banti alias Guddu v. State of Madhya l 1 (1986) 2 sce4og 2 (1997; 8 sec 405 Pradesha & Prithvi (Minor) v. Mam Raj and Others4 in which Suprema Court has held that delay in recording statement of Witnesses 85 delay in recording First Information Report are not Sufiicient to discard the evidence if explained properly. In the present case, Evidence of PW2 Janirarn Verma is self—explanatory for ‘3‘2‘ recording of his statement under Section 161 of the Code afjer lapse of 4 days. His evidence is further gorroborated by the evidence of PWI Chandrashekhar, discloser statement of recovery of articles Exs. P—3 8L P— 4 and evidence of PW3 Shivnandan Verma. These evidence are sufficient for drawing an inference that appellant has caused homicidal death of Basant. As regard the motive or intention is concerned, motive or intention is only aid in criminality and loses its importance. In case of direct evidence, even otherwise motive or intention can be inferred on the basis of nature of injury, part of the body where injury was caused, weapon used and other like circumstances. By adducing evidence by both the parties, both the parties have admitted the fact that Basant was behind the bar in connection with rape with wife of appellant. These facts are suificient for causing such offence and ’AIR 2004 sc 261 4AIR '2004 so 2729 @ defmitely, appellant was having motive for commission of otfence. Deceased Basant was having small spade, no injury has been caused by such object, hairs were also found in the hand of Basant, simple injury was found over forehead of appellant and cause of death of Basant was strangulation; Although, confessional part Jo of the statement under Section 27 of the Evidence Act a if of accused is not admissible in evidence but it can be L1s§d by and for defence. Confessional statement Ex. Pn 3 reveals that on account of such previous incident of rape, Basant and appellant were quarreled with each other, both fell downin the field thereafter appellant strangulated the neck of Basant which clearly reveals that when they met near the field then quarrel took place between appellant and Basant, both have caused injury to each other thereafter appellant has caused his homicidal death. Incident took place on spur of moment on sudden quarrel without premeditation but at the time of causing injury and pressing neck of Basant, appellant was having sufficient knowledge that by his act Basant may die. These evidence are sufficient to prove that appellant has caused homicidal death f” with intent to cause death of Basant but at the time of i l causing injury, appellant was having tsunicient knowledge that by his act Basant may die. In these @ circumstances, act attributed to the appellant does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code. While convicting and sentencing the appellant under Section 302 of the Indian Penal Code, Court belovti has not considered aforesaid circumstances in which incident took place and thereby 2 committed an illegality. , ‘ i“ f 20. For the foregoing reasons, criminal appeal is partly alloxéved Conviction and sentence of the appellant under Section 302 of the Indian Penal Code is hereby altered into under Section 304 Part-I of the Indian‘ Penal Code. He is sentenced to rigorous imprisonment for 8 years and fine of Rs. 500/—, in default of payment :1 of tine amount, additional rigorous imprisonment for 3 months. "m l Qd /_ fr)‘ RN Chandrakar Judge ,L 14 W l ( l A