t\^ ^' i' y^^ HIGH COURT OF CHHATTCSGARH AT BILASPUR Coram: Hon'ble Mr.T.P.Sharma <& Hon'ble Mr.R.L.Jhanwar. JJ. Criminal ApDeal No. 268 of 2003 Devnath and others Versus State of Chhattisgarh JUbGMENT FOR CONSIDERATEON Sd/- T.P. Sharma Judge Hon'ble Mr.R.L.Jhanwar, J. r^- Sd/- R.L. Jhanwar Judge Post for Judgment on : 17/2/2010 Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 268 of 2003 Coram: HON'BLE MR.T.P.SHARMA <& HON'BLE MR.R.L.JHANWAR, JJ. ^ e APPELLANTS (In Jail) RESPONDENT 1. bevnath Sahu S/o Pargan Sahu aged about 39 years. 2. Pargan Sahu S/o Pitambar Sahu, aged about 73 years, (Oied and deleted) 3. Mandakini Bai W/o Dewnath Sahu, aged about 33 years. All appellants/accused are resident of village Nawagaon (Temari), P.S. <& Tahsil Mungeli, bistt.Bilaspur (C.G.). Versus State of Chhattisgarh Through : P.S. - Mungeli/ t^istt. Bilaspur (C.G.). (CRMINAL APPEAL UNDER SECTCON 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:-' Mr.Parag Kotecha, counsel for the appellants. Mr.Rakesh Kumar Jha, Additional Public Prosecutor for the State. JUDGMENT) (belivered on » 7^ February. 2010) The judgment of the Court was delivered by T.P.Sharma. J.:- 1. Challenge in this appeal is to the judgment of conviction <& order of sentence dated 6.1.2003 passed by the Additional Sessions Judge, Mungeli, in Sessions Trial No.231/02, whereby and whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicidal death of Chaitram amounting to murder Chaitram in sharing common intention, convicted under Section 302 read € e K '€ with Section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo simple imprisonment for six months, respectively. 2. Judgment is impugned on the ground that without there being any iota of evidence of commission of murder, the Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 6.11.2001 at about 6 a.m., appellant t)evnath called the deceased in his house for consuming bidi and when Chaitram came to his house, then all the appellants assautted him by axe, stick and sickle. Munnibai and Rajaram have seen the incident, they tried to intervene, but finally the appellants killed deceased Chaitram. Molik Ram (PW-1) went to the police station and lodged the F.I.R. vide Ex.P/1 on the same day. Merg was recorded vide Ex.P/29. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses yide Ex.P/2, inquest over the dead body of the deceased was prepared vide Ex.P/3. Dead body of the deceased was sent for autopsy to Assistant Surgeon, Community Health Centre, Mungeli vide Ex.P/22. Autopsy was conducted by br.S.K.Baghel (PW-6) vide Ex.P/21 and found following symptom and injuries over the body of the deceased, i) Face and body were stained withblood. Multiple incised wound was found over left waist ii) Incised wound of 5 cms. x 1 i cms. x 1 cm. over forehead iii) Incised wound of 4 cms. x 1 cm. x 1 cm. over left side of forehead iv) Incised wound of 5 cms. x 2 cms. x muscle depth on right side of base of occipit. Occipital bone are fractured and brain matter are coming out from facture site. .^^ '^•'. '%- ^,.T ^: ^- ^ v) Incised wound of 4 cms. x i- cm. x i- cm. over right shoulder and 4 cms. liner abrasion on the right shoulder vi) Incised wound behind left ear on temporal region of 3 cms. x 1 cm. x muscle depth vii) Incised wound of 3 cms. x 1 cm. xmuscle depth on middle of scalp viii) Incised wound multiple in number up to bone depth and fracture of lower end of left radial bone All injuries were ante-mortem. Cause of death was as a result of internal heamorrhage and death was homicidal in nature. 4. Bloodstainedsoil andplain soil were recovered from the spot vide Ex.P/17. One terricot gamcha and broken piece of bangles were recovered from the spot vide Ex.P/18. Spot map was prepared by investigating officer vide Ex.P/10. buring the course of investigation, accused Mandakini was taken into custody. She made disclosure statement of sickle vide Ex.P/4 and same was recovered at her instance vide Ex.P/5. Accused Devnath made disclosure statement of axe vide Ex.P/6 and the same was recovered at his instance vide Ex.P/7. One bloodstained kurta was recovered from accused bevnath vide Ex.P/8. One stick was recovered from the deceased appellant Porgan Sahu vide Ex.P/9. The accused were taken into custody vide Exs. P/ll to P/13. One bloodstained sari was recovered from appellant Mandakini vide Ex.P/14. One bloodstained half kurta was recovered from deceased appellant Pargan vide Ex.P/15. Sealed clothes of the deceased after autopsy were seized vide Ex.P/16. Patwari also prepared spot map vide Ex.P/19. Seized articles were sent for chemical analysis vide Ex.P/30 and presence of blood over sickle, stick and shirt of deceased appellant Pargan were confirmed vide Ex.P/SOA. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Mungeli, who in turn committed the case to the ^.9^^ h^?': 6 Court of the Sessions, Bilaspur from where the Additional Sessions Judge, Mungeli received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 9 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. / 7. After affording opportunity of hearing to the parties, the Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 8. We have heard Mr.Parag Kotecha, counsel for the appellants and Mr.Rakesh Kumar Jha, Additional Public Prosecutor for the State, perused the judgment impugned and record of the Court below. 9. Learned counsel for the appellants vehemently argued that the prosecution has not proved its case beyond all shadow of doubt. The evidence of eyewitnesses viz., Malik Ram (PW-1), Janak Ram Sahu (PW-4), Rajaram (PW-5) and Munni Bai (PW-7) who are interested witnesses do not inspire confidence, trustworthy ond are not safe to rely for conviction of the appellants that too for the commission of offence of heinous crime. Learned counsel placed reliance in the matter of Ashish Batham v. State of M.P. in which the Apex Court has held that the accused is presumed to be innocent titl charges against him are proved beyond reasonable doubt. Mere heinous or gruesome nature of the crime not enough to punish the accused. Mere suspicion, however strong it may be, cannot take the place of legal proof. 10.0n the other hand, learned State counsel supported the judgment impugned and argued that evidence of eyewitnesses viz., Malik Ram (PW-1), Janak Ram Sahu (PW-4), Rajaram (PW-5) and Munni Bai (PW-7) are '(2002) 7 SCC 317 '%.• ^ -.^gf^ /y^^ ^•^^tey^^^ i. r. ~^^ | J? € .' .:^y t (7T7 sufficient for conviction of the appellants. The aforesaid witnesses have specifically deposed that the appellants were the persons who have called deceased Chaitram in their house and assaulted mercilessly by dangerous weapons and caused instantaneously death. 11. In order to appreciate the arguments advanced on behalf of the prosecution, we have examined the evidence available on record. In the present case, homicidal death as a result of ante-mortem fatal injuries has not been substantially disputed by the appellants, on the other hand, also established by the evidence of Dr.S.K.Baghel (PW-6) and autopsy report Ex.P/21 which reveals that multiple incised wounds were found over the head and limbs including fracture of occipital bone and redial bone and death was homicidal in nature. 12.As regards the complicity of the accused/appellants in the crime in question, the conviction is based on direct evidence of eyewitnesses viz., Malik Ram (PW-1), Narayan Singh (PW-3), Janak Ram Sahu (PW-4), Rajaram (PW-5) and Munni Bai (PW-7). Munni Bai (PW-7), wife of deceased Chaitram, has deposed in her evidence that at the time of incident at about 7 a.m. she along with her husband were returning from field and while they were passing in front of house of appellants, appellant bevnath called her husband Chaitram for consuming bidi, while her husband was sitting for consuming bidi, appellant bevnath assaulted her husband by axe, deceased appellant Pargan assaulted her husband by stick and appellant Mandakini assaulted her husband by sickle. She started weeping and shouted, at that time, Janak was coming towards the house, she requested Janak, then she rushed towards her house and sent her granddaughter to the field where Malik Ram (PW-1) was present. Immediately her granddaughter came and informed that Malik Ram has already went to the spot, then she again went towards the house of the appellants, at that time Rajaram told her that the appellants have killed her husband. She rushed to the house of the appellants at that time dead body of her husband was lying in the floor in badly injured condition. She t b^ ^-. (S^ has deposed in her evidence that there was some dispute relating to the land. Malik Ram (PW-1) has corroborated the evidence of Munni Bai (PW-7) and has deposed that at the time of incident he was present in his field, her sister-in-law {bhabhi) sent one children for calling him/he immediately rushed to the spot, Janak Ram was also present near the place of incident. The appellants were not present there. bead body of deceased Chaitram was lying in the barn of the appellants, he was badly injured and injury was visible over his body and was chocked, then he went /' to the police station and lodged the F.I.R. Janakram Sahu (PW-4) has deposed in his evidence that at the time of incident he was going to the field for ease, while he was passing in front of house of the appetlants he saw that appellants bevnath, Mandakini and Pargan were assaultjng Chaitram in their courtyard. Appellant bevnath was assaulting Chaitram by axe, appellant Mandakini was assaulting by sickle and deceased appellant Pargan assaulted by stick, Chaitram fell down, even thereafter they continued inflicting injuries. After killing the deceased, the appellants fled away from the spot towards Guna village. He was standing near the place of incident, at that time Malik Ram (PW-1) came whom he informed the incident. Rajaram (PW-5) has also corroborated the evidence of the aforesaid witness and has deposed that while he was going to Nawagaon for shaving at that time he saw that the appellants were assaulting Chaitram by axe, sickle and stick and when Chaitram fell down, then the appellants fled away from the spot. He went to the house of Choitram and narrated the incident. He has also deposed that appellant Devnath was assaulting Chaitram by axe, appellant Mandakini was assaulting by sickle and appellant Pargan was assaulting by stick. He has specificallystated in his cross-examination thathe has seen the incident. IS.The conviction is based on the evidence of the aforesaid witnesses viz., Munni Bai (PW-7) wife of the deceased,Janak Ram (PW-4) and Rajaram (PW-5) which has been substantially corroborated by the evidence of Y^ Malik Ram (PW-1). They have cross-examined by defence at length, but r- -3 --^ defence relating to the fact that appellant Devnath has assaulted Chaitram by axe, appellant Mandakini by sickle and deceased appellant Pargan by stick has gone unchallenged in their evidence. The prosecution has also adduced evidence relating to recovery of weapons at the instance of the appellants. Investigating Officer Madan Singh (PW-9) has deposed in his evidence that appellant bevnath made disclosure statement of axe vide Ex.P/6 and when he produced bloodstained axe from his house he has seized the same vide Ex.P/7 and also seized clothes of appellant bevnath Vide Ex.P/8. Bloodstained sari of accused Mandakini has also been seized vide Ex.P/14. Presence of blood was confirmed over axe by FSL report vide Ex. P/13A. Substantially, the conviction is based on direct evidence of eyewitnesses viz., Munni Bai (PW-7), Janak Ram (PW-4) and Raja Ram (PW- 5) corroborated by the evidence of Malik Ram (PW-1). 14.As held by the Apex Court in the matter of Ashish Batham (supra), innocency is always in favour of accused unless the offence is proved against them all shadow of doubt. In the present case, the evidence of the aforesaid witnesses who have seen the incident inspires confidence, trustworthy and safe to rely. The case of Ashish Batham (supra) is distinguishable on the ground of fact. 15. As regards the motive is concerned, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstQnces. 16. In the present case, the appellants have used sickle and axe. Admittedly/ both the weapons are dangerous weapons and repeated injuries have been caused by the appellants to the deceased. Eight injuries were found over the body of the deceased. This is not the case in which the incident took place at a spur of moment or heat of passion, but in the present case, while Chaitram was coming from his field, he was called by appellant bevnath for consuming bidi in his house and then all the appellantsassaulted and caused ^HK fatal injuries to the deceased shows their grave intention of causing murder of deceased Chaitram. 17. After appreciating the evidence available on record, learned Additional Sessions Judge had convicted and sentenced the appellants as aforementioned. 18. For the foregoing reasons, we are of the considered view that the conviction is bosed on legal, clinching and credible evidence sustainable under the law. The Court below has rightly convicted and sentenced the appellants. We do not find any substance in the appeal. The appeal is liable to be dismissed and is accordingly dismissed. Appellont No.3 Mandakini is on bail. She shall surrender herself immediately before the Additional Sessions Judge, Mungeli for serving the remaining sentence. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 'Y