!1ffil s l . ! :i rl ^i^; ^ .,-.-' '; w^ • •' ^l HIGH COURTOF CHHATTISGARH AT BILASPUR DWISION BENCH CORAM: APPELLANTS ACCUSED RESPONDENT PROSECUTION HON'BLEMR. T.P.SHARMAfli HON'BLE MR. R. L. JHANWAR. JJ. CriminalApoeal No. 795/2003 (1) (2) Versus Hunga Karma S/o Bhlma Karma, aged about 45 years, Occupation Agriculture, resident of vUlage .Jogapara, Dugeli, P.S. -Bacheli, Distt. Dantewada (C.G.). Arjun Rarma S/o Joga Karma, aged about 35 years, occupation Agriculture, resident of village Jogapara, P.S. -Bacheli, Distt. Dantewada (C.G.). State of Chhattisgarh Through District Magistrate, Bastar (C.G.). MEMORANDUM OF APPBAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. Present- Ms. Meenu Banerjee, Advocate for fhe appeUants. Shri V.V. S. Murti, Dy. A.G. for fhe State/respondent. ORAL.JUDGEMENT 1. (Passed on 28/01/2010) The following iudgment of_Qie Court was oassed by T.P. Sharma. J:- Challenge in this appeal is to fhejudgment of conviction and order of sentence dated 11/ 11/2002 passed by Special Judge, Bastar at Jadalpur, under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 m Sessions Trial No. 253/02 whereby and where under after holding^the appellants giulty for ^) III ii the commission of cnlpable homicide amounting to mzirder of Joga Karma convlcted the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced unprisonment for Ufe and fine of Rs. 500/- each in default ofpayment additional rigorous imprisonment for 1 year. Judgment is iinpugned on the groiind that without any iota of .-.I. evidence Court below has .coiivicted and sentenced fhe appeUants aforementioned and fhereby committed an UlegaUty. The brief case of the pros&cution is (hat on fateful day of 2/4/02 at about 6.p.m. at vUlage Jogapara Dugeli District Bastar appellants were present with the deceased. On fhe ground of demand of money some altercation took place between the parttes then appellants assaiilted the deceased by hands and kicks specially kicks over his chest and private part. They also assaulted fafher of fhe deceased PW1 Pandkuram Karma as a resi-ilt of fatal injury the deceased -Joga Kanna dled on the spot. On secand day mai^ was intimated by PW4 Deva vide Ex. P-1. First Information Report was lodged at the instance of Deva Vide Ex. P-2. Investigating Officer left for scene of occurrence after siimmoning the witnesses vide Ex. P-5. Inquest over fhe dead body was prepared Vide Ex. P-6. Spot map was prepared vide Ex. P-7. Dead body was sent for autopsy to Additional Primary Healfh Center, Bacheli vide Ex. P-4(A). Autdpsy was conducted by PW6 Dr. G.R. Urab Vide Ex. P-4 and found foUowing injuries:- (1) swelling over the panis scrotiim, blood was came from the panis. On intemal .{ ^ysas'^« /:,':'^VSt ^ v . 1 ';te., •^lsii '^ii.j'. exammation rupture of testis of smaU intestine, liver and kidney was found. The cause of deafh was shock as a result of nipture of intemal organ and testis. Deafh was homicidal in nature. 4. Statement of the witnesses were recorded under Sectlon 161 of the Code of Criminal Procedure, 1973 (in short the Code'). After completion of the investiga$lon charge-sheet was flled before fhe Chief Judlcial Magistrate, Dantewada who tn tiu-n committed the case to fhe Court of Sessions, Jagdalpur. Leamed Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants prosecution examtned as weU as 7 witnesses. Accused persons were examined under Section 313 of tfae Code where fhey denied the circumstances appearing against fhem, innocency and false unpllcation is clauned. 6. After affording an opportuiiity of hearmg to the parties leamed Special Judge, Bastar at Jadalpur, under Scheduled Castes and Schediiled Tribe (Prevention of Ata'ocities) Act, 1989 convicted and sentenced the appellants aforementioned. 7. Leamed counsel for the parties are heard. Judgment Impugned and record of Court below perused. 8. Leamed counsel for fhe appeUants vehemently ai^ued fhat in fhe present case homicidal death of fhe deceased Jo^ Karma is not substantiaUy disputed but present appeUants have not committed any oSence. The case ofthe prosecution rests on the statement of —^iePW1 Pandkiiram Kannaand PW2 Smt Pandey Bai father and ""?»&., '^yv^t:y 9. mother of the deqeased theu- evidence are self contradictoiy they have not supported fhe evidence of each other fheir evidence does not inspire conHdence trustworthy and safe to rely. According to the evidence of PW1 Pandkuram Karma he has not seen the incident and he fled away from the spot. PW2 Smt. Pandey Bai mother of fhe decease^' has also deposed that she has also not seen fhe iacident and PW1 Pandkuram Karma her husband also not seen the ipcident. No other evidence has been adduced by the prosecution to connect fhe appeUant in crime in question. In absence of credlble and clinching evidence the convictton of the appeUants for the offence of murder is not sustamable under the law. On fhe other haad, leamed counsel for the respondent/State opposed the appeal and submits fhat prosecution has proved its case beyond all shadow ofdoubts the evidence ofPWl Pandkiiram Kanna and PW2 Smt. Pandey Bai father and mother of the deceased are sufiicient for drawing an inference that appeUants are the person who has committed the murder of deceased Joga Karma. They are close relative but thelr evidence cannot be discarded only on fhe groiind of relation otherwise also relative of the person reluctant to spare the real culprit and to falsely unplicate the innocence person. Their evidence only requires imnute scnitiny before accepttng it. .I'ii! 1 10. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of ttie prosecution. 11. In the present case. homicidal death as a result of ante-mortem fatal injiiry has not been substantially disputed by fhe appellants on the other hand othepvise also establlshed by the evidence of .'•'• PW6 Dr. G.R. Urab and autopsy repot Ex. P-4 which reveal that intemal oi^an intestine, kidney and testis ruptured and deafh was homicidal in natiire. Aforesaid tnjuries over the intemal and vital part are suffident for causin^ the death of fhe deceased. 12. As regard the complicity of the appellants in crime in question is concemed PW1 Pandkuram Karma fafher of the deceased has deposed that appeUants and hls deceased son Joga Kanna constructed a house. Their was some dispute relating to inoney. On fhe date of incident deceased Joga Karma demanded money from the appeUants whlch fhey refused then appellants assaulted his son Joga Karma by kicks and they Hed away. They caused mjury over fhe thigh and ofher parts. Appellants also assaulted him. He has further deposed that hls wife Smt. Pandey Bai was present at fhe time of inddent and diuing course of incident she and another son Sukda were present. His wife Smt. Pandey Bai Qed away from the spot and appeUants also assardted his son Sukda. He further deposed fhat he went to the police station along I'liiti 6 ^/^ with Sarpanch for lodgu^ the report and Sarpanch has lodged the report. His nephew Deva has also lodged the report. 13. FW2 Smt Pandey Bai mofher ofthe deceased has deposed that on account of demand-of money appellants quarreled wifh the deceased and fhey assaulted fhe deceased by klcks. They jumped over the thigh and pfhet- parts of fhe deceased. PW3 Sukda Karma brother of the deGea^ed has not supported the case of the prosecution. Prosecution has declared hlm hostUe. PW4 Deva has deposed in his evldence that he has not seen the tncldent but he was informed by his uncle Joga fhat appeUants have killed fhe Joga Kanna fhen he went to the Police Station and lodged fhe marg and First Information Report Ex. P-1 & P-2. In his detail cross examtnation PW1 Pandkiiram Kanna has stated in Para-3 that appellants firstly assaulted him fhen fhey assaulted his son Joga Karma after receiving injury he fled away from fhe spot fhen the appellants assaulted his son and aflter two hours ofhls leaviag the spot hls wtfe left the spot. Appellants also assaulted his wtEe and son. 14. PW2 Smt. Pandey Bai has spectficaUy deposed in Para-1 of her evidence fhat at the tlme of incident she was present. Her husband at fhe time of eveniiig came out and appellants threatened her husband then her husband fled away. In her cross examination Para -2 she has deposed that she has not seen the incident her husband has also not seen the incident. This is a case of culpable homidde amounttng to miirder of (he son of fhis witness. Evidence pf PW2 Smt. Pandey Bai who has not been declared hostile clearly reveal that at the time of incident she was not present, her husband was also not present. Prosecution has not sent for medical examination to PW1 Pandkuram Karma, PW2 Smt. Pandey Bai and PW3 Sukda Karma. PW1 Pandkuram Karma evidence reveal" that firstly he was beating by the appellants then he Ued away.and he has not seen the incident. He was not examined by the doctor relating to his injury. He has not lodged the report immediately. Accordmg to his statement Sarpanch has lodged fhe report but Ex. P-1 marg and Ex. P-2 Fu-st Information Report reveal that Deva Kanna has lodged the ' mai^ and First Information Report. 15. The conviction can be based upon fhe evidence of the relative wifeness even on (he basis of evidence of solitary witness if such witnesses is fully reliable. In fhe present case PW1 Pandkuram Karma and PW2 Smt. Pandey Bai are close relatives of the deceased their evidence shows fhat they are not fiiUy rellable even they have not corroborated the evidence of each ofher interalia they have contradicted the evidence Qfeach ofher. Prosecution has not declared PW2 Smt. Pandey Bai hostile. Her evidence reveal that she herself and her husband were not present at the time of incident, the evidence of these 2 witnesses casts doubts about their presence at the time of incident thelr evidence has not been corroborated by ofher evidence. In absence of any corroboration .; their self contradictory evidence are not suffident for drawing the positive mference fhat appellants are the person who have caused homicidal death of deceased. 16. After appreciating the evidence available on record leamed Special Judge has eonvicted and sentenced fhe appellants aforementioned but has not considered the most material aspect the evldence ofPWl PandkUTam Karma and PW2 Smt Pandey Bai :1. who had not fiilly supported ,the case of the prosecution and thereby committed an illegality. 17. For fhe foregoing reason, we are of the considered view fhat prosecution has not proved its case beyond all shadow of doubts and evidence of PW1 Pandkiiram Karma and FW2 Smt Pandey Bai does not inspire confidence. Consequenfly, fhe criminal appeal is allowed. Conviction and sentence of the appellants namety Hur^a Karma and Arjun Karma under Section 302 read with Section 34 of the Indian Penal Code is liable to be set aside and is hereby set aside. They are acquitted ofthe chai^es. They be set at liberty at once they are ui custody, they be released if not required in any ofher case. Sd/- Shanna Judge /"' Sd/- R.L. Jhanwar Judge