HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 485 of 2002 Bodhan Singh Gond Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^^^1 Sd/- Chief Justice Post for Judgment :/0/02/2009_ Sd/- Sunil Kumar Sinha Judge ^^^^^Hri^L;^....;__ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: APPELLANT Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 485 of 2002 Bodhan Singh Gond, S/o Shri Pransai Gond, aged about 20 years, R/o Village- Kanchanpur, Police Station Premnagar, District Surguja, (C.G.) RESPONDENT Versus State of Chhattisgarh, Through : The Police Station- Premnagar, District Surguja, (C.G.) (Appeal under Section 374 (21 ofThe Code of Criminal Procedurel Appearance: Shri Rakesh Pandey, Counsel for the appellant. Shri Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT C/P.02.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant Bodhan Singh Gond stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life, for commissionof murder of deceased Gautu Gond, by the Sixth Additional Sessions Judge (F.T.C.) Surajpur in Sessions Trial No. 373/2001 on 4.4.2002. (2) Deceased Gautu was the uncle (Taou) of the appellant. On 14.8.2001 at about 3.30 p.m., the appellant went to the house of Sajjan Singh. He was armed with Pharsa. The case of the prosecution is that he was in search of wife of the deceased for killing her. The deceased also went to the house of Sajjan Singh and, looking to the anger of the appellant, he tried to stop him. On this, the appellant gave repeated Pharsa blows on the neck of the deceased. The neck of the deceased was almost cut, only skin flap of 4 x 2 inch remained there holding the ^-c: M ^^ Criminal Appeal No. 485 of 2002 ^^ "^ head with the thorax. The incident was witnessed by 3 eye witness namely Mansai (PW-1), Ku. Parvati (PW-3) and Ramdhan (PW-5). Mansai (PW-1) lodged the First Information Report (Ex.-P/1) on the same day. Merg intimation (Ex.-P/2) was also lodged. (3) On such information, the Investigating Officer reached to the scene of occurrence on 15.8.2001. He gave notice (Ex.-P/4) to the Panchas, prepared inquest (Ex.-P/5) on the body of the deceased and seized blood stained soil & plain soil from the place of occurrence under Ex.-P/S. After taking accused/appellant into custody his memorandum (Ex.-P/7), u/s 27 of the evidence Act, was recorded and blood stained Pharsa was seized at the instance of the appellant under Ex.-P/S. One full shirt & loongi were also seized from the possession of the appellant under Ex.-P/9. Site plan was prepared under Ex.-P/3. The dead body of the deceased was sent for its post-mortem to Primary Health Centre, Premnagar under Ex.-P/12. The post-mortem examination was conducted by a team of two Doctors, who prepared their report under Ex.-P/12-A. The Autopsy Surgeons found that the head of the deceased was completely cut and it was attached with the thorax by skin flap of 4 x 2 inch on the right side of the neck. Whole external and internal structure of the neck, including all blood vessels, esophagus, wind pipe, lower border of left mandible bone, were completely cut. They opined that the cause of death was shock and haemorrhage as a result of above injury and it was homicidal in nature. The seized articles were sent for their chemical examination to Forensic Science Laboratory under Ex.-P/15-A and a report was received. According to the F.S.L. report blood stains were found on all the articles (except plain soil) including Pharsa. (4) After completion of usual investigation, the charge-sheet was filed in the Court ofAdditional Chief Judicial Magistrate, Surajpur, who in turn, committed the matter to the Court of concerned Sessions Judge, from where, it was received on transfer by the Sixth Additional Sessions Judge (F.T.C.), Surajpur, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (5) The conviction of the appellant is based upon the testimonies of 3 eye witnesses i.e. Mansai (PW-1), Ku. Parvati (PW-3) and Ramdhan If*'- Criminal Appeal No. 485 of2002 (PW-5), supported by the medical evidence and attaining circumstance of memorandum and seizure of various articles. (6) Shri Rakesh Pandey, learned counsel appearing for the appellant has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of the above 3 eye witnesses that the deceased was assaulted by the appellant by Pharsa in the house of Sajjan Singh. The post-mortem report of the deceased shows about the nature of injuries received by him. Dr. S.K. Gupta (PW-7), who was a member of post-mortem examination team has proved the contents of the post- mortem report which denotes that the death of the deceased was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (7) Shri Pandey then argued that the eye witnesses are not reliable and the learned Sessions Judge has not considered the evidence of 2 defence witnesses, who deposed that the death of the deceased was caused on account of assault given by one Jokhan Singh. (8) On the other hand, learned counsel for the State opposed these arguments and supported the judgment and order passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (10) PW-1, Mansai, deposed that at the relevant time, he was present in the house of Sajjan Singh. Nankaram, Ramdhan (PW-5), Ku. Parvati (PW-3) and mother of Ku. Parvati were also present there. The appellant also came there. He had some talk with Nankaram. On the request of inmates of the house, the appellant went back. After sometime, he again came there having a Pharsa in his hands. Deceased Gautu also came there and asked for returning the Pharsa. At that time, the appellant gave Pharsa blows to his neck. He categorically stated that he had witnessed the occurrence from a distance of 3-4 metres. te'& Criminal Appeal No. 485 of 2002 ^. (11) PW-3, Ku. Parvati, is the niece of the deceased. She deposed that on 14.8.2001 at about 3.00 p.m., she was present in her house. She was ill, therefore, Narayan and Mansai (PW-1) had come to see her. After sometime, the appellant came there. He was followed by deceased Gauturam. The appellant was having a Pharsa in his hands. Deceased asked for giving the Pharsa, on which, the appellant gave repeated Pharsa blows on the neck of the deceased. The deceased fell down on the pool of blood. (12) PW-5, Ramdhan, also deposed the same story. He categorically deposed that the appellant gave 3 Pharsa blows on the neck of the deceased. The neck of the deceased was completely cut leaving small portion. The deceased fell down on the ground and died. (13) Though these witnesses were put to lengthy cross examinations by the counsel for the defence, but, the defence was not able to elicit any such circumstance on which their testimoniesmay be doubted. According to the evidence of these witnesses, their presence at the place of occurrence cannot be doubted. The place of occurrence is the house of Sajjan Singh. PW-3 is the daughter of Sajjan Singh. She was III on the said date and the above persons had come to see her. On a close scrutiny of the entire evidence of these witnesses, which is supported by medical evidence, we do not find any reason to disbelieve their testimonjes. Therefore, the argument relating to testimonies of these witnesses on the face oftheir evidence cannot be accepted. (14) So far as not considering the versions of defence witnesses are concerned, the learned Sessions Judge has mentioned in Para 19 of the judgment that in view of the evidence of the prosecution witnesses, the versions of the defence witnesses cannot be relied on as they are concocted and unnatural. Moreover, if we look into the evidence of defence witnesses, both the defence witnesses namely Mansingh (DW-1) and Ganeshwar Singh (DW-2) have tried to build-up a new story. According to their versions, they were the eye witnesses and they witnessed that the deceased was assaulted by a 3 person namely Jokhan Singh. DW-1, Mansingh, in his cross examination deposed that the police came to their village on the next day and he had narrated the ^ •^ Criminal Aroeal No. 485 of2002 @> entire story to the police. He also deposed that he had made complaint to the Sarpanch stating that the murder was committed by Jokhan Singh, whereas, Bodhan Singh has been falsely implicated in this case. Though this witness has said to this extent, but he has not stated about the reasons as to why the entire people of the village have decided to falsely implicated Bodhan Singh in place of Jokhan Singh. Almost similar kind of deposition has been made by DW-2, Ganeshwar Singh. In Para 5 and 6 of his cross examination, he deposed that when the police came in the village on the next day, he has stated all this to the Investigating Officer buthe did not make a report to the higher authority of the police when appellant Bodhan Singh was arrested in place of Jokhan Singh. In appreciation of evidence of these 2 defence witnesses, we do not find them to be trustworthy. Admittedly, the police reached to the scene of occurrence on the next day and Panchnama, memorandum and seizure were prepared. If these witnesses would have told to the police regarding the incident committed by Jokhan Singh, there was no reason that the police would not have recorded their evidence and investigated the case on that line. We are surprised to note that not a single question has been asked from the Investigating Officer, Subedar Yadav (PW-8), about all this. Even nosuggestions to this effect were given to him. In absence of such foundation, which ought to have been made by the defence at the time of cross examination of the prosecution witnesses, it appears to us that the theory of murder being committed by a 3rd person is a creature of after thought. The versions of the 2 defence witnesses do not inspire our confidence and we do not trust upon the story setforth by them. The learned Sessions Judge has rightly rejected the testimonies of the defence witnesses and no infirmity or illegality can be attributed to it. (15) In the result, there is no illegality or infirmity in the judgment and order passed by the learned Sessions Judge. (16) The appeal is liable to be dismissed and is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge 'atti