/T^ ^L// HIGH COURT OF CHHATTISGARH AT BILASPUR pnnsioN BENCH CORAM: HON'BLBMR. T.P.SHARMA& HON'BLB MR. RANGNATH CHABDRAKAR. JJ. CMMINAL APPESAL NQ. 618 OF 2006 APPELLANTS 1) Varun Patel, S/o Kumbhkaran Patel aged about 60 years, Occupation Agriciilturists. -(APPBAL ABATED) 2) Chandnka Patel S/o Varun Patel Aged about 42 years, Occupation Agriculturists Both are residence of Vfllage Kawarinha, Police Station Pusoiir, District Raigarh (C.G.). VERSUS RESPONDBNT State of Chhattisgrh Through District Magistrate Raigarh (C.G.). MEBiORANDUM OF CRIBHAL APPEAL U/S 374(21 OF Cr.P.C, Present:- Mr. Surul Sahu, Advocate for fhe appellants. Ms. Madhu Nisha Smgh, P.L. for the State/respondent ORAL-JTyDGEMENT (Passedon 11/08/2011) The followine iudgment of the Court was passed by T.P. Sharma. J:- 1. Challenge in thls appeal 1s to the judgment of conviction and order of sentence dated 11/8/2006 passed by 3rd Additional Sessions Judge (F.T.C.) Raigarh (C.G.) in Sessions Trial No. 19/2006 whereby and where under after holdii^ the appellant Chandrika Patel along with co-appellant Varun Patel guilty for tlie comiulssion of offence of culpable homicide amountlng ^Y ..^^&st-.,.. N ^s,^ ^" ..^ -"N % ^ --/ 2. to murder of DUeshwM- in sharii^; common mtention, convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced unprisonment for Itfe. Leamed counsel for the appeUant argued (tat during pendency of appeal, appellant Varun Patel died on 9/2/2011 who was on bail and on the ground of death of appellant Varun Patel, appUcation for temporary suspension of sentence and grant of bail was fUed on behalf of the appellant Chandnka Patel supported by an affidavlt of Shobha Ram Patel and death certificate of appellant Vartin Patel. Considering the aforesaid documents and application, criminal appeal ffled on behalf of appellant Varun Patel is abated and same is dismissed as abated. Conviction is impugned on the groimd that without any iota of evidence sufiicient for convlction of appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed saa iUegality. As per case of the prosecution, there was land dispute between parties and on 13/8/2005 Pmwhayat was convened, appellant Chandrika Patel tihreatened the persons of Pcmchaycct fhat he will not obey the order of Panchayafc On 15/8/2005 at about 6:00 P.M. he along with co-accused Narendra and Varun Patel went to the field and assaulted Dileshwar (since deceased) by spade ^ < .-•£fc:S^ //^".^ \ ^ ?* ^f^i ^ /- 'c '/ (J?aj?c^ and caused repeated injuries to him resulting into hls instantaneous deaffa. PW10 Shantiram, father of DUeshwar and PW11 Rambh^an, brofher of Dileshwar heard the sound of help of DUeshwar and rushed towards the spot where they saw the incident then appellants fled from fhe spot. PW10 Shantiram went to the. Police Station and lodged Marg uitimation vide Ex. P-15 and Pirst Information Report vide Ex. P- 16. Investigating Officer left for scene of occurrence and after summoning fhe witnesses vide Ex. P-3, inquest over the dead body of Dileshwar was prepBred vide Ex. P-4. Blood stained spade was seized fl-om the spot vide Ex. P-5. Blood stamed & plain soU were recovered fi-om the spot vide Ex. P-7. Dead body of Dileshwar was sent for autopsy to Coinmumty Health Center, Pusore where FW14 Dr. H.S. Uraon conducted autopsy vlde Ex. P-8 and found following iiijuries:- (i) Incised wound of 3s x %" over right nose. (ii) Incised wound of 3" x %" upon ujqier Bp. (iil) Incised wound of 3" x %" over right side of skull compristag fracture of temporal bone. (iv) Haemotoma was found inside fhe brain. (v) Injuries were found ante-mortem in nature. Mode of death was coma and death was homicidal in nature. c 5. On 13/8/2005 members of Panc^iayat prepared Panchncima. vide EK. P-1 which was seized vide Ex. P-2 from PW1 Banshidliar. Duimg course of investlgation appellant Chandrika Patel was takea into custody and he made discloser statement that he has left spade on the spot vide Ex. P-8. Blood staiaed Lungi of appellant Chandnka Patel was seized vide Ex. P-9. Sealed cloths of deceased was selzed vide Ex. P-10. Spot map was prepared vide Ex. P-11. Sealed articles were sent for chemical exammation and presence of blood was coiiQrmed over spade vide Ex. P-21. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code^. After completion of the invest^ation ctiaige sheet was filed before the Chief Judicial Magistrate, Raigarh who in tum commltted the case to the Court of Sessions, Raigarh from where leamed 3td Additioiial Sessions Judge (F.T.C.) Raigarh (C.G.) has received the case on transfer for trial. 7. In order to prove the guilt of the appeHants/accused persons prosecution examined as many as 15 witnesses. Accused persoas/appeBants were examined iinder Section 313 of the Code where they denied the circimistances appearing against them and pleaded innocence and false implication m fhe crime in question. They have also examined defence witnesses DW1 Sitaram Patel & DW2 Chitranjaa to the fact that spot was not visible from tfae house or place where PW10 Shantiram and his son PW11 Rambhajan were present and the fact that Shantiram was searchcd his son DUeshwar on 15/8/2005. 8. After affording an opportunity of hearing to the parties, leamed 3rd Additional Sessions Judge (F.T.C.) Rsagarh (C.O.) convicted and sentenced the appellants as aforementioned. Dwmg pendency of criminal appeal, appellaat Varun Patel died and crimtnal appeal agatnst Varun Patel is abated. 9. Mr. Sunil Sahu, Advocate for the appellants aiul Ms, Madhu Nisha Stogh, P.L. for the State/respondent are heard. Judgnent impugned and record of the Courts below perused. 10. Leamed counsel for the appeflant vehementty argued that conviction of appellant is based on the evidence of PW10 Shantiram & PW11 Rambhajan; fatha- & brother of deceased DUeshwar, evidence of aforesaid witaesses does not inspire confidence, trustworthy and same are not safe to rety for conviction of the appeBant Chandrika Patel. 11. Leamed counsel for the appellant further argued that (heir evidence appears urmatural and it was not y '"'asas r ,&/ possible for them to hear the soiind for help from % Km. and to see ttie incident. 12. On the other hand, leamed counsel for fhe respondent/State opposed the appeal and argued fhat evidence of FW10 Shantiram & PW11 RambhEgan; father and brother of deceased DUeshwar are inspire confldence and trustworthy. They have seen the incident and place of incident from the spot where they were present only 350 Yards which has been specifically mentioned in spot map Ex. P-11 and it was possible to hear the sound of deceased Dileshwar for saving him and to see the incident. 13. In order to appreciate the ai^uments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 14. In the present case, injuries found over (he head and face of deceased Dileshewar has not been substantiatty disputed on behalf of fhe appellant on the other hand, otherwise also established by fhe evidence ofPW14 Dr. H.S. Uraon and autopsy report Ex. P-8 and death of DUeshwar was homicidal in nature. 15. As regards fhe compllcity of appellant in crime in question, conviction of the appellant is substantiaUy based on the evidence of PW10 Shantiram & PW11 Rambhajan, father & brofher of deceased Dileshwar ^ ..?ii''BT'^ ^.^f^. ^ ^ "t who havecleariy deposed that they were present on the field and fhey heard the sound of DUeshwar then they rushed towards the spot, they have seen fhe incldent aad they saw appellant Chandnka Patel was assaultmg Dileshwar by spade and other pei^ons were holtog Dileshwar when fhey reached near fhe place ofincident then they also threatened them tbat they will kill Qvaaa fhereafter they fted fi'om fhe spot. Defaace has cross- examtaed these wttnesses at lenyfti relatmg to distance and availabDlty ofUght, fhey have cat^oricalty deposed that they were ia position to see the incident aad they heard ftie sound alfhough fhey have deposed that distance from the spot where they were present was about % Km. but it has been spect&cally measured and mentioned in Ex. P-11 as 350 Yards. Incidaat took place between 5:00-6:00 P.M. in the month of August and as per evidence of PW10 Shantiram, he was worldng in fhe field shows that at fhe tuae of incident there was sufficient l^ht. PWW Sbantiram has lod^sd Marg intimation & First Ixrformation Report on same day at about 11: 10 P.M. at Police Station 15 Kms. away from the place of incldent Evldence of these witaesses are weU corroborated by pronipfly lodged Mapg mtimation & Fu-st Infonaation Report Exs. P-15 & P-16 and also corroboiated by the medical evidence wfaich \; I/ \-/' shows fhat 3 incised wounds caused over the face and head of deceased Dileshwar. Evidence of bofh the witnesses are sufficient for drawmg an inference that present appellant has caused injury to DUesbwar by spade and caused homicidal deafti of Dileshwar in sharing coinmon intention with ofher accused persons. 16. As regards the question of intention is concemed, it can be mferred on fhe basis of nature of mjury, part of the body where mjuiy was caused, weapon used and other llke circi.unstances. 3 incised wounds have been caused on the head, face 8s fi-acture of skull bone of Dfleshwar resulting into his instantaneous deafh on account of prcvious incident and present appellant threatened on 13/5/2008 that he wfflnot obey fhe order ofPanchayat shows his grave intention for causii^ homicidal deafh of DUeshwar. 17. After appredating the evideace avaUable on record leamed 3Td Additional Sesslons Judge (F.T.C.) Raigarh (C.O.) has ri^itly convlcted and sentenoed tfae appellant as aforementioned. 18. On close scrutiny of fhe evldence, we do not fmd any Ulegality or mfirmity in the judgment of convlction and order of senteirce. Consequentfy, crixninal appeal filed on behalf of appellant Chandrika Patel is devoid of merits, same is liable to be disinissed and is hereby dismissed. Sd/- l-l. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge ,r