HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram : Hon’bie Shri T.P. Sharma & Hon’ble Shri Rangnath Chandrakar, JJ, Criminal AQQeal No. 286 of 2005 Aggeliant Gend Ram Maraar s/o. Late Devnath Maraar, aged about 30 years, r/o. viiiage Chhataune, Police Chowki Beigahna, P.S. Kota, Distt. Biiaspur (CG). Vs, State of Chhattisgarh. JUDGMENT FOR CONSIDERATION Sd/— “ 'RIN. Chandrakar Judge N Hon’ble Shri T.P.Sharma J. POST FOR JUDGMENT ON i g -12-2011 ‘W x \w f ,3 u v HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon’ble Shri T P Sharma & Hon’ble Shri R:N: Chandrakar, JJ. Criminal Awal N0. 286 of 2005 (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: -Mr. Somnath Verma, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (Delivered on [0/1 2-201 1) Per Ranqnath Chandrakar, J. 1. The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction ‘ and order of sentence dated 28-1-2004 passed by VIII Additional Sessions Judge (FTC), Bilaspur, in Sessions Trial No.367 of 2004, whereby learned Additional Sessions Judge, Bilaspur after holding the appellant guilty for committing murder of Lakhanlal and' causing injuries to Bisahin Bai (PW/2), convicted him under Sections 302 & 325 of the IPC and sentenced him to undergo imprisonment for Appellant Gend Ram Maraar s/o. Late Accused Devnath Maraar, égéd about 30 (in jail) ' years, r/o. village Chhataune, Police Chowki — Belgahna,- P.S. Kota, Distt. Bilaspur (CG). Vs. Respondent State of Chhattisgarh life and to pay fine of Rs.5000/-, in default of payment of fine to further undergo RI for one year and RI for one year and to pay fine of Rs.500/—, in default of payment of fine to further undergo RI for two months respectively. Both the sentences are directed to run concurrently. The prosecution case, in brief, is that the deceased Lakhanlal was uncle of the appellant. There was some dispute relating to partition of lands. In this connection, a meeting was convened in the village prior to the incident. On 28-6-2004 in the morning, the deceased was ploughing his field near Kateli Khaar where his wife Bisahin Bai (PW/2) was also present. At that time, appellant came there, started quarrelling by opposing to plough the land and assaulted Lakhanlal by a stone on the head and also inflicted several injuries over chest and forehead and right shoulder with an axe. Lakhanlal succumbed to the injuries on the spot. When Bisahin Bai intervened, accused/appellant also assaulted her by stone. Bisahin Bai made hue and cry and on hearing the same, Sahasram and Ramu who were grazing the cattle nearby came to the spot and on seeing them the accused/appellant fled away from the spot. Thereafter, Bishahin Bai (PW/2) narrated the story to Sahasram, Ramu who informed Lalsai (PW/1) about the incident. Lalsai went to Kotwar and Sarpanch of the village and informed them about the incident. Lalsai (PW/1) went to Police Outpost Belgahna and reported the incident where merg intimation was recorded vide EXP/12 and first information report was lodged vide Ex.P/10. The Investigating Officer Shri R.D. Singh, A.S.I. (PW/8) left for scene of occurrence @ \\ --.$ win t -\ and after summoning the witnesses vide Ex.P/1 prepared inquest over the body of the deceased vide EXP/2, seized one biood stained stone from the spot vide Ex.P/6, plain earth and biood smeared earth from the spot vide Ex.P/4, pieces of broken bangies vide Ex.P/5 and prepared spot map vide EX.P/13. Dead body of deceased was sent for autopsy to Primary Health Centre, Beigahna vide Ex.P/14 where a team consisting of Dr. A.K. Jha (PW/10) & Dr. Pranav Andhare (PW/9) conducted autopsy vide Ex.P/14-A and found following injuries; 4. During course of investigation appellant was taken into custody, his memorandum was recorded vide Ex.P/3 on the basis of which blood stained axe was seized vide Ex.P/7 at his instance. He was i) Abrasion over right shoulder of 1“ diameter and over forehead of 12" diameter. ii) ‘ Contusion over left side of chest in the size of 4” x 3” and over right side of chest 2” x 3’” iii) Lacerated wound over occipital region in the size of 1" x 1/2" skin deep; iv) Blood clot was present over left ear; v) On internal examination, hametoma in the size of 1/2" x 1/2" present below skull at occipital region. Pleura congested and torn. 4th 5‘“ & 6‘“ ribs were fractured at left sid’e and 5t“, 6th and 7th ribs were fractured at right side. vi) Both the lungs were torn and filled with blood. The Doctor opined that mode of death was hemorrhagic shock due to the injuries sustained by the deceased. arrested vide Ex.P/8, wearing apparels of the deceased were seized vide EXP/15. Injured Bisahin Bai (PW/2) was also sent to Primary Health Centre, Belgahna for medical examination vide Ex.P/17 where Doctor Pranav Andhare (PW/9) examined her and found Iacerated wound over little finger of left hand in the size of 2x1x1/2" and advised for x—ray. He gave his report vide Ex.P/17-A. After x—ray, little finger was found fractured vide Ex.P/20. FIR and merg intimation were sent to Police Station Kota for registration where the offence was registered as Crime No.177/2004. seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/19 and a report thereof was received vide Ex.P/21-A whereby presence of blood over all the seized articles excluding the plain earth was confirmed. Statements of witnesses were recorded under Section 161 of the Cr.P.C., and after completing the investigation, charge sheet was filed against the appellant under Sections 302, 323 & 325 of the IPC in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions Judge, Bilaspur. Learned Additional Sessions Judge received the case on transfer for trial, who framed charge under Sections 302, 323 & 325 of the Indian Penal Code against the appellant who abjured the guilt. ln order to prove the charge against the appellant the prosecution examined as many as ten witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him. He examined DW/1 Andhiyar Singh and took the plea ‘9. of alibi claiming innocence and false implication in crime in question. After affording opportunity of hearing to the parties, learned Vlll Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. Mr. Somnath Verma, learned counsel for the appellant vehemently argued that conviction of the appellant is based on the evidence of alleged eye-witness Bisahin Bat (PW/2) and there are some discrepancies between the ocular and medical evidence. The other witnesses Ramhu>@ Ramu (PW/5) and Sahasram (PW/6) have not supported the case of prosecution. There are omissions and contradictions in their statements and the evidence adduced on behalf of the prosecution does not inspire confidence and trustworthy and their evidence is not safe to rely for convicting the appellant. The appellant was not present on the‘spot at the time of incident as is proved by the evidence of DW/1 Andhiyar Singh. Per contra, Mr J.A. Lohani, learned Panel Lawyer appearing on 10. behalf of the State supporting the impugned iudgment submits that conviction is based on the evidence of injured eye—witness Bisahin Bai (PW/2), wife of the deceased whose evidence inspires confidence and trustworthy and the evidence adduced on behalf of the prosecution is sufficient for drawing inference that present appellant has caused homicidal death of deceased Lakhanlal with intent to cause his death. After appreciating the evidence available on record, the trial court has rightly convicted and sentenced the appellant. 11. In order to appreciate the arguments advanced by Iearned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of the deceased as a result of fatal injuries found over the vital parts of the body of deceased Lakhanlal has not been disputed on behalf of the appellant. Even otherwise, it is further established by the evidence of PW/2 Bisahin Bai, Dr. Pranav Chandrakant (PW/9), Dr. A.K. Jha (PW/10) and autopsy report Ex.P/14—A that the death of deceased Lakhanlal was homicidal in nature. As regards complicity of the appellant in crime in question, conviction of the appellant is based on the evidence of injured eye- witness Bisahin Bai (PW/2) whose statement is corroborated by Lalsai (PW/1) and Prem Singh Paikra (PW/3). 14. As per evidence of eye-witness Bisahin Bai (PW/2), on the date of incident when her husband Lakhanlal was ploughing the land, the appellant came and asked him to stop ploughing and release the bullocks whereupon her husband started releasing the bullocks, at that time the appellant assaulted her husband with stone and axe over chest, shoulder, hands and other parts of his body. When she tried to rescue her husband, she also sustained injuries on her left hand which was examined by the Doctor. Seeing the incident, she made outcry for help hearing which Ramu and Sahasram‘came to the spot and released the bullocks to whom she narrated the incident.‘"She did not know the reason of assault made by the appellant. There was a dispute relating to partition of Iand and they were coparceners. This witness was cross-examined at Iength. There are some contradictions and omissions in her statement but she remained consistent and unshaken on substantial points and denied the suggestion given by the defence that she was not present on the spot. She categorically stated that she had gone to the field for providing lunch to her husband. She admitted that seeing the incident she became unconscious and denied the suggestion that when and where her husband died, she did not know. She herself stated that her husband died on the spot where he was assaulted. Thus, the testimony of this witness appears to be reliable and trustworthy and defence could not elicit anything contrary in her cross-examination to discredit her version. The discrepancies occurred in her testimony are natural which do not make her version doubtful. 15. So far as the testimonies of Ramhu @ «Ramu (PW/5) & Sahasram (PW/6) are concerned, there are some contradictions in their statements. Ramu has deposed that Bisahin Bai (PW/2) came to him and asked to release the bullocks, while he was going with Bisahin Bai; he met Sahasram on the way. His statement is corroborated by Sahasram (PW/6). Thus, as per their evidence, they reached the spot being called by Bisahin Bai (PW/2) whereas as per the evidence of Bisahin Bai (PW/2), they reached the spot on hearing her outcry for help. Ramu and Sahasram both the witnesses have admitted the fact that when they reached the spot, Lakhanlal was sleeping/lying. Ramu (PW/5) deposed that Bisahin Bai asked him to inform Lalsai that Lakhan was sleeping and when he reached the village, he came to know that Lakhanlal was killed by appellant. Sahasram (PW/6) also made the same statement. On reappraisal of their evidence, the testimony of Bisahin Bai (PW/2) is corroborated by Ramu and Sahasram to the extent that when they reached the spot, Lakhanlal was dead. As per evidence of PW/1 Lalsai, on the date of incident when he was going to his tield, he was informed by Ramu (PW/5) that Lakhanlal was killed by the appellant. He reached the spot where dead body of Lakhanlal was lying and his wife Bisahin Bai (PW/2) was sitting aside. He asked Bisahin Bai to remain there and went to call Sarpanch and Kotwar, thereafter he went to Police Outpost Belgahana and lodged the report. Prior to the incident, the appellant had assaulted the Son of deceased for which a meeting was convened in the village. In his cross—examination, he admitted to lodge the report in Police Station and denied the suggestion that because of land dispute he made a false statement against the appellant. Thus, from his evidence, it is established that on the date of incident, when he reached the spot Bisahin Bai (PW/2) was sitting aside the dead body of her husband, thereafter, Sarpanch and Kotwar of the village were called by this witness and the report was lodged. His evidence is further corroborated by PW/3 Prem Singh Paikra, ex—Sarpanch of the village who categorically stated that he was called by Jailal stating that his uncle Lakhan was killed by the appellant. On receiving the information he along with Anand Das Kotwar went to the spot where dead body of Lakhan was lying and Bisahin Bai was weeping. He made Bisahin Bai to understand and asked her about the incident. Bisahin Bai stated him that her husband was killed by the appellant. He further deposed that there was Iand dispute between the parties for which he had made both the parties to understand by going to their fields. This witness admitted his signatures on Ex.P/1 (notice for inquest), Ex.P/2 (inquest), Ex.P/3 (Memorandum) and seizure memos Ex.P/4, P/5 and P/6 as also on recovery and seizure of axe from the house of accused. Evidence of this witness remained un- rebutted in cross-examination and the minor contradiction or omission occurred in his evidence are not so important which makes his entire testimony unreliable. As far as the testimony of DW/1 Andhiyar Singh is concerned, the same does not inspire confidence and trustworthy as he deposed that when he went to the house of the appellant for obtaining plough, Awadhram and Bisahin Bai (PW/2) were dismantling the roof of the house of appellant. The appellant was in his house. At that time, he came to know that somebody had killed Lakhanlal whereupon he along with Bisahin Bai, Awadhram and other family members of Lakhanlal went to the spot. Sarpanch and Kotwar were also called whereas it is established from the evidence of Sarpanch and Prem Singh (PW/3), Ramu (PW/5) and Sahasram (PW/6) that at the time of incident, Bisahin Bai (PW/2) was on the spot. That apart, in his cross-examination Andhiyar Singh (DW/1) admitted that the accused/appellant was his friend and the Police arrested the appellant on the same day of the incident but he did not know the reason as to why the appellant was arrested because he was on the spot till the police came but none of the prosecution witnesses had stated that Andhiyar Singh (DW/‘l ) had ever gone to s 17. §§w1 “ 10 the spot. Thus, on the basis of aforesaid evaluation, his presence either on the spot or in the house of the appellant becomes doubtful and he did not have the knowledge of actual incident. If he had been present on the spot, the aforesaid prosecution witnesses must have stated about his presence in their statements. Thus, his testimony does not appear to be reliable and trustworthy. 18. Thus, on reappraisal of the entire evidence, it is established that on the date of incident the appellant caused fatal injuries to the deceased with stone and axe which is corroborated by the medical evidence. The incident was witnessed by Bisahin Bai (PW/2), wife of deceased who also sustained injuries during the incident. Though there is no other eye-witness to the incident but the evidence of Bisahin Bai (PW/2) is sufficient to convict the appellant. Motive for commission of offence is also proved by the evidence of Lalsai (PW/1) and Prem Singh Paikra (PW/3) that there was land dispute between the parties for which a meeting was convened in the village as is also admitted by Bisahin Bai (PW/2). So far as intention of the appellant is concerned, it is crystal from the evidence that multiple injuries caused by the appellant were on the vital parts of the body of deceased as is clear from the evidence of Dr. Pranav Andhare (PW/9) and postmortem report (Ex.P/14-A). Not only this, the appellant caused injuries to Bisahin Bai (PW/2), wife of the deceased when she intervened the matter and he used stone and axe like dangerous weapon to assault the deceased and caused his instantaneous death which shows his clear and grave intention to cause death of deceased. Thus, on the basis of aforesaid appreciation, it is established that the appellant assaulted 11 the deceased with intention to cause his death and the evidence adduced by the prosecution is sufncient for conviction of the appellant as mentioned above. 20. Considering all the facts and circumstances of the case and on close scrutiny of the evidence, we are of the considered opinion that the court below has not committed any illegality or infirmity in passing the impugned judgment. ‘21. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Sdl~ , {i l Raju Sd/- R.N. Chandrakar Judge