"^:«.' h^7'' "SSSh. .i^^&Mi^;t "^^ ''^i 19 W-. ^•-^^s Appellant (In Jail) HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Criminal Ae&eal No. 732^>f 2007 Sukhram S/o Mehar, aged about 35 years, R/o Village Bhoghapara, P.S. Shivrinarayan, Distt. Janjgir-Champa (C.G.) Respondent Versus S^te of Chhattisgarh Through - Station House Officer, P.S. Shivrinarayan, Distt- Janjgir-Champa (C.G.) (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Abhijeet Sarkar, counsel for the appellant. Mr. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Passed on 08th November,2011) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28.06.2007 passed by the Additional Sessions Judge, Janjgir-Champa, in Sessions Trial No.107/2006, whereby & whereunder learned Additional Sessions Judge after holding appellant guilty for commission of culpable homicide amounting to murder of Budhram (since deceased) and for concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.200/-, R.l. for f»^^^^^f4 'sssss: K-i::-'^;s^g •SSS seven years and fine of Rs.200/- respectively, in default of payment of fine to further undergo R.l. for 1 month for each default. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court ha's convicted & sentenced the appellant as aforementioned and therebyeommitted illegality. 3. As per the case of prosecution, on fateful day of 25.04.2006 at about 10:40 am at village Bhoghapara, police station Shivrinarayan, appellant poured kerosene oil in his house and assaulted his brother deceased Budhram by spade over hidihead when he tried to extinguish fire and set him ablaze. Present appellant caused repeated injuries to deceased Budhram and threw his body in the fire. Shanti Bai (PW/2), wife of deceased, tried to save him then appellant also tried to assault her. Rameshwar (PW/9) went to police station and lodged merg vide Ex.P/15 and FIR was registered vide Ex.P/16. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/11, inquest over the dead body of deceased was prepared vide Ex.P/2. Investigating officer prepared spot map vide Ex.P/3. Plain soil, kerosene oil, ash of kanda and blood stained soil were seized from the spot vide Ex.P/6. Dead body of deceased was sent for autopsy to Civil Dispensary, Shivrinarayan vide Ex.P/18. Autopsy was conducted by Dr. N. Prasad (PW/12) vide Ex.P/18 and found following injuries: (i) Injury and fracture of humerus bone. Burn injury over the body. (ii) Incised wound of 4"x2" bony deep over the head. Brain matter came out from the injury. (iii) Incised wound of 3"x2"x1 " found over the right hand. (iv) Lacerated wound of 3"x2" bony deep over right eyebrow. (v) Internal parts were congested. Mode of death was coma due to brain hemorrhage and death -was homicidal in nature. ^^h^s^s^ .;t»:^s;|-%feg^&£^ 4. During the course of investigation, appellant was taken into custody. He made disclosure statement of spade (Rapa) vide Ex.P/7 and same was recovered at his instance vide Ex.P/4. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure^ 1973 (for short the 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Janjgir, who in turn committed the case to the Court of Sessions Judge, Bilaspur: Leamed Additional Sessions Judge, Janjgir received the case on trans^r for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was recorded under Seetion 313 of the Code where he denied the circumstances appearing against him and innocence and false implication in the crime in question is claimed. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 8. We have heard learned coynsel for the parties, perused the judgment impugned and record of the trial Court. 9. Shri Abhijeet Sarkar, learned counsel for the appellant vehemently argued that conviction is based on evidence of Anand Kaiwartya (PW/1), son of deceased, Shanti Bai (PW/2), wife of deceased and Rameshwar (PW/9), whose evidence do not inspire confidence and trustworthy. Even as per their evidence, the appellant was mentally ill at the time s :li".l.i^E^: commission of offence and explained the exception in terms of Section 84ofthelPC. 10.0n the other hand, Ms. Madhunisha Singh, Panel Lawyer for the State opposed the appeal and submits that appellant has committed the offence stepwise and brutally committed the murder of his own brother. After appreciating the evidence available on record, Court below has rightly convicted and sentenced the appellant as aforementioned. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.1n the present case, homicidal death of deceased as a result of fatal injuries found over the body of deceased has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of Dr. N. Prasad (PW/12) and autopsy report Ex.P/18 that death of deceased was homicidal in nature. 13.As regard complicity of the appellant in crime in question is concerned, conviction is substantially based on evidence of Anand Kaiwartya (PW/1), son of deceased, Shanti Bai (PW/2), wife of deceased and Rameshwar (PW/9). As per evidence of these witnesses, firstly appellant burnt his house (first flower) by pouring kerosene oil and set it ablaze, and when his brother deceased Budhram tried to extinguish the fire then he assaulted him by spade over his head and other pari:s of the body, thereafter he threw the body of deceased in the fire. Anand Kaiwartya (PW/1), son of deceased and Shanti Bai (PW/2), wife of deceased admitted in their cross examination that some time appellant was himself treated but they have not admitted in their cross-examination '^ K^si?•'k;"^S 1I^^^^S^^S^^. that at the time of said incident appellant was mentally ill or not in a position to understand right or wrong. Appellant was under obligation to prove the exception of Section 84 of the IPC in terms of Section 105 of the IPC. Appellant himself has not offered any explanation in his statement under Section 313 of the Code relating to any insanity. Evidence ofAnand Kaiwartya (PW/1) and Shanti Bai (PW/2) relating to casual insanity of the appellant is not sufficient to prove the fact that appellant was innocent or unable to understand the work/act attributed to himat the time of incidenb, In these circumstances, it is difficult to hold that at the time of commJssion of incident appellant was himself innocent. Evidence of Anand Kaiwartya (PW/1 ), son of deceased, Shanti Bai (PW/2), wife of deceased and Rameshwar (PW/9) inspire confidence and trustworthy and same can be relied upon. 14.After appreciating the evidence available on record, learned Additional Sessions Judge after relying upon the evidence of Anand Kaiwartya (PW/1), son of deceased, Shanti Bai (PW/2), wife of deceased and Rameshwar (PW/9), convicted the appellant under Sections 302 and 201 of the IPC. Conviction of appellant under Section 302 of the IPC is based on credible and clinching evidence and same is sustainable under the law. 15. As regard the conviction of appellant under Section 201 of the IPC is concerned, as per the evidence of aforesaid witnesses, appellant has caused injuries to deceased and at the same time he has thrown the body of deceased in the fire. This is not a case that after causing murder of-deceased present appellant has burnt the body of deceased with intent to conceal the evidence of criminal case but as per the evidence of ^ •^fKS3SSS aforesaid witnesses at the time of causing injuries he has thrown the body of deceased in the fire. In these circumstances, conviction of the appellant under Section 201 of the IPC is not sustainable under the law. 16.While convicting theappellant under Section 201 of the IPC, the Court below has not considered the aforesaid aspects and thereby committed illegality. 17.For the foregoing reasons, appeal is partly allowed. Conviction and sentence of the appellant under Section 201 of the IPC is hereby set aside. Conviction and sentence of the appellant under Section 302 of the IPC are hereby maintained. yijay Sd/- T.P. Sharma fp Sd/- ' R.N. Chandrakar . Judge ~~ i^.-~<,- >T^-^-ws^gs^ss^s^ «agS»SBi