HGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.158 of 2007 APPELLANTS: (InJail) 1. Photo Yadav ( aged 45 years, Chukudulu S/o Dheluram, RESPONDENT: 2. Durgesh S/o Photo Yadav, aged 20 years, 3. Smt. Rahin Bai W/o Photo @ Chukudulu, aged 43 years, All are R/o village Sonsari, Police Station Pamgarh, District Janjgir-Champa (C.G.) Versus State of Chhattisgarh Through Police Station Pamgarh District Janjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) of Criminal Procedure Code} Present: Mr. Gurudev I. Sharan, counsel for the appellants. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. Division Bench: - Hon'bie IVIr. T.P. Sharmaand Hon'ble Mr. R.N. Chandrakar, JJ JUDGMENT (9-12-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22-2-2007 passed by the Additional Sessions Judge, Janjgir, in Sessions Trial No.101/2006, whereby and whereunder the Additional Sessions Judge after holding the appellants guilty for causing homicidal death amounting to murder of Mohit Yadav in sharing common intention, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for three months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby ' committed illegality. 3. As per case of the prosecution, on the fateful day of 20-9-2005 at about 11 a.m. in Village Sonsari, on accourrt of dispute relating to irrigation, the appellants along with one Runjhu caused homicidal death of Mohit Yadav (since deceased) by stick. Prashant Jaiswal (PW-2) and Rameshwar Prasad Yadav (PW-3) have witnessed the incident. Rameshwar Prasad Yadav (PW-3) went to the police station and lodged FIR vide Ex.P-7. Morgue was recorded vide Ex.P-25. Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2, prepared inquest over the dead body of the deceased vide Ex.P-3. Spot map was prepared vide Ex.P-4. Bloodstained and plain soil along with concrete, broken stick, bloodstained towel (gamcha) and plastic slippers were seized from the spot vide Ex.P-12. Dead body was sent for autopsy to Community Health Centre, Pamgarh. Dr. D.C. Chowdhary (PW-13) conducted autopsy vide Ex.P-21 and found following injuries: - (1) Contusion with swelling over right shoulder of 2 c.m. x 1 c.m.. (2) Hairs of head were stained with blood. (3) Lacerated wound over right fronto parietal region of 7.5 c.m. x 1 % c.m.. (4) Lacerated wound over left parietal region of 7.5 c.m. x 1 c.m.. (5) Lacerated wound over right side of chin of 2.5 c.m. x % c.m.. (6) Bruise over right shoulder of 2 c.m. x 1 c.m.. (7) Right side of face was swollen and fracture of mandible was noticed. (8) Upper incise and lower incise canine, and premature teeth were dislocated. Modeof death was coma and death was homicidal in nature. 4. During course of investigation, the appellants were taken into custody. Appellant Durgesh made discloser statement of stick vide Ex.P-11 and same was seized at his instance vide Ex.P-10. One stick was also seized from appellant Photo Yadav @ Chukudulu. Sealed clothes of the deceased were seized vide Ex.P-17. Seized articles were sent for chemical examination to the Forensic Science Laboratory vide Ex.P-23 and presence of blood over the sticks recovered from the appellants has been confirmed vide Ex. P-27. ;,;;^,,, ;(....;, ..R;.^;;»tt^...nBi^w i-2iiai-latttB!il tad»E«itMiu .:J • 1 ir f ll!» !iii,ltB!ll 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Janjgir who committed the case to the Court of Sessions, Bilaspur from where the Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as nineteen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, the Additional Sessions Judge, convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that conviction is based on evidence of Prashant Jaiswal (PW-2) - child witness and Rameshwar Prasad Yadav (PW-3) who have deposed that appellants Photo Yadav @ Chukudulu & Durgesh have caused injury to Mohit Yadav (since deceased), but appellant Rahin Bai has not caused injury. There is material contradiction relating to the act attributed to Rahin Bai in the evidence of aforesaid witnesses. Virtually, the prosecution has not collected any evidence against appellant Rahin Bai to connect her with the crime in question. In absence of any evidence, conviction & sentences imposed upon Rahin Bai are not sustainable under the law. Learned counsel submitted that there was no propriety for the appellants for causing such injury to deceased Mohit Yadav, the incident took place on account of irrigation and during the course of dispute, all of a sudden, they quarrelled and assaulted the deceased which shows that the appellants have caused homicidal death on sudden quarrel without any premeditation. Therefore, the act attributed to the appellants does not travel beyond the scope of Section 304 Part-11 of the IPC. 10.0n the other hand, learned State counsel opposed the appeal and submittedthat evidence collected on behalf of the prosecution is sufficient for drawing inference that all appellants have caused homicidal < ^ ^ death of the deceased with intent to cause death in sharing common intention. Appellant Rahin Bai has also actively participated in the commission of crime. After appreciating evidence available on record, the trial Court has rightly convicted and sentenced the appellants. 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 Mohit Yadav as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellants. On the other hand, it is established by evidence of Dr. D.C. Chowdhary (PW-13) and autopsy report Ex.P-21 that death of the deceased was homicidal in nature. 13.As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence of Prashant Jaiswal (PW-2) and Rameshwar Prasad Yadav (PW-3). Prashant Jaiswal (PW-2) is resident of Village Aarasmeta, not of Village Sonsari, he was stranger to the incident and as per his evidence, both the appellants (Photo Yadav @ Chukudulu and Durgesh) were assaulting third person (Mohit Yadav) who died on the spot, even after throwing him down, they have assaulted. However, this witness has very specifically deposed that appellant Rahin Bai was weeping and going towards other appellants. Rameshwar Prasad Yadav (PW-3) has substantially corroborated the evidence of Prashant Jaiswal (PW-2) relating to the act attributed to appellants Photo Yadav @ Chukudulu and Durgesh, but has further deposed that Rahin Bai was also shouting 'maro maro don't leave' which shows her active participation. 14.Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony especially relating to the act attributed to appellants Photo Yadav @ Chukudulu and Durgesh. 15.As regards the act attributed to appellant Rahin Bai, there is clear contradiction in evidence of both the witnesses. As per evidence of Prashant Jaiswal (PW-2), appellant Rahin Bai was not shouting, inter alia, she was weeping and accompanying other appellants. However, as per evidence of Rameshwar Prasad Yadav (PW-3), she was shouting 'maro maro'. Considering the contradictory evidence of Prashant Jaiswal toi Soma (PW-2) and Rameshwar Prasad Yadav (PW-3) relating to the act attributed to Rahin Bai, it is difRcult to hold that whether Rahin Bai has participated in the commission of crime and whether she has instigated or she was following and accompanying the appellants and was weeping. The prosecution was under obligation to prove the offence against Rahin Bai beyond all reasonable doubts, but aforesaid evidence is not sufficient to prove the fact that appellant Rahin Bai has also shared common intention in commission of offence and has played active role. 16.Evidence of aforesaid witnesses is sufficient for drawing inference that other appellants have caused homicidal death of Mohit Yadav with intent to cause his death and in sharing common intention. 17.The trial Court has rightly convicted & sentenced appellants Photo Yadav @ Chukuduiu and Durgesh under Section 302 read with Section 34 of the IPC, but while convicting & sentencing appellant Rahin Bai, the trial Court has committed illegality and has not considered insufficiency of evidence against her. 18.Consequently, the appeal is partly allowed. Conviction & sentences imposed upon Rahin Bai under Section 302 read with Section 34 of the IPC are hereby set aside and she is acquitted of the said charge. She is on bail. She be set at liberty at once, if not required in any other case. Conviction & sentences imposed upon Photo Yadav @ Chukudulu and Durgesh under Section 302 read with Section 34 of the IPC are hereby maintained. , - ---—— Sd/- T-P.Sharma Judge Sd/- R.N. Chandrakar Judge r