HI6H COURT OF CHHATHSeARH AJ BIb^SPUR Criminal ApDeal No. 1325 of 94 APPEUANTS '!! ' 1 RESPON&ENT VERSUS Shiv Shankar son of Tilakram Kashyap, aged 29 years. Melaram son of Sahasram Sahu, aged 20 years Both residents of viilage Newsa, Poiice Station Ratanpur, District Bilaspur M.P. (Now C.©.) The State of Madhya Pradesh (Now Chhsttisgarh). CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CO&E OF CRIMINAL PROCEbURE Appearance: Shr-i AiokBakshi, counsel for the oppellonts. Shri Praveen Das, &y. ©overnmentAdvocate for the State. Djvision Bench:- Hon'ble Shri T.P. Sharma & Hon'bSe Shri R.L.Jhanwar.JJ ORAL JU06MENT (23.04.2010) Per T.P.Sharma. J. 1. Appeilant No.l- Shiv Shankflir has been releaged after serving the sentence, therefore, this appeal on his behalf becomes infructuous. \ RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:38:42 +0530 ^"'%i%. ^issE:f-, l %... ls.^.^,.^ 2. Challenge in this appeat is to the judgment of conviction and order of sentence dated 29.7.1994, passed by the 7t Additional Sessions Jud9e, Bilaspur in Sessions Trial N6.160/92, whereby and whereunder, the learned 7t Additional Sessions Judge after holding the appellants- Melaram and Shiv Shankar guilty for commission of cutpable homicide amounting to murder of Tularam in sharing common intention,convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life. 3. The conviction is impugned on the ground that without credible and clinching evidence, the learned Additional Sessions Judge has convicted and sentenced the appellonts as aforementioned and thereby committed illegality. 4. Brief case of the prosecution is that Shiv shankar was having enmity with the deceased- Tularam on the ground that the deceased-Tularam was seen by Shiv shankar with his wife in compromising position. On this, Panchayat meeting was convened ond since then the appellant Shiv Shankar was having grudge upon Tularam. On fateful night of 6.10.1991 at about 7.30 p.m., Tularam, who had gone to his fields, was comin9 back to his house. On account of de!ay in coming back to the house, wife of the deceased Tulapam, sent her brother in law Ramkumar (PW-5) to see Tularam why he didn't come back, on which, Ramkumar (PW-5) proceeded with a torch to search his brother. While hewas going besides the shop of Shamsunder, he found that the appellonts Melaram and Shivshonkar were standing and talking and thereafter they ^"ff^t.'"%i ^^^r:, ^ "mv'& 1 %. ^-^ ^ ^f Ty< ^'r^, .../•^•' ..^y' '^^.^'"'""" ..^' ^7; proceeded towards Patharipara. After some time, Ramkumar followed them towards Patharipara to search his brother. When he reached near the house of Ramjhul, he heard the voice of his brother- Tularam " O [>ai Badiao". Then he focused the torch towards that side, fromwhere voice of his brother was coming ond saw that present appellant Melaram caught hold of hjs brother while another accused Shiv Shonkar was repeatedly dssaulting the deceased by knife, due to which he fell down. When Shiv Shcnkar saw Rainkumar, he tried to flee from the spot, OH which Melaram advised 5hiv Shankar to remove the knife from the body of the deceased. Then Shiv Shankar removed the knife from the body of the deceased and thereafter both the appellonts fled away from the spot. Thereafter, he went near Tularam, he was unconscious. He shouted then other persons came there and after some time; Tularam died. He went to Police Station and lodged F.I.R. vide Ex. P/9. Police also recorded merg vide Ex.P/14. The Investigating Officer !eft for the scene of occurrence. After summoning witnesses vide Ex. P/2, inquest over the dead body was prepared vide Ex. P/l. Plain soil and blood stained soil was recovered from the spot yide Ex. P/7. Dead body was sent for autopsy to P.H.C. Ratanpur,where t5r. Harish Thavaroini (PW-14) conducted autopsy! vide Ex. P/ll and found fotlowing injuries: i. Stab injury over the chest of 2x1x2" ii. Stab injury on left side of chest of 2 ^ x i xlT" iii. Stab injury on right sideof chest ofl ix ix l^-" iv. Incised wound over right side of neck of 1 ixi xi " below angle ofjaw. t '•%. /^\ <go. v. Incised wound on front of left arm oflixlixl" vi. Incised on middle of medial border of left arm of 1ixIxi" yii. Incised wound oyer upper left arm of Ix^ x^" viii. Incised wound on left side of occipital region of 1 ix } xi" ix. Incised wound on front of left side of chest of i x ix i " 4 , 5+ and 6 ribs of left side were found fractured. Heart and lungs were found punctured. During the course of investigation, accusedShiv Shankar was taken into custody. He made disclosure statement of knife vide Ex. P/3. The same wds recovered at •the instance of the accused Shiv Shankar ond clothes were seized vide Ex. P/4. Nails of Shiv Shankar were cut and seized yide Ex. P/5. Clothes of the accused Melaram were seized vide Ex. P/6. Patwari prepared spot map vide Ex. P/8. Shiv Shonkar was also sent for medical examination, who wos medically examined by &r. Harish Thwaroni (PW-14) and found one incised wound over his left hand. Sealed clothes of the deceased were seized vide Ex. P/15 A. Seized articies were sent for chemical examination and presence of blood over knife and clothes of the accused Shiv Shankar ond Melaram was confirmed vide Ex. P/16. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 5. After completion of investigation, charge sheet was filed before the A.C.J.M., Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where, the learned lAdditional Sessions Judge received the case on transfer for triai. 6. In order to prove the 9uilt of the accused/appellants, prosecution hos examined as many as 15 witnesses. Accused persons were examined under Section 313 of the Code, where they denied the circumstances appearing a9ainst them, innocence cmd false implication in crime in question was claimed. Accused persons have examined defence witness Thakur Prasad (bW-1). who has deposed that firstly he saw Tularam lying on the road then he called mol+ier of Tularam and his brot+ier- Ramkumar (PW-5). 7. After affording opportunity of hearing to the parties, leamed Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 8. We have heard, Shri Alok Bakshi, learned counsel for appellants and Shri Praveen bas, learned Dy. Government Advocafe for the State, perused the judgment impugned and record of the Court below. 9. Learned counsel for the appellants vehemently argued that in the present case, conviction is solely bosed on the solitary evidence of Ramkumar (PW-5), brother of the deceased, having enmity with the appellant Shiv Shankar, does not inspire confidence and trustworthy and safe to rely. His evidence is full of contradictions ouid omissions with theprevtous statement i.e. F.I.R. lodged by him. The evidence of other witnesses revealed that he has not seen the incident and he came on the spotafter commission of the incident, even otherwise, his statement does not appear to be natural. Brother of the deceased did not take any step to save his broljher N while Shiv Shankar was assoultin9 ouid causing repeated injury by knife, shows his unnatura) conduct and absence at the time of incident. Learned counsel for the appellant Melaram further argued that the present appellant was not hwing any enmity or motive for commission of the offence ond he has not caussd any injury to the deceased. He has simply caught hold of the deceased, therefore, even if the evidence of Ramkumar (PW-5) is relied upon then also the act of the appellant is not covered beyond the scope of Section 304partIoftheIPC. 10. On the other hand. learned counsel for the State vehemently opposed the petition and submits that in the present case, Shiv Shankar was having definite motive and grudge for commissionof the offence. He along with Melaram has committed the offence. Ramkumar (PW-5) has seen the incident. His evidence inspires confidence and trustworthy to rely. The present appellant Melaram was the person, who has facilitated for commission of the offence by holding the deceased Tularanv and making hiin helpless to save himself and thereby the act of the present appellant is more grievous and serious. 11. In order to appreciate the argufflents advanced on behctlf of the prosecution, we hwe examined the materiat avaitable on record. In the present case, homicidat death os a result of ante mortem futal injury to Tularam has not been substantially disputed on behalf of the appeltants, on the other hand, it is established by the evidence of Dr. Harish Thavarani (PW-14) ond autopsy report Ex. P/ll and death was homicidal in nature. 12. As re9ards complicity of the accused/appellont Melatram in crime in question is concerned, conviction is solely based on the evidence of Ramkumat' (PW-5), who has deposed that he had gone to search his brother- Tularam with a torch <md whi!e he was gomg to search his brother, he saw both the appetlants were standing near the shop of Sham Sunder. After some time, they proceeded then he tttso proceeded for searching his brother on the same woy. After some time, he heard the sound of his brother "Dai Re Bachao* then he focused the light of torch and saw that Melaram wos holdin9 hjs brother from back side to his hands and Shiv Shankar was assauiting his brother by knife pver his chest. When he objected then Shiv Shankar tried to flee from the spot, but Melaram directed Shiv Shankor to remove the knife from the body of the deceased, therefore, he removed the knife from the body of thedeceased and thereafter both the appelldnts fled awoy from the spot. He weht near Tularam and saw the injury. l-1e shouted then some persons co.me there. Thereafter, he went to Potice Station ond lodged the report vide Ex. P/9. Defence has cross examined this witness in detailed. In para 5 of his cross examination, he has stated that both the oppellants took the deceased 10-15 feet away by assaulting him. The incident took place in front of the house of Ramjhul. In para 6 of his CFOSS examination, he has stated that when he saw his brother he became unconscious and when he regam his consciousness after 2-4 minutes, he saw that his brother has died. He has admitted in his cross examina'l'ion that the deceased hos committed intercourse with the wife of the oppellant Shiv Shankar, therefore, there was enmity between both the parties. 13. The conviction is based on the solitary evidence of eye witness Ramkumar (PW-5), who has seen the incident and stated that the appellant Shiv Shankar and deceased Tularam was having enmity, but the deceased was not hwing enmity with Melaram. Evidence of Ramkumar (PW-5) cannot be discarded only on the ground that he is a relative or he is the only person, who has seen the real cuiprit. His evidence is well corroborated with the promptiy lodged F.I.R., medical evidence and his evidence inspires confidence, trustworthy and safe to rely. His evidence is sufficient for drawing an inference that the appeltant Shiv Shankar has caused repeated injury to his brother Tutaram and thereby caused his death and at that time, appellant Melaram was holding honds of Tularam from his back and has facilitated Shiv Shankar in causing injury by making Tularam hetpless and unable to save himself. This evidence is sufficient for drawing an inference thatShiv Shankar committed culpable homicide amounting to murder of Tularam in sharing common intention with the presentappellant, After oppreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the present appellant with the aid of Section 34 of the IPC for commission of the offence under Section 302 of the IPC. 14, On close scrutiny of the evidence, we do not find any illegality of infirmity in conviction and sentence of the appellant ynder 9 Section 302 of the IPC with the aid of Section 34 of the IPC. Court below has imposed a minimum sentence prescribed under the law. 15. For the foregoing reasons, we do not find ony substonce in the appeal. The oppeal bejng devoid of merits is liable to be and is dccordingly dismissed. The appellantMelalram is presentin person. Hebe produced before the 7th Additional Sessions Judge, Bilaspur or hissuccesSor in office forsending him to jdit for serving the remaining sentei^ce in S.T.No.160/92. i, R.L. Jhanwar Judge SdA^,.' T.P.Sharma Judge yi^ynff^