tii^^^X^SSiX^9iii^^M^i?\ ww HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P.SHARMA& HON'BLE MR. R.L. JHANWAR. JJ. Oiminal AppeaLNo^ 67/20Q3 APPBLLANTS (INJAH,! ^' (1) (2) VBRSUS RESPONDENT Tulsi alias Chamru son of Rajnath aged about 32 years. Nehari Bai Wd/o Late Jhagar Ram aged about 34 years. Both are resident of village Karmi Kawar Tala Police Station Kusmi Distt. Sarguja (C.G.). State of Chhattisgarh; Throi^h Police Station Kusmi Distt. Sarguja (Chhattisgarh). ^ CRIMINAL APPEAL UNDBR SECTION 374 CRIMINAL PROCBDURE CODB 1973. Present- Shri J.S. Baraik, Advocate for fhe appellants. Shri Ashish Shukla, G.A. for the State/respondent. ORAL^TODGEMENT (Passed on 15/09/2010) The followins iudement of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to fhe judgment of conviction and order of sentence dated 19/10/2002 passed by 4th Additional Sessions Judge, Ambikapur in Sessions Trial No. 08/2002 whereby and where under after holding the appellants guilty for ftie offence of conimission of culpable homicide amounting to murder of Jhagar Ram and concealing fhe evidence of criminal case in sharing common intention convicted the appeUants under Section 302 read with Section 34 of the Indian Penal Code 8& under Section 201 read witli Section 34 of ttie Indian Penal Code and sentenced life imprisonment and fme of Rs. 500/- in default of payment of fine additional rigorous imprisonment for 3 months and rigorous imprisonment for 5 years and fine of Rs. 500/- in default of payment of fine additional rigorous imprisonment for 3 months. 2. Conviction is impugned on the ground fhat wifhout any iota of evidence sufficient for conviction of the appellants, Courts below has convicted and sentenced the appellants as aforementioned and thereby committed an Ulegality. 3. As per case of fhe prosecution, present appellant Tulsi was having Ulicit relation wifh co-appellant Nehari Bai wife of deceased Jhagar Ram. On fateful night of 15/11/2001 between 11 to 12 at night both the appeUants were present in fhe hut constructed for watching the crop of field. Jhagar Ram went to the hut where he saw his wife Nehari Bai with appellant Tulsi then he assaiilted her thereafter, present appeUant Tulsi took out the wooden stick and assaulted over fhe head of Jhagar Raui and caused fatal injury. Both the appeUants dragged Jhagar Ram to the bam and thrown 4. his body. Present appellant TiUsi also intimated other persons ftiat Jhagar Ram is lytng in iajured condition. Villagers took Jhagar Ram to Govt. Hospital Kusmi where he died. Marg was recorded vide Ex. P-22. On the basis of Marg, First Information Report was recorded vide Ex. P-11. Investigating OfiBcer left for scene of occurrence and after summoning fhe witnesses vide Ex. P-2, inquest over ffae dead body of deceased Jhagar Ram was prepared vide Ex. P-3. Dead body was sent for autopsy to Gtovt. Hospital Kusmi vide Ex. P-7B. Autopsy was conducted by PW8 Dr. Smt. J.B. Kujur vide Ex. P-7 and found following injuries:- (1)- Bruise on left forehead of 8 x 9 c.m. along wifh abrasion of 1 x 1 c.m. (2)- Lacerated wound over right frento temporal region of 7 x 3 x Vs c.m. surrounded by swelling of 14 x 11 c.m. (3)- Abrasion over right thigh of4 x 3 c.m. (4)- Abrasion over ri^it thumb of 2 x 2 c.m. (5)- Haemotoma was found in fhe brain. Cause of death was shock and death was homicidal in nature. Accused/appellant Tulsi was taken in to custody he made discloser statement of the place where Jhagar Raai received injuries, place where body ofJhagar Ram was lying and fhe place where wooden stick was hidden vide Ex. P-4. At the instance of appeUants broken piece ,.'«^.1 .^^ /^ of bangle and blood statned mat was recovered from fhe hut situated in fhe field vide Ex. P-5. Blood stained and plain soil were also recovered near the hut vide Ex. P-6. Wooden stick was recovered from fhe forest at fhe mstance of accused Tulsi vide Ex. P-12. Blood stained cloths of accused Tulsi was seized vide Ex. P-13. Spot map was prepared vide Ex. P-14. Patvyari also prepared spot map vide Ex. P-1. Sealed articles were sent for chemical examination vide Ex. P-2 1. 5. After recording the statements of the witnesses under Section 161 ofthe Code of Crimmal Procedure, 1973 (in short <the Code') aad on completion ofthe investigation, charge sheet was ffled against the accused/appellants in fhe Court of Judicial Magistrate First Class, Ambikapur, who in tiim committed the case to fhe Court of Sessions, Ambikapur from where leamed 4111 Additional Sessions Judge, Ambikapur received ftie case on transfer for trial. 6. In order to prove the guilt of the appellants/accused prosecution examined as many as 15 witnesses. Accused persons were exammed under Section 313 of the Code in which they denied the circumstances appearing against fhem and claimed innocency and false implication in crime in question. 'WMSiiS 7. After providing, an opportunity of hearing to the parties leamed 4th Additional Sessions Judge, Ambikapur has convicted and sentenced fhe accused/appellants as aforementioned. 8. Leamed counsel for fhe appellants Mr. J.S. Baraik and leamed G.A. for the State/respondent Mr. Ashish Shukla are heard and perused the material available on record including fhe judgment impugned. 9. Leamed counsel for the appeUants vehementiy argued that if fhe case of prosecution is admitted as gospel truth then only inference would be possible that appellant Tulsi who was having illicit relation with appellant Nehari Bai wife of deceased Jhagar Ram were sleepmg in one hut at night, at the time of incident probably in compromising position. Jhagar Ram who was suspecting the aforesaid illicit relation went to such hut and saw both the appellants then he assaulted his wife appeUant Nehari Bai. Appellant Tulsi who was also present in the hut took out the wooden stick and assaulted Jhagar Ram who received injuries then both ftie appellants dra^ed Jhagar Ram up to fhe bam where body of Jhagar Ram was lying and lastiy Jhagar Ram died as a result of such injuries. These facts are not suf&cient for drawing an mference against appellant Nehari Bai fhat any way she has shared her (J* i:'.3fe^ ^. %. ^ common intention for commission of murder of Jhagar Ram. Role attributed to her may be sufficient for drawmg an inference fhat she had concealed fhe evidence of criminal case along with ofher co-accused. Appellant Tulsi was sleeping in fhe hut, he was not waiting Jhagar Ram for causing his death when they were caught red handed and Jhagar Ram assaulted his wife then he has used ttie minimum force to save himsetf and Nehari Bai in exercise of their right of private defence therefore, Tulsi has not committed any ofFence of miu-der ofJtiagar Ram. 10. On the other hand leamed Q.A. for fhe State/respondent opposed fhe appeal and submits ftiat prosecution has proved its case beyond aU shadow of doubts. Present appellants have caused fatal injuries to Jhagar Ram resulted into his death and also concealed ftie evidence of criminal case by removing fhe body of Jhagar Ram. Court below has rightly convicted and sentenced the appellants as aforementioned. 11. In order to appreciate the ai^uments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12. In the present case, homicidal death as a result of fatal injuries found over the body of Jhagar Ram has not been substantially disputed on behalf of the appellants •1;^T '^ 'w^-y ^lii^^PNI"5^fl|jl^^ll:%^fl!ls^lj^;®^^il^!^ I1•^^l.^^^^;^N ^^N^^^^;^^^^^'^ on fhe other hand, ofherwise also established by the evidence of PW8 Dr. Smt. J.B. Kujur and autopsy report Ex. P-7 which reveals that fatal injmy was found over the head of deceased and death was homiddal in nature. 13. As regard the complicity of appeUants in crime in question, as per evidence of PW6 Diyai, appellant Tulsi came to him at moming and told that some body has caused injury to Jhagar Ram, his body was lying on the paddy-grass and he is alive then he went along witii Tulsi. At the instance of Tulsi he had seen ttie place where body of Jhagar Ram was lying then he took him to the Hospital where Jhagar Ram died then he went to the Police Station and lodged fhe report. He has also deposed that appellant Tulsi has made disclosure statement and blood was found in fhe hut. PW7 Chandrakant has supported fhe factum of disclosure statement Ex. P-4 made by appeUant, recoveiy of wooden stick j&'om forest, recovery of broken piece of bangle from hut Ex. P-5 and recoveiy of blood stained and plaui soU Ex. P-6. PW9 Magan has also deposed in his evidence that he was informed by the appellant Tulsi that body of Jhagar Ram is lying m ftie field. PW10 Sahita has deposed that when they went search for body of Jhagar Ram then they found fhe body of r'— ^ .^: r..'ff%ll,- ' (3 14. Jhagar Ram on paddy-grass in iiyured condition and also seen ftie dragging marks on the body of Jhagar Ram and from ttie hut ofJtiagar Ram up to bam where body was lying. He has also supported recovery of wooden stick at fhe instance of appeUant Tulsi from fhe forest. PW11 Guddi has also corroborated the evidence of PW10 Sahita. Defence has cross-exauiined these witnesses at lengfti but ftiey have clearly deposed in their evidence fhat present appellant Tulsi has informed them where body of Jhagar Ram was lying and the dra^mg marks from hut up to bam where body was lying was also found, blood was found in fhe hut where appellants were sleeping. Appellants have not offered any explanation that how Jhagar Ram received injuries that too inside the hut where they were present. As per case of the prosecution, present appellant Tulsi has assaulted Jhagar Ram. Prosecution has not adduced any evidence to show fhat appeUant Nehari Bai has also caused injuries to Jhagar Ram. Prosecution has proved following circumstances:- (i) At the time ofincident, 3 persons i.e. Tidsi, Nehari Bai and Jhagar Ram were present ui the hut (ii) Jhagar Ram was injiired. /' .X •-^; 'r ;..^^ "^. p%^ (iii) Body of Jhagar Ram was dragged from hut to bam. (iv) As per case of fhe prosecution, only appellant Tulsi has caused injuries. (v) Both the appellants have not offered any explanation that who has caused injuries to Jhagar Ram. (vi) At fhe time of incident, there were no other person except appellants and why fhey have dragged the body of Jhagar Ram from hut to bam. 15. If these circumstances are considered together then only inference would be possible that all of sudden when Jhagar Ram reached to hut where appeUants were present then appellant Tulsi has caused injuries to Jhagar Ram in fhe hut then bofti fhe appellants wifh a view to conceal the evidence of criminal case had dra^ed the body of Jhagar Ram from hut to bam to show fhat somebody was caused injuries to Jhagar Ram in his bam and not the place where appeUants were present. Present appellant Tulsi has not caused any injmy with intent to cause ttie death. He was not waiting and watching Jhagar Ram. In fhese circumstances, act of appeUant Tulsi does not travel beyond fhe scope of under Section 304 Part-I of the wissasttsss. 10 Indian Penal Code. In absence of any evidence relating to sharing common intention for causing such injuries to Jhagar Ram by appellant Nehari Bai, conviction and sentence of the appellant Nehari Bai for causing any injmy or deafh ofJhagar Ram is not sustainable under the law but the evidence adduced on behalf of fhe prosecution against both fhe appeUants relating to concealmg the evidence ofcrimmal case is suf&cient for conviction of the appellants under Section 201 read with Section 34 offtie Indian Penal Code. 16. For the foregoing reasons, conviction of the appellant Tulsi under Section 302 read wifti Section 34 of fhe Indian Penal Code is not sustainable under the law. Conviction and sentence of the appellant Nehari Bai under Section 302 read with Section 34 of the Indian Penal Code is not sustainable under the law. Consequently, criminal appeal is partiy allowed. Conviction and sentence of the appellants i.e. Tulsi and Nehari Bai under Section 201 read with section 34 of the Indian Penal Code is hereby maintained. Conviction aad sentence of the appeUant No. 2 Nehari Bai under Section 302 read with Section 34 of fhe Indian Penal Code is hereby set aside. Conviction of ftie appeUant No. 1 Tulsi imder Section 302 read with Section 34 of the Indian Penal Code is altered into m!^iiSi&^Sii^^i^lsifs^^M^i^^ 11 under Section 304 Part-I of fhe Indian Penal Code and he is sentenced imprisonment for period already undei^one i.e. 23/11/2001 tiU today for about more than 8 years. Both ftie appellants i.e. Tulsi and Nehari Bai be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^-7