•;i;E'!is«i ^.!!. HIGH COURT W CHHATTISdMUW AT BILASPUR DB: Hon'ble Shri Dhlrendn Mlshra & Hon'ltteShrilSLN.Chandrakar.jJ. Crtminal Appeat No. 10(»/20(» APPELUWT (InJail) Vs. Responclent Rooplat Gond aged 25 years, S/o. Jayantru Gond, R/o. ViUage Davedongar P/S. Ghumka Dtett Rajnandgaon (C.G.) Sterte of ChhatBsgarh Through P/S. Sonieni Disft. Rajnandgaon (C.G.) (Criminal Appeal under SecUon 374(2) cfthe Cr.P.C.) Present: Shri RaUndra Mishra.counsel forthe appellant. Shri Ashish Shukla, Govt. Advocate for theState. ORALJU MENT (20.07^010) The foltowing judgment of the Court was deliwrod by Dhbendia Mi»hra,•I. 1. The appellant has preferred ttus criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of convictton and order of sentence dated 04-01.2003 pa^ed in Sesstons Tr@l No.131/2002, whereby learned Sesslons Judge, Rajnandgaon has convicted tte appellant under Section 302 of the Indian Penal Code and sentenced him to undergo IITe Imprisonment for committtng murder of Punaram Gond. 2. Case of the proswution, in brief, is that, on recelvlng telephonie message that Punaram, residentof Dewtongar, has been murdered by Rooplal Gond and his dead body is lylng on the spot, pottoe proceeded Tor the scene of occurrence after recording the information vide Ex- P/20C. On the basls of Information aiven bv Deen Daval Gond-. deftaff ^ l^ naltshi (Ex.-P/1) and mefg inflnrertlon (Ex-P/2) were recorded and thereafter, crime was r^tstered on the basis of dehaS nalishi vtde Ex.P/1(A) agalnst the appetlant. After preparing the tnqu^t over the person of deceased vkie Ex.P/5, the dead body was seot Tor aulopsy to Distrtot Hospital, Rajnandgaon vide Ex-P/14, where Dr. B.C. Jain (PW-10) conducted postmortem and gave hls report viele B<-P/14(A). Spot map was prepared by Station House Officer, N.B. Singfr(PW-16) vide Ex.-P/3. Blood stained weappn of (rffence - hammer was taken into possesston from the spot vlde Ex.P/7. Wearing apparels of the appettant were taken into possesslon vlde Ex.-P/Q. Slte ptan was prepared by Halka Patwari vide Ex.-P/IO. Sealed packet containlng wearing apparels of the deeeased was taken Into possessten vtde Ex.P/11. Articles seized during investlgation were sent ter chemhal examination to Forensic Sctence Laboratory, Ralpur and the report of FSL is EX.-P/24, according to which wearing apparels of the appellant and the weapon of crffence - hammer were found to be stained writh blood. However, report ofthe Serologist has not bee^flted ctoringfrtal. 3. After compteting investigation, charge sheet was flted In the Court of Chief Judiclal Magi^rate, Rajnandgaon, who, in tum, committed the case to the Sesstons Judge, Rajnandgaon Tor trial. 4. Learned Sesslons Judge framed charge uncter SeGtions 302 of the Indian Penal Code against the appellant, who abjured hte guilt. The prosecutton, In order to e^ablish charge against the appeUant, examined 17 witnesses in alt. Thereafter, statement of EK»usedwas recorded under SecUon 313 of the Code of Crtmlral Procedure, in W. ^-••y-^-t:^i^ I;. .- ;...' •!-ia'i3l :r::^;:'l!3i which he denied the clreumstanGes ^ agaln^ Mm In the prosecution case and pteaded that thwe are ftwo facUons In the vlllsge and on account of thls, wttness^ are lying. He is innocent and has been telsely implicated. However, he dld nol examtne any wttness in his defence. 5. The trial Court, after hearing counsal fbr the respectfye partjes, convicted auKl sentenced the appellant as mentioned in paragraph one of this judgment. . " 6. Homicidal death of Punaram Gond Is not In dispute. Even otheiwfee, from the evidence of eyewitness Kreturi Bal (PW-3), who clahned to have witnessed the assault by hammer on the pareon of deceased, and from the evldence of Dr. B.C. Jain (PW-10), who ctxulucted postmortem and proved his report of Ex-P/14(A), In which he found the following injuries on the person of deceased and opined that cause of death is head injury (broken skull, subdural collectton of btood clote and brain laceratlon) leading to hemorrhage, shock and dMth, homiGklal death of Punaram isestablished. INJURIES (1) Laceratedwound of 8 cmx 5cm xskult bone exposed. There is fracture of parietal bone at right side. Laeerated wound on right parietal reglonal scerip. Fracture is compound, communttled, depressed in nature. Clols present in wound. (2) Lacerated wound present in left occipttal regional scalp size 10 cm x 5 cm x occi|Mtal bone skult exposed. Fractured, compound, communttted, depressed. Brain matta" ts coming '•t.£:iai& "Vi-S '^ /•Y /:;•' ^' /^ from the wound. Wound is In saggltal ptene. Glols pr^ent in both the wounds. 7. Shrt Ratindra Mlshra, leamed counsel for the appeBant vehemently argued that conviction of the appellant is based on the testimony of sote eyewitness Kasturi Bal,.however, from perusal of ter dep<»ition before the Court, it would be evident that she Is not an eyewntness of the incident as she did nrt see t(ie appellant assaulting the deceased with hammer. There are material omtetons and contraKltctions in her evidence before the Court and her diary statement of Ex-D/2ancl therefore, the trial Court was not justifled in convitAing the appellant by placing implicit rellance upon the evldence of Kasturi Bal and ttre trial Court ought to have extended benefit of doubl to ttie appellanl. 8. On the other hand, learned counsel for the State aifqacate the impugned judgment. 9. We have heard leamed counsel for the partles and perused the record as also the Impugned judgment. 10. FW-13, Head Constable, Lal Bahadur Singh has depos«lthaton 30?h July, 2002, he was on duty when he received a telephonto infoi'matton that Punaram has been murder«l by Rooplal. After reGording the above information vkte Ex-PQO, A.S.I- N.B. Sit^h proceeded for the 11. Deen Dayal (PW-1) is son of the deceased. He hs®deposed that on the date of inclctent he had gone to stone quarry, whenSarpanch EHIip Verma came there and informed that Rooplal has murdered his fether by hammer. whereuoon he returned and found the dtfad bodv of his father lylng before the hcrtd of Baldev ®r^h.He had su^ined injury on his head and btood was ooszing. He has also proved dehatt nallshi (Ex-P/1), merg intimatlon (Ex-P/2), spot map prepared by the police Ex.-P/S and inquest report of Ex.P/5. 12.l^sturi Bai (PW-3) is the owner of tea-shop where the incident took place. She has deposed that on the date and time of inGident, the deceased was reading newspap^r in her shop. When she went inslde ,.f to bring cow dung cake she heard the sound of thud, she ca»neout and found that Punaram had fallen on the ground and Rooplal had raised hammer to assault Punaram. Punaram sustained injuries on hfs head. She does not know as to how many Injurles he had, but saw one deep injury on his head. She raised alarm, whereupon Rooplal fled ftwn there teaving the hammer. Labourers woridng in ttie mines gathered there. She did not see Rooplal eoming to her shop, but she saw him assaulting the deceased. tn the cross-examinaliw, she has deposed that the appellant came to her hotel fbr the flr^ tinre arol there vias no quarrel between the appellant arwl the deceased. She saw the appellant raising the hammer, however, she did not see him attaoking the deceased. 13. Kalaram (PW-2) has only stated ttiat after heariig the oomniotion, he reached the sprt and saw the dead body of Punaram. He ateo saw the blood ^ained iron hammer lyfng there. This wftness has faeCTi declared hostile. He has been confronted with hfe dairy statement of Ex-D/6, j however, he denied having made such statement. 'fe. ^w: - ....i" •'?s.t ;^:-^:^i-- ;B & :^1 ^ 's' / ^iiV :^fa--*y ./' iig-nstrf'*' 14.Batdev Ram (PW-4) is husbandof Ka^url tei. He,has d^aosed that at the time of incident, he heard shouttng of Ms wlfe wtoo was fleeing from the place. He ateo ^arted shouting and running behtnd his wtfe and when he reached near his-vwfe, he was Informed that Roopfal has murdered Punaram. Hearing his shouts, number of person gathered in the hotel and tound Punaram lying near the shop. He had su^ained injury on hls head and blood stanied hammer was lying ttiare. l5.Awadhram (PW-8) and Deepak Kr. Verma (PW-9), are wteesses of extra judicial contession, hmwever, they have not supported the prosecution case and have been declared hostile. 16.Sheikh Salfm (PW-14)hasdeposedthathewaspresentinthemineat the time of incictent. When he went to the place of incident, he was informed by the peofte gathered there that Rooplat has committed murder of Punaram. 17.Thus, from the evidence of Kasturi Bai (PW-3), who Is ttieowner ofthe hotel where the incidenttook fte(»andafter heartng thesound of thud, found the deceased fatlen on the ground and Uie appellant raiang ttw hammer to assaull the deceased, tt ts estabtished that the s^pellant assaultwl the deceased with hammer. Vereiim of this wSness te duly corroborated from the statement of her hu^and that Kasturi bai disclosed the incident to him and also from the evfelence of other witnesses, as discussed above. Her version is atso duty corroborated from the medical evidence of Dr. B.C. Jain (PW-10), who has conducted the postmortem and gave hte report vide Ex-P/14(A) and found corresoondina iniuries over the head of ttie deceased'. as ateo ^;- •!5®i .."s^ from the fir^ information report by Deen Dayal Qowi. Evwi tn the wearing apparels seized from the appellant, presence of btood has been confirmed by the FSL. 18.0n the basis of aforesaid dfsGUsaem, we are of the opinKwi that the prosecution has f»oved ite case again^ the app^atf beyond att reasonable doubt by relying upon the widence of ^ewntness Kasfaui Bai. We find no substance.in this appeal, the same cteserves to be and is, accordingly, dismissed. — Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^ '••^^