^?r^^,,, 3^' ^11^10^, tS'Tn'H1!^, (cl^K-l^i t^lNdl *^|cb •^ 200 W^T^ fqii.ch T[SH OT^T 5h^ii<+) w^ ^^ (4^F^<ysr) ^T^TW^rftn ^IT^T <=bi^(<rt<i1Ti 'RP^ff '?f,feT3t <Fai^i< '^'^Tfiw^n^T DIVISI011 BBNCH: HON*BLE SHSI JU8TICE DHl H01TBLB 8HRI JU8TICB T.Fl AppeUaats InJail SRENDRA MISHRA flte SHARMA CmMINAL APPlBAL N0. 867 OF 2002 2. Versus Respondent Prcsent: ShriA.K. Ataley, couns^ Shri AKhU Mishra, Pancjl ORAll (Delivered oi| Sainayalal, S/o Munnudaa, Aged 45 yrs, Baba @ Mahendra s/o Samayalal, x^ged 19 yrs, Cultivator aad Resident of Village Jakela, P.S. Pusaur, Distt. Raigarh (CG) State of Chhattisgarh fhrough Police - Pusaur, 1 for fhe appeUaats. Lawyer for the State, JUDGMBNT 25th Jaauaiy 2008) Dhirendra Mishra, J This crimiaal appeal j|s direcfeed agaiast fhe judgment of conviction and oider of sent^nce dated 2nd Jiily 2002 passed ia. S.T.No.79/01 whereby the l^araed IV Additional Sessions Judge (FTC), Raigarh has couvicted |each of fhe appeUaxits iiiider Section 302 of Indian Penal Codej and sentenced them to undergo imprisonment for life, pay ajfine of Rs.1,000/- and in default of payment offme to undergo a^ditional RI for six monfhs for causiag houiicidal deafh of Basant. 75^T ^TT^i^T, ^xft^'KS, fsj^l^y <41*<dl tb*<|ch -^ 200 3n^r x^ra? (^cif^ci^) ^n^r^r ^icb WT3??I^ $h^|ch ^^ai^ ^f^a 3?n^r lel^ appeplan.t 2. Case of fhe prosecution| the residents of ViUage-Jakel^ resident of Village-Telikot, P.S\ the house of appellaats on At about 4.30 p.m. titie persons uainefy Nonibai, Gu<| spear, axe^ brickbat and lafhji, injured condition aad took Bhoklo Mahaiit, who resides fhe iacident. While the conil making preparation to shift house. ia brief, is fhat the appeUants are whereas deceased Basaat was fhe Kharsia. The deceased had gone to February 2001 to recover nioD.ey. fllaats and ofher acquitted accused Idi and Pappu assaulted him with The deceased fled for his Ufe ia •jbielter ia fhe house of coniplamaat (aiearby aad informed his wife about t>lainaat his wife aiid ofhers were l(im to the hospital, he died m fheir Merg intimation (Ex.P/< p.ni. on the same day. The p,xn. on fhe basis of inforBiati<j> appeUaats aad ofher accusec^ the dead body was prepare^ Ex.P/7, Spot niap was got and P/6. The dead body wa^ Primaiy Healfh Centre, Pus<3 Siagh Uraon (PW-3) conductejd Ex,P/ 2.. Motorcycle of decea^ed vide Ex.P/9. Bloodstained 8^ iato possessiou from fhe pla^ oM^a<fli 'W^Tf "^ fe^ ^^K ^ 3TRPT 3TI^T was given by Bhoklo at about 5.20 >ffence was registered at about 5,30 >n ofcoinplainaat Bhoklo against fhe persons vide Ex.P/1. Inquest over m the presence of witnesses vide pptpared by Halka Patwad vide Exs.P/5 sent for postuiortexn exaraiaation to >ur vide Ex.P/19 where Dr, Havel postaiorteia axid gave his report of Basaat was taken into possession pfedba soil aiid brickbats were taken t;e of iacideut vide Ex,P/ 10. On the ^^^T ^3N ^H^Rr, ^TsRt^TRT —FS/59— 8/2007 —30,000. T^T -^i^io^, ts)Tn<i^<s, i<i<?'>i^i^< ^ *11*K!fl( *^|ch< ^ 200 3n^?r xni^ (4C<^<^T) a^n^T^ Vw^ W^ ^TR^T sh^lcb ^nw^f^T ^n^r Saaiatvlal Oii inenioraiiduixi of appeUant was seized under Ex,P/ll. Baba @ Mahendra of Ex.P/ 12 b( Ex.P/14. Wearing apparels of packet were taken into possessioli dxiring mvestigation were Fprensic Science Laboratory, senlt (Ex.P/13) bloodstaiaed spear fhe laieiaoranduin of appeUaiit loodstained axe was seized under <he deceased received ia a sealed vide Ex,P/19. The articles seiz^d i|t for chemical examination to videEx.P/21. Raibur Lalion 3. Afiter coiapleting uivestiga^ioi] Court of Judicial Magistrate P^rst cominitted to fhe case to tibie Coilrt the same was received on Additional Sessions Judge, prosecut|on 4. During trial the aU, Thereafter, statements recorded under Section 313 of evidence appearing against fh< pleaded innocence aad false ii fhat they have been impUcated lao^d related disputes aad on Mahant AppeUant Saxaaylal witaiess No,l and aaother defence witness No.2. CM<if<n<fli ^TR^if ^* f^Tst <r»i^i< '^3tRPT37T^r charge sheet was jBled io. fhe Class, Raigarh, who ia tuni of Sessions Judge, Raigarh aiid todaasfer for trial by fhe learaed exainiaed eleven witnesses m t>f fhe accused/appeUants were ICr.P.C. in which thev denied fhe |:m ia fhe prosecution case and ii|ipUcation. They farther pleaded lin fhe above offence due to soine tutonng of counsel for Hem.ant hicaself exanuned as defence Obhijit Dev was examined ti|ie ^ot witness ^iw^ ^N^T '^"11^, <M^i^iici —FS/59— 8/?0^~ —30,000. 3^ET -^WW^, «>Tfi^<l<S, fc|<rl>l'H^< *<INdl (b*4|cb Wi, 200 3TI^9T ^f^K (4C<^<^) ^TT^T^'f^TW ^)^|ch '^ffW^ltn ^nt^T 5. However, learaed tnal Cd respective parties, convi^ted accused/appeBants as xxientic judginent. Vidhvaxland 6. Hoinicidal death of Basanlt froni penisal offhe statenients Bhoklo Mahant (PW-2), statexnent of Dr. Havel Siag^i postxaorteni over the person <| iajuries aad opined cause of| excessive bleediag on account death was homicidal ia naturej Basan.t was hoiaicidal. On exteraal e3iamiaatiodt: (1) One incised wound of3"x 1 Wv.\W, the above iacised colour. (2) One iacised wound| size of4" x W x ^l (3) Abrasions over left thesizeof2"xy4\ (4) Abrasion on ftie (5) Abrasion on the no^e ri^xt CM<if<rt<fll '^Wff ^' 'fe^ ^^K ^ 3TfW3?1T^T ^urt after hearing counsel for fhe jand sentenced the >ned ia paragraph one of this |t is not ia dispute. Even ofherwise of witnesses Mohaainati (PW-l), Gupta (PW-5) as also fix>in the Uraon (PW-3), who conducted ^f fhe deceased, noticed foUowiag death as shock syncope due to ^f iajuries to vital organ.s aad fhe it is estabUshed that the deafh of |over raght lunxber region ia fhe size intestines ofS^liad coxae out fioia ^ound, which was diy and of black jover right side of the chest in the |uid right cheeks were present ia ia the size of W9 x W. shoulder in fhe size of W x W. ?rra^T iN^ g5[un^T, <i^f^i<4iici —FS/59— 8/?oo~ —30,ooi». XI-HC— ^s^. 3:i55T^I'41<l'><<, ^xfl'y^Ko, (s|<''>l'M^< 3?|T^T ^5T f<^[cb n9-TT ^TT^T $t)+ll<^ <4(^dl sb^llck ^ 200 3^![?T '^ra? (<i^Ivic<^) ^RTTW ^rft^T ^^n^r <=bl^lf<y1<i1Tl ^l^^l '?f\'fe(3t '^R^T ^" ^fRpT 3?n^r (6) Abrasion 0^1 left shoulder ia fhe siz^ of l^ x W. All fhe i£iju|rieswere ao.te inortein. Qa lateriial exaiblaatioa: Bofh the |liuigs were fouiid congested, heart was congested, undigested there was clotted blood m fhe chaaiber, xiieal was fhere ia the stoniach, Uver was congested, jfhere was one punctare wound ia fhe right side oflivexj, spleen and kidney were congested. 7, Learaed counsel |for fhe appellaats submits fhat there is no eyewitaess to the mcid|ent Conviction ofthe appeUants is based on the statements ofj Mohaamati (PW-l), Bhoklo (PW-2) and Vidyanand Gupta (PW^ roped ia fhe above ^), who are witaesses of alleged oral dyiag declaration made by fhje deceased Basaat before fhein, He fuither submits fhat all the fs|mily members of fhe appeUaats had been disbeUevuig the versio^i of prosecution witnesses with respect to Noni Bai, Guddi (@. Su offence, however, learaed trial Court chmani and Pappu @ Pooja, has acquitted thexn of aU fhe charges| It is aUeged by fhe prosecution witnesses that appeUaat Baba @ pMahendra assaulted the deceased wifh axe over his head, as a re^ult of which he sustaiaed incised wound over his head, howeverj evidence as Dr. Havl postcaorteni aad provej their version is contradicted bv tlie xnedical sl Siagh Uraon (PW-3), who conducted 1 his report of Ex.P/2, did not notice aoiy ^..^yj f^€ TwT -q|<<|0<q, ^>Tf1^<|<o, f«l<r)|^^< NINdl *t<|cb ^ 200 3H^?T ^SSK ( 4^1^<i^) s^ 3?n^r^i R'ljch ^TT 3TT^T ^RN? '^TTW^f^T^n^T corrcspondin.g iDJury over heac^ argued fhat just after arrival of] Mohaiimati (PW-1), she went| Vidyaaand, Bharat aad Jagdish|. returaed her hoine after hatf aib. Therefore., in fhese circunista2|ices Bharat fhat the deceased made sfands falsified. 8. Qn fhe ofher hand, supported iinpugned judgment d^ leabied counsel for fhe State has the trial Court. 9. We have heard learaed penised tiie evidence available judgiaent, .ppeUatits 10, Conviction of fhe appella Mohamnati (PW-1), Bhoklo (PW-5) and also based on the from fhe custody of appeUant S axe froca appeUant Baba@ Mah< 11. PW-6 Potobai, wife of appeUant Samaylal was the frie^id aiid he is also brofher of hei| Samaylal firequentiy used to visijt CM<i?<n41Ti TTR^f ^f fs^ <r»i^i< ^^tRwa^T of fhe deceased. It is fdrther deceased Basant in fhe hoine of to caU other persons namely She has stated fhat wheii she hour, Basant Iiad already died. ces, version of Vidyanand and >ral dyiag declaration before fhem coi|insel for bofh fhe parties and have on record as also the iaipugned is based on fhe stateuients of Mal^ant (PW-2) and Vidyaaand Gupta r^coveiy of weapon of offence spear S|aaiaylal on his memorandum aad lindra on his memorandum. £he deceased has deposed fhat of her husbaad siace childhood €/ef/ianf(sister-m-law). Appellaat here home. In fhe last Ashad he ^IW^ ^^T ^"ll^, <M-li^lJc| —FS/59— 8/?0i'-~ —30,rA.>0. 3:5^' ^Wifft^, ^TH-M^KS, is«'>>l'M^< ^l^dl 5b^l<sb •^ 200 ^T^T^T (<<licb 'cCT^TT^T st>^icb 3fftyr TRTcR (^c(I^c<<yar) '^<ITW^Tf?cT ^TI^T hfer po|ll< came to her honie with his had borrowed Rs.30,000/- When her husbaad Basanl appellant Samaylal promised| Sainaylal was staying at he3 Patibiaapara, Telikot to see retum, she found that the ac and they had fled from there) A report to this effect was Station-KIiarsia aad fhe persons. Her husband met her husband to ViUage Jakel^ went to village Jakela on his on the next day, she learat appellant Mahendra wifh axe| as a result ofwhich he has that her husbaad Basaiit wt Rs.1000/- by the Coiirt. ignorance that Sainaylal was| convicted aad because offhel was lodged by fhenx ^ainst reason fhey have been falsely| 12. PW-1 Mohamnati, has about4,00 p.ni, she was cM^I<rt<fl»lW^Tf ^ ft^ <r5<-^l< '^'sfRpT^^T Jfeniilv and staved for six inonfhs. He fl:om her husband for his treataient. asked for retum of fhe money, |to retuxii fhe money. While appeUant home wifh his family, she went to nephew as she had faUen ffl. On |tcused persons were not ia her honie |with Rs.10,000/- and other artictes. It^dged by her husband in the Police o|Uce was ia search of fhe accused |ainaylal ia Ra^arh Court, who called to retum the money- Thereafter, he tGtotorcvcle on the date of iacident aad appellaat Samaylal with spear aad have assaulted her husbaad Basaat, 1. She has accepted the suggestion ^s convicted for two vears and fined However, she has expressed her instruiaental ia getting her husband [above aaimosity a false report oftheft ^he accused persons aad for the saitte 1 iaiplicated ia fhe above offence. tllat d&ed. do^ng stated fhat pn the date of iacident at somie doniestic work ia her honie. ^aC^ iNN g$^H^, TT^RTSpT^ —-FS/59— 8/2007 —30,000. 'S^ -qi^j!^^, ^iTti'yiKS, is)<7i>iy^< ^ ^w^i ^k^llcb' •^ 200 3?n^T^5T ^ich WTW^T 9FRW ^ 3TSi?T T^W (^ctf^^) '^RTTW^rfN^^T « al^o At that juncture, accused p{ who entered ia her honie. husband were present ia fhe stated that Sainavlal has abdonien, chest aiid Mahem axe. There was aa mjun^ mtestines had come out ofthlc wifh his haad. Blood was Basaat asked to niake husbaad was sleeping ia Samaylal, Mahendra aad hi^ chasiag Basaat. Sainayla^ mtervention bv her husbaisld Vidvaaand aiid Bharat aiid came there aiid thereafter, towatxls the village lane. ^] hour, however, by that time iafonned her fhat he was However, he did not deiiied the suggestiou tha^ Heinant, son offhe decease(|l. her cross-exaDimation fhat that Saiaaylal was holding| Court that Saaiaylal was holc arraijigement discl<tse Gt)i<il<rt<l1'i ^i^<nT'^f Fs^ <f^1^1< ^'sfftFT 37T^T ^rsoxis were chasiag Basaiit Kiimar, H^erabai- her daughter-ia-law aad her Ihomie, Basant asked to save hixn aiid |assaiilted him with spear on his tra assaulted him over his head wifh over fhe head,, blood was oozing, abdomen aad Basaat was holdmg it ooziag froni the injuxy of the chest. to take him to hospital, her fthe hoicie and she woke him up. daughters aad wife also came there was holdiag lafhi, However, on t, fhey retumed. She went to call darrated fhem about the iacident. They she agam went to caU other persons the retumed her hoine after half aa Basant had alreadv died. Basant had closeted ia a rooni aad assaulted. fhe reasou for assault. She has she is deposing at fhe behest of She has clarified ia paragraph 3 of ^arUer she had stated before the poUce spear aad fhe statexxient before the ting lathi, is incorrcct In paragraph 4 3?%-^T ^SS ^UK^, <t^i^JH —FS/59— 8/2007 —30,000. ^ 3-^^ ^n^T^r, y»Tfl^li<o, fs<0i<i^< W^V\{ sb^lcb -^ 200 ^in^r^rf^Tw H^T^TT^r sh^ich XRT3R (^f^S^T) '^<nw^f??r 3n^T she has adiaitted that just caU Jagdish, who resides at honie aad she does not home. She has also stated Bharat aad VidYaiiaad. Sh< Vidvaiiaiid came first and atlter kn<|mr fhlat Ja^dish iafonlaed mt^stines arraiigejaieuts Vidvfeiiaad 13. PW-10 Jagdish Pradhaja caaie to her house aad iafonla< drenched with blood, his iat^s advised her to inake and sent his nej^hbour Bhoklo has also stated ftia|t uijured condition holdiag his| save him. He has further around fhe abdoinen of Saaiavlal assaulted hini withl his head. Bas4nt 14. PW-5 Vidyaaaad Gupt^ PW-1 Mnhanmati aad PW-3 flirther stated that Basaal assaulted him with spear 04 assaulted him with axe overl cross-exaDiiaed at lengfh b^ cr)i^f<rt<i1i 'HFr^if ^f ft^ <n»1^1< ^ ^tiTFT 3TT^T amval of Basant she had gone to distance of 200-250 vards from her what happened fhereafter ia her apart from Jagdish, she also called has further stated fhat Bharat and came after her. has also stated fhat wife of Bhoklo that Basant is lyiag io. her house have come out, whereupon he for sendiag Basaat to hospital to the house of Bhoklo. PW-2 i Basaat came to his house m aa I abdoinen with hfe haad aad asked to stated that he tied a piece of clofh He was uifonned bv Basant that spear aiid his son Baba wifh axe over has also corroborated the version of Bhoklo in niaterial particiilars aad had infonned him tliat Samaylal his abdomen and his son Mahendra his head. These witnesses have been the defence and thev have stuck to ^e€tq-^^T g^mc^r, ^j^^i^iici —FS/59— 8/2007 —30,000. v •3^3[ ^rPTT^T, ?S»Tfi^^|(S, fsj^iy^ ^l^l€ftl 9h^lcb< ^ 200 ^n^r^r ^icb WT^TR^T 5b^|ch ayri^T T^ra^ (4c<fTlc<<^) ^Kti^R ^f^a 3T1^T A appeUaajits fheir clami that deceased before them fhat fhe Defence has not been able version untrustworthy or iieighboures and independe: implical^fl1 the appeUaats m pasaat inade oral dyuig declaration assaulted him with spear aad axe. |to eUcit aaythmg which makes fheir uitireliable. Even ofherwise, fhey beiag it witaesses had no reason to falsely <he above offence. heM fixAn fbe 15. So far as arguxxient appeUaats fhat version of fh< appeUant Mahendra over sanie is uot corroborated tlie assault was raiade bv deceased inade oral dyiagl Mohaumati and PW-2 Bhokj fhe deceased iafoniied fheib axe on his head. Froia perusjal it is observed ffaat apart jfroiiJL region on fhe abdocien an<| abrasions over his cheek an< evidence it caojiot be said Ihs injiiiy over his head aad fh^ camiot be discarded on fhis | condition in which fhe Mohatunati aiid Bhoklo reached fheir house, fhe app decefased aold cr)i^<n<i1i ^TOTf^ ft^ Tf^R^R '^^tRFT^TT^T ^dvaaced bv learaed counsel for fhe above witaesses regardiEig assault by of deceased staads falsified as the the medical evidence, is concemed, appeUants ia their honie aad the declaration in the home of PW-1 ^o, who have categorically stated that that Mahendra assaulted ^iim wifh ofthe postaiortem. report of Ex.P/2, fhe io^cised wounds over nght luiaber chest, fhe deceased also sustained nose. On fhe basis of above raedical Ihat fhe deceased did not sustaia aav evidence ^ainst appellant Mahendra jground. Taldng iato consideration the rushed to fhe house ofwitaesses the fact fhat immediately after he >ellaats aad fheir family members also ^ffCt^ ^^ g^mc^r, T^RCTT?—FS/59— 8/2007 —30,000. ^TSmsPT ^RT^ ^Il<?^<<, <l^ll^*iict —rsr^— o/^vv/ ^,^^K^ '"••^. ''%^^^ i 3^-cT "MI^W^, ?STfl^JI<o, is|<ri)|-y^< Nl^dl 5b*<|cb •^ 200 3^:17^T^T R^ich ^H^l^T sh^Jcb 37gi?r XHRR (4C<^<^) '^RTTW^f^T ^IT^T ^ de4eased reached there chasiag the is raarufestly clear fhat fhe ajppelk question, Apart froia statei^ients memorandum of fhe appella|it was seized vide seizure inemi<| appeUant Baba @ Mahendra 16. Appellant Samaylal has No.l aad stated fhat he prosecution witness Bhoklo| agamst hun. He had also loc^ Ex.D/ 3. On his complaiats, | Ex,D/4 and because of fhe Achutaaaiid have falselv uni that on the date of iacident daughters had gone to the on motorcycle whereas his He retumed at 6.30 io. thd know about the incident H defence witness No. 2, wh^ accused persons had gone retunied vfflage Jakela at rctiimed before them by mol fhey leamt that one person| They did not go to the house| CM^(<n<fli <-ii+i<lif ^f fs(<) <F3l<^l< '^'^tfW^^T [, aniied wifh deadly weapons, it DpeUants were author of fhe crune ia of the above witaesses, on fhe Samaylal weapon of offeace spear > of Ex.P/11 and axe was seized from ide seizure memo of Ex.P/ 14. exaiimied himself as defence witaess [os sonie laiid related dispute wifh He had already lodged a report |.ged a report agaiast Achutanaad vide IPaachayat had passed a resolution of jabove disputes, Bhoklo, his wife aad ^licated him. He has further deposed |he along with his son Mahendra aiid Etiarket. He rcturaed fromi fhe niarket $on aad daughters had gone by bus. evenio.g aad thereafter, he caoie to |e has also exaimned Obhijit Dey as has stated fhat he aloug with fhe to Itwari Bazar, Raigarh by bus aad a1j>out 6.45 to 7.00 p.ni. Saiaaylal had ^orcycle and only after their retumiag, |is lying dead in the house of Bhoklo, lofBhoklo. y^T^f ^N ^'Jlt^, <{^i^JH —FS/59— 8/2007 —30,000. /^-^ '^, ^b. •I 1 , ^^} v3-crc| ^Nl<r><(, y>Tf1'H<i<s, (<<<7'>l-yl^< Nl*<dl **<(<*»•••-""•—••——•—" "—••••"•^ 200 3H^?T TR^F ( 4<^^^) ^TI^T^T ^Jch WT 3T1^?T sh^Jcb A-, (^\ '^dTW^f^T 3?T^T /2. conceibied 17. Froin perusal of the appears fhat no suggestion witnesses that fhe appellaats fhe date of iacident as thev hadl has been taken for fhe first timel police report of Ex,D/3 is agaiast the prosecution witaess Resolution of Ex.D/4 has been unauthorized encroachment contention of appeUaat Sama^ resolution Bhoklo and his evidence against him and his f^ their evidence caanot be dep|ositi< discardfcd 18, On the basis of aforesaid opiaion fhat the prosecution ha^ appeUants beyond reasonable conmutted aay illegaUty or infirajiity fhe impugned judgment. 19. In the result, fhe appeal ^ is hereby dismissed, Sd/- Dhirendra Mishra Judge CM^<n41Tl 'HFT^Tf "^ fe^ <pyi^|< '^^ffim^TT^r ep|ositions of defence witnesses, it h^s been put to fhe prosecution wjsre not present in fheir home on gone to inarket Defence ofalibi [at fhe stage of defence, So far as ^e3|ned, fhe coiaplauit is not directed Bhoklo or his wife Mohaiimati. ^assed by fhe Panchayat regardiag yy Bhoklo, aad fherefore, fhe dal tliat because of fhe above fa^nily inenibers have given false f^inily inenibers, has no basis and on this Rround. 4iscussions, we^rc ofthe considered been able to estabUsh guilt of fhe doubt aad fhe trial Court has not ia convicfmg the appeUants by eiag devoid of substaace fails aad Sd/- T.P.Sharma Judge ^wfi^ ^^ ^uii^, <H-ii<4iici —FS/59— 8/200" —30,000.