^ ^ HIGH COURT OF CHHATTISGARH: BILASPUR Division Bench : MQN'BLE SHRI T.P.SHARMAAND MON'BLE SHRI RAJESHWAR LAL JHANWAR. JJ Cr.ADDealNo.^3Qof2004 ADDellant (Iniail) ResDondent Sabir Ram Versus State ofChhattlsgarh JU&aMENT FOR CONSIDERATIQN Sd/- JUDGE f.09.2010 HQN'BLE SHRI JUSTICi T.P.SHARMA <^)* <^U^A^- Sd/- T.P. Sharma Judge PronQuncement of Judament : 7 .09.2010 Sd/- R.L. Jhanwar Judge .i'-" HiaH CQURT QF CHHATTIBdARH : BILASPUR DIVISIQN BiNgH: HON'BLE @HRI T.P.SHARMA AND HON'BLE §HRIR.L.JHANWAR, JJ, Crjminal ADpeal NQ. §30/2004 APPELLANT Hniain RiSPONDENT Sabir Bam, S/o Gungaram, aged 22 years, occupation labour, resident of village Narmadapur Dasidhab, F:)olice Station Kamleshwarpur, Tahsil Sitapur, Dist. Surguja (C.G.) VERSU® The State of Chhattisgarh, Through the Police Station Kamleshwarpur, Dist. Surguja (C.G.) CRIMINAL APPEAL UNOER SECTION 374 (2) OF THE CRIMINAL PltOCEDURiCODE •l-^ .;; •l.'-!>,.' Appearance: Shri Abhay Tiwarj, counsel for the appellant. Shri Neeraj K. Mehta, P.L. forthe State. JUDGIVIgNT (Passedon ^ .09.2010) Per R.LJhanwar, Jl- This appeal is directed against th^ judgment of conviction and order of sentence dated 27.05.2004 passed in Sessions Case No. 324 of 2003 by 4th Additional Sessjons Judge, Ambikapur by vjri:ue of which the appellant was convicted under Section 302 and 307 of the I.P.C. and sentenced to life imprisonment with fie of Rs.1000/- andin default to undergo one year additional R.l. and to rigorous imprisonment for 7 years with fine of Rs. 500/- and in default to undergo additional R.l. for three months for commjssion of homicide amounting to murder of Jeetan and for causing injuries to Gangaram. -_——— ^ ^T :^^;:-r'"";^...' 'fM '':'31'- y^s^/ ^ :.;,,• ^^.^' l-K-'l^ :1. ;;, 2. The conviction js impugned on the ground that there is not even iota of evidence against appellant and despite that the Court below has convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. Brief facts of the prosecUtion story are that on 28.07.2003 Parbal Ram P.W.1 lodged an F.I.R. Ex.P.1 at Kamleshwarpur atleging ther^in that Ggngaram, father of the accused and Jnjured witness, came to him and told that Sabir Ram, present appellant and the deceased Jeetan came to his house and a quarrel took place between them. Sabir Ram, the present appellant, suddenly assaulted Jeetan (uncle of the deceased and brother of Gangaram) by a smalt axe (Tangi}, due to that assault Jeetan djed instantaneously.It was also alleged therein that when Gangaram wanted fo pacify the quarrel, he was also assaulted by Sabir Ram on his thigh and legs. The incident took place on 27.07.2003 between 8 - 9 p.n-i. Afterlodging the F.1.R. Ex.P.1, Parbal Ram also recorded panchnama of map vide Ex.P.2. Investigating Officer after reaching the incident spot summoned the witnesses vide Ex.P.3 and inquest was also prepared vide P.9; Merg intimation was recorded vide Ex.P.8. During theinvestigation, at the instance of memorandum Ex.P.4, small axe was recovered from the appellant vide Ex.P.5. Cloths stained with blood, of the eippellant were seized vide Ex.P.6. Bloodstain soil and plain w^re also seized from the spot vide Ex.P.7. Spot map was prepared vjde Ex.P.10. AcGUsed was taken into custody on 29.07.2003. The injured witness Gangaram was sent for medical examination vide Ex.P.12. Upon examinationof Gangaram, Dr. S.N.Bhoi P.W.6 found one Incision wound on left cheek just side of left eye, its size is 3.8x 0.1 cm., contusion at back measuring 15 cm. x 0.5 cm. and contusion at right side thigh and happened hlack in colour, its size is 10 x 0.5 cm. M.L.C. report of Gangaram is Ex.P.17 and injuries found on Gangaram were opined to be serious in nature. Dr.S.N.Bhoi P.W.6 also conducted the autopsy on the dead body of Jeetan and found the following injuries: 1. Incised wound of 2,5 cm x 0.3 cm. x 0.2 cm. on left cheek just near thelefteye. 2. Incised wound of 3 x 0.3 x 0.2 cm. at cheek just near left side '•fY: w •;l.-.ltj'^ and upper part of no.1 injury. 3. Incised wound on left ear divided in to parts. 4. Incised wound of 5x2 x 1 inch with fracture of skull bone on left side of head just upper side of left ear. Incised wounds could be caused by hard and sharp object. Cause of death was opihed to be hemorrhagic shock and death was homicidal in riature. Sejzed drticles were sent for chemical examination vide Ex.P.14. Weapon of offence i.e. small axe was ^lsq examined by Dr. S.N.Bhoi P.W.6 who opined that it may cause hurt to Jeetan as also to the life of Gangaram. 4. Statements of witnes$es were recorded underSection 161 of the Cr.P.C. After completion of investigatlon, charge sheet was filed before the J.M.F.C. Ambikapur who in turn committed the case to the learned Sessions Judge. Charge was read over and explatned to the appellant. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to appreciate the guilt of the appellants the prosecution examined as many as 07 witnesses. Accused person was also examined under Section 313 of the Cr.P.C. where? he denied the circumstances appearing against him and pleaded his falseimplication and innocence. 6. After affording an opportunity of hearing to the parties, the learned Additional Sessions Juclgeconvicted and sentenced the appellants as aforementioned. 7. Shri Abhay Tiwari, learned counsel for the appellants and Shri Neeraj K. Mehta, P.L. for the State are heard. Judgment impugned and record of Court below perused. 8. Learned counsel for the appellant argued that the Court below has erred to evaluate the evidence of Parbal Ram and Gangaram, who is eye witness. Both these witnesses have turned hostile; everi then the learned Court below has wrongly relied upon their evidence. Learned Court below vf.:::- 'i,"! •^- :'i.: :1, •^rj' has alSo erred jn believing the memorandum of the appellant and seizure of weapon of offence. The prQsecution h^is failed to prove its case beyond redsonable doubt, therefore, the appellant is entitled to acquittal. 9. On the other hand, Shri Neeraj K. Mehta, learned counsel for the State argued that there is overWhelming evidence on record to connect the appellant in the said offence. The gppellant has caused injuries to Gangaram whose evidence Is sufficient to draw Sn inference that the appellantis the person who committed the murder of Jeetan and caused injuries to Gangaram. It was further argued that memorandum at the instance of the appellarit and on the basis of which seizure of weapon of offence is also reliable. This apart, the evidence of investigating officer P.W.4 William Toppo,who has stated that at the instance of the appellant he recorded memprandum and on the ba^is of which weapon of offence was recovered and Dr. S.N.Bhoi P.W.6 who has examined Gangaram ancl found injuries causedon the bpdy of Qangaram are of serious nature. Dr.S.N.Bhoi P.W.6 also found the death of Jeetan was homicidal in nature. Thus, th6 learnedCourt below has not erred in convicting and sentencing the appellant as aforesaid. 10. In order to apprecigite the arguments advanced on behalf of the parties, we have examined the material available on record. Ih the present case, death bf Jeetan as a result pf fatal and grave injuries caused by axe on the person of Jeetan has not been considerably disputed by the gippellant, even otherwlse it was established by the evidence of P.W.6 Dr. S.N.Bhoi and autopsy report Ex.P.16 which revealed that death of Jeetan was due to hemorrhagic shock and deglth was homicidal in nature. 11. In the present case, relying upon the evidence of P.W.1 Parbal Ram and P.W.2 Gangaram, the Court below convicted the appellant under Section 302 and 307 of the I.P.C. and accordingly sentenced him to imprisonment for life and to undergo R.l. for 7 years. 12. It is evidentfrom the evidence of P.W.2 Gangaram that he is the brother of the deceased Jeetan and father of the present appellant. In his examination-in-chief on one hand he has stated that he did not have :F-L-^ .^^1" "I .": . ' ^c^. knowledge about the quarrel took place between the accused appellant and Jeetan on the date of incident and on the other hand he has stated that when the accused told him aboUt the assault made by him on Jeetan then he came to knowthat the deceased had borrowed some moneyfrcm the accused appellant and upon refusal to repay that money the appellant got enraged and assaulted Jeetan. The aforesaid eviclence of Gangaram patently makes tevident that Gangaram is a hearsay witness and did not witness the incidenf. This witness ha©furi:her deposed that when he scolded the appellantgibout his roaming without any work, then the accused appellant also assaulted this witness. It was further deposed that at the time when appellant assaulted him, at the same time he did not make any assault on Jeetan', Who was atso present there and did not intervene between them. In his cross-examination he has stated that at his house a quarrel took place between the accused / appellant and Jeetan about the transaotion of money and the appellant was asking for money and upon which Jeetan promised him to refund the same. When Jeetan again told the accused not to ask for money, then the accused lift the small axe and started assaulting hirn whereupon when this witness wanted to intervene then the ^ppellant also gave blow to him. At this stage also, this witness was infbrmed by the deceased Jeetan when he again came to his house that appellant assaulted him on his cheek and head. In his cross-examination, this wltnQSS admitted that he went to the house of Parbal Ram P.W.1 in the nightof incident and did not apprise him anything andwhen he returned to his house he found the dead body ofJeetan and again this witness went to the house of Parbal Ram P.W.1 and appfised him about the incident and told him to intimate about the incident to Kotwar. It was alsp deposed by this witness during thecourse of statement thsit if he would not have ran from the spot then accused would have also murdered him. In cross-examination by the defence he deposed that aquarrel took place between him and Jeetan about the partjtion of land and upon his refusal Jeetan assaulted this witness and upon got injuries he became unconscjous and when he regained conscious he went to the house of Parbal Ram P.W.1 and told him to go to policestation. In this manner, the evidence of this witness is self contradictory because on one hand h©Impljcated hjs son Sabir Ram, .^1^^ ^.''-^fe^^i t; .'SiS&Si® .•:'&,.. i.:^^.^ ^^z.^ "\./: present appellant, in crime in question and on the other hand he did not say anything about the incjdent and favouring the accused appellant. Since he did not support the prosecution case nor did support the F.I.R., he was declared hostile witness. Similarly, P.W.1 Parbal Ramalso turned hostile. In his evidence, this witness fias deposed that aceused came to him and told that he assaulted deceased Jeetan and after that the accused went to his house. According tohim, upon hesiring from the accused, he sent hjs son to see the position of Jeetan and after coming to know from his son aboilt the death of Jeetan, he lodged the F.1.R. Ex.P.1 but this piece of evidence did not find place in F.I.R. Ex.P.1. He has further deposed that Gangaram told him that Jeetan was assaylted by the appellant by small axe on his cheek and head as also on waist, legs and thighs and again told him to go police statjon and lodge the report about the incident. This piece of evidehce also clid notfind place in F.I.R. Ex.P.1 lodged by him.In cross-examination by defence, this witness further deposed that Jeetan asked for land partjtion from Garigaram and on this a quarrel took place between Jeetan and Gangaram upon which Gangaram told this witness that Jeetan has become mad and was qu^rrelling him. Again Gangaram told this wjtnessto go potice station and lodge a report. In this manner, this witness has created a new story and was frequently varying his version. Therefore, the evidence ofthis witness is also not reliable. 13. So far as the evidence of P.W.7 ^haniyari Bai, it reveals from her evidence that she did not about the quarrel between Jeetan and the accused and Gangaram did not also inform her anything. Ifthis witness did not know anything, in that gituation, how this witness came to knpw thataccused Sabir Ram assaulted herhusband Jeetanandas a resultof such injuries Jeetan died. Again this witness has deposed that Gangaram told her about the quarrel. It appearsthat this witness is also a hearsay witness and Gangaram has also not stated that he told Shgniyari Bai aboutthe quarrQltook place between JeQtan andaccused. This witness also turned hostile. Birthari P.W.3 has also stated that Sabir Ram, present appellant has stated nothing about the weapon of offence to police. According to this witness, police has not seized any weapon of offence from the appellant. In this manner, thjs witness also turned hostile since ^^^^^ ""•"s/ \:'!l,!:i; he did not support the memorandum and seizure at the instance of the ap|3ellant. 14. From the foregoing discussion, it is clear that nothing has been eliGited from the evidence of P.W.1 Parbal Ram P.W.2 Gangaram and P.W.7 Shaniyari Bai to connect the appellant in the crime in question. Since their evidence is self-contradlctory and did not support the prosecution version, they we("e decldired hostile witnesses by the prosecution. Even Birthari P.W.3 has also not supported the memorandum given by the appellant and on the basis of which seizure of weapon of offence was made. 15. In the light of aforesaid discussion, we find that prosgcution has failed to establish the charges levelled against the appellant under Section 302 and 307 ofthe I.P.C.beyond reasonable doubt against the accused. Therefore, convictiQn of the appellant under Section 302 and 307 of the I.P.G. and the sentence awarded thereunder is set aside. The appellant is acquitted of charges under Section 302 and 307 of the I.P.C. The appellantis in jail. Therefore, it is directed that appellant be released forthwith. 16. A copy of the judgment and other documents be sent to trial Court immediately for the release of appellant fori:hwith, if not required in any othercase. The appealsucceedsand isallowed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge