HI6H COURT OF CHHATTCS^ARH: BTLASPUR (Division Bench) ^r ^' ¥ COKAM: Hon'bte Shri Vtjay Kumar 5hrfmstawd Hon'ble Shri DhirendraMishra, JJ. At3Dellants: CRIMIN^L APPEAL N0.429 of 2000 1) A^han Sai, S/o. Dhondho, a0ed 50 years 2) Ilias, S/o Aghan Sai, aged 23 years Both are R/o Village - Tolma, PS Loti(oonga, Vs. Re^ondent: TTie State of Chhattissarh PRESENT: Shri Abhay Tiwarj, counsel for the appellauits. Shri D.K. Gwalre, Deputy Sovt. Advocate for the State/respondent. JUbGMENT fbated 28th March 2006) Per Viioy Kumar Shrivastava. J. This appeal has been dipected against the judgment of conviction and order of sentence dated 7-12-1999 passed by the First Additional Sessions Judge. Raigarh. in Sessions Trial No.154/98 whereby both the appedants have been held guilty for committing murder of Punia Ram punishable under Section 302 of the I.P.C. and both of them hove been ^ntenced to under9o imprisonment for jjfe^ <R<b ^- %»- 2) Appellant No,l & 2 are father and son. Deceased Punia Ram was nephew of appellcmt No.l aaid cousin of appeljflmt No.2. An utnbrelb belonging to Punia ftam was missing, therefore, he enquired from appellant No.l AghcBi Sai who denied. On 16-6-1998 when it was raining, Punia Ram ^iw his uncle Aghan 5ai covering his head under an umbreJla that belongs to him. Thercfore, he enquired again from Aghon &xi about his umbrella. Aghan Sai took deceased Punia Ram to his house so as to return his umbrella, where instead of r^turning the umbrella, he assaulted Punia Ram with a heavy wooden stick. His son Ilias also joined him, and cis^iulted Punia Ram with a bamboo stick, Wife of the deceased Firom<mi Bai (PW-1) ^xw that both the appellants beating her husbc&nd, therefore, she rushed-up to the place of occurrence w\d attempted to rescue him. She was also beaten by the oppelJants. Both the appelbnts leaving the decsosed lying in pool of blood fled away from the scene of occurrence. Firomwii brought her husband to her hou^ who succumbed to 1+ie injuries sustained by him. Firomomi appraised the incident to Patel and her neighbourers. 3) Firomani gave merg intimation and FJ.R. in Potice Station: Laibonga. Inquest report was prepared and the dead body of Punia Ram was sent to Community H^iiJ-rii Centre. Lailoonga for outopsy. Dr. R.5. Upadhyoy described all the injuries in his report and was of the opinion that the death was due to coma as a result of head injury. The nature of dea1+i was homicidal. On the memoroaidum of both the appellasnts, bamboo stick and wooden Geda were reco^red and seized. One lungi from cypellant No.l Gnd ^ % another from appellant No.2 were also seized< Chemical examiner, on examination found bfood over all these articles. From the place of occurren<^, plain and control earth werc also %ized. Spot map was prepared. Statements of witnesses under Section 161 of the Cr.P.C. were recorded. After completion of investigation, challan under Section 302 read with Section 34 of the IPC was led against both the dppellounts in the Court of Judicial Magistrate, First Class, Gharghoda who committed the c<ase to the Court of Sessions for trial. 4) Charges under Section 302 of the IPC and in the altemative, under ^ction 302 readwith &ction 34 of the IPC were framed agdnst both the appelbnts <md the same were read over cyid explained to them who abjurcd their guilt and claimed that they have been falsely implicated. 5) After close scrutiny of the evidence, learned 1rial Court held that both the cypellants are authors of the critne, they intentionally ktlled Punia Ram <xnd therefore, held both the cypellants guitty for committt'ng the offence of murder cxnd accordingly convicted <xnd ^ntenced both of them as aforementioned. 6) Punia Ram received multiple injuries on his body and his death was homicidal in nature. TTiis fact has not been disputed by coun%l for the oypeJlouits. Even otherwi^;, from tiie evidence of RS Upadhyay 0>W-9) and his autopsy report (ExP/15), it is evident that foltowing injuries were caused to the decaised : 1) Laairated wound in the size of 7 cm, x 2 cm< x scalp deep margins ragged irregufar ond stained wrth blood; rrght parietal ocdpftal regrofr, 4 ^' Fracture of parietal & occipital bone, 2) Laceroted wound in the size of 9 cm. x 2 cm. x scaip deep margins stained with btood situated oyer left temporal parietal bone; fracture of temporal bone on left side, 3) Brwse with abrasion in the size of 10 cm. x 8 cm. over right lower 1/3 teg. Fracture of right Tibia fibula at its iower 1/3, 4) Bruise with abrasion m the size of 12 cm. x 6 cm. over (eft lower 1/3 (eg. Frocture of teft Tibia fibuhQtttshwerl/3. From the oral evidence of RS Upadhyay (PW-9) and from his report (ExP/15), it is established 1+iat Punia Ram di'ed of coma, which cau^d as a result of head injuries and the death was homicidal in nature. 7) Learned trial Court relying on the statement of eyewitness Firomani ^W-l) duly supported by other sources, held bo-t+i the oppelJants responsjble for the injuries found on the body of Punna Ram and also held responsible for his death. Firomani in her evidence deposed that Ilias as^sulted the deceased with "Thenga" whereas Aghan assaulted the deceased wi1+i bamboo stick on his head. They also inflicted number of blows over the body of Punia Ram. When she came to rescue her husband, she also received injuries. She brought Punia Ram to her house and opprai^d the incident to Patel and other villagers and thereafter lodged the report-. Dr S Upadhyay (PW"8)^ who examined Firomani has deposed that on examination, one abrasion measurinfl 0,5 x 0<5 cm was found on her right wrist Joint. From the evidence of Bandheram (PW-2), Patel (PW-3) cnd Soma ^ 0>W-4) it is also evident -rtiat soon after the incident, they carae to know that Punia Ram hcxs been killed by the appellcints, 8) In cross-examination of Firomani (PW-1), no-Hiing has been brought so as to discredit her evidence. She is wife of the deceased amd she h<xs no grudge to falsely implicate both the appellants. She witnessed the crime; and her evidence also finds support from the medical evidence and other sources as indicated above. 9) Learned counsel for the appellonts contended that non- examination of Investigating Officer vitiates the trail: therefore, the aypellants are entitled for the benefit which resulted as a result of non- examination of the Investigating Officer. In the instcait case, HromGmi, wife of the decea^d wilnessed 1+ie crime. Her statement is completely reliable which also finds support by other evidence. Nothing has been brought to suggest "Hiat appellants have been prejudiced for want of examination of Investigating Officer Tlierefore, in the instoait case, non-examination of the Investigating Officer was not fatal. 10) Learned counsel for the appeKants relying on judgment rendered in Radhey Shyam Vs Sfate of UP report-ed in 1998 (8) 5upreme 118 Supreme Covrt of Jnrfro contended that both the appellonts are guilty for jesser offence and les^r %ntence on the score that there is no evidence to establssh who wielded fatal injury on the head of Punia Ram. Hon'ble the Supreme Court in judgment rendered in the motter of Radhey Shyaffi (supra) held that the appeljoint exceeded his private defence but 1+iere was no evidence that he inflicted fatal bbw: therefore, on these circutnstonces held 6 ISff8filRlillli%;%i •^.^ that the cypeJlant is guilty for lesser offencs. In the instant case, oypellouits had not asscu^ed Punia Ram exercising their right of private defenc^ of person or property. Even otherwi^, from the medical evidence, it is cjear that on 1+ie head two injuries have been inflicted and from the evidence of Firomcaij QaW-l) it is also established that Aghon Sai inflicted injury by bamboo stick over the head of Punia Ram and appellcBit No.2 Ilias Sai wielded injur/ over head of Punia Rm by Thenga (a thick wooden stick). Therefore, they cannot be held guilty for committing ouny lesser offence. 11) From the evidence of Dr R5 Upadhyoty (PW-9) and his report (Ex.P/15). it is evident that the injuries caused over head of Punia Ram were fatat. Four injuries were found on his body: two injuries were found on the head: one below right ear and caiother below left temporal parietal bone. Jhe nature of injuries, part of the body over whs'ch injuries have b^n inflicted and the wooden and bamboo stick used by the oppellcyits ctearly establish that they intentionally assaulted Punia Ram to cause his death. 12) In the light of above evidene^ and discussions, the judgment of conviction and order of sentence passed by the trial Court does not suffer from any infirmity which moiy require interference by this Court. Therefore, we are of Ihe considered opinion that both 1+ie appetlcuits are guitty for committ-ing offence of murder of Punia Ram punishable under Section 302 of 1+ie IPC. Learned Court below correctly convicted and ^ntenced both the oppellants, padmo ^ 13) In the result. the cxppeal is devoid of merit and hence it is dismis^id. Sd/- V.K. Shrivatava Judge Sd/- Dhirendra Mishra Judge ^.-.