HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri‘Ra'eev Gu ta C.J. 8n Hon’ble Shri Sunil Kumar Sinha, J Criminal’ApQeal No.23 of 2005 (APPEAL UNDER SECTION 374 {2l OF THE CODE OF CRIMINAL PROCEDURE) vAppearance: Mr. A.N. Bhakta, counsel for the appellant no.1. Mr Sushobhit Singh counsel for appellant no.2. \ Mr Sudhir Bajpai Deputy Govt Advocate for the State APPELLANTS 1. Leeladhar Yadav, son of Shri Manbqdh Yadav, aged about 3O years, r Occupation Agriculture, Caste Mahkool, resident of Hedgheencha, P.S. Kansabel, Distt. £ Jashpur (Chhattisgarh) 2. Shankar Ram Yadav, son of Gajeeldhar Yadav, aged about 28 years, Caste Mahkool, Occupation ~ Agriculture, resident of Hedgheencha, RS. Kansabel, Distt. Jashpur (Chhattisgarh). Versus RESPONDENT State of Chhattisgarh Through P.S. Kansabel, Distt, Jashpur (Chhattisgarh) 2 Q9 Cr.A.No.23/2005 JUDGMENT (/;.o7.2oo9) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. 4 (1) sentenced to undergo imprisonment for life and to pay fine of Rs.1000/~, in default of payrnent of fine, to further undergo imprisonment for six months, by the Additional Sessions Judge, Appellants have been convicted u/s 302/34 IPC and 4*“ Jashpur, in Sessions Trial No.102/2004 on 17th of December, m 2004. £ (2) The facts, briefly stated, are as under: Manbodh, Lakhan and Satindhar (P.W.1) are the real: brothers. Deceased Muneshwar was the son of Satindhar (P.W.1). Appellant Leeladhar is son of Manbodh. Appellant Shankar is a Villager. There was a Mahua tree standing on a portion of the land allotted to Manbodh in partition. The said tree fell‘down by winds. On the date of incident ire., 23.7.2004, Satindhar (P.W.1) and his son Muneshwar, since deceased, brought some persons to cut the wood and take it to their house on the pretext that it was a joint property and it was not absolutely belonging to Manbodh. The allegations are that Manbodh, appellants Leeladhar and Shankar came to the scene of occurrence; Leeladhar opposed all this claiming that the tree belongs to them, on which, a quarrel took place and after the quarrel Leeladhar gave a lathi blow on the head of the deceased. The allegations against appellant Shankar is that he was giving exhortation to appellant Leeladhar to assault the deceased Muneshwar. The incident was witnessed by Satindhar (P.W.1), Narsingh Rama (P.W.2),'Jainandan Ram (P.W.3), Pooran Ram (P.W.4) and Suran \\ ‘ \ \ Ram (P.W.S). The matter was reported by Satindhar (P.W.1) to 3 M/ Cr.A.No.23/2005 the concerned Police Station on 24.7.2004 and a Rosnamcha Report (EX.P.1) was registered. Victim Muneshwar was sent for his medical examination to Community Health Center, Kansabel and was examined by Dr. Y.K. Toppo (P.W.12), who prepared his report Ex.P.24. He noticed a lacerated wound admeasuring 2cms x 1/2 cm X 1/2 cm on the right occipito-parietai region and advised for X—Ray examination suspecting fracture. Based on this, a First Information Report (Ex.P.13) was registered for the offence punishable u/ss. 294, 506 8L 324 IPC. The victim was then referred to Holy Cross,Hospital, Ambikapur, Where he died during the course of treatment at about 11.45 a.m., on g§.07.2004. After- death, Merg intimation EX.P.19 was lodged. The inéuest on the body of deceased was prepared under EX.P.29 and the dead-body of the deceased was sent for its postmortem to District Hospital, Ambikapur, Where the postmortem examination was conducted by Dr.Faizu1 Hasan Firdoshi (P.W.11) who noticed a depressed fracture in the right parietal bone and opined that the death was caused due to above head injury and it was homicidal in nature. He gave his report vide EXP—11. In further investigation, memorandum of‘ appellant Leeladhar u/ s 27 of the Evidence Act (Ex.P.6) was recorded and one Danda was seized at his instance under Ex.P.7. Clothe of the appellant was also seized under EX.P.8 and copy of the bed head ticket of Holy Cross Hospital was seized under Ex.P.12. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under EXP. 20. which was received there under Ex.P.21 but the F.S.L. Report could not be filed. After completion of the usual investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Jashpur, who in turn committed the matter to the concerned \\\ Sessions Court from where it was received on transfer by the \ \ % Cr.A.No.23/2005 Addl. Sessions Judge, Jashpur, Who conducted the trial and convicted and sentenc€d the appellants, as aforementioned. (3} The conviction of the appellants is based on the eye witness account of Satindhar (P.W.1), Narsingh (P.W.2), Jainandan (P.W.3), Pooran Ram (P.W.4) and Suran Ram (P.W.S). w (4) Mr. A.N. Bhakta and Mr. gushobhit Singh, learned counsel appearing on behalf of the appellants 1 and 2 respectively, have «u: not disputed the homicidal death of the deceased. They argued that so fgr as appellant Shankar is concerned, initially there were no allegations against him; even his name was not in the F.I.R., which was lodged by an eye Witness (father of the deceased himself). However, his name comes in the evidence of eye Witnesses, some of them say that he also participated in the assa‘ult and some of them say that he only gave an exhortation to appellant Leeladhar to assault the deceased. As far as appellant Leeladhar is concerned, Mr. A.N. Bhakta argued that the manner in which he gave single blow on the head of the deceased would show that his act would fall under Exception 4 of Section 300 IPC and he would be liable for punishment u/s 304 Part II IPC. (5) On the other hand, Mr. Sudhir Bajpai, learned Dy. Govt. Advocate, appearing on behalf of the State opposed these u arguments and supported the judgment passed by the Sessions \\ Court. \\ \ '“ 5 Cr.A.No.23/2005 (6) Firstly, we shall consider the case of appellant Shankar. Admittedly, Satindhar (P.W.1) was an eye Witness. He is the father of deceased Muneshwar. On 24.7.2004, he lodged the report in Police Station, which was reduced in writing in “Rosnamcha Sanha” (Ex.P.1). The contents of the said document would show that he has not mentioned a single word attributing the overt act to appellant Shankar. Even the name of this r appellant has not been mentioned in Rosnamcha Sanha. His a l. presence at the scene of occurrence is also not mentioned in this document. Sameis the position of the F.I.R. (Ex.P.13) which is § based on this Sanha but which was written after the injury report was received. In fact, the acts attributed to appellant Shankar are omissions in the Rosnamcha Sanha (Ex.P.1), the F.I.R (Ex.P.13) and the Case Diary Statements of Satindhar (EX.D-1). Satindhar (P.W.1) has been confronted on this aspect Vide Para 12 of his evidence but he deposes that he had stated all this to the Police and he cannot explain as to why such facts are, not mentioned in his diary statements (EX.D— 1). (7) P.W.2 Narsingh Ram deposed that appellant Shankar gave a lathi blow on the head of deceased and appellant Leeladhar also gave lathi blow to him. Jainandan Ram (P.W.3) also deposed that appellant Shankar gave lathi blow to the deceased arid then appellant Leeladhar also assaulted him with lathi, whereas the other two eye-witnesses namely Pooran Ram (P.W.4) \ and Suran Ram (P.W.S) deposed that the lathi blow was given by appellant Leeladhar and appellant Shankar was giving \ \ m 6 W/ Cr.A.N0.23/2005 . exhortation to assault the Victim, that is to say that they have not mentioned that the deceased was at all assaulted by . appellant Shankar. \ \ In the present case also the allegations in relation to exhortation or the assault made by appellant Shankar appear to be false and after—thoughts. The evidence adduced at the trial in respect of the role alleged to have been played by appellant Shankar is contradictory and unconvincing. The father of the deceased had seen the complete incidence. If at all Shankar was inVolved or he Was present at the scene of occurrence, he should have mentioned his name in Rosnamcha Sanha (EX.P.1) or the \ \,F.I.R. (EXP. 13). These omissions are fatal to the prosecution and \ (8) In the matter of Jainul Haque —vs- State of Bihar, AIR, 1974 S.C. Page 45, the Apex Court held Vide Para 8 that the evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some‘p‘erson in addition to the actual assault by attributing to that person an exhortation to the assailant to assault the victim. v l Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The Apex Court; further held that the evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convincing and on that the conviction of the appellant was set aside and he was acquitted. (9) 7 @ CrAA.No.23/2005 the evidence of other Witnesses are much contradictory 0n the point of role played by appellant Shankar. Therefore, we are of the considered View that the conviction of appellant Shankar on such evidence cannot be sustained and the same has to be set aside. (10) So far as appellant Leeladhar is concerned, it is the case of prosecution that a quarrel took place between the persons of two branches: of ‘a family regarding sharing wood of a Mahua tree. 5 (jg Both the brothers were claiming their share in the said property.’ A ‘ ;w P.W.3 Jainandan éam is a labour who was called for cutting the wood. He deposed that he was called by the accused persons to cut the wood. He along with Pooran and Suran‘had gone to cut the wood on the instructions of appellant Shankar. They were cutting the wood by Saw. At about 5 p.m., deceased Muneshwar came there and started abusing on which a quarrel took place. Muneshwar did not stop even after their resistance. Thereafter, he started quarrelling with the appellants and then he was assaulted. Though the other witnesses except Satindhar (P.W.1) deposed that he was assaulted by both the appellants, but that portion of their evidence appears to be unbelievable because all this was not told by the father of the deceased and even he did not mention these facts in the F.I.R. or in Rosnamcha Sanha and he says that the assault was made only by appellant Leeladhar. This shows that on account of sharing wood, a quarrel took place between thermembers of two branches of the family and in the \said quarrel, appellant Leeladhar gave a lathi blow on the head of \ \ \ ;M Rao 8 Cr.A.N0.23/2005 ' the deceased. It does not come that he came prepared or he was armed with some weapon, therefore, there was neither preparation nor premeditation and the blow was given in the heat of passion in a sudden quarrel. In the facts and circumstances of the case, his such act would fall under Exception 4 of Section 300 IPC and he would be liable for punishment under Part II of Section 304 IPC. r (11) ‘ir‘i the result, the appeal is partly‘allowed. The conviction and sentence awarded to appellant Shankar are set aside. He is acquitted of the charges framed against him. It is stated that he is in jail since 27.07.2004. He be set at liberty forthwith, if not required, in any other case. :4 A . (12) The conviction and sentence awarded to appellant Leeladhar u/s 302/34 IPC are also set aside. Instead thereof, he is convicted u/ s 304 Part II IPC and sentenced to undergo R.I. for 6 years. He is in jail since 27.07.2004. He shall be entitled to “ set—off the period already undergone by him. Chief Justic l i i Sun“ Kumar Sinha Judge J‘fldge f/ e