HIGH COURT OF CHHATTISGARH BILASPUR Criminal Apgeal No.326 of 2006 1. Laxman Pille @ Gudda S/o Kuttam Pille Aged about 28 years, R/o behind the Kosa Center Kumharpara, Jagdalpur (C.G.) Akkuram @ Lok S/o Mehattar @ Banshiram Mahra Aged about 22 years, ' R/o Kumharpara, Jagdalpur, District Bastar (C.G.) ' Versus State of Chhattisgarh, Through Station House Officer, Police Station Bodhghat, Distt. Bastar (C.G.) - {Appeai under Section 374 (2) of the Criminal Procedure Code, 1973 a f t APPELLANT: (In Jan) RESPONDENT: x esent: Mr..sY.C. Sharma, counsel for the appeiiants. Mr; S.R.J. JaiSwaI, Panei Lawyer for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Shanna and Hon’ble Mr. R.L. Jhanwar JJ w— ORAL JUDGMENT (1 1—1-201 1) T.P. Sharma, J: — 1. Challenge in this appeal is to the judgment of conviction. & order of sentence dated 7-3-2006 passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpur in, Sessions Trial No.250/2005, whereby _ &( whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of the offence of kidnapping Durjan (since deceased) in order to murder him and the offence of culpable homicide amounting to murder of Durjan, convicted the appellants under . Sections 302 & 364 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo RI for one year and to undergo Rl for ten years & pay fine of Rs.1 ,000/—, in default of payment of fine to further undergo Rl fr v o one year, respectiely. } Pr . Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appeilants, and thereby committed illegality. As per case of the prosecution, on the fatefui day of 19-1—2005 at about 11.30 p.m. the appeliants came to the house of Durjan (since deceased) by motorcycle and forcefully took him with them on the motorcycle, after some time they came back and after Ieaving the injured body of Durjan in front of his house, they fled away by motorcycle. Smt. Parvati (PW-5) went to the police station along with injured Durjan who was unconscious and lodged roznamcha vide Ex.P-13. Injured Durjan was sent to Maharani Hospital, Jagdaipur for‘treatment. He was examined .by Dr.’ ‘ L.L. Thakur (PW—3) vide Ex.P-4 who found swelling & tenderness over left harfd &left forearm, lacerated wound of 2 c.m. x 2 c.m. on right leg, lacerated wound of 1 c.m. x 1 c.m. over left eyebrow and abrasion over right thigh of 5 cm. x 2 c.m. He was advised for X-ray of injury found on leg. He was admitted in Surgical Ward and his condition was serious. During the course of treatment he died. Merg was recorded by Police Station Bodhghat vide Ex.P-11 and on the basis of Ex.P-11, FIR was lodged vide Ex'.P-15. Spot m‘ap was prepared by the police vide Ex.P— 16. After summoning the witnesses vide Ex.P-3, inquest over the dead V body of deceased Durjan was prepared vide Ex.P—2A. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur vide Ex.P—1A. Dr. K.M. Gupta (PW-1) conducted autopsy vide Ex.P-1 and found following Injuries: - (1) Lacerated wound ovef left eye brow of 1.5 c.m. x 0.5 c.m. x 0.5 C.m. (2) Stitched wound of 1 C.m. over left eye brow. (3) Stitched wound of 2 c.m. over left thigh. (4) Abrasion over right toe of 4 C.m. x 1 c.m. (5) Swelling over left hand of 4 c.m. x 3 c.m. with abrasion of 0.5 c.m x, l vv 0.5 C.m. (6) Swelling over right hand of 5 C.m. x 3 c.m. (7) Swelling over right thigh of 7.5 c.m. x 5 c.m. with abrasion of 4 c.m. x1 c.m. (8) Contusion over right thigh of 10 c.m. x 1.5 c.m. I 9 Contusion over right thigh of 6 c.m. x 1 c.m. . () @ (10) Contusion of 5 c.m. x 1 c.m. on right thigh, 1 c.m. below injury No.9. (1 1) Abrasion over left knee joint of 3 c.m. x 1 c.m. (12) Four abrasion ve left tig of c.m. to 1 c.m. x 0.5 .m. s or hh 2 c ae were recovered a hi insnc vie Exs.P- P—1. Viscera f e ease wa ie ide EXP-21. Seized arties we sent or hmi tio ve o h ppents e xa ‘ 2 . Statemnts of he witness were rerded u Sect 11 of the rP fter comletin investigaon, charge seet wa il efe the Court of Chf dicial Mistrate Jadalpur who committd he o h u r wh lern itona case t te Cort of Sessions, Jagdalpu from ere aed Addil essi dge receie the case on transfer fo tri. Sons Ju vd r al . n th d suton d I order to prove e guilt of the accuse, the proeci has examine as man s ten witness. The aced were ee under ectin 31 of he CrPin which he e the circumsans appearing agais m, pleaded ncence an false implication in the crime in qun. v ... Afte ffordg pporunity f earin t e parties, leard'itional Ssions Judg convicte & sntenced the appelans s es e d e lt a orenned. afemtio . hav heard leard unsel fr the parties, peruse the udgment ' uned and rcd f the ria our. Learne ne for the applants vementl ued at n t pren case, docto ha not opined the definit cae of ea and n fal w e d e d a se h uto das s rcye, ‘ a a f s er h ws e ad er h t fr m te d h dri etmnt a intt We e ne co o d j impg eor o tl Ct . d cousl el hey arg th i he set r s e us dth o at injury as found ovr the ead body of th eceased. Even s per ca of te prosecin; the eceed wa taken by motocl“ therefter, he ws left in front o hi house whe e a aliv n thereaft e was sen o edical reatmnt an e died ung trae. -This shows that the deceased was not assulted with en Inuries wee ne ortem in nature. No definite opiin rting to eath.) j r at m no ela d hs ben give by the octor. urin the coure of invegatn a e n d Dg s stiio, appelnts Laxmn Piile Gdda & Akkuram @ o alng wit othe la a @ u Lk o h r accd ersons we taken t custody. Appent Lxn Pille use p re ino lla ama @ Gudd e disclor stemen o stic motorcycle vie Ex.P7 a a mad se tat f k & d -1 nd sm t s tae d 18 & 9 o th dced s sezd v cl er f cecal examinan id EXP-22. Bth te alla wer emined vide ExsP—23 & P—4. e t se co nder ion 6 CC. £A po of ti h s fed bor ie Ju ag, g e t y a se cus xamind So 3 t C- ty dnied tce nt the ino d esho . r ain ot o hg o th neAdd 6? to cause his death. Conviction of the appellants is substantialty based on theevidence of child witness Jagdish Kumar (PW-4) — son of the deceased, who is interested witness, and the evidence of Somari (PW- 6). Evidence of Jagdish Kumar (PW-4) does not inspire confidence and it is not trustworthy. Somari (PW—4) has not supported case of the prosecution. . On the other hand, learned State counsel opposed the appeal and submitted that evidence of Jagdish Kumar (PW-4) and Somari (PW-6) is sufficient for drawing inference that the appellants have kidnapped“ deceased Durjan in order to commit his murder and have committed the offence of murder of Durjan. Therefore, the trial Court has rightly convicted and sentenced the appellants. $1. f 10.ln order to appreciate the arguments advanced on behalf of the parties, We have examined the evidence adduced on behalf of the prosecution. £ 11.ln the present case, as per evidence of Dr. K.M. Gupta (PW-1) who has conducted autopsy, as many as 15-16 injuries were found over the body of the deceased, vide autopsy report Ex.P—1. Although the injuries were not grievous in nature, but the injuries were on different partsof th ‘ body. As per evidence of Dr. L.L. Thakur (PW-3), who has firstly; attended the injured, the injured was in serious condition and on same day he died. This shows that the deceased died as a result of cumulative effect of aforesaid injuries and thus, death of the deceased was homicidal in nature. 1 2.As regards complicity of the appellants in the crime in question, ‘ conviction is substantially based on the evidence of Jagdish Kumar (PW- 4) and Somari (PW-6). 13.Jagdish Kumar (PW-4) — son of the deceased is child witness.- After satisfying itself relating to the fact that whether the child witness understands his duty to speak truth and is in a position to answer the questions put to him rationally, the Court has examined this witness. Jagdish Kumar (PW-4) has clearly deposed that on the fateful day appellant Laxman Pille @ Gudda and other persons took his father by motorcycle, after some time they again came with his father and they went away after leaving his father. ln his detailed evidence he has not stated anything about co-appellant Akkuram @ Lok, even he has not identified Akkuram. 4 t l e @ 14.Somari (PW-6) has deposed in her evidence that she was informed by Jagdish Kumar (PW-4) that Gudda and other persons had taken his father by motorcycie on which she came near the house of deceased Durjan, between 10-11 p.m. appellant Gudda came with other persons &{« » her vson-in-Iaw Durjan, and after throwing Durjan they went away by motorcycle. ln para 10 of her cross-examination she has deposed that she know the accused persons i.e. Akkuram also. in para 7, she has deposed that the accused persons had brought Durjan, but she has not deposed in her examination-in-chief as to whether Akkuram was also present with Gudda or not, only she has deposed in para 7 of her cross- examination that the accused persons brought Durjan. 15.Considering the evidence of Somari (PW-6), her evidence requires corr8b‘oration from independent sources relating to the act attributed to‘ co—appellant Akkuram. But the prOsecution has not examined any other evidence in support of the evidence that Akkuram was also present along With Guddag In absence of further corroboration and in the light of evidence of Jagdish Kumar (PW-4), it is difficult to hold that Akkuram was present at the time of commission of offence or that appellants Gudda & Akkuram brought‘injured Durjan to his house. However, evidence of Jagdish Kumar (PW-4) & Somari (PW-6) is sufficient f‘o‘run drawing inference that firstly Gudda along with other persons had taken Durjan, after some time they brought him and after leaving him in front of his house they went away.‘ Durjan was in injured condition and he was inw l- coma as per Ex.P-13 roznamcha and evidence of Dr. L.L. Thakur (PW- 3), and finally he died, he did not regain consciousness. 16.Appellant Gudda has taken Durjan on his motorcycle and thereafter, he himself has left Durjan in front of his house in injured condition. Appellant Gudda is under obligation to offer explanation that as to who has caused injury to Durjan, but he has not offered any explanation. ln absence of any explanation, only inference would be possible that appellant Gudda is the person who has caused injuries to Durjan, but appellant Gudda has not caused the death of Durjan and he left Durjan, near Durjan’s house while Durjan was alive, however, on same day Durjan died as a result of injuries sustained by him. The act attributed to appellant Gudda shows that he has assaulted Durjan and caused repeated injuries about 15-16 in number. By causing such injuries on the person of Durjan, appellant Gudda was having knowledge that by his act i w , , . ’ Durjan may die. But the fact that he has left Durjan in front of Durjan’s house and at that time Durjan was aiive, shows that he has not caused any injury with intent to cause death of Durjan. Therefore, act of appellant Gudda does not travel beyond the scope of Section 304 Part—ll of the IPC and the offence punishable under Section 364 of the IPC 17.While convicting the appellants under Section 302 of the IPC, the trial Court has not considered‘ inefficiency of evidence relating to Akkuram' and the act attributed to Gudda, and thereby committed illegality. 18.For the foregoing reasons, the appeal is partly allowed. t Conviction & sentences of appellant No.2 Akkuram @ Lok‘ under Sections 302 & 364 of the IPC are hereby set aside, he is acquitted of the said charges, he is on bail and he need not surrender before the Court. Conviction of appellant No.1 Laxman Pille @ Gudda under Section 302 of the IPC is altered to Section 304 Part-ll of the IPC, however, his conviction under Section'i 364 of th‘e'IPC is maintained. Appellant No.1 Laxman Pille @ Gudda is hereby sentenced for imprisonment for the period already. undergone by him on both counts i.e. from 30-3—2005 till date (more than 11 l . five years nine months). He be released forthwith, if not required in any other case. /,4 Sdl- - Sd/— {l R.L. Jhanwar ' ’T.P.SH.ARMA Judge M 9/ Judge :i