*3w»?ae»- HIGH COURT OF JITOICATVRE AT BILASPUR (C.G.S CRIMINAL APPEAL N0. 132 OP 2003 Bajru Ram Vs. The Stette of Chhattisgarh CRIMINAL APPEAL N0. 14 OF 2003 Dukhaa Raia and another Vs. The State of Chhattisgarh JUDQEMBNT FOR CON8IDBRATION Sd/- T^Sharma Judge Hoa'ble Shri Justice Dhirendra MIIsht&^ B^l^s7^ ,lf Post for order on —2^ Fetoruary, 2008 Sd/- o?6'-2-2008 /^- -y HiGH_CO!JRTOF CHHA.TTISGARH AT BILA3PUR (C.G.l Appeilant (In JaU) ^sfsSb '....-.na^ HON'BLE SHRI JUSTICE T.P. SHARMA CRIBHIfALAPPEAL No. 132 QF 2003 Bajru Ram S/o Dukhan Ram, age 30 years, Caste Chikwa, Occupatioa Agriculture, r/o vfflage Mahadevdaad, Badupara, P.S. Bagicha, Distt. Jashpumagar, C.G. Versus Tlie State of Clihattisgarh, fhro-ugb P.S- Bagiclia, Distt. Jashpur Dulchaa Ram s/'o Charaa Rain, age 65 years, Caste-Gayar, Occupation- Agriculture, r/o viUage Mahadevdaad, Eiabupara, P.S. Bagicba, Distt. Jashpur nagar, C.G. Balsay Raia s/ o Dukhan Ram, age 32 years, Caste Oayar, Occupation- Agriculture, r/o viUage Mahadevdaad, Babupara, P.S. Bagiclia, Distt. Jashpur us^ar, C. G. Versus The State bf Chliattisgarh. tluough P.S. Bagicha, Distt. Jashpur, C.G. Shri Sandecp Shrivastava, Advocate for ffae AppeUaats. Shri Akhil Mishra, Dy. Govt. Advocate for the State. (Passed on •?r^/' Februaiy, 2008) Criminal Appeal No. 132/2003 aad Criminal Appeal No. 14/2003 are prefen-ed agaiust the judgment dated 16.12.2002 passed by the IIIld Additioaal Sessions Judge (F.T.C.), Jashpur <r" t.-^l^^^^^'slBs^.;' ^.s .....^iKSai^ Nagar in Sessions Trial No. 66/2001 are being disposed ofby coininon judginent. 2. The appeUaat Bajru Rani was convicted under Section 302/34 of fhe Indiaa Penal Code aiid sentenced to uudergo tife imprisoiuaent aad to pay a fine ofRs. "1000/-, in default offine am.ouiit, to furUier undergo siraple uaprisoiunent for five inonths, fhe appeUEaits Dukhan Ram. and Bal Sai Ram. were convicted under Section 323/34 and each of ttiein has been sentenced to undergo rigorous imprisoninent for one year aad to pay a fine ot'Rs. 200/-, tn defanlt of fine amount, to furfher uiidergo siniple niiprisoninent for one nionth respectively. 3. Cruninal Appeal No. 132/2003 against the judgment impugned was preferred by the appeUant Bajru and CriTrsinal Appeal No. 14/ 2003 was preterred by the appeUauts Duldiaa Ram. and Bal Sai against fhe impugned judgnient and drder of conviction and sentence. 4. The case of prosecution in brief are, on 27.10.2000 at about 7.30 P.M. whfle deceased Nanku Rani went out offhe house to aaswer the call of nature, light of the torch was throwa by the appeUaiit Bajru on hmi. The deceased Nanku objected the luiwan-anted act of fhe appellaut Bajru. Soiae altercation was aiade between Naaku and the appellant Bajru. He tried to drag ftie deceased Nanlcu towards his liouse aad assaulted fhe deceased Nanku by club. The appeUaitts Dukhan and Bal Sai also assaulted the deceased Nanku by feast aad kick. P.W.3 Soiori Bai, daughter-in-law of fhe deceased Nanku aad P.W.4 KatiU Kindo intervene.ci fh.e incident aiid shouted. After hearius .* /sT^ ^ f 1 g\•'"'^s^ ^ the commotion, P.W.2 Maxiglu Ram., P.W. 14 Bedo Bai aud other persons came and saw fhat fhe appeUauts uy'ured Naaku. After sonietune, Nanfcu died. P.W. 3 Somri Bai nan-ated the incident to her husbaiid P.W. 1 Lal Sai. Lal Sai went to PoUce Station, Bagicha and lodged -report vide Ex. P/1 on 28.1.2000 at 1.30 P.M. Merg mtimation Ex.P/2 was also given by Lal Sai. Bagicha police proceeded for scene of'occurreuce. Inquest over the body of Nanku was prepared vide Ex.P/3. Body of NaiLku was sent to the Coiiununity Health Centre, Bagicha vide Ex.P/11 for autopsy. Autopsy was conducted by Dr. R.M, Dutoey (P.W. 13) aad autopsy report is Ex.P/14. Bloodstains and plain soil seized frosa the spot vide Ex. P/5. Blood stains and plain soU was also taken froni sonie distaace ofthe place ofthe incident vide Ex.P/4 aad P/6. Tbe appeUant Bajru was taken iato ciistody and oa the stateineat given him under Sectioa 27 ofthe Evidence Act Ex.P/8, stick (Danda) was recovered vide Ex.P/9. Spot map was prepared by the Patwari vide Ex.P/11. FoUowing iajuries were found ia the body ofthe deceased Naaku:- 1. 9.. 3. 4. Lacerated wound 3 cin x 2 cm. x 2 cni bv' tfae side of the left eye (left side). Multiply smaU. abrasion on the neck ia froat right aad left forearin tikely to be caused bv the insect bite. Lacerated woixid 2 cm. x 1 ciu x 1 cin as the inedial aspect ofthe right eye. Three linear pattem bruise traasversely placed on the abdoiaen upper, niiddle and lower part approxuuately 12 cni x 4 ciu. /^ ^ ^. 5. Multiple abrasion pin. point size on the left and nght ann forearin and & hand & neck. 6. Lacerated would 4 cm. x 2 cm. x 3 cro. on the left side ofhead. 7. Bruise 2 cia x 1 cm. x 1 cm. on the inedial aspect of right thigh. 8. Multiple abrasion 30 - 32 in nuinber on fbe back posterior aspect. 9. Bruise 6 cm x 5 cna. below the right eye. 10. Abrasion 3 cm. x 2 cm. x 1 cin on fhe posterior aspect of right knee joicit Spot inap was also prepared by ttie investigatuig of&cer vide Ex.P/ 19. Stick recovered froia Bajru was seat for exaoauiation vide Ex.p/20. Stick was exainiaed by Dr. R.M. Dubey and opiaed fhat iiijury found over tlie body of Na&ku coiild be caiised by fbe said stick. After coiapleting tlie iavestigation, fhe cliarge-sheet was filed before the Chief Judicial Magistrate, Jashpur Nagar aad fhe saine was coiiiiaitted by tbe learaed Chief Judicial Magistrate to the Court of fhe Sessions Judge, Jasbpur Nagar, who iu tuin niade over to ffae Additional Sessions Judge (F.T.C.), Jashpur Nagar for taial. After hearing fhe parties, charges under Section 302 read wifh Sectioa 34 of the Indian. Penal Code were fraraed against atl the appeUants. The prosecution ia order to prove fhe cliai^es exam.ined 15 witnesses ia all. The appellants have deuied fhe guilt aad pleaded innocence. sajru has taken tae defence that his wife and P.W.3 Soinri Bai were in imjnical tenas aad he has falsely iiapUcated. In support of his defence, he has exanuned defence witnesses t';^'. -SK3;;;B'. P.W. 1 Prmce Tirki and P.W. 2 Kelement Xalco, who has stated tliat on fhe day of fhe incident, Nanku had consiuned the Uquor aad he was in the state of intoxication. Nanku went towards his house froin ffae house of Soiuri Bai and when thev were goiag towards their house, then they saw fhat Nanku was sleepiag near Kathal tree breathless and he was died. They also stated that Bajru was falsely implicated by Soinri Bai because she was having inimical tenns wifh the wife of Bajru, Suiuitra. 8. Afier hearing fhe parties, fhe appeUants were convicted and sentences by the trial coiirt, as inentioned above. 9. The appellants had tned to aiipeacti fhe impugned judgineut on the ground tbat the appeBant Bajru was falsely iiuplicated OD. fhe ground of enm.i+y of P.W. 3 Sorari Bai wifh his wife and his conviction is not based on reUable evidence. The appeUaiits DuMiaa. Ram. and Bal Sai have taken fhe ground in appeal fb.at conviction and sentences against ftiein aic not based on fhe reliable evidence available on recoid. Guilt of the appellants had not proved beyond all reasouable doubt. 10. On fhe other haiid, judginent is supported on behalf of the State/ respondent. 11. The homicidal deafh. of.fhe decea.sed Naiiku is not adniitted, but ofberwise established by fhe evidence of P.W. 3 Soinri Bai, daughter-in-law of fhe deceased, P.W.4 Habil Kindo, P.W. 1 Lal Sai, P.V^. 5 Hermaa Kerketta, P.W. 8 Makarus, P.W. 10 Joseph Ekka, P.W. 13 Dr. R.M. Dubey, F.I.R. Ex.P/1, Mei^ ia.tiniation Ex.P/2 and Post-inorteia Ex/P/14. p :c^: ,£<-—.. 12. P.W. 13 Dr. R.M. Dubey has examiaed fhe body ofthe deceased Nanku and reported injuries over fhe body of fhe deceased Nanku. Injury No. 6 was on ffae head of size 4 cm. x 2 cin x 3 cm interaal organs were congested. Deafh. was hoinlcidal and cause of death was excessive haeinorrha.ge, a.s a result multiple injury on fhe head and body. The iujuries were found over fhe body oftJie deceased Naolcu are on tlie different part of fhe body and fhey do nbt appear that they were self-inflicted or cause due to faU. on ftie ground. Injuries aiid ftieir nature shows fhat force has been used for causias iajuries. The stateinent of the above witaesses supported by inedical evideuce is suf&cient to arrive at the findiag that deatii of Nanku is hoinicidal in nature. 13. The appellaats submit fhat fbere was no inotive to cause hoinicidal death of fhe deceased Naalcu aad ttiev had not iiiflicted aay injuries to tbe deceased Nanlcu. Witness P.W. 3 Soinri Bai is in uiimical temis wifh fhe wite of the appellant Bajru. The appellant Bajru has not assaulted tae deceased Nanku. The stateiuent of the wituesses iiaprobable and sutlers wifh infirmily. 14. !t is subiaitted on behalf offiie State/respondent that P.W. 3 Somri Bai aad P.W. 4 Habfl. Kindo are eyewitnesses and categorically stated the incident. They have interveaed and F.I.R. was lodged proniptly. Ocular stateinents are supported by luedical evidence aud prosecution has proved ttie guilt a^ainst aU. fhe appe'Uaiits beyond all reasonable doubt. t- ;:;'^;-'r''i<:"fe^-:-^. ^'B;^::i.^s;"::;3;s,. 15. We have heard couiisel for the parties aad perused the record oi fh.e trial court and the impugned judgment. 16. P.W. 3 Soinri Bai is daughter-ia-law of the deceased Nanku. She ttas denosed fh.at her fafher-in-law Naaku went out froiu her house to aaswer fhe caU of nature at about 7 to 8 P.M. The appellaiit Bajru lit the torch aad asked who are you. Nanku repHed aad said his presence. The a.ppeBant Bajru insulted and assa.ulted aad tried to drag him. towards his house. Dukhan also assaulted Nanku. She tried to iatenrene. Laxmibai called the appellaat. Bal Sai, who is a brofher of Laxmibai. When she saw the appellaat Bal Sai, then she run away towards vfflage. P.W. 4 Habil Kiado has deposed that he came after heariug shout of Laxiaibai. He saw the injured Na&kii an.d aU. fhe appeUants were assaultuig Naaku. He requested not to beat Naaku, but was fbreatened by the appeUants. then be run away towards village. P.W. 1 Lal Sai has stated that the incident was narrated by his wife Soxnri Bai an.d he lodged the F.I.R. Ex.P/ l and Merg iatimation Ex.R/2. 17. The case of tbe prosecution is substautially based on fhe statement of P.W.3 Somri Bai and P.W. 4 Habil Kindo. P.W.4 HabU. Kiudo has stated ia para 1 fhat the appellants assaulted Naalsn, this fact was not chaUenged by the appellaat in cross-exaiaiD.ation. P.W. 3 Somri Bai is iUiterate witaess living in reinote aiea oftribal district. Stie has categorically stated the stages of fhe incident. P.W. 3 Somri Bai has adinitted fhe facts of pieparuig liquor. SIie has stated ia para 5 that after hearmg shout, she cam.e out froin her house. She has also stated ta para 11 fhat after hearing fh.e comTnotion (HaUa-GuIla), she run away towards village and when she came back, at that tune, Naaku was died. 18. It is silbinitted oa behalf of the appeUants titiat Soiari Bai has adautted ia para 11 fhat after hearing the conunotion, she nui away towards viUage and when she came back, at fhat tuae, Nanku was not aUve. It shows that she is not eyewitness and conviction of fhe appeUajuts relyiag upon the sole testunony of fhe relative witness Soiari Bai having iniiuical terms wifh fb.e wife of Bajru is not safe. She has not tried to safe her father-iu-law aad her conduct is unnatural. Her statenient is not credible aiid suificient to convict fhe appellants. 19. Reliance in fhe matter of State of Maharaslitra v. Raju Blias3ia» Potphode (2007 CRI. L.J. 3731) has been placed on behalf of ftie appeBant, in which the Hon'ble Apex Court has held fhat if fhe name of close relative witaess is not indicated in F.I.R. Witaess is not iafonued deceased fhat fhe accused is coirung wifh krufe, he bas not provided inedical assistance and not irijbrxaed fhe poUce. The conduct of such witness is unnatural and caiinot be relied upon. 20. Reliaace m the matter of State of Rajasthaa v. Maai Saxit $2001 CRI. L. J. 3283) has also been placed on behaif of the appeUant, in which the Hon'ble Apex Court has held that if the alleged eyewitoess bas not ruade any attexapt to save deceased with whom. she was livuig is not natuial conduct and stateinent not supported niedical evidence cannot be reUed upon. ^J ^ 21. P.W.3 Somri Bai has categorically stated fhe m.cident, lirsfly, she heard the shout and then she came out and saw the iucident. She also stated that after hearia.g the shout, she run away towards viUage. Tbe time of the uicident is 7 to 8 P. M., earlier part of the liight. Laxmibai also shouted and called her brother Bal Sai. The appeUant Bal Sai aad Bajru were brother aild son offhe appeUant DuMian Raia. 22. The statement of Somri Bai shows that the incident was not fmished wifhia few seconds. Her stateiiient shows that when the appeUants tried to drag Naiiku towards fheir house, fh.en she ru.n away towarcls vfllage. P.W. 3 Soiari Bai is a relati.ve of the deceased Naaku. Her presence ui the house of her father-in-law is natural. She has specifically stated ia her statement fh.at she had tried to iatervene, the appeUa-ats assaulted to fhe deceased Naaku and tliey tried to dra^ towards their house, then after heartag fhe conrmotion, she run away towards village aad when she came back, at that tim.e Naitku was died. These statenients clarijy fhat firsUy, after hearuig fh.e conimotion, she cam.e out froin her house and she saw that appeUants assaulted her fafh.er-ia-law. She tried to iatervene, tben sister of fhe appeUant Bajru nainely Laxmi shouted aad caUed fhe appeUant Bal Sai, ftien she i-un away and when she catne back at that tiine Nanku was died. In totality of her statement, she is eyewitness and had seen substaatial part of fhe i&cident and she has tried to in^teryene and safe her father-in-law, but the assailants were three ia person. !t was not possible for her to safe the deceased Nanku. Facts of eninity of Som.ri Bai with Uie wife of Bajru are not ^ "s^* admitted and fhere is no evidence sufficient to cost doubt. Her statenient iaspires coufidence aad the sarae can be reUed upon. 23. TIie Additional Sessious Judge (P.T.C.), Jashpiir N^ar had after taking into consideration the stateiuent of Soiuri Bai supported by m.edical evidence arrived at fhe finding that deceased Naaku was tajured by fhe appeUants, we are of ffae considered view fhat fhe trial court lias not coBiinitted aiiy itlegahly or iafinnity in arriving at fhe findiug aad consequently, comphcity of fhe accused with fhe crune in question is estabUshed. 24. It is argued on behalf of fhe appeUaats that there was no inotive or iatension for causiag hoinicidal deafh of fhe deceased Naoku and flierefore, fheir act does not travel beyond exception (4) of fhe Section 300 of fhe Indian Penal Code and the offence couunitted is squarely faUs under Part-II of Sectioa 304 of the Indian Penal Code. 25. On perusal of tlie record, it is evident fhat the prosecution has not adduced aay evidence relating to prior enniity or any cause for causing hoiaicidal death of tlie deceased Nanku when light of fhe torch was tbrown by fhe appeUaat Bajru on fhe deceased Nanku while he was answemig fh.e caB of nature and asked who he was, tiiere was altercation of ftie hot words, fben Naiiku was assaulted by the appeUaat Bajru by club. It was uot pre-planned. There was no cause, but the offence was coiuiaitted in fhe heat of passion ia a spur nioinent wifhout preineditation, we are of the considered view that offence of fhe Bd -^ appellao.t Bajni squarely fatls under Part-II of Section 304 of the Indiaa Pen.al Code 26. The appeUants Dukliaa and Bal Sai were coiivicted under Section 323 read wifh Section 34 of the Sndian Penal Code aad sentenced to undergo RI for oae year and to pay a fine of Rs. 200/-. The appellants were associated in iaflicting iajuries to the deceased Naaku. Evidence available on record is sufficient for conviction of the appeUaats Duktian aad Bal Sai. Sentenced awarded to fheia are not disproportiouate. Their conviction and sentence do uot call for any interference. 27. Consequentty, Cruninal Appeal No. 14/2003 filed on behslf of fhe appeflan.ts Dukhan aad Bal Sai beiag devoid of merit is disKiissed. Crmiinal Appeal No. 132/2003filedonbehauoffb.e appeHaat Bajru is parUy ailowed. The appeUaiit acquitted froia flie charge of Section 302/34 convicted for the offence punishable under Part-i 304 of fhe Indiaa Penal Code aad sentenced Bajru is he was [ of Section to undereo rigorous tmprisoTiment for 7 years and to pay a fine of Rs. 1000/-, in default of fine amount, to furtber undergo siniple imprisoiunent for 5 inonfhs. The appeUaat Bajru is ia custody since 29.10.2000, fhus, he is entitled for set offfor fhe period of detention under Sectiou 428 of fhe Code of Criinilial Code, 1973. Appellants Dukhan and Bal Sai in Crimmal Appeal No. 14/2003 are on bail. Their bail bound is canceUed. They are directed to appear before fhe trial court for serviag out fhe sentence iniposed upon thein. __ __ Sd/- R.N. Chandrakar Judge