HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. R. L. JHANWAR, JJ. Cr. A. No. 201 OF 2001 APPELLANT Versus RESPONDENT Maniram S/o Mandhar Telaga, age 30 yrs R/o Grara Chhind Bhatapara Bhairamgarh P.S. Bhairamgarh, Distt. Dantewada (Chhattisgarh). State of Chhatisgarh, Through P.S, Bhairamgarh Dantewara. MEMpRANDUMOFAPPEALU/s^374{2) Cr.P.C. Present:- Shri Deepak Jain, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 09/03/2010) The following iudgraent of the Court was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 05/01/2001 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 166/2000 whereby and where under after holding the appellant guilty for the commission of amountingto raurder of deceased Dharma and causing criminal intimidation to Jhikrum convicted the appellant under Section 302 SE 506-B of the Indian Penal Code and sentenced in'iprisonment for life & rigorous imprisonment of one year. The conviction is impugned on the ground that without any clinching and credible evidence Court below has convicted and sentenced the appellant aforenientioned and thereby committed an illegality. Case of the prosecution in brief is that on fateful night of 8/2/2000 af about 8 P.M. Dharma went to the house of PW2 Shankar for chewing the tobacco, appellant also went to the house of the Shankar and on the ground of witchcraft appellant assaulted Dharma by blunt part of the axe over his chest repeatedly and caused fatal injury. PW2 Shankar and his wife PW4 Ramwati present at the time of incident, tried to resist the act of the appellant then appellant also chased them. They Qed from his house. He narrated the incident to one Surendra. Surendra told the incident to PW1 Jhikrum son of the deceased who went to the police station, Bhairamgarh and lodged the First Information Report vide Ex. P-1. Marg was recorded vide Ex. P-1A. Investigating Officer left for the scene of occurrence and after summoning the witnesses Vide Exs. P-2A 85 P-2B, inquest over the dead body of the deceased was prepared vide Ex. P-2. Spot map was prepared vide Ex. P -8. Dead body was sent for autopsy to Priraary Heedth L .-fu" .^;A... "S^ ^ ^---^ .. "% 1 llslii.> 4. Center, Bhairamgarh vide Ex. P-9. PW7 Dr. A.S. Sendram conducted the autopsy vide Ex. P-9A and found following injuries:- I. One contusion over the left side of the chest of 4 x 2". II. One contusion over right side of the chest just below the right nipple of 2" x 1 1/2". III. One contusion over middle of the chest of 2" x 1 1/2". IV. One contusion over left side of the back of 2" x 2 . V. One lacerated wound near the right eyebrow of % X 1/2" X 1/4". On internal exaniination:- VI. Fracture of sternum bone. VII. Fracture of 18t, 2nd, 3rd, 8s 4th ribs. VIII. Rupture of both the lungs. Mode of the death was respiratory failure and death was homicidal in nature. During the course of investigation appellant was taken into custody he made confessional stateraent of the axe vide Ex. P-4 same was recovered at the instance of appellant vide Ex. P-5. Plain and blood stained soil were recovered from the spot vide Ex. P-7. sealed cloths of the deceased was recovered vide Ex. P-11. Patwari prepared spot map vide Ex. P-3. Axe was examined by PW7 Dr. A.S. Sendram vide Ex. P-13A. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in :i1- li; 11) .,'.<f.^ip'^^~'''*'«t<. ./'s:.. ^- '•' ^:"^ii, ;. n short 'the Code). After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Danteweada who in turn committed fhe case to the Court of Sessions, Jagdalpur. In order to prove the guilt of the appellant/accused prosecution examined as raany as 7 witnesses. Accused person was examined under Section 313 of the Code where he denied the circunistances appearing against hini, innocency and false implication is claimed. He has examined the defence witness DW1 Manganram who has deposed nothing infavour of the appellant. After affording an opportunity of hearing to the parties learned Sessions Judge convicted and sentenced the appellant aforeraentioned. Shri Deepak Jain, learned counsel for the appellant and Shri Sandeep Yadav, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that in the present case conviction is based on evidence of PW2 Shankar and PW4 Ramwati who are interested witnesses and even they have not seen the incident. Therefore, no reliance can be placed on the evidence of aforesaid witnesses. PW1 Jhikrum has not stated anything relating to threat m^de by the appellant fs' S A "'o^ IW therefore, conviction under Section 506-B of the Indian Penal Code is not sustainable under the law. 10. On the other hand, learned eounsel for the State/respondent opposed the appeal and submits that evidence of PW2 Shankar and PW4 Rarawati are sufficient for drawing an inference that appellant was a •person who has caused fatal injury to the deceased Dharma and thereby caused the death of the Dharma. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced 11. 12. on behalf of the prosecution. In the present case hordicidal death as a result of fatal ante-mortem injury of the deceased Dharma has not been substantially disputed by the appellant on the other hand, also established by the evidence of PW7 Dr. A.S. Sendram and autopsy report Ex. P-9A which reveal the fracture of sternum bone, 1st. 2nd, 3rd, 85 4th ribs and rupture of both the lungs. Death was honiicidal in nature. In the present case, PWI Jhikrum has not stated anything relating to criminal antecedent given by the appellant therefore the conviction and sentence of the appellant under Section 506-B ofthe Indian Penal Code relating to witness Jhikrum is not sustainable under the law. t^ !s:<iy1 i\: Sr 1 1 ^\ s^ yaa^aiA^awu^ttfc-t.-tfrtdU^^i^^^: '^, 14. MS As regard the complicity of the present appellant in crime in question, the conviction is based on evidence of eye witnesses PW2 Shankar and PW4 Ramwati. PW2 Shankar has deposed in his evidence that at the time of incident appellant came to his house and assaulted the Dharma by axe on the ground of witchcraft. He along with his wife tried to resist the act of the appellant then appellant also chased them then they Ued, they met Surendra in a way whorn they narrated the incident. Second day they came back to their house then they saw the dead body of the deceased. PW4 Ramwati has corroborated the evidence of PW2 Shankar. Defence has cross examined these witnesses in detail but they have struck to their version. Prosecution has not examined Surendra but First Information Report Ex. P- 1, Marg P-1A and evidence of PW1 Jhikrum reveal that PW2 Shankar has narrated the incident to Surendra who has narrated the incident to Jhikrum who has lodged the report. There is some omission and contradiction in the evidence of PW2 Shankar and PW4 Ramwati. They are rustic villagers resident of forest area. Contradiction and omission are natural in their statement. Their evidence inspire , confidence, trustworthy and safe to rely. V w .-^" ^, fla.S'"!!... 'iSI&3& \&y iiSfs^ 15. Prosecution has adduced another set of evidence relating to recovery of axe at the instance of appellant. PW6 B.S. Bhaskar, Sub Inspector has deposed that appellant made confessional statement of axe vide Ex. P-4 and at the instance of appellant he has recovered the axe from accused vide Ex. P-5. PW3 Mangalram has corroborated the evidence of PW6 B.S. Bhaskar. Recovery of weapon itself is not in incriminating evidence in absehce of other connecting evidence. In the present case, prosecution has not proved the presence of blood over the axe or has not proved fhat the axe recovered from the accused was used at the time of comraission of the offence. In absence of such 16. fact recovery of axe is of no use. After appreciating the evidence available on record Court below has convicted and sentenced the appellant as aforementioned. In the present case appellant was holding axe and has used the blunt part of the axe over the chest of the deceased although he was having aniple opportunity to use the axe from sharp side to ensure the death of the deceased but appellant had not used the sharp part of the axe and deliberately used the blunt part ofthe axe that too on the chest, not on the head shows that accused has caused injury to the deceased but not with intent to cause culpable '!ptite'ti[£" vv^.- ..t ? jl' '^.'y i*^ IN» 17. homicide amounting to murder of the deceased but at the time of causing such injury appellant was having knowledge that by his act he may cause the death of the deceased therefore, the act of the appellant does not falls within the ambits of culpable homicide amounting to raurder of deceased Dharma but squarely falls within the ambits of the offence punishable under Section 304 Part-I of the Indian Penal Code. While convicting the appellant, Court below has not considered aforesaid aspects of the case speclally causing of injury by the appellant on the chest of the deceased by blunt part of the axe having full opportunity to use the sharp part of the axe thereby committed an illegality, On close scrutiny of the evidence, we are of the considered vieW that conviction of the appellant under Sections 302 8s 506-B of the Indian Penal Code is not sustainable under the law. Consequently, appeal is partly allowed. Appellant is acquitted of the charge of Section 506-B of the Indian Penal Code. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 Part-I of the Indian Penal Code and is sentenced to rigorous imprisonment for 10 years. Appellant was in custody for some time, he is entitled for set off under the law. Appellant is in bail, he shcdl surre'nder himself before -E.^.a.-ss.iia,, y .ff '"%. 'l v '•''-.. /*y '^' 'f"^. ^'^ -r"^ --^' .&• the Sessions Judge, Jagdalpur for servmg remaimni part ofthe sentence. Sd'- T.P. Sharma Judge Sd/- Judge