'-'%- ^"^, "\ ^ q- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CQRAM: HON'BLE MR. T.P. SHARMA 8s HON'BLE_MR. RANGNATH CHANDRAKAR, JJ. APPELLANT (IN JAIL) Criminal Appeal No. 298/2007 Gopi alias Gopal, S/o Dhadhuwa Uraon, age 35 years, Occupation Agriculture, R/o village Sivildaag, Police Station Kusmi, District Surguja (C.G.) VERSUS RESPONDENT State of Chhattisgarh through Station House Officer Kusmi, District Surguja. CRIMINAL APPEAL UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE. Present:- Mr. Vinit Kumar Pandey, Advocate for the appellant. Mr. D.K. Gwalre, G.A. for the State/respondent. JUDGEMENT (Passedon 29/11/2011) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23/12/2005 passed by Sessions Judge Surguja (Ambikapur) in Sessions Trial No. 03/2005 whereby while acquitting co-accused Ramaniya Bai, convicted the appellant under Section 302 of the Indian Penal Code for causing homicidal death amounting to murder of Sikul Ram and sentenced rigorous imprisonment for life and fine if""'t'"**l 'S ssssmn of Rs. 200/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant, Court below has convicted and senterrced the appellant as aforementioned and thereby committed an illegality. 3. As per case of the prosecution, co-accused Ramaniya Bai, wife of Sikul Ram (since deceased) was residing separately from Sikul Ram, she was having illicit relation with present appellant Gopi alias Gopal. On fateful day of 15/10/2004 at about 3:00 P.M., appellant along with co-accused Ramaniya Bai & Gansu, son of Ramaniya aged about 11 years were present in the field, they were sowing Potato, at that time, Sikul Ram came to their field then appellant assaulted him by wooden plank over his temporal region and caused his death. PW1 Swaminath 8s PW2 Kabluram were working at their field, after hearing the sound of Gansu, Ramaniya Bai & appellant, they reached to the field where they saw Sikul Ram was lying in the field and finally, they found Sikul Ram was dead. PW5 Likhan went to the Police Station, Kusmi and lodged First Information Report vide Ex. P-10. Marg intimation was recorded vide Ex. P-16. Investigating Officer left for scene of occurrence and liiii 4. after summoning the witnesses vide Ex. P-11, inquest over the dead body of Sikul Ram was prepared vide Ex. P-12. During course of investigation, appellant was taken into custody, he made discloser statement of wooden plank & axe vide Ex. P-1, sarae was recovered at his instance vide Ex. P-2. Spot map was prepared vide Ex. P-13. Dead body of Sikul Ram was sent for autopsy to Con-imunity Health Center, Kusn-ii vide Ex. P-7. PW4 Dr. P.K. Sinha conducted autopsy vide Ex. P- 8 and found following injuries:- (i) Depressed lacerated wound over left temporal region of 3 x 2 c.m. (ii) Depressed lacerated wound over right ear of 2 x 0.5 c.m. (iii) Heraatoma was present over right nape of neck of4x3 c.m. (iv) Fracture on temporal bone and inflammation on internal tissue on neck was found. Cause of death was head injury and death was homicidal in nature. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Ambikapur who in turn committed the case to the Court of Sessions, Surguja (Ambikapur). \z In order to prove the guilt of the appellant and co- accused, prosecution examined as many as 9 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against thera and pleaded innocence and false iniplication in the crime in question. After affording an' opportunity of hearing to the parties, learned Sessions Judge Surguja (Ambikapur) while acquitting co-accused Ramaniya Bai, convicted and sentenced the appellant as aforementioned. Mr. Vinit Kumar Pandey, learned counsel for the appellant and Mr. D.K. Gwalre, G.A. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that virtually, this is a case of no evidence. Prosecution has not collected any evidence to connect the appellant with crime in question. As per evidence of prosecution, body of Sikul Ram was lying in the field of Bhadai Uraon where appellant Gopi alias Gopal, co-accused Ramaniya Bai & her son Gansu were working. As per initial case of the prosecution, PW1 Swaminath & PW2 Kabluram had seen the incident but they have not supported the case of the prosecution before the Court. ^s's' ,,i^F.-"iir 'K-SS - Prosecution has not collected sufficient material to prove the offence against the appellant, suspicion however grave cannot take place of legal evidence. 9. Learned counsel for the appellant further argued that even otherwise as per First Information Report, initially altercation took place, Sikul Rara himself had corae to field where appellant was working thereafter incident took place, if Sikul Ram would have not come to the field then there was no occasion for causing such injury, this shows that appellant has not caused honiicidal death with intent to cause death of Sikul Ram. 10. On the other hand, learned Govt. Advocate for the respondent/State opposed the criminal appeal and argued that although initially case was based on the evidence of eyewitness but fact remain that at' the time of incident, appellant was present in the field thereafter Sikul Ram came and he was found dead as a result of injury. Offence committed in secrecy and appellant, co- accused Ramaniya Bai SE Gansu were under obligation to offer an explanation under Section 106 of the Evidence Act. At the time of incident, Gansu was aged about 11 years therefore, it would be presumed that he has not caused any fatal injury to Sikul Ram and Ramaniya Bai has been acquitted by Court below, only (3""S."^ ;„ -.. -^. '^Kt . appellant and Ramaniya Bai were under obligation to offer an explanation but they have not offered any explanation. In absence of any explanation as required under Section 106 of the Evidence Act, only presumption would be possible that appellant may alone or with Ramaniya Bai had caused homicidal death of Sikul Ram and learned Sessions Judge Surguja (Ambikapur) has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the body of Sikul Ram has not been sybstantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW4 Dr. P.K. Sinha &, autopsy report Ex. P-8 and death of Sikul Ram was homicidal in nature. 13. As regards the complicity of appellant in crime in question, as per evidence adduced on behalf of the prosecution, appellant, Ramaniya Bai 8s her son Gansu were working in the field then Sikul Ram came, PW1 Swaminath SE PW2 Kabluram heard the sound then they rushed to the spot where they saw the body of Sikul Ram was lying in the field, except three persons, '^ v 't:' ^.. ^' ;-^<-' ag3|t* no other person was present on the field. As per evidence of PW1 Swaminath, PW5 Likhan, brother of Sikul Rara, co-accused Ramaniya Bai, wife of Sikul Ram was not living with Sikul Ram and was havin; illicit relation with present appellant. Aforesaid evidence is sufficient to prove the fact that at the time of incident, only four persons i.e. appellant, co-accused Ramaniya Bai, her son Gansu & deceased Sikul Ram were present and Sikul Ram was died as a result of fatal injury found over his body, the act committed in secrecy, burden to explain that who has caused injury to Sikul Ram and how Sikul Ram died was upon present appellant, co-accused Ramaniya Bai & her son Gansu. Prosecution has not made Gansu as accused, at the time of incident, he was aged about 1 1 years normally, it may be presumed that Gansu has not caused injury to Sikul Ram and co-accused Ramaniya Bai has been acquitted. Burden to explain circumstance was upon present appellant and Ramaniya Bai, in absence of such explanation, only inference would be possible that appellant had caused homicidal death of Sikul Ram or had caused homicidal death of Sikul Ram in sharing common intention with Ramaniya Bai. These circumstances are sufficient to prove the fact that appellant has caused homicidal "^^ -t-l^ \ ''i^. ^ ^ :At*»^' tSt - death of Sikul Ram may be in sharing common intention with other co-accused therefore, acquittal of co-accused Ramaniya Bai will not absolve appellant from his liability. 14. As regards the question of motive is concerned, as per submission of learned counsel for the appellant Mr. Vinit Kuraar Pandey, appellant was working in the field, Sikul Ram himself came to the field. As per First Inforn-iation Report Ex. P-10, some altercation took place between appellant and Sikul Ram, appellant was having illicit relation with wife of Sikul Ram that may be cause for altercation then he caused injury, if Sikul Ram would have not come in place of incident then there was no occasion of causing such homicidal death. It appears that Sikul Ram himself has provoked appellant for causing such injury and appellant has caused homicidal death of Sikul Ram on sudden provocation but at the time of causing such injury, appellant was having knowledge that by his act, Sikul Ram may die. Evidence adduced on behalf of the prosecution is not sufficient to prove the fact that appellant has committed homicidal death with intent to cause death of Sikul Ram but his act squarely falls within the Eimbit of Section 304 Part-II of the Indian Penal Code. While convicting and sentencing the '^t: SiiK nt,, ^^/ (^>/ - appellant under Section 302 of Indian Penal Code, Court below has not considered the aforesaid facts & circumstances and thereby committed an illegality. 15. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of Indian Penal Code is altered into under Section 304 Part-II of Indian Penal Code and is sentenced imprisonraent for ' custodial period. Appellant is in custody since 17/10/2004 till today and has completed more than 7 years of imprisonment, he be released forthwith, if not required in any other case. Sd/- T.P, Sharma Judge SA'- R.N. Chaii.'dr Judge