HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANTS RESPONDENT Criminal Appeal No. 431 of 1994 1 Juggu son of Lohan Uraon, aged 45 years, resident of Gudrapara, Lenau, P.S. Katghora, District Bilaspur 2 Pancham alias Panchu, son of Ladraram, aged 25 years, Resident of Gudrapara, Lenau, P.S. Katghora, District Bilaspur 3 Phulsai son of Littu Uraon, aged 23 years, resident of Gudrapara, Lenau, P.S. Katghora, District Bilaspur Versus State of M.P. (Now State of Chhattisgarh), Through the Station House Officer, Police Station Katghora (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 19731 Appearance: Mrs. Ranjana Jaiswal, Advocate for the appellants. Mr. Akhil Mishra, Dy. Govt. Advocate forthe State. JUDGMENT (05.03.2011) Following judgment of the Court was delivered by Syml Kumar Sinha, J. (1) This appeal is directed against the judgment dated 16 of March, 1994 passed in Sessions Trial No. 242/92 by the Second Additional Sessions Judge, Bilaspur. By the impugned judgment appellant No.1 has been convicted u/s 302 IPC and appellants 2 & 3 have been convicted u/s 302/34 IPC and all have been sentenced to undergo imprisonment for life. Criminal Aopeal No. 431 of1994 ^ (2) The facts, briefly stated, are as under:- On 24.2.92 at about 8-9.00 p.m. a dinner was organized in the house of accused- Bhahal (A-4) on account of some family function. Deceased- Parasram and his wife Mariyam (PW-1) were also invited and were present in the function. The deceased entered into the house of Bhahal (A-4) wearing shoes. For this reason, a quarrel took place and Panchram (A-2) and Phulsai (A-3) dragged the deceased out of the house of Bhahal and assaulted him. The allegations are that Juggu (A-1) also came there and assaulted the deceased on his temporal region. When the deceased tried to ran away, he was chased by the abovepersons and thereafter all the accused persons namely Juggu (A-1), Panchram (A-2), Phulsai (A-3), Bhahal (A-4), Bhadhiyaram (A-5) and Biharuram (A-6) assaulted the deceased by hands & fists and Juggu (A-1) assaulted him by a tangia. The deceased died on the spot. On the next morning at about 7-8.00 a.m., Juggu (A-1) again visited the place of occurrence, where the dead body of the deceased was lying. He made extra-judicial confession before the persons present there namely Mariyam (PW-1), Santosh Das (PW- 2), Ghusuram (PW-3), Sukhlal and Punnu etc. Mariyam (PW-1) has witnessed the incident. She lodged the First Information Report (EX.-P/12). In the F.I.R., she mentioned the names ofJuggu (A-1), Panchram (A-2) and Phulsai (A-3). She also mentioned about the extra-judicial confession. The Investigation Officer reached to the place of occurrence, gave notices (EX.-P/14 & 15) to the Panchas and prepared inquest (Ex.-P/16) on the body ofthe deceased. The dead body of the deceased was sent for post-mortem to PHC Katghora vide memo Ex.-P/17. The post-mortem examination was conducted by Dr. H.D. Dahare (PW-8). He noticed following injuries on the body of the deceased:- (i) Incised wound 1 inch x % inch below the left eye; (ii) Incised wound 1.3 inch x .5 jnch on left side of mastoid region; (iii) Incised wound 2 inch x 14 inchon left portion of parieto- occipital region; (^ ^lht-fe-iiiT'iSttfK l. Criminal Acpeal No. 431 of 1994 (iv) Incised wound 1.2 inch x % inch on occipital region; (v) Incised wound with fracture % inch x 'Ainch on the bridgeofthe nose; (vi) Incised wound 1 inch x % inch on the middle of the scalp; (vii) Lacerated wound on the left ear-pinna; (viii) Contusion 1/5 inch x1/5 inch on the right temporal region; (ix) Contusion 2 inch x 1.5 inch on the left portion of scalp; (x) Contusion 2 inch x 1.5 inch on the right portion of scalp; (xi) Twocontusions of 1.5 inch x .5 inch & 1.5 inch x 1 inch on the upper and lower portions of right knee & (xii) Four contusions of 1.5 inch x 1 inch, .1 inch x .5 inch, 1.3 inch x .5 inch & 2 inch x 1 inch on the upper portion of left knee. On internal examination, he found that blood clots were present on the upper portion of the skull beneath the above injuries. There was a compound fracture of right temporal bone. There were fractures on occipital, temporal and parietal bones. Brain membrane was ruptured. Portion of brain \was also damaged. He opined that injuries 1 to 6 were caused by sharp edged object and injuries 7 to 12 were caused by hard and blunt object. All the injuries were ante-mortem in nature. The cause of death was shock due to haemorrhage on account of head injuries and it was homicidal in nature. During the course of investigation, various articles were seized from the place of occurrence. The accused persons were taken into custody and their memorandum statements u/s 27 of the Evidence Act were recorded. On memorandum statement of accused- Juggu (Ex.-P/21), a tangia was seized vide seizure memo Ex-P/22. His cloths were also seized vide seizure memo Ex.-P/20. Various articles including the above were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar.from where a report, Ex.-P/28, was received. According to the F.S.L. report, btood stains were found on the cloths (shirt & loongi) and tangia (Articles D, E & F) seized from the possession of accused-Juggu (A-1). ..'^:>'' it' Criminal Aweal No. 431 of1994 (3) After completion of usuat investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Ctass, Katghora, who in turn committed the matter to the Sessions Court, Bilaspur, from where, it was received on transfer by the Second Additional Sessions Judge, Bitaspur, who conducted the trial and convicted & sentenced the appetlants as aforementioned. HoMvever, other 3 accused persons namely Bhahal (A-4), Bhadhiyaram (A-5) and Bihamram (A-6) were acquitted. (4) The conviction of the appellants is based on eye-witness account of Mariyam (PW-1 - wife of the deceased) and extra-judicial confession made by appellant- Juggu before Mariyam (PW-1), Santosh Das (PW-2) and Ghusuram (PW-3). (5) Mr. Ranjana Jaiswat, learned counset appearing on behatf of the appellants, argued that Mariyam (PW-1)is the wife of the deceased; she is an interested witness; there is variance in her oral testimony and medicat evidence; therefore, she is unreliable. She also argued that the evidence of extra-judicial confession, allegedly made by Juggu is also not reliabte. There is no evidence of sharing common intention of appellahts 2 & 3 with appellant No.1. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and havealso perused the records ofthe sessions case. AUELU uueAue|/\| Q} 6uipjooov "seoqs siy 6uue9M esnoq SBBUJELU ai|i o}u.i pajaius psseaosp 941 IBL|I jaueiu Aued e ^0 lunoooe uo uisyi ussMisq 8oe|d ^\oo} isjjenb v 'psJsilieB PBL| (|.-v) n66nr idaoxe suosjed pssnooe 94} Buipnioui sjs6e||iA Aueuu 'jauuip u| 'pueqsny jsy yiim BUO|E jeuuip ayi pueye Q} suo6 PBL| SLIS •peseeoep 941 io eiiM 341 si iueAyB|/\| <, pepjeosip uesq eABL) p|noL|S (l.-Md) iueAue|/\i jo aouepi.AS SJBUQ 9111 J3L|i9L|M '"yrd 341 ui UOISSILUO 8Aoqe ^o lunoooe uo A|UO leyi sesue uojissnb eqlMON •LUIL| Aq paueo uodeeM 9111 Aq paseeoap eqi psiinesse SL| pue uo JSIE| ajaqt auieo n66np •3jat|i tussejd iou SBM (i.-v) n66nr '||BI( eBeujetu 841 p ino peseeoap aL|i 6ui66ejp SJSM suosjad pasnooe jaqio 941 usqM ieqi si uojinoesojd sqi p aseo 341 'peuinboe uaeq SAELI Aeqi pue lunoooe siijt uo suosjed pssnooe £j9L|}o 94} 0} papuspo uasq seq ^suaq pue uonejepisuoo oiui padsB 8141 ue^ei SBLI sBpnp suoissss SMi 'suosjsd pesnooe eqi ||E ^o seuueu 941 ^ooi aijs 'eouspiAe pnoo 941 uj jsAaMoq '•yi'j 941 ui suosjsd p3snooE g jo seuueu syi ue^et peq sseutjM SIL)} IBIII enj} si i| -suosjsd pasnooe s A|UO jo ssaieu 941 us^ei PBL) sqs '(zi./d -•X3) 'a'l'd sifl ui seejeijM 'suosjed pssnooe 941 ||e loseuieu 941 ua^ei peii 945 'souspiAQ ynoo eqi ui. ieqi psnBje SEM i| -suosjed pasnooe 941 Aq p9U3tE9JL|l SBM QlfS '9UaAJ8lUI o} psui uiBBe eqs ueqM •LUIL) peiinesse n6Bnp pue uiejnjeqig 'eAtpeN 'uiBjyoued 'ieyeqg 'iesinLid 'ABMB uej oi paut pueqsny jsy USIIAA "Pus 3)1!1 ieu e pe4 qoi.qM ly^e/ e Aq pueqsnL) J84 p8i|nesse pue sjsqi aiiieo (|.-v) n66nr 'esnoq JOMI 01 pueqsnq jsq BUI^BI SBM aqs ueqM jsyesjsqi 'eus/uaiu! o} iuaM eqg 'jauuip 6uj)|Bt SBM eifS 'SUUIl (Elll IV •3snoL| at|i IQ ino luji) pe6BeJp pue LUIL| iqBneo leqeqg ^ eAipeN 'aiejqoued 'resiniid 'ssoys BUUGSM ssnoii eBeujeiu SL|I p9jsiua pueqsnq jaL| ueL|M yeuA pasodep (|.-Md) ujeAye|/\| (3) t?66l jo l £t?'ON iBgddy lEmmo Criminal Aooeal No. 431 of1994 villagers started quarrelling on this account and they assaulted the deceased by hands & fists and lathi & some sharp edged weapon. Out of those, she could mention the names of 3 accused persons (appellants herein) in the F.I.R. The conduct of this witness was natural and she mentioned the names of those persons, who, according to her, actively participated and whom she could have identified. Therefore, the evidence of this witness relating to presence of these 3 appellants at the place of occurrence ^was intact and only on account of omission of the names of remaining accused persons, her entire evidence cannot be discarded. A close scrutiny of the contents of the F.1.R. (Ex.-P/12) and her evidence would show that Juggu (A-1), in fact, dealt the fatat blows to the deceased and the remaining 2 appellants had dragged the deceased out of the marriage house and they had allegedly assaulted him by hands & fists. At that time Juggu was not even present in the marriage house or at the place of occurrence. The Sessions Judge has convicted the 2 appellants i.e. Phulsai and Panchram with the aid of Section 34 IPC. Since the incident took place in a marriage house and many persons were present there, who were dragging the deceased out of the house on account of the alleged default of entering into the house with shoes and Juggu (A-1) eame much later and gave fatal blows to the deceased, we are of the view that there is no evidence to hold that these 2 appellants i.e. Phulsai & Panchram had shared common intention withappellant- Juggu to commit murder ofthe deceased. (9) Mrs. Jaiswal has also argued that in the oral testimonyof Mariyam (PW-1), she deposed that Juggu (A-1) was armed with lathi, whereas there are many incised wounds on the body of the deceased. Therefore, iJ' !t=...,^ !^-^~«« .«iB«isssswa:w;a»sasES3^iIIgBggj n n l IF Criminal Apoeal No. 431 of1994 the evidence of Mariyam (PW-1) becomes doubtful. We have considered the above arguments. It is not a case in which the deceased received only incised wounds. In case on hand, the deceased has received more than 10 injuries (laceration and contusions), which the Doctor opined that they could be caused by hard and blunt object. As we have already discussed many persons were involved in dragging the deceased out of the marriage house and thereafter he was assaulted by lathi by appellant No.1. The main incident of assault took place at some distance from marriage place. It was a night time incident. Mariyam (PW-1) could only identify appellant No.1 having lathi in his hands. She has not deposed that all the injuries were caused by Juggu (A-1) alone. Therefore, in the above facts and circumstances of the case, it cannot be said that the evidence of Mariyam (PW-1) was wholly discrepant with the medical evidence. Therefore, on this account, her entire evidence cannot be discarded. We are of the view that her evidence, so far as it relates to appellant No.1- Juggu, is fully intact. (10) We further note that the conviction is not solely based on the eye witness account of Mariyam (PW-1). There is evidence of extra-judicial confession also. The case of the prosecution is that on the next morning, when the villagers were watching the dead body, Juggu (A-1) came there and said that he had assaulted the deceased. The evidence of Santosh Das (PW-2), Ghusuram (PW-3) would show that Juggu made extra- judicial confession in clearwords. There is no ambiguity in their evidence. About extra-judicial confession made by Juggu (A-1) on the next morning, there is also a mention in the F.1.R. (Ex.-P/12). We do not findany Criminal Appeal No. 431 of 1994 t\ 1 ^ fov"\ / infirmity in the evidence of extra-judicial confession made by Juggu (A-1) before the above witnesses. (11) On appreciation ofthe entire evidence available on record, we are of the view that there is sufficient evidenceagainst Juggu (A-1) that he assaulted the deceased in the night and further that in the morning, he made extra-judicial confession before the villagers. However there is no sufficient evidence to hold that the other 2 appellants i.e. Pancham @ Panchu (A-2) and Phulsai (A-3) shared common intention with Juggu (A- 1) for commission of murder of the deceased. (12) For the foregoing reasons, the appeal is partly allowed. While confirming the conviction and sentence awarded to appellant No.1- Juggu (A-1) u/s 302 IPC, we set-aside the conviction and sentences awarded to appellants- Pancham @ Panchu (A-2) & Phulsai (A-3). Appellants- Pancham @ Panchu (A-2) & Phulsai (A-3) are acquitted of the charges framed againstthem. Sd/- ChiefJustice Sd/- ^ :resinba Judse vatti