^b^»-^---=^^-^:--^ » HI6H COURT OF CHHATTISSARH AT BIUt.SPUR Coram: Hon'ble Mr.T.P.Sherma & Hon'ble Mr.R.L.Jhanwar. JJ. CcimiRfil Aopeal No.864 of 1991 l-1arilal Versus State of Madhya Prndesh (now Chhattisgarh) And Criminal Appeal No.865 of 1.991 Parasram @ Remgncrrii Versus State of Madhya Pradesh (now Chhattisgarh) JUD6MENT FOR CONSIDERATION Sd/- T. P. Sharma Judge Hon'ble ttr.R.L.Jhanwar, J. Sd/- R.L. Jhanwar Judge Post for Judgment on : 17/2/20l0 Sd/- 17/2/2010 l;f HI6H CqjRT OF CHHATnSGARH AT BILA.SPUR Coram: Hon'bls ttr.T.P.SHARMA & Hon'ble Mr.R.L.JI-IANWAR, JJ. APPELL4NT (In Jaii) RESPONDENT APPELLANT (ln Jail) RESPONDENT CriminQ! ApDea! No.864 of 1991 Har'ilal S/o Panchram AA.iri, nged 26 vears. ft/o Kohroda, Post Partori, Police Station Hirri, uistrict Biiaspur (m.P.) (Now C.6.) Versus The Sta+e of Madhycs Pradesh (Now Chhatt-isgarh), Police Station Hirri, bistrict Biiaspur (M.P. (Now C.6.) And Criminal ApDeol No.865 of 1991 Parasrann @ ftangnath S/o Bhulou Satnami, aged 35 years, R/o Kohroda, Post Partori, Poiice Station i-1irri, District Bilaspur (M.P.) (Now C.6-) Versus The State of Madhya Pradesh (Now Chhattisqarh), Police Station Hirri, District Biiospur (M.P. (Now C.S.) (APPEALS UNDER SECTTON 374(2) OF THE CODE OF CRI.MINAL PROCEDURE, 1973) Present: AA.r.R.K.Jain, counsel for the appeHants. A^r.Rwindra Aarawa!. Ponel tawyer for the State. JUDSMENT (Deliver-ed on / 7'^A- February. 2010) The judgmant of the Court was dsliversd byT.P.Sharma, -J.:- 1. Since 'fke. above two cr'imina! appeals viz-, Crimina! lAppaals No.864/91 & 865/91 arise out of the JudgmeRt of conyiction & order of sentence da+ed 13.7.1991, they ore being disposed of by this common judgment. y 2. ChaHenge in the aforesaid crirr'ina! (^peals is to the judgment of conviction & order of sentence dated 13.7.1991 passed by the Third Addit'ona! Sessions Judge, Bilospur, in Sess'ons Trin! No.153/90, whereby & whereunder learned Third .Additioncl Sessions Judge afte>* holding 1+is oppe!lan+s guilty for- commission of homicida! dea+h of Vijoy @ Ellahabadiya amounting to murder, conyicted under Section 302 of the Indian Pena! Code and sentenced to undergo imprisonment for life and fine of Rs.BO/-, m default of payment of fi"e to furt^er undergo simple imprisonment for- one month. 3. The conviction is impugned on the ground that without there being any iota of evidence sufficient for conyiction of the csppellcnts, the Court below has convicted <i"d sentenced the appellants as afor'ementior'ed and thersby committ'ed illegality- 4- Csse of the pr'osecution, in brlef, is thnt o" the fateful day of 25.8.89 ot about 7.30 p.m., appetlcmts .Anshrcm, Parasrnm and Har'la! assauSted Ellahabadiya (since dececsed) by sticks a"d caused his death. ttead body was lying at yil'age Kohroda, Districct B'laspur, Kotwar Jugmcti (PW-9) went to the poltce station and !odged the F-I-R- vide Ex.P/7. ,M.erg was also recorded vide E.i<.P/15- I"yestigating officer proceeded for- Ihe scene of occurr'enc^ arsd after summoning the witnesses yide Ex.P/8, prepared 'nquest over the dead body of Ifte deceased yide Ei<-P/9- Dead body of the deceased was sent for autopsy to Pr'imary Health Centre, Bilha vide Ex.P/4. Autosy was conducted by &'*.S.K.Dutta 03W-8) yide, Ex.P/5 cnd found following syrnptoms & injuries; i) Locerated wound of 3.5 cms. x 2.5 cms. x ,5 cm. over !eft tsr'nporal regio" ii) Lscer'ated wound of 2.5 cms. x 1 cm. x diyiding the centre of the pinna of !eft ear- Bo+h +he injurtes were black and were surr'ounded by black clotted blood iii) Three contdsions of 25 cms. x 1 cm., 12 cms x 1 cm. nnd 7 cws. ?< 1 cm. on the uppe'- one third of !eft thigh ^•'..f •^s. * "^-' ^, ^. .v iv) Extra dural heamotoma was found v) Fracture of 4th, 5th, 5th, 7+h and 8th ribs on both the Sidas were found Mode of death wns shock as a result of injuries. Secled clo+hes of the deceised were se'zed vids Ex.P/2. B!oodsto.ined soil <i"d Dla'n soil were recovered fr-om the spot vide Ex.P/14. Bloodstained and plair> so'! were a!so cecoysr'ed from ths p!ace wrfiere daad body was d''agged yide Ex.P/14.4. During the course of Jnyestigati.on, oppe!la"t -Anshram ""s taken into custody, he mads disclosure statement of stick yide Ex-P/16 and scme was recovered ot his instar'.ce alon9 wi'tii ctothes yide Ex.P/10. AppeHant Parasraw a!so made disclosure sta+ement of stick and clothes yids Ex.P/18. so.^% y^r®r€coveiftedat his snstcyice ylds Ex.P/li. AD&pllcl^t Harila! made, disclosure statement of stick and clo1+!es yide Ex.P/19, sawe were r'ecoyered at his instance yide E.'><-P/12. One stick was also recover'ed vide Ex.P/13 fr'om the spot. Recording to preyious e"mity, of Ro |namch<ss wcrs tsken in the recor'd. Ssszsd c'r'ticiss w^re sent for chemica! a"d sero'ogist examinations and presence of blood oyer c'.othes ond sticks recoyei'ed fvc'm the appellants were confiriTied yjde Ex.P/20. 5. Statements of the wi+nesses were recorded under Sections 161 of 'the Code. Aftep con'plstio" "f 'nvestigation, chwgs sheet was filed i" the Court of Judscia! Magistrate First Cicsss, Bitcispur", who in turn co?nmit<-ed the case to the Cour't of Sessions, B'laspur, fron' where learned Thir'd Additiona! Sessions Judge, Biiaspu?' receiyed "Hie c<ise on tr'ansfer for tria!. 6. I" or-der to proye the guitty of 1+ie accused/appellcmts, the prosecution hcs examined as many os 15 witrsesses. Statements of the accused were recorded under Section 313 of the Code whe"e they dsnied the cir'cu'ristaiices appearing against ther" ond pleaded innocence and faise impiicatior) in the crime in question. )(^^.. ^ - fj \\. ,6- ^ 7- After affronting &" oppor'tunl+y of hearing to ttie parties, learned Thi*'d Additionfi! Sessions Judge has convicted a"d sentenced the appellants as c>fo"eme"tioned. 8. We haye heard learned counsel for the par+ies, perused the judgment in'pugned and record of th®Cour't below. 9- Learned counset for the cppel!a"ts vehemently argued that during pendency of cypea!, appel!a"t Anshram died cOTd Criminal Appea! No.866/91 filed on behalf of appelictnt Anshram is dismissed as abated. Learned counse! furthec ar'gued thctt the pr'esent case is based on the eyidence of eyewitnesses Sitara"! (PW-2) and <?a"esh (PW-6), but their evidsnce do not Inspirs confidfisics o.nd trustwor'thy, thsy are chcL"ce wilTtesses ond their presencs wer'e not nct'jfal cn the place of incident- The '"cident took place ot about 7.30 p."n. ond no Hght was present there to see the inciderit. 10. On the other hand, learned State counsel sjpported the judgment a"d irgued iiiat the cortylct!ori is bassd o" the ev!d€;nce of eyewitn-esses S*tQrQrn ^W-2) oyid S<sn€sh (PW-6) U4^o hnye seen th^ ipcfder1t. 11. In order to appreciate tha a''gume"ts adyanced on beha!f of the parties, we have examined the eyidence adduced on behalf of the pr-osecutio". In the Dresent CQSS. ho"ntcicJaldeQ'lJh as G result of fatc'i onte-?norte?n fdtci! injuries of •the deceased has not be«n substaintioliy disputed by •f+'e appe!!a"ts, on the other hand, a!so estabhshed by the eyidence of &''.S.K-E)uttn (PW-8) and autopsy r-eport yide Ex.P/5 which reyecls that fcta! injur'ies were found oyer' +he body of the decetised and desth was homicidal in nature. 12.As regards the complicit" of the accused/appellaits in the cr'ime in questio" is conc«rned, the conyictio" is based o" the eyidence of Sitarar" yW-2) and Sanesh PW-6). Sitar-cm yW-2) has deposed i" his eyidence thot on the date of incident, he has gone to yillage Pohroda for wntching T.V- cton9 with Porcis Kewat- At about 7 to 8 p.m., appel!A"t Har'ila! was ^'£'^ N¥. ^ vs9s^ 1 assaulting Ellahabadiya by stick and he has seen the incident i" the electr'ic light, then he came back to his yillage along withy Paras Kewat cnd told the incident to Kotwar (lady kotwar). Sanesh (PW-6) has deposed in his eyidence that at the time of ip.cident, mother of appellant Paras cried that Ellohobadiya is beatin9 her son and she requested for >"tervenin9, then he came out from his house at thct time, cppeUants Par-as a"d Hor'Hal were assau!ting deceased Ell.ahcbadiya by sticks, Eliehabadiya fel! down, blood was oozing from his head, he tried to intervene, but the appe!!ants did not stop their actiyities. Eliahabadiyoi was agonizing a"d lastly he died. He has deposed in para 2 of his evidsnce that there was some dispute between accused persons and Eilahcbadiyc relating to soine won'a". Oefence hns cr'oss-examined witness Sitaram (PW-2) m deteil. In his cr-oss-examination, he has stated that appellant Harila! vms assaulting Ellahabadiya ond he has not seen other accused persons. He and Pams have not objected Hari- He has specifical!y deposed that he and Par-as narrated the incident to lady kotwar- He has specifically denied the suggestion that other persons were present among wi'th l-1ari and he hos deposed thot however he did not know the ncme of other accused, but he knew them and they are residents of village Pohrodn. Oefence has also cross-examined witness Sanesh (PW-6) in detai!. In h Is detail cross-examination, he has giyen complete description of the place of incident in para 3. He has stated that he knew the different between 'athi and danda and appslldnts were assaulting Ellahabadiya by tatthi, not by donda. Other witnesses haye seen the dead body of the decensed, but habr- not supported the case of the prosecution. The prosecu+ion has not examined witness Pnrasram who has seen the incident aiong with Sitar'cn' (PW-2), though exam'nation of al! witnesses by the prosecution is not "ecessary, •Hiey are requir'ed to exnmine substantiye witr>esses necessary for unfolding the real story. befence has cross-exnmined Sitcr-am (PW-2) and ©onesh(PW-6) ot iength, but has not been ab!e to elicit onyth'r'g in their cross-examination to discredit their testimony, especially re'ating to / ^ the fact that the appetlants haye not assaulted the dec«ased, thou9h Sitaram (PW-2) has specifica'ly deposed that he has not seen other appellants except Hari, •ttiough he knew them. Ths eyidence of Sitarnrn 0'W-2) clearly reyeals that he is not resident of yillage Pahroda. he is resident of village Kohroda cmd he was comin9 to yillage Pahroda for watching T.V., -then he has seen the incident from some distance i" c yi'lage cmd he immediately returned atong with his companion Parcs. It appears that he was present at the place of short time and he h.as not see" the entire episode, on the o+her hond, the eyidence of ©onesh(PW-6) who is resident of same village, is. Kohroda has specifically deposed that the oppellonts are the persons who have cnused injuries and caused decth of Eilahabadiya. He has also stnted in his eyidence that he came out after hearing sound of mother of Parasram that Ellohabddiya was assaulting Paro^ Roim and when he came ou+ from house, then he saw thot the appellants were assaulting Ellahabadiyn. Admittedly, according to his evidence, Ellahabadiya was asscsulting to only Paras and Eliahabadiyo. wess present alone, he was not holding any weopon, even after its cdmission that Ellahabadiya has assaulted Parosram, then after reaching other appellants on the spot who were come ho'ding sticks, there was no occasion for assaulting Ellahabadiya nnd ccusing multipte injuries, including fracture of f'ye ribs in a brutal n'anner. It shows that there was no occasion f"r exercising of the right of priyate defence by the appellan+s. Injuries found oyer the body of the deceased Aow that the appellants hoye assautted him in a brutal manner. 13. After apprecia+ing the eyidence ayailable on record, 'earned Court below has conyicted and sentenced the oppellants under Section 302 of the Indian Penat Code ond sentenced imprisonrnent for life and fine of Rs.50/-. 14- On close scrutiny of the evidence, we are of -the considered yiew thot the conyiction i.s based on clinching, legat cmd reliabte evidence sustainabte under the taw. The Court below hns not committed any illegality 'n conyicting and sentencing the appellcmts. 15. For the foregoing reasons, we do not find any scope in these appeals- The appeals being deyoid of merit eu'e liable to be dismissed and are accordingly dismissed. Appellants Parasrcm andi Harilal are on bail, they shal! surrender themselves immed'iately before the Th'rd Additional Sessions Jud9e, Bitaspur for serving remaining sentenc® imposed upon them. ~~~.—— Sd/-~ T- p- Sba^ Judge Sd/- R-L. Jhanwar Judge