HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1028 of 2002 APPELLANT Virendra Khakha S/o Domatush Khakha, (In Jail) age about 35 years, Village Virikbine P.S. Narayanpur, Distt. Jashpur, Resident PR. 155 Thana Banoor Distt. Basmr (CG). Versus State of C.G. REsPONDENT Prosecution { ' Criminal Appeal under Section 374 (2) of Criminal Procedure Code, 1973 \\ DB: Hon’ble'Shri Juetice 'l'.P. Shanna & Hon’ble Shri Justice N. K. Agarwal, JJ Present : Ms. Sangeeta Mishra. Advocate for appellant. Mr. Rakesh Jha, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Passed on im day of January. 2010) Per T.P. Sharma, J. 1. Challenge in thisappeal is to the judgment of conviction & order of sentence dated 25.07.2002,. passed by the Ilnd Additional Sessions Judge Bastar at Jagdalpur, in Sessions ‘Trial No. 534/2001, whereby & whereunder learned llnd Additional Sessions Judge, atter holding the appellant guilty for the commission of homicidal death amounting to murder of Daulal Yadav and Shashikala Yadav, convicted the appellant under Sections 302 and 302 of the lndian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of payment of tine to further undergo rigorous imprisonment for two years and d sentenced to undergo rigorous imprisonment for two years, imprisonment g for life and to pay a tine of Rs. 10.000I-, in default of payment of tine to further undergo rigorous imprisonment for two years and sentenced to undergo rigorous imprisonment for two years. 2. Judgment is impugned on the ground that without there being credible evidence to connect the appellants in the crime in question, the Court below has convicted and sentenced the appellant as aforementioned and thereby r a\ I \i committed illegality. Case of the prosecution, in brief, is that on the fateful day of 08.10.2001 at about 16:45 P.M., deceased Daulal and his wife Shashikala were present in the house. The present appeliant, who was posted as Constable and was holding service rifle, fired upon Daulal inside his house and caused homicidal death of Daulal Yadav. He again tired upon Shashikala wife of Daulal and caused her death. He fired upon himself also to commit suicide. All the members of the force took their position with weapons and surrounded the houses of deceased and appellant. Constable Roshan Baghel (PW-2) lodged the F.l.R.. Merg lntimation was recorded vide EXP/1 & P2 respectively. The Investigating Ofhcer proceeded for the scene of occurrence and after summoning the witnesses, inquest over the dead body of deceased Daulal and Shashikala were prepared vide Ex. P/6 & Pl7. Register regarding issuance of service rifle to the appellant and register relating to posting of the appellant is also seized vide vide Ex. P18 & P/9BC respectively. Dead body of the deceased Daulal sent for autopsy to Civil Surgeon, Kondagaon vide Ex. Pl18. Autopsy was conducted by Dr. RK Singh (PW-14) vide Ex.P/1 8A and found one rifie shot injury over his chest and back side of his body. Lungs, Heart and Liver were injured. Dead body of Shashikala was also sent for autopsy before the same Civil Sureon vide Ex. P/1 9. Autopsy was conducted vide EXP/1 9A and found one rifle shot injury over her chest and back side of his body. Lungs and Liver wer‘e injured. Death were homicidal in nature. Plain soil and bloodstained soil were recovered from the spot vide Ex. P/16 & P/1 7. Sealed cloth of Daulal and Shashikala were seized vide Ex. P/1 2. Spot map was prepared vide Ex. PI20. Seized articles weresent for chemical analysis vide Ex. P/27. Presence of blood over the seized articles were confirmed vide Ex. PI28. Photographs of deceased were also taken vide Ex. Pl32,33,34 & PI35 Statement of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 (in short “the Code'). After completion of investigation, charge sheet was flied before the Judicial Magistrate First Class, Kondagaon, who in turn‘ committed the case to the court of Sessions Judge, Jagdalpur from where the llnd Additional Sessions Judge, Bastar, received the case on transfer for trial. ln order to prove the guilt of the appellant/accused, the prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the “Code” where he denied the circumstances appearing against him and claimed innocence and false implication. He also examined defence witness Seva Das to prove the Rojnamcha vide Ex. D/1 After affording opportunity of hearing to the parties, the llnd Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. We have heard Ms. Sangeeta Mishra, counsel for the appellant and Mr. Rakesh Jha, Deputy Govt. Advocate for the State/respondent and perused the judgment impugned as also record of the Court below. Learned counsel appearing for the appellant vehemently argued that in absence of any direct and cogent evidence, conviction of the appellant 'would not be legally sustainable. The court below has committed illegality in convicting the appellant on the basis of conjecture and surmises. ln t absence of any circumstantial evidence or direct evidence, the appellant is not liable for commission of any offence. 10. On the other hand, leamed State counsel supported the judgment ‘ impugned and argued that the prosecution has proved its case beyond all shadow of doubt. The evidence adduced on behalf of prosecution is sufficient for holding the appellant guilty‘and appellant is the person who Q has caused homicidal death amounting to murder of Daulal and Shashikala by rifle shot. In order‘to appreciate the contentions of the parties, we have examined the evidence available on record. In the present case, homicidal death of the deceased Daulal and his wife Shashikala as a result of rifle shot injury have not been substantially disputed by the appellant, otherwise it is also ' established by the evidence of Dr. R.K. Singh (PW-14) and autopsy reports Ex. P/1 8A & P/1 9A, in which it reveal that as a result of ante-mortem bullet, injury Daulal and his wife Shashikala died which was homicidal in nature. As regards the complicity of the accused/appellant in the orime in question is concerned, in the present case, the appellant has taken a specific defence under Section 313 of the Code that his mental position at the time of such commission of offence was not normal. He has adduced evidence of Sewa Das (DW-1) who has proved Rojnamcha vide Ex. DI1 and has deposed that on 01.10.01 the Sub Inspector has taken the present appellant to Hospital for treatment, but in his cross examination he has admitted that second day the appellant came back after treatment and the present incident took place on 8.1 0.01 i.e. after 8 days of alleged treatment. The appellant has not adduced any oral or documentary evidence to show that at the time of commission of such onenoe he was not able to understand the right or wrong and good or bad of his act. In absence of any such evidence it is dimoult to say that the appellant has committed the ‘ offence during the period when he was unable to understand good or bad and right or wrong. 13. Roshan Baghel (PW-2) Constable has deposed in his evidence that on 08.10.01 he was on duty. At about 16:45 PM. heheard the sound of lire which came towards the house of accused, after sometime again he heard the sound of tire then he alongwith other persons chased towards the \ house of accused, they saw that accused was holding rifle. Again he heard t third round of tire. they want near the place of incident and saw the injured dead body of Daula! and Shashikala, blood were coming out from the bodies. He immediately informed the Poiice Station and Merg Intimation was recorded vide Ex P/1 & P/2 and FIR was lodged Vlde Ex P13 He has further deposed that the appeiiant is the person who has fred upon the Dautal and Shashikala and caused their death. Budheshwar Thakur (PW-3) has deposed mat just before the incident, the appellant discussed with the deceased Daulai and toid him that he has destroyed him. Budheshwar Thakur (PW-3) went inside his house and the appellant was moving around the house of Daulal. He heard the sound of me which came towards the houses of deceased and the appellant as both the houses are adjacent to each other. Again he heard the second round of tire. They went with arms towards the place of incident and heard the cry Shashrkala was restless after ten minutes again they heard third round of fre which appeliant fred upon himself to commit suicide he was unconscious Both dead body oi Daulal and Shashikala were found In Drying R’oom. 15. Sonadei (PW-4) has also deposed that she heard the fre sound thncely (PW-5) Ashtaml Jam and (PW-9) Jasal Ram Mandavr have also deposed that they have heard the t’re sound thricely Defence has cross exammed (PW-2) Roshan Baghel and (PW-3) Budheshwar Singh Thakur in dehil but has not been able to elicit anything to discredit their testimony Statements of these Witnesses reveal that the appellant is a person who has tired upon Daulal and Shashikala and also fired upon himseif and caused death of Daulal and Shashikala. 1s. The appellant has failed to adduce any evidence to show that at the time of incident he was mentally abnormal The appellant was on duty at the time of incident and was haVing service rifle wrth cartridges which he has misused by causmg homicidai deatl’i of Daulal and Shashikaia. Aii these @ facts are suffcient for drawing an inference hat the appelrant has ommied homicidal death of Daulaa and his wife shashikala it an intention to commit their murder and also tried to commit icide. After appreciating the evidnce availabie on record,» learned Additionai Sessions Judge, Jagdaipur has convicted and sentenced the peint as afoementioned. The iinding is based on credibie, clinchin and eliabl - r g re vince and the same is sustainable under the law. O close scrutiny of the evidence ailable on record , we do not find any illegality or infirmity in the impugn judgment. The appeal bng dvoi of ede ' n va ed ei ed merit is lable to be and is hereby dismissed. A e ‘x—T Sd/- Ki r 7 Sd/- . T. P. Sharma N.K. Judge Agrawal V 1 i /% Judge i VAR L W J sahu r1 '7 o i t ctt wh su e apia i it f