'XI-VC-78 Tsq'^IFlRtq', ^xny'Ko, Rjcliuy *<1*<MI sh*<|ch ^ 200 3n^?r craq? (^aif^^r) sn^i ?>T fs-rN; gaiT31T^TsbM|cb <'-^. ,.J^ '\ SRtTwgfscrsn^T WlfcPft-f WRft'^'fet^ ^RiRSK ^isrf^tTsn^r HIGH COURT'OF CAHATTISGARH, BILASPUR CRIMINAL APP DIVISION BENCH APPELLANTS HON't GAL N0. 89 OF 1998 LE SHRI L.C. BHADOO. BB HON'SLE SHRI DHIRENDRA MISHRA, JJ 1 1. 2. RESPONDENT Present Mrs. Savita accused/appellant Mr. Ashish Shukl the State/respond ORAL Per L.C. Bhadoo, J (16th This appeal is directed and order of sentence dated) Additional Sessions Judge, JMo. 99/96 whereby the learn|ed Vishrain, S/o Hirasingh Bhareva, R/o Gaddogi, P.S. Aoundhi, District Rajnandgaon. Yadavram, ?=^| S/o Gangaraag^@ '•-(Bhareva), R/o Oafirfdif Bedegaon.District Gadc&irouli (Maharashta-a) Versus State of Madhya Pradesh, Through : P.S.-Aoundi, Dista-ict Rajnandgaon .^ , ^, Tiwari, counsel for the IS. |a, Additional Public Prosecutor for :nt. UDGMENT |July 2007) |against the judgment of conviction 4th December 1997 passed by II Rfejnandgaon (M.P.) in Sessions Trial Additional Sessions Judge after ^•1. (iiliiai XI-HC-78 sn^T^TR-fi* awan^Tshtficb <-<..«~». .^, ^a '^^ 'Svf'-Wvf^, 81x0^16, l.s|<r11+l^< ^I^WI sh^ich ^ 200 gn^Tqa* ('i^t^si^tT) ?TcITW;gf?(T3:I1^T holding the accused7appella|nts offence under Section 302/3'jt accused to undergo imprisonijnent 2,000/-, in default of paymenl R.I. Each of them has also offence under Section 201 of for three years. Ueen the ailid 2. Case of the prosecuti| Hirasingh (since deceased) w4.! field. There was soine quarr^l father Hirasingh prior to th^ with his brother-in-law Yadavlram by attacking him with knife the murder of Hirasingh, Yadavram in order to screen for commission of murder, from the hut towards the for^st dead body. Fattesingh (PW-3) accused/ appellants committi|ng dragging the dead body tow^rds his brother Mannulal (PW-: Mannulal informed Sarpanch| Thereafter, enquiry was also confinned the witnessing o^ <oi<il'<i41-< ^iHfiT ff fec^'tlSi'wR ^arf^trSfT^r guilty for Commission of the of the IPC, sentenced each of the for life and to pay a fine of Rs. of'fine to further undergo one year's convicted for commission of the IPC and sentenced to undergo R.I. ibn, in brief, is that on 7.7.1995 /•4.S sitting in a hut in his agriculture between accused Vishram and his incident, therefore, Vishram alon^ cominitted murder of Hirasingh axe on his neck. After coinmitting accused/appellants Vishrani and t)iemselves from the legal punishment 4ragged the dead body of Hirasingh and after digging a pit buried the |and Gannuram (PW-2) witnessed the tijng the murder of Hirasingh and •the forest. Gannuram informed about the incident and in turn, Biharilal (PW-8) and other persons. Iraade from Fattesingh and wlien he incident, on being asked by the clra; drds 11) P.T.O. m- w: ^ Kl ..i^ ffBtE.la.aa..: ^3tf> f%. A XI-HC-78 .3-n^T =i)T i^[R; awsn^rgiiTW J Q T5T "ill'Mld'i), (STfl'M'16, (sfcfliyy tTTtfdT aitnc^ ^ 200 3T1^?T T3gr ^al^q<^T) ?RtTWtlf?(r3fl^T VisHram exKra 8x villagers from accused accused Vishram made villagers that he along with coinmitted murder of his fathf the dead body has been burie^ intimation (Ex.P/12) and bas^ (Ex.P/l)was registered. Whil^ gave memorandum (Ex.P/3), offence axe was seizedunder Ex.P/4. Bloodstained soil, plj recovered under Ex.P/5. bloodstained baniyan were Vishram. After giving notic|i (Ex.P/8) was prepared on the| (Ex.P/10) was prepared by was sent for postmortem Manpur under Ex.P/15-A ^ conducted postmortem and (Ex.P/17), in which he opi] haemorrhage (circulatory carotid artery, left sublabium vertebra and the death was sent to Forensic Science (Ex.gy20) was received. Af<| <oi<itci41-i iftiRff tf fsc6 <R]<^i< ^srf^TSn^T about his father Hirasingh, judicial confession before the his brother-in-law Yadavram hav< ;r Hirasingh with knife and axe and in the forest. Mannulal gave merg :d on that, First Information Report in police custody, accused Vishram pursuant to which the weapon of ;.P/2 6s one spade was seized under Ifein soil and bloodstained knife were |0ne bloodstained lungi and one (eized under Ex.P/6 froin accused (Ex.P/9) to the Panchas, inquest dead body of Hirasingh. Site plan a.^wari Halka. Dead body of Hirasingh to Primary Health Center, ^here Dr. M. Choudhaiy (PW-11) prepared the postmortem report ined that the cause of death is due to cutting of left common |artery and veins cut of first cervical 1'lomicidal. The seized articles were r, Raipur from where the report (er completion of invesdgation, the Patwari exataination failil.ire) Laboi|atory P.T.O. XI-HC-78 'sss ^w^t\, •,snS\vw, Ri<niyy iTTH^TSbqitt) ^ 200 w^\ w* (v^'sff) Sn^TtBTf^tN; BSIT sn^r giirfq; ^RlRK'ErfNsfl^T ^rafeN^r WRff ffto^ TRresR ^stf^trsn^r charge sheet was filed in First Class, Ambagarh Clt the case to the Sessions Jud^i Additional Sessions Judge rec^ the Court of Judieial Magistrate lowki who in turn committed ;, Rajnandgaon froin where learned ived the case on transfer for trial. the 3. Prosecution examinSd 113 establish the charge against the accused persons were r^ Cr.P.C. in which they denied in the prosecudon evidence ar|d they have been falsely impli( enmity. witnesses at the trial in order to accused persons. Statements of ;corded under Section 313 of the he material appearing against them stated that they are innocent and ;ated in the crime on account of 4. Leamed Addidonal Sessl the respective parties, accused/appellants as aforemejntioned ons Judge after hearing counsel for convicted and sentence the 5. We have heard Mrs. Savi for the accused/appellants Additional Public Prosecutor fo |ta Tiwari, learned counsel appearing ^.nd Mr. Ashish Shukla, learned the State/respondenf. 6. At the outset, Mrs. Tiwai ofHirasingh. Moreover, Dr. M. on 9.7.1995 he conducted Hirasingh and noticed that th side, there was a lacerated ji, has not disputed homicidal death Choudhary (PW-11) has stated that jiostmortem on the dead body of trachea was cut from left to back woilind on the back side of the neck in P.T.O. XI-HC-78 3:n^T«f)Tl^ite OTrSIT^TstiHI'ti 3^'^Tin^q'^ is'Tfl+fiie, fadiy^i *TT*(?'TTSh*l|ch ^ 200 3T1^?T1cra^ (t^c|fjs|t^T) srdTW flfN an^T the size of 3" in length 85 3" the size of 4" in length 2 Vs" d^ cervical vertebra was cut c< haemorrhage (circulatory carotid arteiy, left sublabium] vertebra and the death was.hd above medical evidence is Karamsai, PW-5 Maniram, P^| I'W-8 Bihrailal before whoml judicial confession regarding i.e. his father. Therefore, ir| evidence, it is established homicidal in nature. djeep, there was an incised wound in ^ep on the right side of the neck, the ^impletely and cause of death was fail^ire) due to cutting of left common |artery and veins cut of first cervical .hcjmicidal. His report is Ex. P/17. The co|rroborated by the evidence of PW-4 r-6 Baraturara, PW-7 Mainuram and the accused Vishram made extra |commission of murder of Hirasingh view of above medical and ocular |that the death of Hirasingh was 7. As far as involvement o| question is concerned, PW-^ fateful day at about 12.00| Fattesingh came from the fore|st Yadavram dragging the dea4 Before the dead body was dr^ save", he did not witness the before the death of Hirasinfeh. witaiess has stated that he s^ body from a distance of 401 Vishram. He saw only Vishi|am •*iiifa<fi.)lmcfftf tec^ <.Rf«i< ^sTf^tTan^r i|f the accused/appellants in crime in Gannuram has stated that on the noon Hirasingh was in his hut, side, he saw accused Vishram and body of Hirasingh towards forest. ^gged, he had heard the cries save, ^Iarpeet. He did not see any incident In the cross-examination this ^w Vishram while dragging the dead feet, he only saw the backside of dragging the dead body and did P.T.O. r XI-HC-78 's^f '^WM^, •a'^ww, ^wy. HWcTTSfiW^i WT 200 3T1^Ti<a<*i ('i?^'^) ST^T^iTf^IW (W an^r ^arra; !f-i -.^ JIC B^aTWtrfStfSfl^f not see any other incident. P\\] the above evidence and'stated while dragging the dead body ERrafepfrT wmf ff fet^ ?RTRT!: ^•iiRlNsn^T r-3 Fattesingh has also corroborated that he saw Vishram and Yadavram of Hirasingh towards forest. In the cross-examination he has adirlitted that on the date of incident he did not see Hirasingh, Vistlr£|ni and Yadavram together, he saw Vishram dragging the dead bo^y of someone from a distance of 500 feet. He saw backside of the|person who was dragging the dead body and did not see his fro: evidence of these two witnesse|s it is established that they saw the accused Vishram while dra^ging deceased Hirasingh towards forest. As far as accused Ya(lavram is concerned, there is no cogent and clear legal evide^ce to establish that in fact, fhese witnesses i.e. PW-2 Gannuran^ 8& PW-3 Fattesingh, also witaiessed accused Yadavram while dragj |ing the dead body of Hirasingh. 8. So far as evidence of PW Baraturanl and PW-7 Mainuitam that in the Panchayat accilsed confession to the effect that Hirasingh by attacking him wjith have not stated in so many while making extra judicial cc^ had also attacked Hirasingh^ Biharilal, Sarpanch of the villj were inade from accused Vislt t side. From close scrutiny of the f-4 Karamsai, PW-5 Maniram, PW-6 is concemed, they have stated Vishram made extra judicial be committed murder of his father knife and axe. These witnesses lclear words that accused Vishram tnfession also stated that Yadavram land committed his murder. PW-8 ^.ge, has stated that when enquiries |iram, he stated that he along with P.T.O. Ijl! i; ii.,.iiBEBaW XI-HC-78 fc sn^T^iTfN^ (IW SIT^T giIIT^; j 3ST '<<l'i|ltl'i<, yTfly'Kc, (s|cliy^< *<1+<WI Sb*<l<ti ^ 200 3TI^?I' (Tg^T (yi^q^tT) ?t<(TW:flf?(T3:f1^T ' . alnd Itis tltie oDi Yadavram have cominitted thel axe and the dead body ha^ Vishram also disclosed aboi-l offence axe was hidden memorandum Ex.P/3 besLrs body of Hirasingh was exhums was seized under Ex.P/14. his father used to commit committed his murder. In that he saw Vishram only further stated that he neith^r Vishram nor did Vishram disc] evident from above that excepl stated that Vishram made hiinself and they have not Vishram disclosed that Yadavj of the crime. Since in th^ accused Vishram before PW41- Baraturam and PW-7 Mainut that accused Yadavram also of Hirasingh and that other evidence of Biharilal regardin^ along with accused Yadavraml no explicit reliance can be +i'iifdtn.i itffl?fr ffte^ <Rfwi<. ^; Sff^iT sn^r murder of Hirasingh with knife and been buried in the forest area. 3i4t the place where the weapon of dead body was buried and signature. Thereafter, the dead :d after digging the pit and the same lAccused Vishram said that because jMarpeet with him that is why he cross-examination he has stated the spot and not Yadavram. He made any enquiry from accused \ose anything to him. Therefore, it is this witnesses other witnesses have judicial confession in respect of categorically stated that accused -am also participated in commission extrajudicial confession made by Karamsai, PW-5 Maniram, PW-6 •am, he has not categorically stated p^rticipated in committing the murder ^lyitaiesses have not corroborated the i^ the fact that the accused Vishram lcommitted the murder of Hirasingh, placed on the evidence of these exltra P.T.O. ff;;; ' ': ;i^: ! IJ )• XI-HC-78 3:sr ^iiqiciq, ®Tfly'ie,[slcll+iy wffcff a>*-fTc(i WI; 200 3n^T'rag?(yi!^<si(^£r) sn^iiCTf?:iR; (WTSD^TshHich s^aTWflfsa'sn^f corrobdrates witnesses in respeGt of accuse|d other evidence which made by accused Vishram in iff was a party.to commission of] any corroboration to the fact participated in, the crime circumstances of the case m^i confession made by accom^li cannot be held guilty. Yadavram. Moreover, there is no the extra Judicial confession ;spect of accused Yadavram that he the crime in question and without 1]hat accused Yadavram also actively |in question, in the facts and i^rely on the basis of extra judicial ^lice Vishram, accused Yadavram 9. Apart from the fact judicial confession before commission of the crime, he and PW-3 Fattesingh while di] towards forest, the weapon o| instance and the dead body therefore, from the above circi| beyond reasonable doubt that crime in question i.e. However, accused Vishram under Section 302/34 of the on record, we are of the has been able to establish th; responsible for causing death he can be held guilty under tltiat •:hl<l(<~l41-] tll4dT ff fSC6 ^KZR ^isrRptSfi^T accused Vishram made extra the above witnesses regarding ^vas also seen by PW-2 Gannuram, tagging the dead body of Hirasingh ofEence axe was recovered at his tvas also exhumed at his instance, Jimstantial evidence it is established laccused Vishram was author of the ijaitting the murder of Hirasingh. been convicted by the trial Court IPC but from the evidence available opinion that the prosecution ^t accused Vishram was the person <|)fhis father Hirasingh and as such, 302 of the IPC independently. comibittin hals consitlered Sdction P.T.O. XI-HC-78 3^ "41-41d'4, tSTfl'M'KS, &<11'Hy< tTTq^tl 9b*l|cb CTT 200 3Ti^?r tra^? (^ri^^T) an^T^iTf^TR; (PIT3T]^Tshi)ich 4—~ ^\ SRrrwHficrsfl^T However, based on the evidj Vishrani has rightly been com) as he was seen by PW-2 dragging the dead body of dj instance the dead body was'' the pit where it was buried. or infirmity in the judgment Vishram has been convicted and sentenced accordingly. ^nce of above witnesses, accused (•icted under Section 201 of the IPC Gar|nuram and PW-3 Pattesingh while ^ceased towards forest and at his ex|humed from the forest after digging TI^erefore, we do not fmd any illegality )f the trial Court whereby accused uhder Sections 302 & 201 of the IPC 10. In the result, the appeal the saine is liable to be dismil shall serve out the remaining trial Court. However, the app^ succeeds, his conviction undei and sentence imposed thereon| the above charges. It is sts| 10.7.1995, therefore, he be se^ in any other case. L.G. Bhndoo Judge «hi<i[<-i41-i ^wvi ff fei^t <R]'t<i< ^srf^R'sn^r |of accused/appellant Vishram fails, ijssed and is hereby dismissed. He ^entence imposed upon him by the tal of accused/appellant Yadavram Section 302/34 SE 201 of the IPC |, are set aside. He is acquitted of slted that he is in detention since at liberty forthwith if not required Sd/- DHffiENDBA MISHRA. Judge P.T.O.