'<33ftE£; € HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Appellants (in jail) Respondent Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ. Criminal Appeal No.109 of 2006 1. 2. Vs. Jageshwar s/o. Guthalu Gond, aged about 56 years. Nandu @ Nandu Ram @ Bharat, s/o. Jageshwar Gond, aged about 26 years. Both are residents of village Pawanpur, P.S. Ramanujnagar, District Surguja (CG). State of Chhattisgarh through Police Station Ramanujnagar, District Sjrguja (CG). (Criminal Appeat under Section 374 (2) ofthe Cr.P.C.) Present: Shri Ashok Kumar Shukla, counsel for the appellants. Smt. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Deliveredon 28-9-2011) PerT.P. Sharma. J. 1. Challenge in this appeal is to the judgment of conviction and order ofsentence dated 27-1-2006 passed by learned SecondAdditional Sessions Judge (FTC), Surajpur, District Surguja, in Sessions Trial ^7 No. 109/2005, whereby and whereunder learned Second Additional t. 09 Sessions Judge, after holding the appellants guilty for commission of culpable homicide amounting to murder of Girmet Bai in sharing common intention, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced them toundergo life imprisonment and to pay fine of Rs.500/- each, in default of payment of fine to further undergo Rl for 15 days. Conviction of the appellants is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of prosecution, on the fateful day of 16-10-2004 at about 10.30 a.m., when unfortunate deceased Girmet Bai Was present in her house at village Pawanpur, Police Station Ramanujnagar, District Surguja, both the appellants came to her. Appellant No.1 Jageshwar was holding axe and caused fatal injury over the neck of unfortunate deceased Girmet Bai and thereafter they fled away from the spot. When the deceased Girmet Bai shouted for help, then PW/2 Balkunwar and PW/5 Shyam Singh, son of deceased rushed to the spot and saw the appellants running away from the spot. Appellant No.1 Jageshwarwas holding axe. Deceased died on the spot. PW/2 Balkunwar and PW/5 Shyam Singh informed PW/1 Jawahir and PW/3 Mahipal, sons of the deceased about the incident. PW/1 Jawahir went to Police Station and lodged merg intimation vide Ex.P/1 & first information report vide Ex.P/2. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex.P/5, inquest over the dead body of the deceased was .^^ .^.,. . ^ ^r ""./' c prepared vide Ex.P/6, spot map was prepared vide Ex.P/3, blood stained soil and plain soil were recovered from the spot vide Ex.P/7, dead body of deceased was sent for autopsy to Community Health Centre, Ramanujnagar vide Ex.P/11 where Doctor Hendra Pal Singh (PW/11) conducted autopsy vide Ex.P/12 and found following injuries; i) Deep injury over the left side of neck; ii) incised wound over left axillary; iii) survical bones were found cut and opined that mode of death was shock and death was homicidal in nature. During course of investigation, appeltant No.1 Jageshwar was taken into custody and he made a discloserstatement of axe vide Ex.P/8 and the same was seized at his instance vide Ex.P/9. Patwari also prepared spot map vide Ex.P/8. Ctothes of deceased were seized after autopsy. Seized articles were sent for chemical examination to FSL Raipur vide Ex.P/19 and presence of blood on seized axe was confirmed vide Ex.P/21. Statements ofwitnesses were recorded under Section 161 of the Code of Criminal Procedure (for short, "the Code") and after completion of investigation, charge sheet was filed against the appellants in the Court of Additional Chief Judicial Magistrate, Surajpur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge, received the case on transfer for trial who framed charge under Section 302/34 of the Indian Penal Code against the appellants who abjured the guilt. f^s^ c t 7. In order to prove the guilt of the appellants the prosecution examined as many as thirteen witnesses. Statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them, innocenceand false implication in crime in question is claimed. They have taken the plea of alibithat at the time of alleged incident they were present in their field along with DW/1 Smt Jamila, wife of appellant No.2 Nandu. They have examined DW/1 Smt. Jamila and DW/2 Babulal who have deposed that at the time of such incident, appellants were present in their field and were cutting the crops. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforesaid mentioned. 9. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 10. Shri Ashok Kumar Shukla, learned counsel for the appellants vehemently argued that conviction is substantially based on the evidence of PW/2 Balkunwar and PW/5 Shyam Singh, child witness, who have deposed that after hearing the sound of injured Girmet Bai, they immediately came to the spot where they saw the appellants running away from the spot, appellant No.1 Jageshwar was holding axe. The evidence of these witnesses alone is not sufficient for drawing inference that the present appellants have caused homicidal death of deceased with intent to cause her death and running from the spot by the appellants, may be onaccount ^....-..^ ^ 11. of so many causes. Evenon the ground of fear of false implication, they would have fled away from the spot. Learned counsel further submits that the evidence of DW/1 Smt Jamila, wife of appellant No.2 Nandu and DW/2 Babulal clearly reveals that at the timeof incident, both the appellants were present in their field and were cutting the crops. Learned counsel further submits that as per FIR, appellant No.1 Jageshwar was holding axe which has been seized by the prosecution and appellant No.2 Nandu was not holding any weapon. In thesecircumstances, conviction of appellant No.2 Nandu under Section 302 read with Section 34 of the IPC is not sustainable under the law. Learned counsel further submits that all the witnesses have specifically admitted that there was no enmity or motive for causing such homicidal death, therefore, the evidence adduced on behalf of the prosecution may be sufficient to create suspicion that the appellants might have committed the offence, but the same is not sufficient to prove the fact that only the present appellants have caused homicidal death ofdeceased. On the other hand, Smt. Madhunisha Singh, learned Panel Lawyer for the State opposed the appeal and submits that evidence of PW/2 Balkunwar and PW/5 Shyam Singh are sufficient to prove the fact that only appellants have caused homicidal death amounting to murder of Girmet Bai and after commission of offence they fled away from the spot which was seen by thiese witnesses. Instead of offering any explanation relating to the fact thatthey fled away from the spot, present appellants have taken plea of alibi which is contrary to circumstances ofthe case and additional circumstance ^' ^- -^^^' ^ ^ J/4? ''^.. (.; 'G proved that only appellants have caused such offence and no other person has committed the offence. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the accused/appellants as aforementioned. 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 13. In the present case, homicidal death of the deceased as a result of fatal injuries found over the neck of deceased Girmet Bai has not been substantially disputed on behalf of the appellants. On the other hand, it is also established by the evidence of Doctor Hendra Pal Singh (PW/11) and autopsy report (Ex.P/12) that the death of deceased Girmet Bai was homicidal in nature. 14. As regards complicity of the appellants in the crime in question, conviction is substantially based on the evidence of PW/2 Balkunwar and PW/5 Shyam Singh, child witness who have specifically deposed that after hearing the sound of deceased Girmet Bai, they immediately rushed to the spot where they saw the appellants running from the spot. Appellant No.1 Jageshwar was holding axe. Defence has cross-examined these witnesses at length but they have specifically deposed that both the appellants were running from the spot. Appellant No.1 Jageshwar was holding axe. By examining DW/1 Smt Jamila, and DW/2 Babulal, defence has tried to prove the fact of alibi and created suspicion on the story of prosecution that at the time of incident both the F" ••^.; ^ ^^ga^ appellants were present in their field and were cutting the crops and not present on the spot. If their evidence is minutely scrutinized, then it would reveal that they have not stated anything about homicidal death of deceased Girmet Bai. As per their evidence they were present in the field and were knowing the fact well that the appellants have been falsely implicated but they have not tried to intimate the police or any other authority before their evidence recorded on 6-1-2006 in the court. They have deposed the aforesaid facts after more than one year of the incident. In these circumstances, without any corroboration, their evidence cannot be considered. 15. PW/2 Balkunwar and PW/5 Shyam Singh have specifically deposed that there was no enmity. They have not deposed that the appellants have caused injury or both the appellants were holding axe or they have seen the incident that these appellants have caused fatal injury to deceased Girmet Bai. The evidence of these two witnesses clearly reveals that they have not exaggerated the fact what they have seen and they have deposed only to the extent that after hearing the sound of deceased Girmet Bai, they immediately rushed to the spot and saw the appellants running from the spot and appellant No.1 Jageshwarwas holding axe. 16. On a close scrutiny of the evidence of PW/2 Balkunwar and PW/5 Shyam Singh, it is revealed that appellant No.1 Jageshwar was holding axe and he fled away from the spot along with Nandu who was not having any weapon. Injury found over the body of deceased was caused by sharp edged weapon like axe. As per 17. evidence of PW/13 A.S. Narvariya, appellant No.1 Jageshwar gave a discloser statement vide Ex.P/8 and at his instance axe was recovered vide Ex.P/9. The evidence of the aforesaid witness is also corroborated by the evidence of PW/4 Rampyari. The seized axe was sent for chemical examination to FSL, Raipur and presence of blood was confirmed on it vide Ex.P/21. Ex.P/21 is not sufficient to establish the fact that it was human blood but the fact remains that the axe was stained with blood. If these evidence are considered together, then only the inference would be possible that appellant No.1 Jageshwar has caused fatal injury to deceased Girmet Bai, resulting into her death. Mere presence of appellant No.2 Nandu without any weapon or without any overt act would not constitute the commission of murder by Jageshwar in sharing common intention of appellant No.2 Nandu. While convicting and sentencing the appellants under Section 302/34 of the IPC, the court below has committed illegality relating to appellant No.2 Nandu. The evidence adduced on behalf of the prosecution isnot sufficient to prove the fact thatthe appellants have caused homicidal deathin sharing common intention. Consequently, the appeal is partly allowed. Conviction and sentence of the appellant No.2 Nandu under Section 302/34 of the IPC is hereby set aside. Conviction and sentence of the appellant No.1 Jageshwar under Section 302/34 is altered into Section 302 of the IPC and sentence of imprisonment for life and pay fine of Rs.500/- is hereby maintained. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^u