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2015 Supreme(Chh) 102
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
T.P. Sharma and Inder Singh Uboweja, JJ.
Prakash and Ors. - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal No. 317 of 2003
Decided On: 13.03.2015
For the Appellant:Arun Kochar, Advocate
For the Respondents: Roshan Dubey, Panel Lawyer
Headnote:
Indian Penal Code - Sections 302/34 & 201 – Criminal Procedure Code - Section 164 - judgment of conviction – Offence Of Murder – Injury - After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate 1st Class, Raipur who, in turn, committed the case to the Court of Sessions from where the Additional Sessions Judge received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 17 witnesses. Statements of the accused persons were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence & false implication in the crime in question. They have examined witnesses namely have deposed that villagers noticed dead body of deceased – Held, has deposed that at while he was going to the shop of for purchasing & matchbox, he saw that appellants were dragging dead body of near the barn of and when he flashed torchlight upon them then appellant abused him and then he fled from the spot. As per evidence of he has seen appellant standing feet away from the dead body but the dead body was found inside the barn and co-accused was not standing inside the barn. This witness has not seen the deceased alive last time in the company of the appellant but he has seen dead body of the deceased and that co-accused was standing 25-30 feet away from dead body of the deceased. Likewise, statement of has been recorded after of the incident although he was present in the village and the prosecution had failed to offer any explanation - As held in the case of in case of unexplained considerable delay in recording statement of eyewitnesses and further if it is not explained that how the police came to know that alleged witnesses have witnessed the incident, the appellants are entitled for acquittal. In the present case, the Investigating Officer failed to offer any explanation that as to how statement of has been recorded after of the incident. Even otherwise, they have not witnessed the deceased alive last time in the company of the appellant but one has seen co-accused standing near the dead body of the deceased and other has seen that the appellants were dragging the dead body of the deceased that too after noticing the fact of death of the deceased by other villagers, which does not appear to be natural - Appeal Allowed
T.P. Sharma, J.
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19.02.2003 passed by the 1st Additional Sessions Judge, Raipur in S.T. No. 116/02, whereby & whereunder the trial Court after holding the appellants herein guilty for causing homicidal death of deceased Rampyare Satnami, amounting to murder, in sharing common intention and for concealing the evidence of a criminal case, convicted them under Sections 302/34 & 201 of the Indian Penal Code (for short 'the IPC) and sentenced each of them to undergo rigorous imprisonment for life & fine of Rs. 5,000/-, in default to undergo additional R.I. for 02 years and R.I. for 02 years and fine of Rs. 2,000/-, in default to undergo additional R.I. for 06 months respectively.
2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
3. As per case of the prosecution, on 14.10.2001 unfortunate deceased Rampyare had gone to village Abhanpur to attend "Mahila Sammelan" but he did not return till 9.00 p.m. to his house situate at village Thelkabandh, Police Station Abhanpur, District Raipur. Vishal Ram (PW-5) noticed presence of co-accused Resham & appellant No. 1-Prakash near the canal road and on the same day, he noticed dead body of deceased Rampyare lying in the barn of one Barodawale. Bicycle of the deceased Rampyare lying in the barn of one Barodawale. Bicycle of the deceased was also lying near the place of incident. Co-accused Resham was also found standing near the place of incident. Death was informed to Fanesh (PW-3), son of the deceased, who after seeing the dead body went to the Police Station Abhanpur and lodged FIR (Ex. P-7). Merg was also recorded vide Ex. P-28. After some time Bhagelu (PW-9) noticed that the accused persons were dragging the dead body of deceased Rampyare. The Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-8, inquest over the dead body of the deceased was prepared vide Ex. P-9. Earlier deceased Rampyare had also lodged report of Ex. P-10 on 9.10.2000 against appellant Prakash, Ramkali & Sitaram relating to his suspicion. Bloodstained soil and plain soil recovered from the spot vide Ex. P-16. Dead body was sent for autopsy to the Medical College, Raipur vide Ex. P-29 where Dr. Ulhas Gonnade (PW-17) conducted autopsy vide Ex. P-36 and noticed following injuries & symptoms:--
"• Cut wound present above thyroid cartilage of 10.5 cm x cervical vertebra deep.
• Incised wound at the back & right sternoclavicular of 3.5 x 1cm.
• Incised wound on the lateral aspect of shoulder of 2.3 x 0.5 cm x muscle deep.
• Two superficial cut marks of 8cm x 6cm each.
• Stab wound of 2 x 0.5cm x muscle deep on the shoulder.
• 12 chop wounds present on the right half of skull.
• One chop wound just above alabella upto to skull.
• Chop wound of 6 x 0.4cm x skin deep on the medial margin."
Clothes of the deceased were sealed and seized vide Ex. P-11. During the course of investigation, co-accused Resham was taken into custody, he made disclosure statement of Gandasa, bicycle of the deceased and his motorcycle vide Ex. P-1. Gandasa & Motorcycle were recovered at the instance of co-accused Resham vide Ex. P-3. Clothing of co-accused Resham were seized vide Ex. P-4. Appellant Prakash was also taken into custody, he made disclosure statement of one iron sattu & his clothing and the same were recovered at his instance vide Ex. P-5. One bicycle was also recovered from co-accused Resham vide Ex. P-6 from the pond under the water. Seized articles were sent for examination to the Forensic Science Laboratory vide Ex. P-13. Patwari prepared spot map vide Ex. P-17. The Investigating Officer prepared the spot map vide Ex. P-18. Statement of witnesses were recorded under Section 161 of Cr.P.C. Statements of some witnesses were also recorded under Section 164 of Cr.P.C.
4.
