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2003 DIGILAW 111 (CHH)

RAMBHAROS SAHU v. STATE OF CHHATTISGARH

2003-06-24

K.H.N.KURANGA, L.C.BHADOO

body2003
L. C. BHADOO, J. ( 1 ) ACCUSED Rambharos Sahu has preferred this criminal appeal under Section 374 (2) of the Cr. P. C. being aggrieved by the judgment dated 29th July, 2002, passed in Sessions trial No. 94/2000 by the Second Additional Sessions Judge Wast Track Court), Janjgir, by which the learned Additional Sessions Judge after holding the appellant guilty of the commission of the offence under Section 302 of the I. P. C. sentenced him to undergo imprisonment for life and pay a line of Rs. 100/-in default of payment of fine to further undergo rigorous imprisonment for two months. ( 2 ) THE briefly stated facts of the prosecution story are that Seetaram Sahu lodged a report at Police station: Shivrinarayan on 27/11/99 at about 11. 30 a. m. with the allegation that he is residing in Village: Awarid and earns livelihood through agriculture. It is further alleged that his father Bansiram had four brothers and partition of agricultural land had taken place between them but the Khata of the land was not separated and on account of that there was some dispute between his father and uncle Rambharos Sahu, the accused/appellant. On the date of the incident i. e. on 27/11/99 in the morning at about 8 a. m. his father Bansiram and uncle Rambharos Sahu, went to the village Patwari for talking about the separation of the Khata. It is also alleged that at that time some dispute took place in which his uncle Rambharos Sahu became angry and with the intention to murder Bansiram assaulted by Lathi on his head, hands and legs and caused fatal injuries. Seetaram Sahu, the complainant further alleged in the complaint that when he came to know about this fact he has come along with his father, who was in unconscious position, to lodge the report. The Police Station in-charge on this report, registered the case under Section 307 of the I. P. C. ( 3 ) LATER on, PW-14 D. K. Netam, on the report of PW-4 Nankiram Sahu about the death of Bansiram, registered the case under Section 302 of the I. P. C. through Ex. P-7 and after giving the notice to the witness prepared the Panchayatnama of the body through Ex. P-3. The Naksha Panchayatnama Ex. P4 was prepared and intimation to the Magistrate was sent. P-7 and after giving the notice to the witness prepared the Panchayatnama of the body through Ex. P-3. The Naksha Panchayatnama Ex. P4 was prepared and intimation to the Magistrate was sent. The dead body was sent for the postmortem examination through Ex. P-17 and site plan Ex. P-15 was prepared. The 1. 0 took into possession the plastic shoes of deceased Bansiram through Ex. P-13 and also took into possession the blood smeared soil as well as the simple soil through Ex. P-13. Accused Rambharos Sahu gave the memorandum Ex. P-l1 and based on that the weapon of offence. Lathi. was taken into possession through EX. P-12. The seized Lathi was sent for the medical opinion through EX. P-19. The statements of the witnesses were recorded. The site plan of the incident was got prepared by Patwari through EX. P-21. The seized articles were sent to the Forensic Science Laboratory. Sagar. through EX. P-23. The receipt of depositing the articles in the Laboratory in Ex. P-22. After completion of the investigation the challan was filed against the accused/appellant. ( 4 ) THE learned Additional Sessions Judge framed the charge against the accused/appellant for the offence punishable under Section 302 of the I. P. C. The accused denied the charge and asked for trial. The prosecution in order to prove the offence against the accused/appellant examined 17 witnesses in all. On the other hand the statement of the accused under Section 313 of the Cr. P. C. was recorded in which he denied the prosecution evidence appearing against him and said that he is innocent and has been falsely implicated in the case. The learned Additional Sessions Judge after hearing the arguments of the Additional Public Prosecutor and the counsel for the accused passed the judgment mentioned above. ( 5 ) WE have heard the learned counsel for the accused/appellant and the learned Govt. Advocate for the State/respondent. ( 6 ) AS far as the question of the death of Bansiram as homicidal in nature is concerned the learned counsel for the accused/appellant has not disputed this fact. Even otherwise, PW-11 Dr. M. L. Sahu has stated that on 27th November. Advocate for the State/respondent. ( 6 ) AS far as the question of the death of Bansiram as homicidal in nature is concerned the learned counsel for the accused/appellant has not disputed this fact. Even otherwise, PW-11 Dr. M. L. Sahu has stated that on 27th November. 1999, he was posted as Doctor in Primary Health, Centre, Menwagarh and on that day he conducted the medical examination on the dead body of Banisram and found that there were five incised wounds on the body of the deceased which were on the head, parietal bone of the head, left leg and right leg left palm and there was a bruise injury on the back of the deceased. The doctor further stated that all the above injuries were caused by hard and blunt object. He advised for X-ray. He further stated that the general condition of the injured was serious and he advised to send the injured to the District Hospital. Janjgir. The index of the doctorts report is EX. P-16. On 28th November, 1999, on the request of the Police, PW-11 Dr. M. L. Sahu conducted the postmortem on the dead body of deceased Bansiram. On opening the skull, he found that the frontal bone was fractured which was in three pieces and entered into the brain. Both the parietal bones were fractured parietal temporal bones were also fractured and there was a haematoma present on the brain, brain haemorrhage and bleeding was found. The cause of the death of the deceased was due to sub dural haematoma and due to brain haemonhage and comma. The nature of the death was homicidal. His report is EX. P-18. Therefore in view of the above statement of the doctor it is proved that the nature of the death of deceased Bansiram was homicidal. ( 7 ) AS far as the question of involvement of the accused in the murder of deceased Bansiram is concerned most of the witnesses have turned hostile in this case and the learned trial Court placing the reliance on the statements of PW-5 and PW-17 convicted the accused/appellant. ( 7 ) AS far as the question of involvement of the accused in the murder of deceased Bansiram is concerned most of the witnesses have turned hostile in this case and the learned trial Court placing the reliance on the statements of PW-5 and PW-17 convicted the accused/appellant. If we look at the statement of PW-5 Gorelal, he has slated that on the fateful day at about 8 a. m. he went to the house of Jeevrakhan Kurmi for getting his shave cleaned, on the way the house of Ramsnehi falls and he saw the accused and the deceased were sitting in front of the house of Patwari which is adjacent to Jeevrakhans house. The barber was shaving the beard of some other person and PW-17 Aasharam was getting the cart prepared by Firatram, the Carpenter. PW-5 has further stated that he had not seen who assaulted whom, but simply heard the cries of Bansiram Save Save and saw that the accused was passing through from that place holding a Lathi in his hand. PW-5 further stated that he had not seen who assaulted Bansiram. With the permission of the Court on asking the leading question by the Additional Public Prosecutor PW-5 stated that Rambharos was holding a stick in his hand and Bansiram was not having anything in his hand. There was some dispute between the accused and the deceased and in order to settle the dispute they came to Patwaris house. Patwari was living in the house of Ramsnehi. PW -5 further stated that he had not seen as to whether accused Rambharos was continuously assaulting deceased Bansiram. He only heard the cries of Bansiram and saw that the blood was oozing out from the head hand and legs. It is true that the stick was only in the hands of Rambharos and no one else was having the stick. It is incorrect to say that Bansiram was crying that Rambharos was killing him, but it is true that Bansiram was crying Save Save and Rambharos was running with the Lathi. In the cross- examination, this witness has stated that it is true that Hambharos always used to keep Lathi with him and that is why he has stated that he was carrying the Lathi. There was a noise of the loud speaker, therefore, he was not able to hear who was telling to whom what. In the cross- examination, this witness has stated that it is true that Hambharos always used to keep Lathi with him and that is why he has stated that he was carrying the Lathi. There was a noise of the loud speaker, therefore, he was not able to hear who was telling to whom what. Rambharos was not standing near the body of Bansiram, where he was lying unconscious and he had not seen the accused running with Lathi. ( 8 ) IF we look at the statement of PW-17 Aasharam, he has stated that on the fateful day at about 8-9 a. m. he was getting his cart prepared by Firatram, the Carpenter, at that time when he was in the garden of Firatram, he heard the cries of Gorelal that Rambharos has murdered Bansiram. PW17 has further stated that he had not gone to the place of incident. This witness has been declared hostile. In the cross-examination, he stated that Gorelal came and informed that Rambharos is assaulting Bansiram by a Lathi. It is incorrect to say that on hearing Gorelal he along with Firatram went to the house of Patwari and saw the accused assaulting the deceased. Therefore, this witness has not supported the prosecution case. The material witness, the Patwari, to whom both the accused and the deceased went is PW-2 Neelkanth has also turned hostile and stated that he has not seen the incident. As per the statement of PW-17 Aasharam, Gorelal informed him that Rambharos is assaulting Bansiram, whereas Gorelal PW-5 has turned hostile and stated that he had not seen who was assaulting whom, he simply heard that Bansiram was crying Save Save. ( 9 ) THEREFORE, in view of the above, there is no clear and cogent legal evidence which show that anybody saw Rambharos assaulting Bansiram. The main statement of PW-5 Gorelal shows that he simply heard the cries of Bansiram and he has stated that he has not seen Rambharos assaulting Bansiram, even he had not heard Bansiram saying Rambharos is assaulting him. Therefore, in view of the above statement of PW-5 Gorelal, PW-6 Umashanker cannot be made the basis for holding the accused/appellant guilty of assaulting Bansiram. Apart from that, there is no other evidence which proves that accused/appellant Rambharos was the person who assaulted his brother Bansiram. Therefore, in view of the above statement of PW-5 Gorelal, PW-6 Umashanker cannot be made the basis for holding the accused/appellant guilty of assaulting Bansiram. Apart from that, there is no other evidence which proves that accused/appellant Rambharos was the person who assaulted his brother Bansiram. In view of the above, the finding of the trial court holding the accused/appellant guilty of the murder of Bansiram cannot be sustained and the same is liable to be set aside. ( 10 ) IN the result, the appeal of the appellant is allowed. His conviction and sentence under Section 302 of the I. P. C. are set aside. The accused/appellant is acquitted of the charge for the offence under Section 302 of the I. P. C. and he be set at liberty forthwith, if not required in any other case. Appeal allowed. --- *** --- .