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2003 DIGILAW 86 (CHH)

RAMDHAR v. STATE OF C. G.

2003-05-07

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

body2003
JUDGMENT L.C. Bhadoo, J. :- 1. The accused/appellants have preferred this criminal appeal under Section 374(2) of the Cr.P.C. being aggrieved by the judgment dated 06-06-2001 passed by the Third Additional Sessions Judge, Jagdalpur (Bastar) in Sessions Trial No. 252/2000 by which the learned Additional Sessions Judge after holding the accused/appellants guilt under Section' 302 read with Section 34 of the Indian Penal Code sentenced each of them to undergo imprisonment for life. 2. The relevant prosecution story for the disposal of this criminal appeal is that in the night of 10th May, 2000, when deceased Jaggu along with his, family members was sleeping in his house, Jaggu was sleeping in a separate room and the other family members were sleeping in another room, at that time accused/appellants Ramdhar and his son Girdhar entered the room of Jaggu, dragged him out of his room and after catching hold of his throat they pressed his throat. On hearing the notice, the wife of the deceased namely Phulmati and the other wife of the deceased woke up and saw that the accused persons were dragging Jaggu out of his room, assaulted him on the head by stone and after beating him they field from the scene. Thereafter, both of them saw that Jaggu has died. There was a dispute between the accused persons and the deceased because the accused persons were suspecting that deceased Jaggu is practising witchcraft. On the next day, Phulmati lodged the merg intimation Ex. P-1 in the Police Station and based on that the Police registered the First Information Report EX.P-2 Through EX.P-3 the Police seized the iron axe on which the blood spots were present, which was produced by appellant No.1 Ramdhar from his house. Through EX.P-4 the stone was recovered at the instance of appellant No. 2 Girdhar. Based on the memorandum EX.P-5 given by appellant No. 1 Ramdhar and memorandum EX.P-6 given by appellant No.2 Girdhar, through EX.P-7 the blood stained soil and simple soil were taken into possession. Through EX.P-8 the baniyan on which the blood spots were present was taken into possession. The Panchanama of the dead body of the deceased EX.P-10 was prepared after giving the notice EX.P-9. The postmortem of the dead body of the deceased was got conducted by Dr. R.K. Nag and report EX.P-11 was prepared. After completion of the investigation the challan was filed against the accused/appellants. The Panchanama of the dead body of the deceased EX.P-10 was prepared after giving the notice EX.P-9. The postmortem of the dead body of the deceased was got conducted by Dr. R.K. Nag and report EX.P-11 was prepared. After completion of the investigation the challan was filed against the accused/appellants. The learned Additional Sessions Judge framed the charge against the accused appellants under Section 302 of the I.P.C. The accused/appellants denied the charge and the prosecution in order to prove the offence against the accused/appellants examined in all seven witnesses. On the other hand, the statement of the accused persons were recorded under section 313 of the Cr.P.C. in which they said that they are innocent and they have been falsely implicated in the case. The learned Additional Sessions Judge after hearing the arguments of the Public Prosecutor and counsel for the accused passed the impugned judgment. 3. We have heard the learned counsel for the accused/appellants and learned Deputy Govt. Advocate for the State/respondent. 4. As far as the question of homicidal nature of the death of deceased Jaggu is concerned the learned counsel for the accused/appellants did not dispute. Even otherwise, PW -7 Dr. R.K. Nag has stated in his statement that on 14th May, 2000 he conducted the postmortem on the dead body of deceased Jaggu, on inspection he found that one incised wound of size 21/2 inch x 1/2 inch 1/2 , inch was present on the mandible, one lacerated wound of size 1 inch x 1 inch x 1/2 inch on the nose, one lacerated wound of size 1 inch x 1 inch depressed into the skull of the deceased. PW -7 has further stated that all the injuries were antimortem in nature and injury No.3 skull bone was fractured. He further stated that injury No. 1 was caused by sharp edged weapon and injury Nos. 2 & 3 were caused by blunt weapon. The cause of the death of the deceased was homicidal due to excessive bleeding and shock. His post mortem report is EX.P-11. In view of this statement of the doctor it is proved that the death of deceased Jaggu was homicidal in nature. 5. 2 & 3 were caused by blunt weapon. The cause of the death of the deceased was homicidal due to excessive bleeding and shock. His post mortem report is EX.P-11. In view of this statement of the doctor it is proved that the death of deceased Jaggu was homicidal in nature. 5. Now, coming to the point as to whether the accused persons caused the death of the deceased, PW-l Phulmati and PW-2 Mandgo are the wives of the deceased and they have deposed before the Court as if they themselves have seen the accused persons inflicting the injury on the head of the deceased. But, on close scrutiny of their statements, this statement falls to the ground and in fact they are not the eywitnesses. PW -1 Phulmati in his examination in chief has stated that her husband was sleeping in another room, she along with the other wife of the deceased was sleeping in the other room and at about 12 0' Clock in the night accused/appellants Ramdhar and Girdhar entered the room where his husband was sleeping. She has further stated that the accused/appellants pressed the neck of her husband and by catching hold of his legs they dragged her husband out of the room and he died. PW -1 also stated that accused/appellant No.1 Ramdqar and accused/appellant No.2 Girdhar caused four blows by the axe and after hearing the noise she along with the other wife of the deceased woke up and saw the accused persons pressing the neck of the deceased and causing the injury by the axe. The merg intimation EX.P-1 was given by her. The accused persons were saying that her husband (deceased Jaggu) is practising witchcraft and on account of that one Jamdhar, who is the brother of accused/appellant No. 1 Ramdhar, also assaulted the deceased by an arrow, thereafter, Jamdhar died and the accused persons were levelling the allegations against the deceased of practising witchcraft. PW -1 Phulmati has also stated in her statement that the accused persons had not inflicted any injury by stone and club. 6. If we look into the cross examination of this witness PW-1 she has stated that they went for sleep after taking their dinner after extinguishing the earthen lamp, the accused persons murdered her husband inside the room itself and dead body was taken out and they inflicted the injuries by axe four times. 6. If we look into the cross examination of this witness PW-1 she has stated that they went for sleep after taking their dinner after extinguishing the earthen lamp, the accused persons murdered her husband inside the room itself and dead body was taken out and they inflicted the injuries by axe four times. She further stated that she narrated these facts while reporting the matter, if the Police has not written in the report, she does not know. Further she has stated that on account of extinguishing the earthen lamp there was darkness in house and on account of that darkness after hearing the noise she came out saying 'who is, who is', at that time, the accused were running in the darkness and she saw them from behind. It is correct to say that the accused persons earlier said that her husband (deceased Jaggu) is practising witchcraft and they defamed him that is why she thought that the persons who came to her house may be the accused persons. She identified the accused while they were running. There was very black dark in the house. She guessed that accused/appellant Ramdhar & Girdhar have murdered her husband. If we look at this statement that there was very black dark in the house after lighting off the earthen lamp then where was the occasion to this lady to identify the accused persons. At one stage, she has stated that she, saw the accused persons dragging the deceased, thereafter, she said that she saw the accused persons from behind and further she said that because the accused persons were blaming her husband (deceased Jaggu) for practicing the witchcraft that is why she felt that the accused persons may be the persons causing the death of her husband. About the fact that the accused persons caused four axe blows on the body of the deceased, this fact has not been mentioned in the F.I.R. In the F.I.R. she reported that, they assaulted by a stone, where as before the Court she has stated that the accused persons had not assaulted by stone and club. 7. Similar is the statement of PW-2 Mandgo. In the examination in chief she has stated that she saw the accused persons assaulting her husband. 7. Similar is the statement of PW-2 Mandgo. In the examination in chief she has stated that she saw the accused persons assaulting her husband. In the cross examination she has stated that there was dark night, they went for sleep after lighting off the earthen lamp and she saw the accused persons from behind when they were running away. She has further stated that it is correct to say that the accused persons might have murdered her husband on account of the enmity. She further stated that she gave the statement that four axe blows were given to the deceased, but if this statement is not recorded in EX.D-1 she does not know. Further she stated that it is correct to say that due to black dark she could not identify the accused persons. Because there was a previous enmity that is why she is saying that the accused persons have killed her husband (deceased Jaggu). In view of this statement, whole statement of this witness has been demolished that she saw the accused persons inflicting the injury on the body of her husband. 8. Therefore, in view of the above, the statement of the above two witnesses inspire no confidence and in fact they were not the eyewitnesses to the assault on their husband and they have made the statement before the Court which inspires no confidence. 9. As far as the recovery of the stone and the axe at the instance of the accused persons is concerned the witnesses have stated that the injury was not caused by the stone. Even otherwise, the recovery of the stone and the axe does not connect the accused persons with the murder of the deceased because no human blood stains has been found on these two articles nor there is any report. No serological or chemical examination report has been tendered in the evidence, even though, these items were sent for chemical examination to the Forensic Science Laboratory, Raipur. 10. In view of the above, the judgment of the trial Court convicting the accused/appellants cannot be sustained because there is no evidence on the record. Hence, the finding of the trial Court holding the accused persons guilty is based on no evidence, therefore the same cannot be sustained. 11. 10. In view of the above, the judgment of the trial Court convicting the accused/appellants cannot be sustained because there is no evidence on the record. Hence, the finding of the trial Court holding the accused persons guilty is based on no evidence, therefore the same cannot be sustained. 11. In the result, the appeal of the accused/appellants is allowed and the conviction of the accused/appellants under Section 302 read with Section 34 of the I.P.C. is set aside. They are acquitted of the charge under Section 302 read with Section 34 of the I.P.C. It is directed that they be set at liberty forthwith if they are not required in any other case. 12. Consequently, M. (Cri.) P. No. 1535/2001 stands disposed of. Appeal Allowed.