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2012 DIGILAW 57 (CHH)

DURGA PRASAD v. STATE OF C. G.

2012-02-14

R.N.CHANDRAKAR, T.P.SHARMA

body2012
JUDGMENT T.P. Sharma, J 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30/6/2006 passed by Additional Sessions Judge (F.T.C.), Pendraroad in Sessions Trial No. 173/2005 whereby and whereunder after holding the appellant Durga Prasad guilty for the commission of offence of culpable homicide amounting to murder of Ganesh Prasad Rathore in sharing common intention with other appellants, convicted the appellant Durga Prasad under Section 302 of the Indian Penal Code and sentenced imprisonment for life & fine of Rs. 5000/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months and convicted other appellants namely Kaliya & Narayn Prasad under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life & fine of Rs. 5000/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months respectively. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. 3. As per case of the prosecution, on fateful day of 14/1/2005, at about 8:30 P.M. on account of previous dispute, appellants came near the house of Ganesh Prasad Rathore (since deceased). Appellant Durga Prasad assaulted Ganesh Prasad Rathore by axe over his head and caused fatal injury. Incident was witnessed by PW3 Nutan Singh Rathore & PW6 Shyambai, son & wife of deceased Ganesh Prasad Rathore, they were present near the place of incident then PW3 Nutan Singh Rathore along with his relatives immediately brought injured to CIMS Hospital, Bilaspur. PW1 Ramji Rathore went to the Police Station and lodged First Information Report vide Ex. P-2 on 14/1/2005. During course of treatment, Ganesh Prasad Rathore died. Death was intimated to Police Station Gaurela vide Ex. P-24. Marg was recorded vide Ex. P-18. Finally, he was examined by PW14 Dr. Rajdulani vide Ex. P-19. Considering his seriousness, immediately he was referred to Medical College, Bilaspur vide Ex. P-20. After summoning the witnesses, inquest over the dead body of Ganesh Prasad Rathore, was prepared vide Ex. P-3. Spot map was prepared vide Ex. P-5. PW1 Ramji Rathore & PW6 Shyambai made complaints vide Exs. P-1. & P-7 against the appellants. Blood stained & plain soil were recovered from the spot vide Ex.P-6. P-20. After summoning the witnesses, inquest over the dead body of Ganesh Prasad Rathore, was prepared vide Ex. P-3. Spot map was prepared vide Ex. P-5. PW1 Ramji Rathore & PW6 Shyambai made complaints vide Exs. P-1. & P-7 against the appellants. Blood stained & plain soil were recovered from the spot vide Ex.P-6. Dead body of Ganesh Prasad Rathore was sent for autopsy to CIMS Hospital, Bilaspur, one stitched wound of 4 cm. long over right fronto-parietal region was found in autopsy report vide Ex. P-24 (second document marked as Ex. P-24) with fracture on fronto-parietal bone & brain was damaged. As per X-Ray report vide Ex. P-26, fracture on parietal bone was noticed. During course of investigation, appellants were taken into custody. Appellant Durga Prasad made discloser statement of axe vide Ex. P-12, same was recovered at his instance vide Ex. P-13. Appellant Narayn Prasad made discloser statement of axe vide Ex. P-14, same was recovered at his instance vide Ex. P-15. Appellant Kaliya made discloser statement of axe vide Ex. P-16, same was recovered at his instance vide Ex. P-17. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Pendraroad who in turn committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge (F.T.C.), Pendraroad has received the case on transfer for trial. 5. In order to prove the guilt of the appellants prosecution examined as many as 17 witnesses. Accused persons/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge (F.T.C.), Pendraroad has convicted and sentenced the appellants as aforementioned. 7. Mr. Rajesh Pandey, Advocate for the appellant No.1, Mr. Sameer Singh, Advocate for the appellant No.2, Mr. Yogendra Chaturvedi, Advocate for the appellant No.3 and Mr. Ravindra Agrawal, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. 8. Mr. Rajesh Pandey, Advocate for the appellant No.1, Mr. Sameer Singh, Advocate for the appellant, No.2, Mr. Rajesh Pandey, Advocate for the appellant No.1, Mr. Sameer Singh, Advocate for the appellant No.2, Mr. Yogendra Chaturvedi, Advocate for the appellant No.3 and Mr. Ravindra Agrawal, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. 8. Mr. Rajesh Pandey, Advocate for the appellant No.1, Mr. Sameer Singh, Advocate for the appellant, No.2, Mr. Yogendra Chaturvedi, Advocate for the appellant No.3 vehemently argued that as per case of the prosecution especially evidence of PW3 Nutan Singh Rathore & PW6 Shyambai, son & wife of deceased Ganesh Prasad Rathore, appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore and appellant Durga Prasad has caused fatal injury by axe but same has not been corroborated by other sources including complaints & First Information Report lodged by them, in absence of any overt act or in absence of any evidence of presence of appellants Kaliya & Narayn Prasad, conviction of the appellants Kaliya & Narayn Prasad under Section 302 with the aid of Section 34 of the Indian Penal Code is not sustainable under the law. 9. Learned counsel for the appellants further argued that only one injury has been caused to Ganesh Prasad Rathore that too by blunt part which shows that appellant Durga Prasad has not caused injury with intent to cause death of Ganesh Prasad Rathore therefore, act attributed to appellant Durga Prasad does not travel beyond the scope of under Section 304 Part-II of the Indian Penal Code. 10. On the other hand, Mr. Ravindra Agrawal, P.L. for the respondent State opposed the criminal appeal and argued that all the appellants have caused homicidal death with intent to cause death of Ganesh Prasad Rathore in sharing common intention, they have present in the house of Ganesh Prasad Rathore at night which shows their grave intention for causing murder of Ganesh Prasad Rathore and learned Additional Sessions Judge (F.T.C.), Pendraroad has rightly convicted and sentenced the appellants as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the body of Ganesh Prasad Rathore has not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW 14 Dr. Rajdulani, injury report Ex. 12. In the present case, homicidal death as a result of fatal injury found over the body of Ganesh Prasad Rathore has not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW 14 Dr. Rajdulani, injury report Ex. P-19 & autopsy report Ex. P-24, which has been admitted by appellants which shows fracture on skull bone and brain was also damaged. Death of Ganesh Prasad Rathore was homicidal in nature. 13. As regard the complicity of appellants in crime in question is concerned, conviction of the appellants are substantially based on the evidence of PW3 Nutan Singh Rathore & PW6 Shyambai, son & wife of deceased Ganesh Prasad Rathore who have deposed that on the date of incident at night, they were present in their house, Ganesh Prasad Rathore went outside of his house to answer the natural call thereafter he shouted ^^nkSM+ks&nkSM+ks** then PW6 Shyambai threw light of torch then they saw the incident. They saw that appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore and appellant Durga Prasad assaulted by axe to Ganesh Prasad Rathore and they fled from the spot. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony to the extent that appellant Durga Prasad has not assaulted Ganesh Prasad Rathore by axe. 14. As regard the overt act of appellants Kaliya & Narayn Prasad are concerned, PW1 Ramji Rathore has lodged First Information Report Ex. P-2 in which it has been mentioned that three persons has caused injury to Ganesh Prasad Rathore, he has also made complaint Ex. P-1 in which he has been specifically mentioned that all the appellants have caused injury to Ganesh Prasad Rathore and all three were holding axe. PW6 Shyambai has also made complaint Ex. P-7 in which she has specifically mentioned that all appellants have assaulted her husband by axe but they have never made complaints or stated in First Information Report that appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore and appellant Durga Prasad caused injury to Ganesh Prasad Rathore by axe. PW6 Shyambai has also made complaint Ex. P-7 in which she has specifically mentioned that all appellants have assaulted her husband by axe but they have never made complaints or stated in First Information Report that appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore and appellant Durga Prasad caused injury to Ganesh Prasad Rathore by axe. In the light of aforesaid inconsistency in the evidence of witnesses & contradiction on their previous statements, it is not safe to hold that appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore at the time of causing injury even otherwise there was no propriety for holding Ganesh Prasad Rathore by two persons when all were holding axe but evidence of aforesaid witnesses well corroborated by First Information Report and complaints are sufficient for drawing an inference that appellant Durga Prasad has caused homicidal death of Ganesh Prasad Rathore. In absence of any evidence of overt act of appellants Kaliya & Narayn Prasad, conviction of the appellants Kaliya & Narayn Prasad under Section 302/34 of the Indian Penal Code is not sustainable under the law. 15. As regard the question of motive is concerned, as per evidence of PW3 Nutan Singh Rathore & PW6 Shyambai, son & wife of deceased Ganesh Prasad Rathore, appellant Durga Prasad was present near the house at night with axe and has caused injury over the head of Ganesh Prasad Rathore, there was no propriety for the presence of appellant Durga Prasad near the place of incident that too at night with axe which shows grave intention of appellant Durga Prasad for causing homicidal death of Ganesh Prasad Rathore. 16. While convicting & sentencing the appellants Kaliya & Narayn Prasad under Section 302/34 of the Indian Penal, Court below has committed an illegality but while convicting & sentencing the appellant Durga Prasad under Section 302 of the Indian Penal Code, Court below has not committed any illegality. 17. For the foregoing reasons, criminal appeal is partly allowed. Conviction & sentence of the appellants Kaliya & Narayn, Prasad under Section 302/34 of the Indian Penal Code is hereby set-aside, they be set at liberty at once, they be released forthwith, if not required in any other case. Conviction & sentence of the appellant Durga Prasad under Section 302 of the Indian Penal I Code is hereby maintained. Appeal Partly Allowed.