Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 28 (CHH)

MANOJ KUMAR @ MEHAR v. STATE OF C. G.

2013-01-11

R.N.CHANDRAKAR, T.P.SHARMA

body2013
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :– 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-1-2005 passed by 3rd Additional Sessions Judge (FTC), Janjgir in Sessions Trial No. 407 of 2004 whereby and whereunder learned Additional Sessions Judge after holding the appellant Manoj guilty for causing homicidal death amounting to murder of Makaru and appellant Jagdish for abetting such murder, convicted the appellant Manoj under Section 302 of the IPC and appellant Jagdish under Section 114 of the IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.500/- each, in default of payment of fine to further undergo R.I. for three months. 2. Conviction of the appellants is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on 17-8-2004 at about 11.00 a.m., appellant Manoj assaulted Makaru by stick over different parts of his body, appellant Jagdish was holding spade and was abetting Manoj to assault Makaru as a result of injury caused by appellant Manoj, deceased Makaru died on the spot. The incident was witnessed by PW/2 Shakuntala, PW/5 Sukhdev and PW/11 Gulapi Bai. 4. PW/1 Sadhuram went to Police Station, Pamgarh and lodged first information report vide Ex.P/1, merg was recorded vide Ex.P/2, Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex.P/3, prepared inquest over the dead body of deceased vide Ex.P/6, bloodstained soil and plain soil vide Ex.P/7, dead body of deceased was sent for autopsy to Government Hospital, Pamgarh vide Ex.P11 where Dr. PW/10 D.C. Choudhary conducted autopsy vide Ex.P/12 and found the following injuries. (I) Bruise over upper arm 2" x 1" (II) Bruise over right upper arm 2" x 1/2" (III) Bruise over right upper arm 11/2'' x 1/2'' (IV) Bruise over back side 6" x 1" (V) Bruise over lumber region 3" x 1" and 3" x 1" and 3" x 1" (VI) Bruise over region 3'' x 1", 4" x 1", 41/2" x 1" (VII) Bruise over left scapular region 6" x 1" (VIII) Bruise over left scapular region of 3" x 1" (IX) Bruise over front neck of 2" x 1" Doctor opined that mode of death was due to injuries and death was homicidal in nature. 5. 5. During the course of investigations, stick was seized from appellant Manoj vide Ex.P/4, spade was seized from Amrautin Bai vide Ex.P/8 after producing the same from the house of appellant Jagdish, sealed clothes of deceased were seized vide Ex.P/9 and spot map was prepared vide Ex.P/17. 6. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short, "the Code"). After completion of investigation, charge sheet was filed against the appellants in the Court of Chief Judicial Magistrate Janjgir who in turn committed the case to the Court of Sessions, Bilaspur, Learned Additional Sessions Judge, received the case on transfer for trial. 7. In order to prove the guilt of the appellants, prosecution examined as many as 15 witnesses. Accused/appellants were examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances appearing against them and innocence and false implication in crime in question is claimed. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 10. Mr. B.M.K. Bajpai, learned counsel appearing for the appellants submits that conviction is substantially based on the evidence of child witnesses PW/2 Shakuntala, PW/5 Sukhdev and woman witness PW/11 Gulapi Bai, but their evidence does not inspire confidence and trustworthy. There is likelihood of tutoring of child witnesses. Although the presence of both son and daughter of deceased in their house was natural, but he submits that as per evidence of PW/2 Shakuntala and PW/5 Sukhdev, both appellants and deceased consumed liquor together, thereafter some quarrel took place. Deceased was trying to assault Jagdish by stick which was snatched by appellant Jagdish, thereafter, deceased took the spade and tried to assault them which was also snatched by Jagdish, thereafter, appellant Manoj with a view to save themselves, caused injury to Makaru. The injuries found over body of the deceased were not grievous in nature. Appellant Manoj has not caused any injury to deceased with intent to cause his death. Appellant Jagdish has not abetted the commission of offence, otherwise, he, who was holding spade i.e., deadly weapon, would have caused fatal injury to deceased. 11. On the other hand, Mr. The injuries found over body of the deceased were not grievous in nature. Appellant Manoj has not caused any injury to deceased with intent to cause his death. Appellant Jagdish has not abetted the commission of offence, otherwise, he, who was holding spade i.e., deadly weapon, would have caused fatal injury to deceased. 11. On the other hand, Mr. R. Tripathi, learned Panel lawyer on behalf of the State opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the present appellants have caused homicidal death amounting to murder of Makaru and with intent to cause his death appellant Jagdish abetted of his murder, therefore, the court below has rightly convicted and sentenced the appellants as aforementioned. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 13. In the present case, homicidal death as a result of multiple injuries found over the body of deceased has not been substantially disputed on behalf of the appellants; on the other hand, same is also established by the evidence of PW/10 Dr. D.C. Choudhary and autopsy report vide Ex.P/12 that death of deceased Makaru was homicidal in nature. 14. As regard complicity of the appellants in crime in question is concerned, conviction is substantially based on the evidence of child witnesses PW/2 Shakuntala and PW/5 Sukdev and PW/11 Gulapi Bai. As per evidence of PW/5 Sukhdev, who was present on the spot since beginning, his father Makaru was present in his house. He asked Anil to bring liquor and consumed liquor along with appellant Jagdish, thereafter, some quarrel took between his father and appellant Jagdish, at the same time, appellant Manoj Kumar came there, some altercation took place, thereafter he assaulted his father by stick and appellant Jagdish was holding his father. He tried to save his father and was requesting the accused persons to leave his father and also requested Jagmohan to save his father but he did not save. Appellant Manoj assaulted his father till his death and at that time PW/2 Shakuntala, his sister and elder mother PW/11 Gulapi Bai were also present, then he went to field to narrate the incident to PW/1 Sadhuram, who went to Police Station and lodged first information report vide Ex.P/1. Appellant Manoj assaulted his father till his death and at that time PW/2 Shakuntala, his sister and elder mother PW/11 Gulapi Bai were also present, then he went to field to narrate the incident to PW/1 Sadhuram, who went to Police Station and lodged first information report vide Ex.P/1. The evidence of this witness is corroborated by the evidence of PW/2 Shakuntala and PW/11 Gulapi Bai. 15. PW/2 Shakuntala and PW/5 Sukhdev are child witnesses. Child witnesses are also competent witnesses under Section 118 of the Evidence Act. Only requirement for their cross-examination and accepting the testimonies, only the court is required to satisfy itself whether the child witnesses are able to understand the duty to speak truth to answer the questions rationally before accepting it. Before examining these witnesses the trial Court by asking questions has satisfied itself. Even otherwise, their detailed evidence and cross-examination of these witnesses reveals that they have answered the questions rationally. Defence has cross-examined these witnesses in detail. In para 4 of his evidence, PW/5 Sukhdev has specifically admitted that his father came with spade, but he has not used spade which was snatched by appellant Jagdish, Jagdish abetted and instigated appellant Manoj to assault his father. PW/2 Shakuntala has also admitted in para 5 of her cross-examination that her father was holding spade with intent to assault Manoj if Manoj assaulted his father. She has further admitted that her father has taken stick from Shyamlal which was snatched by appellant Manoj. She has specifically admitted that her father would not have taken the stick and spade, then there would not have been any chance for quarrel. PW/11 Gulapi Bai had witnessed the latter part of the incident and has deposed that at the time of incident appellant Manoj assaulted Makaru. PW/2 and PW/5 though they are child witnesses but they have not been tutored and they have deposed what they have seen the incident. Their evidence finds corroboration from the evidence of each other and also from the evidence of PW/11 Gulapi Bai. Their evidence inspires confidence and trustworthy and sufficient for drawing inference that appellant Manoj has caused homicidal death of Makaru. 16. As regards the question of motive is concerned. Their evidence finds corroboration from the evidence of each other and also from the evidence of PW/11 Gulapi Bai. Their evidence inspires confidence and trustworthy and sufficient for drawing inference that appellant Manoj has caused homicidal death of Makaru. 16. As regards the question of motive is concerned. in case of direct evidence motive looses its importance, even otherwise, motive is only aid in criminality and can be inferred on the basis of nature of injury, kind of we upon used, part of the body effected and other similar circumstances. 17. In the present case, undisputedly appellant Jagdish and deceased Makaru had consumed liquor together, thereafter, quarrel took place. Deceased himself brought stick and spade which were taken by appellants Manoj and Jagdish who were son and father, thereafter, appellant Manoj has caused injuries to deceased Makaru which were not fatal although he died as a result of cumulative effect of the injuries. This evidence shows that appellant Manoj was not having any intention to cause homicidal death of deceased Makaru. As per circumstances shown, while circumstances became beyond the control, deceased Makaru brought stick and spade i.e., weapons, then appellant Manoj has caused injuries to deceased by stick but at the time of causing such head injuries by stick, appellant was having knowledge that by his act, deceased may die. Appellant Manoj has caused homicidal death of deceased when he was provoked and has caused injury on spur of moment without any intention. The evidence is sufficient to prove that appellant Manoj has not caused injuries with intent to cause death of deceased Makaru, but the act attributed to appellant squarely falls within the ambit of Section 304 Part II of the IPC. 18. As regards question of abetment is concerned, undisputedly, as per evidence of PW/2 Shakuntala, & PW/5 Sukhdev, appellant Jagdish was holding spade and instigated his son appellant Manoj "maro maro" then his son Manoj assaulted the deceased. Appellant Jagdish was holding spade which he had snatched from the deceased. Age of able bodied appellant Jagdish is only 45 years, he was having spade, but he has not caused any injury to deceased, he has not provided spade to his son for causing any fatal injury to the deceased. He himself has not caused or attempt to cause injuries to deceased. Mere utterance by person holding deadly weapon without over-act is not abetment. He himself has not caused or attempt to cause injuries to deceased. Mere utterance by person holding deadly weapon without over-act is not abetment. This evidence by itself is sufficient to negate the factum of abetment of the commission of offence. Inter alia, these evidences are sufficient to establish the fact that the present appellant Jagdish has not abetted the offence committed by his Son Manoj. While convicting and sentencing the appellant Manoj for causing homicidal death amounting to murder of deceased Makaru under Section 302 of the IPC and convicting and sentencing the appellant Jagdish under Section 114 of the IPC for abetting murder of Makaru, the court below has not considered the aforesaid evidence and circumstances available in the case and thereby committed illegality. 19. Consequently, the appeal is partly allowed. Conviction and sentence of the appellant Jagdish under Section 114 of the IPC are hereby set aside. He be set at liberty at once and be released forthwith, if not required in any other case. 20. Conviction and sentence of the appellant Manoj under Section 302 of the IPC is altered to Section 304 Part II of the IPC and he is sentenced to undergo RI for the period already undergone. The appellant Manoj is in custody since 18-8-2004. He be set at liberty at once and be released forthwith, if not required in any other case. Appeal Partly Allowed.