Judgment · High Court · 2013

Coram: HON'BLE MR.T.P.SHARMA & iminai Appeal No. 838 of 1994 Appeliants Ja;

Laioo

Prakash Sahu 4. Ram Prasad (died during the pendency i-1i « R s^. £!• State of Chhattisgarh (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF PROCEDURE,1973) Present:- Mr. Hari for the Dubey, counse! with Mr. Shakti Raj Sinha, counsei Panel Lawyer for fhe State. (Passed on 15'" January, 2013) Per T.P.Sharma. J.:- Chaltenge in this appea sentence dated 09.08. Judge, Surguja (Ambit conspiracy with deceased) and object to commit ), is to the judgment of conviction & order of i 994 passed by llnd Additional Sessions in Sessions Trlal No.39/1999, whereby the appellants guilty for commission of to commit murder of Ramlakhan (since of unlawful assembly having its common of Ramlakhan and in furtherance of common objeet of unlawful assembly connmitting murder of Ramiakhan, convicted the appeliants under Sections 120-B, 147 and 302 of the

3. IPC and sentenced them to undergo Rl for 6 month, Rl for one yea and imprisonment for life each, respectivdy. 11 iC appeai of appellant Ram Prasad is abated. Conviction is impugned on the ground that without there being any the trial Court has convicted & sentenoed the iota of evidence, appeliants as aforementioned and thereby committed iliegality. As per case of prosecution, on account of some money dispute with unfortunate deceased Ramlakhan, cn fateful night of 17.09.1992 about 7.15 p.m., while Ramlakhan was coming back to his house by cycle and passing in front of appellants' house, appellants surrounded him, appellant Purshottam assaulted him by battleaxe (Tabbat), other appellants assaulted by sticks and caused instantaneous death of Ramlakhan. The incident was witnessed by PW/1-Ramchandra Sahu, brother of deceased who lodged F!R vide Ex.P/1 on same day at sbout 8.30 p.m., another witnesses PW/S-Ramjeet, brother-in-law of deceased, has also witnessed the incident. Both have seen the irsvestigating offieer teft incident, frightened and fled from the spot. PW/1-Ramchandra went to police station and lodged FSR vide Ex.P/1, for scene of occurrence, after summoning the witnesses vide Ex.P/S, Inquest over dead body of deceased was prepared vide Ex.P/5. Dead body was sent for autopsy to Primary Health Center, Lakhanpur vide Ex.P/19, where PW/4-Dr (Smt.) Kaiawati Pate! conducted autopsy vide Ex.P/12 and found following injuries:- i) ii) iii) iv) v) vi) Multipte incised wounds and abrasions over body. Incised wound of 1"x %"x %" over nose. Right hand was chopped off. Incised wound of 2" x 2"x 1" over right knee, Incised wound 4"x2"x2" over right knee. incised wound of 3"x1 "x1" over right knee joint. Mode of death was shock and death was homicidal in nature.

During the course of investigation, appeliant Purdiottam was taken into custody, he made disclosure statement of battieaxe (Tabi3al) vide Ex.P/7 and same was recovered at his instance vide Ex.P/9, bloodstained dothes of appellant Purshottam were seized vlcie 'ti, - -^^i^, Ex.P/10, bloodstained clothes of deceased Ramlakhan were seize vide Ex.P/11. Statements of the witnesses were recorded under Section 161 ofth Code of Criminal Procedure (for short the 'Code'). After completion < investigation, charge sheet was filed before the Court of Judici^ Magistrate First Class, Ambikapur, who in turn, committed the case t the Court of Sessions, Ambikapur. Learned l!nd Additionai Session Judge, Surguja received the case on transfer for trial. In order to prove the guilt of the accused/appellants, prosecution ha examined 9 witnesses. Statements as many accused/appellants were recorded under Section 313 of the where they denied the circumstances appearing against them innocence and false implicatlon in the crime in question is claimsi They have aiso examined defence witnesses Tripurari Par Ghasiram, Jagdish Prasad and Indrajeet Singh and tried to show some unknown persons have committed the murder of Ramlakhan and present appellants have been fatsely implicate the crime in questlon. After providing opportunity of hearing to the parties, Additional Sessions Judge, convicted & sentenced the appeilants learned n Hari Shankar Dubey with Shri Shakti Raj Sinha, learned counse for the appellants and Mr. Anant Bajpai, tearned Panel Lawyer for the State are heard, pemsed the judgment impugned and record of ths ^ triai Court. Learned counsel for the appellants vehemently argued that convicti

is substantlally based on evidence of PW/1-Ramchandra Sahu an; PW/6-Ramjeet, brother and brother-in-law of deceased, respectivel They are relative witnesses and their evidence do not insj: confidence and trustworthy. They have not seen the incident and shouted for he!p, there was dark night and it was not possibte them to witness the incident without the facility of light. Ramchandra has not mentioned the presence of torch In FIR (Ex. iodged by him, thereafter he has introduced the presence of torch. InitialSy, PW/' has exaggerated the story and falsely impticated the appellants, even otherwise, there was no propriety for causing injury by appellsnts. He further argued that prosecution has tried to prove that on account of previous dispute, appellant Purshottam along with other accusec! have caused injuries, both the witnesses have deposed that appeliant Purshottam has caused single blow by battleaxe (Tabba!) and they in absence of corroboration have not stated about the other injuries. from independent source and proof of injury caused by appellants, appellants cannot be held tiable for formation of unlawfui assemb'y and commission of conspifacy, even otherwise, there is no evidence of commission of conspiracy. Mere presence of the appellants on the spot cannot be held them liable for commission of offence with aid of Section 147 and 14Q or Section 120-B of the IPC. Evidence of PW/1 and PW/2 are not of sterling character, convictlon of appellants are not safe, even otherwise, statement of PW/6-Ramjeet has been recorded on second day, after considerable delay especially when he was present on the spot and has stated that he has witnessed the 1 *. On the other hand, iearned Panel Lawyer for the State opposed tl appeal and submitted that evidence adduced on behalf of prosecuti' especially evidence of PW/1-Ramchandra Sahu and PW^-Ramjs inspire confidence and trustworthy, same are safe to reiy convicting appellants under Sections 120-B, 147 and 302 of the IF After appreciating the evidence avaiiable on record, Court below hi rightly convicted and sentenced the appellants as aforementioned.

!n order to appreciate the arguments advanced on behaif of parties, we have examined the evidence available on record. tn the present case, homicidal death as a resuit of fatal chopping hand of deceased Ramlakhan has not been substantia disputed on behalf of the appellants, even otherwise same a! establlshed by the evidence of PW/4-Dr (Smt.) Kalawati Pate! ai autopsy report Ex.P/12 that death of deceased was homicidal injuries ai 'is Sv nature. As regards complicity of the appellants in crime in question is conviction of appellants is substantiatly based on concemed, evidence of PW/1 -Ramchandra Sahu and PW/6-Ramjeet, relatives of deceased. Evidence of relative witness cannot be discarded on the ground of their reiation, inter-alia. The relatives are the iast person reluctant to spare the real culprit and to implicate an innocent person Talsety their evidence only requires minute scrutiny before accepting it.

After appreciating the evidence available on record, tearned lind Additional Sessions Judge has convicted and sentenced all appellants under Sectlons 120-B, 147 and 302 of the IPC but has not considered the insufficiency of evidence for commission of offence punishable under Section 120-B and 147 of the IPC and ateo for commission of murder against appellants No. No.l-Latoo Ram, No.2- Mani Lal, No.S-Prakash Sahu and No-5-Hitnarayan and thereby committed it legality.

Consequentty, the appeal is partly allowed. Conviction and sentences of the appellants Laloo Ram; Mani Lal, Prakash Sahu, Hitnarayan and Purshottam under Sections 120-B and 147 ofthelPC are hereby set aside. Conviction and sentence of appellants Laloo Ram, Mani Lal, Prakash Sahu, Hitnarayan under Section 302 of the 1PC are atso hereby set aside. They are on bail. Conviction and sentence of appellant Purshottam under Section 302 of the IPC is hereby maintained. Appellant Purehottam is on bail, he shall immediately surrender before the Tria! Court for serving remaining sentence. The Trial Court shall aiso take appropriate steps for his attendance for serving remaining sentence. Sd/- T- P. Sharma Judge Sd/- R.N.Chandrakar Judge