Durga Prasad Kamal Singh Rathore v. State of Chhattisgarh

Challenge in this appeal to the judgment of conviction and order of sentence dated 30/6/2006 passed by Additional Se-ssions Judge (F.T.C.), Pendraroad in Sessions Trial No. 173/2005 whereby and whereunder after holding the appellant Durga \ Prasad guilty for the comniission of offence of culpable hon-iicide amounting to murder of Ganesh Prasad 4^ Rathore in sharing common intention with other \ appellants, eonvicted the appellant Durga Prasad under Section 302 of the Indian Penal Code and sentenced imprisonment foplife & fine of Rs. 5000/-, in default of payment amount, additional rigorous imprisonraent for % raonths and convicted other appellants namely Xaliya & Narayn Prasad under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life & fine of Rs. 5000/-, in default of payment amount, additional rigorous imprisonment for 3 months resp.ectively. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellants, Court below has convicted sentenced appellants as aforementioned and thereby committed an illegs.lity. 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 (sinqe deceased). Appellant Durga Prasad assaulted Ganesh Pr^sad Rathore by axe over .f 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 oflincident •^.s, then PW3 Nutan Singh Rathoi-e 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 treatment, Ganesh Prasad Rathore died. Death was intimated to Police Station Gaurela vide Ex. R-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, f. / 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 85 PW6 Shyambai made coraplaints vide Exs. P-1. 85 P-7 against the appellants. Blood stained 8s plain soil were recovered from the spot vide Ex. P-6. Dead body of Ganesh Prasad Rathore was for autopsy to CIMS Hospital, Bilaspur, one stitched wound of 4 c.m. 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 85 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 "••'•a^^il discloser statement of axe vide Ex. P-12, same was t^V-'^^ -,. L-^i^Ui^-un- <!*'' •^ r- .•'••:^ :-^. - L^ K ^.'<g'.;» ^ recovered at his instance vide Ex. P-13. Appellajit Narayn Prasad m^de 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 wa§ recovered at his instance vide Ex. P-17.

Statements of the v^tnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Co.de'). 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. In order to prove the guilt of the appellants prosecution exarained as many 17 witnesses. Accused persons/appellants were examined under Section 313 the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. After affording an oppo^tunity of hearing to the parties, learned Additional Sessions ^-udge (F.T.C.), Pendraroad * convicted and sentenced the appellants aforementioned. Mr. Rajesh Pandey, Advocate for the appellant No.

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 c^mmon intention, they have present in the house of Qanesh 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 sentenced appellants aforementioned.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution.

In the present case, homicidal death as a result of fatal injuiy found over the body of Ganesh Prasad Rathore has not been substantially disputed on behalf of the appellants hand, otherwise established by the evideqce of PW14 Dr. Rajdulani, injury report Ex. P-19 8s autopsy report Ex. P-24.which has been admitted by appellants whiph shows fracture 4 on skull bone and brain was also damaged. Death of Ganesh Prasad Rathore was honiicidal in nature.

As regard the complieify of appellants in crime in question is conce^ned, conviction of the appellants are substantially based on the evidence of PW3 Nutan Singh Rathore SE 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, Ganesi{i Prasad Rathore went outside of "t. ?• his house to answer the natural call thereafter he shouted "^ F" 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 eind 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.

As regard the overt act of appellants Kaliya & Narayn Prasad are concerned, PW1 Ramji Rathore has lodged First Information Rep'orf Ex. P-2 in which it has been meritio.ned that three per^'ons has caused injury to A Ganesh Prasad Rathore, he has also made complaint Ex. P-1 in which he has been specifically mentioned that all the appellanfs have caused injury to Ganesh Prasad Rathore aird 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 85 Narayn Prasad were holding Ganesh Prasad Rathore and appellant Durga Prasad caused injury to Ganesh Krasad Rafhore by axe. In the light of aforesaid •incon.sistency in the evidence of witnesses 8s contradiction on their previous statements, it is not safe to hold that appellants Kaliya & Narayn Prasad were holding Ganesh Prasad Rathore at the tirae 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 First Inforniation 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 85 Narayn Prasad, conviction of the appellants Kaliya & Narayn Prasad under Section 302/34 of the Indian Pe;nal Code is not sustainctble under the law.

As regard the question of raotive is concerned, as per 4 evidence of PW3 Nutan Singh Rathore & PW6 •'- Shyambai, son 8s wife of deceased Ganesh Prasad ^Rathore, appellant Durga Prasad was present near the ^,B«"-;lq^- si v& s K? /T i.>aisy ^ 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 tgo at night with axe which shows grave intention of app^ellant Durga Prasad fofcausini homicidal death of Ganesh Prasad Rathore.

While convicting 85 senten, eing the appellants Kaliya & ^ Narayn Prasad under Section 302/34 of the Indian Penal, Court below has committed an illegality but while convicting SB sentencing the appellant Durga Prasad under Section 302 of the Indian Penal Code, Court below has not committed any illegality.

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 Code is hereby maintained. Sd/- T.P.Sharma Judge r Sd/- R.N. Chandrakar Judge .+ '^s'HS 'f. / 1 i ^ 1 rr'