CFOOOOOS4400 v. Ram & Anr.

- ~~- Mr. S.S. Rajput, counsel Mr. U.N.S. Deo, Ad State/respondent. for the appeliant. jitionai Pubiic Pros JUDGMENT ?1li.12.2006) This aDDeai is directed ^gainst the judgment of conviction and order of sentence dated 1 .4.2! POO passed by !! Additional Sessions Judge, Bastar in S.T. No. 2^ E8/99 whereby the learned Additional Sessions Judge after holding ^ ^cused Pila Ram guilty for cornmission of the offence under Section 302 of the i.P.C., sentenced him to P.T.O. w i- XI-HC-78 3^': "ilWlfll, ®TR+|l|6,Rldltf^ .^^&.i^3... ^IWTTSh*1|ch ^'2006 aiT^Tira^ (i^cii^cji^iT) 3TI^T?)TfeTR; nitT3TI^Tsht< ??gTgT H^(T 3n^r qil<lft1<fl-1 HIIIlT ff fel^t tRl^iK' ^3Tf^T3n^T^ ;::I; ^ undergo jmprisonment for lif^ ^ and pay a fine of Rs. 500/-, in defauit of payment of fine to furthei| undergo imprisonment for one year. However, co-acclised Mandhar was convicted under Section 304-il of the i.P.C. and sentenced to.iit ndergo five years rigorous imprisonment. During pendency of t(i iis appeal appellant No. 2 Mandhar has aiready been released on| completion of sentence on 5.8.2002, therefore, none appears on ts behalf.

2. Case of the prosecu|l |ion, in brief, is that Raimali @ Somari (PW-1) gave Merg intimatior|i (Ex.P/7) to the Police Station - Kodenar on 22.5.1999 to: the effecl that,since iast four years Muktibai residing with Pila Ram as hi^ vvife; Pi!a Ram used to quarrei and beat her, therefore, she used to| lcome to her house. One month before accused again gave beatinA to Muktibai, therefore, she came to her house. On 20th May 1999, Ip lla Ram and his father Mandhar came to her house and took her hu^band Banwa to the market of Kodenar. When they were returnjng from the market, Pila Ram by axe and Mandhar by c!ub attacked ianwa and committed his murder, The crime v/as witnessed by Kar ya Madiya. On 21.5.1999 Panchayat was P.T.O. XI-HC-78 3^'^iraRTO', (STn'tf'is, Rtciitfy *11*1WI sb^llcb __.C-y-.-^^//$:&S. • ^ ^[ 200° 3TT^?T<T33T (l^fg^^T) sn^T^rf^rH; traTSII^Tstilil) ?T(ITW Bfer sn^r t>i<if<-t<fl-i *<ii<iT?:tecfl'<Ri'K;i< ^>3tf^T3n^r convened in the village. Receiving this Merg intimation First Informatlon Report (Ex.P/1) <|vas registered. The investigating officer lefi for the scene of occurrer)ce and prepared inquest report (Ex.P/2) of the dead body of Banwa.| Plain and bloodstained soii from the place of occurrence was take|i jnto possession under Ex.P/3. Whiie in poiice custody accused Pil^ Ram gave memorandum (Ex.P/4) connection with the axe artd in pursuance of that, axe was got recovered under Ex.P/5. Lt| |ngj of accused Pila Ram was taken into possession under Ex.P/6. Site plan (Ex.P/8) of the place of occurrence was pre'pared. 3ody of deceased Banwa was sent for postmortem examination to| Prirgary Heatth Center, Bade Kilepai where Dr. Lakhan Jury (PW\ 8) conducted postmortem and prepared the postmortem report (Ex.P/] i 7). He opined that the cause of death is head injury and coma due tcj iacerated wound over skuli. After usual investlgation charge sheet w^ is filed in the Court of Judieiai Magistrate First Ciass, Jagdaipur who in| turn committed the case to the Sessions Judge, Jagdalpur from v/here| learned Additional Sessions Judge, received the case on fl ransferforfrial. P.T.O. ^ [-HC-78 3^ "i<l<41t1'M, (STn^'16, Rlcliuy <<l*l^TTai^T9» .c^.^./.^.2.?.. ^ 200d 3ll^i >4a<») ('ytg'Ki,8!') sn^T^irfiaN; (lafTSD^Tsllit) 5TBT8[R:tlf?(T3n^T =bl<lfd41-< t<|l<cfl'?fte<^'<R]'K;l< ^3:l1^T3D^T

3. Prosecution in order to establish the charge against accused persons examined eight witnesses. Statements of accused persons were recor<j led under Section 313 of the Cr.P.C. in vi/hich they denied the ma\ terial appearing against them in the prosecution evidence and sta1] ed that they are innocent and have been falselv implicated in the crimej

4. We have heard-Mr. S. »l5 Rajput, iearned counsel appearing on behalf of the appeilant anf ;Mr.. U.N.S. Deo, Add'diona! Public Prosecutor for the State/resp^nden

5. Mr. Raiput has not i^pute{i the homicidal death of Banwa. Apart from that, from the ^v'derice of PW-3 Podyamikariya, evewitness who saw the accLJsed persons attacking deceased Banwa with axe and club as also fr<i im the medical evidence of Dr. Lakhan •Jury (PW-8) who conducted postmortem on the body of deceased Banwa and stated that ther' a was a lacerated wound on the left temporal region in the size of4x 3 x 4 inch, there were four contusions on the back and |he temporal bone beneath injury No. 1 was fractured, membrane ^as ruptured and brain material was P.T.O. /^""•"-•v. \ y XI-HC-78 3^ •<II<IKI<I, aiTn'y'is, Riwiyy -c^-.^:.^.^. *11*1rtTSft*1|tt> ^ 2000 Sll^l tiaqi (>i,<:tI^s|<<eT) -'si^r^f^iw ciqrsii^Tstiiiti ?TBTW: Bfer sn^r t>i<<Fci<fl-i ii>«iTfftec^<Ri^i< ^iSlf^ITSTI^T coming out the skull, established the death of Banwa was homicidai in nature.

6. As far as involvement! of the accused/appeiiant in crime in qusstion is concerned. the cohvjction rests on the evidence of PW-3 Podyamlkariya, the eyev/ltnes ^ of the incident and the extra ludici, confessions made by the s lccused before PW-1 Raimati, PW- ?«i!uktibai and PW-5 Lith

7. IVIr. Rajput argued that] the evidence of PW-3 Pociyamikariya does not inspire confidence fc| fc|ecause in his evidence, he has stated that when he saw the accus^ (d pe^sons attacking the deceased, he ran away from there and did| not go tov/ards the piace of incident, therefore, his conduct was unrf latural as he did not disciose this fact to anybody in the village and it w^s disclosed on!y on the next day before the Panchavat.

8. We'have perused the ^vidence of PW-3 Podyamikariya who has stated that on the fateful c|ay at about 5.00 p.m. in the evening he 'was searching his missing co\^, at that time he saw that accussd Pila P.T.O. ^i/ c XI-HC-78 'SSf "ilWld^, «Tny'l6,faclltfy *11KWI Sh+llth .er.-.^;/.^.2:?.. W[ 2000 311^1 intti (y^'s«<eT) sn^i w R^i+ awsn^TSRifR; ?^ITW flfia'a'n^r <»ii<itia<)1-i *ii>itiTfff3tA'<Rit<;i< ^i SlRtIT 3II^?T Ram attacked Banwaram witl axe on his head as a resuit of which Banwaram fell down and therbafter, Piia Ram with axe and accused Mandhar with c!ub attackeld Banwaram. . He was frightened ,therefore, he !eft for his res?d es?dence with his cow and did not disciose this fact to anybody in hi& nouse. He disclosed this fact in the Panchayat oniy. It is true thal as per his evidence he did not disciose to anybody about the incident and even did not try to intewene when the accused persons were ; ittacking the deceased, but mere not intervening or not going towan js-the place of occurrenoe itseif, oannot be a ground to disbelieve tl^ e evidence of .this witness because it depends upon person to per^on how he takes the things or how he reacts in such circumstances. |Spme persons try to inten/ene whereas some being scared choose tcj remain mute spectator, therefore, the above contention of counsel •] for the appellant cannot be taken as a ound fo disbelieve the evidejice of this witness . As far as the question 6s to whv this witness did not disciose the incident to anybd dy on the date of incident itself, concerned, it, of course, cree ites some doubt in the evidence of this P.T.O. 4^ ^ XI-HC-78 3ST '<(|<||c1<|, ©Tflu'IS,RtOKiy HWCtT SdHr^i ..W.:^:.(S.zr^.. ^200" Sii^i <4a<n (liyit^'si<<«T) 3T1^T?iTR-licb TOT 3f1^?T aiIIRi srarw flfeT sn^r tii<iFil<fl-i tii*«nTfftoA<Ri^i< ^Sll^R'STI^T witness because in the ordfn.ary course a person is expected to dlsclose such a heinous crim^ to someone but it a!so depends on the nature of the person and ihet'' refore, evidence of such person cannot be thrown away without scr'(i|ti unizing me same on in such a case the Court should scrutihize'the evidence of such witness in a carefu! manner before placi reiiance on the same. if we look into the evsdence of PW-3 Podyaij hikariya , it comes on record that on the next day before the Panchay^ t he disciosed ths fact that he witnessed the crime. Moreover, in th^ cross-examination of tRis 'wjtness defence has not been" able to eilcit any circumstances which discredits ths evidence of this witnessl becayse there is nothing on record to show that this witness was jr| iterested in deceased in any manner or had any animosity against th'| 5 accused persons which prompted him licate them in such a heinous crime. The evidence of this v/itness has been further corr 3borated by the medical evidence of Dr. Lakhan Jury (PW-8) in whicl)i he has categdrically stated that there was a lacerated wound on thifc head ofthe deceased, there were four contusions on the back, ten(pora bone beneath injury No. 1 was fractured, membrane was rupl ured and brain material was comina out. P.T.O. ^.'>, ^} B XI-HC-78 3:sg'3TP(1?PT, ®Tn^'l<s,Rtcliuy *<1*ICTI S»l*1ic(» ..^?:;.^/.5;2-.?. ^ 2000 3Ti^?Tiraq; (({^fg^^r) 311^T?)T^icb gqr SIT^T sbtii<ti ??aw flfer W^T °t)l<<Fc1<fl-1 IIKClTfffelftiRlWK ^iWf^ITSII^T His evidence also stands c|3rroborated by the evidence of PW-1 Raimati, PW-4 Muktibai and PW-5 Liti, before whom the accused Pi!a Ram said to have made extra judicia!. confessions regarding commission of the crime b.v Ihim. Therefore, there is no reason to disbeiieve the evidence of FW

10. Mr. Rajput also submitijed that from the medicai evidence oniy a lacerated wound was found on the head whereas the aliegation against accused Pila Ram is ihat -he attacked the deceased with axe, therefore, in ali ^probabilities tiji le Injury must be-ofthe nature of incised wound. t In the first instance, i| is not necessary that the injui'y inflicted on the head bv the accused i^ lf1 f al! probability must be of the nature of incised wound, moreover, on account of the injury inflicted by axe, the temporal bone was fractured ^ ind there was a cut wound on account of which brain materiai also cante out of the skuil. However, in order to ascsrtain that lacerated woun|d cannot be caused by axe, ths defence ought to have cross-examined the doctor on this aspect whereas there is no such cross-examinationl the defence at ali'. Thus we do P.T.O. 9 XI-HC-78 3^?irrai?PT, enfl+i'KS, Isiciwy *11*i^l Sh*l|ch .c^...^:/..^.^.. W[ 200 o 3T1^?T<rag? ('pfg^ET) sn^TqiTR^icb tW3fR?T»11«ti OTgiw dfer •sm^r °t>i<<f<n<fl-i >ii*«iTifte^<Ri+<;i< ^<(Tf^T3:I1^T find any substance in the above submissipn of counsel Mf. Rajput also argue|J that in the cross-examination of PW-3 Podyamikariya, this witness itas.stated that he witnessed the incident from a distance of 200 meterl therefore, it was not possibie for him to see accused assaulting the| deceased with axe from such a long distance. However, again w^ are not inclined to accept this argument for the reason that in the flrst instance the distance "aiven bv this witness is mereiy-an estimat( ion that it was 200 meter. Moreover, was the month of May wheih the incident occurred, the time of the incident was about 5.00 p.j TI. and admittedly there was sufricient ^ suniight at that time, therefort e, it cannot be said that this witness did not witness the crime in ouei ition from such a distancs. Nothino has come on record In ths cros^ -examination of this witness, that there was anv obstruction betweeil the piace where the incident occurred and {his witness saw the sam ^. Therefore, the Court below has rightly placed reliance on the eviderj jce of PW-3 Podyamikariya in convicting the accused for commisslon cjfthe crime in auestion. P.T.O. ^f'^ XI-HC-78 S^^ITORpr, aiTTItf'is, Kicii^y in^c'fT aiurai +*+ ^ * »+ »^* *<**•»*t* *-+ * * ^ 2000 3ii^i>i Maw (1^(3°"^) sn^rqn'R'fi* cI-lTW^TaiHRi ^gTWflferw^T <ti]<it<i<fl-< *<i*iciTffte<A'<Ri«<]< ^<frt^T3T)^T

12. Now we shali degi with the alleged extrajudiciai confession said to have been made by the adp lcused before PW-1 Raimati, this witness has stated that IViukti was h^r mother-in-law and she was married to accused Pila Ram. Muktiiie Uai has alreadv chiidren from her first husband. On Wednesday Pj laram and Mandhar came to her houss when she was cpoking the I. On Thursdsy Pilaram and Mandhar took her husband to Kodenarl [market. When they rsturned, she asked them the whereabouts of her husBand whereupon they replied that her husband is in tbe-market but |n the night her husband did not return to the house. Thereafter, they rtiade search for him. She has stated that Pila Ram disclosed that he hte cohmitted the murder of her husband with axe and his body is lyif near the Bhainiwa bush. He disclosed to her that Mandhar attackeil her husband with club. However, this v/itness has not been cross-i xamination on the aspect of extrajudicial confession made by the acdused before this witness that Piia Ram and Mandhar had not taken h ;r husband to the market or that Pila has not made any extrajudicia! co Dfession before her. PW-4 Muktibai has also stated that Pila tbok l|ier foreibty and kept her as his wife, P.T.O. ^1^'' XI-HC-78 3^^iraRW, ®T(1wi6,Rldl+iy *11HMI Sh*1iqi ^r.:^.:/y.2r.3?. ^[ 2000 Sll^l 4^'h ('i':tI^I!«<iT) aji^r^rR-fi* craT3TI^Tsb*1 s^nwHfStT-w^T 'niitci'Tl-i t<i<4<aTfftecA<Ri«i< ^»1^T3Ti^r deceased Banv/aram vi?as his (;rother. When she came to her parents' house accused tried to tak foreibly to his house and Pi disclosed to her that he has dommitted the murder .of his brother wil axe. As the accused kept thi^ iady for quite some time as his wife and on account of the quarrel 'i ^etween th® tAfo, she returned to her brother's house, the accused wanted to take her back again foreibly but she did not oblige the acdused I, therefore, this lady vras known to the accused as she remained Iwith him for quite some time as his wife, as such, there is every pos^ libility of making confessibn' before this witness by the aceu'sed. .{ Similarly, the defence has not cross- examined this witness on thd point that accused made extra judicial confession before her. Si milar' is the evidence of PW-5 Liti. Therefore, there is nothing record to show that the extrajudiciai confession made before the^ .e witnesses was not votuntary or true rather the extrajudicial confe sion made before them is corroborated by the evidence of PW-3 P P^dyamikariya wh'o witnessed the crime. Thus the evidence of al witnesses regarding extrajudiciai ion made bv the accu^ )ed, inspire confidence of the Court. P.T.O. XI-HC-78 Ts?^rrai?ra', siTtl'H'is, fiii'iiti^ ^ *11HCTTaitTT9) ff^.:.^:J.'?..^. ^ 2000 3ii^i?i ><si<»> (y(^isi<yr) aif^T W R-fi* cfaiTsn^Tstifiti ?^arw flf?tT sn^r <tll<<tfl<n-< 11K<lTiffe^t<[:i|^l< ^isri^iTsn^T

13. For the foregoing re^sons, we do not find any iitegalit^ ity or infirmitv in the finding of th^ trial Court convicting the accused Ram under Section 302 of thle iPC for causing fatal injur/ to decea 3anwaram with the help of xe on his head which ultjmatelv resu in his death. Therefore, 9 e argument of counsel for the appeilant that Mandhar has a!so attadked the deceased with club, as such no definite finding can be give? that it was accused P'!a Ram who was responsibie for committing t! e murder of Banwaram is not acceptable as the accused Pila Ram ssauited the deceased with' axe on his head and to that effect th< i^re is a clear and cogent evidence of eyewitness PW-3 Podyamil k^riya gnd the evidence of PW-1 Raimati before whom Pila Ram made ic|e extrajudiciai confession. The accused landhar also attacked the (jleceased with ctub which was witnessed by PW-3 Podyamikariya, the (efore, the appeal of Mandhar has aiso no . A lerit.

14. In the resuit, the appc al being devoid of substance is iiable to be dismissed and it is accord|ingly dismissed. Sd/- L.C.BHADOO Judge Sd/- Dhirendra Mishra Judge , P.T.O. v^'- ~^7 < •^/^ ^ / ;'- ' J- ^^ \ ^-] ^ '•' (/"