HIGH COURT OI^CHHATTISGARH. BILASPUR v. The State of Chhattisgarh

D.B: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 447 of 2003 APPELLANT Nandram, aged 52 years S/o. Lakheshwar Prasad R/o. Village Kotmisonar, P.S. • Akaltara, Distt. Janjgir-Champa RESPONDENT The State of Chhattisgarh, Through P.S. Akaltara District Janjgir-Champa Vs. (Appeal under Section 374 (2) of the Cr.P.C.l Appearance: Smt. Usha Chandrakar, Counsel forthe appellant. Shri Akhil Mishra, Dy. Govt. Advocate, for the State. JUDGMENT (Z^.08.2008) Following judgment of the Court was delivered Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment of conviction and order of sentence dated 9.8.2002 passed by the Fourth Additional Sessions Judge (F.T.C.), Janjgir in Sessions Trial No. 125/2001, whereby, appellant has been convicted under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.100/-, default of payment offine to further undergo R.l. for one month. (2) Appellant-Nandram, deceased-Laxmilal and Daduram were real brothers. A family partition had taken place between tbem 18 years back. ~7 :.W<iS^S:S!' ^""'•',' "\ //"^' i &,. " 1» S %3a>'B»a i '^^i-Sy^ 'i S ^•ww^^h Criminal Apueal No. 447 of 2003 ^^ The allegations are that appellant-Nandram had encroached upon a " ^, portion of one field, which was allotted to deceased-Laxmilal and there was some dispute between them. On account of this dispute, on

30.12.2000, appellant-Nandram assaulted the deceased with an Axe who received multiple injuries and succumbed to those injuries. Dindyal (P.W.6) told Daduram (P.W.5) in the village that the dead body of his brother Laxmilal is lying in a nearby field, on which, Daduram rushed to f-t. the place of occurrence, where he me't his two sons namely Chandrahas Kumar (P.W.7) and. Pramod Kumar (P.W.8), who narrated the entire incident to him as they were the eye witnesses. Thereafter the First Information Report Ex.-P/9 was lodged by Daduram in the concerned police station. (3) On such information, the Investigating Officer reached to the scene of occurrence, gave notice (Ex.-P/1 & P/23) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The body was sent for post mortem examination to Primary Health Center, Akaltara vide Ex.-P/4 and the post mortem examination was conducted by Dr. C.P. Singh (P.W.2), who prepared his report Ex.-P/5. He noticed more than 15incised wounds on the body of the deceased and found that there were fractures of right mastoid and right frontal bone. Left femoral artery was cut and there were also fractures of right femur and left humorous bones. He opined that the cause of death was shock and hemorrhage and it was homicidal in nature. In further investigation, after taking the appellant in custody his memorandum u/s 27 of the Evidence Act was recorded vide Ex-P/13, in pursuance of which an Axe was seized vide Ex.-P/14. One pair of sleepers of the deceased, blood stains soil, plain soil, clothes & pick-axe were also seized under Ex.-P/3, P/15 & P-16. The seized artictes were Criminal Aweal No. 447 of 2003 for their chemical examination to Forensic Science Laboratory, \, Sagar, from where a report Ex.-P/26 was received. According to F.S.L. report, blood stains were found on many articles including Axe and the pick-axe, which were seized from the possession ofthe appellant. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magicitrate First Class, Janjgir, who in turn committed the matter to the concerfteid Sessions Court, from where it was s:~«5:ag^i" received on transfer by the Fourth Additional Sessions Judge (F.T.C.) Janjgir, who conducted the trial and convicted and sentenced the appellant as aforementioned. (5) Learned counsel for the appellant argued that the 2 eye witnesses namely Chandrahas Kumar (P.W.7) and Pramod Kumar (P.W.8) are not reliable witnesses as they were inimical to the appellant, therefore, conviction based upon their testimonies cannot be sustained. (6) On the other hand, learned counsel for the State opposed these arguments and supported the judgment of the trial Court. 1 -: -^ ^SSf^i-^^^^. (7) We have heard the learned counsel for the parties at length and have also perused the records of the Sessions Court. (8) Chandrahas (P.W.7) is nephew of the appellant and the deceased. He is son of 3 brother namely Daduram (P.W.5). He deposed that on the fateful day at about 10-11 a.m., he along with his brother Pramod Kumar (P.W.8) had gone to the tank. There they heard hue and cry, on which, they went towards the field of Nandram. They saw that appellant-Nandram and deceased- Laxmilal were quarrelling on account of boundary dispute Criminal Appeal No. 447 of 2003 of a field. At that time, ^landram gave tangia blows on the head of the deceased. The deceased started running but he fell down in the field of Nandram. Nandram chased him and even after the deceased had fell down, he gave repeated. tang/'a blows to him and then he ran away towards Kukurdabri tank. (9) Pramod Kumar (P.W.^) has also deposed in similar fashion. Though these 2 eye witnesses were put to lengthy cross-examination by the defence but the defence has not been able to elicit any such circumstance, on which , it can be inferred that either they have not witnessed the occurrence or they are falsely implicating the appellant. (10) It was argued before us that Daduram (P.W.5) was inimical appellant. On a previous occasion, on a report made by the wife of the appellant, Daduram, Laxmilal (since deceased) and other persons were convicted u/ss 147, 452 & 324/149 I.P.C., therefore, he cooked a false story against the appellant and planted his two sons as the eye witnesses. (11) We have examined such possibility, argued by the learned counsel for the appellant. Daduram (P.W.5) has deposed that on the fateful day, he was sitting on a Chabutra in the village. At about 1-1.30 p.m., Dindayal Kenwat came there and told that Laxmilal .has been killed by somebody and his dead body is lying in the field of Nandram. On this, he along with Dindayal went to the place of occurrence, where he saw his 2 sons Chandrahas (P.W.7) and Pramod Kumar (P.W.8). It is at this place, Chandrahas and Pramod, narrated the entire story to Daduram and then, he went to the^police station to lodge the F.I.R. v ^iy:' /y \ & ^as811 Crimmal Apceal No. 447 of 2003 (12) If we look into the contents of the F.I.R., it would appear that Daduram mentioned in the report that he was told by Dindayal somebody has killed his brother and the dead body is lying in the field of Nandram and then, he met with his sons, who narrated the story to him. If Daduram was interested in falsely implicating the appellant, he would have told his name from the beginning itself and would not have come with the story that Dindayal aid not tell the name of the assailant and he could come to know about the 'assaitant after reaching to the place of occurrence. His evidence given in the Court is duly corroborated by the F.1.R. which further corroborates the version of the 2 eye witnesses. Dindayal has also been examined as P.W.6. He has categorically deposed that Dinesh and Bullu Kenwat told him that somebody has murdered Laxmilal and his dead body is lying in the field. After hearing this, he went to Daduram, who met him sitting on a Chabutra in the village Chowk, and narrated the story to him. He further added, thereafter he accompanied Daduram to the field of Nandram, where they met son of Daduram namely Chandrahas and many other persons. On the basis of evidence of Dindayal (P.W.6) and Daduram (P.W.5), the conduct of Daduram does not appear to be doubtful. No doubt, he admitted in his cross-examination that on the report of wife of the appellant he along with deceased and other persons were prosecuted and convicted but he added that an appeal is pending against the said judgment of conviction recorded by the Magistrate and only on this count in absence of any other cogent reason his testimony cannot be discarded when it is found to be worth reliance and his conduct appears to be natural. Dindayal is an independent witness and there was no reason for him to support Daduram if Daduram wanted to cook a false story. Therefore, the arguments 'B"il &. ...»^ '"^t^^i^ ^' .^' ,' 'i&.'V"" Criminal Appeal No. 447 of 2003 advanced by the learned counsel for the appellant cannot be accepted and the conviction of the appellant based upon the evidence of eye \, witnesses and other circumstantial evidence like memorandum and seizure of the blood stains articles cannot be set aside. (13) In the result, we do not find any illegality or infirmity in the judgment of the trial Court warrantinginterfprence in this appeal. The appeal has no ,1 merit, the same deserves to be and is accordingly dismissed. - - Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge CHIEF JUSTICE