Chattisgarh High Court
Anandram Majhwar vs State Of Chhattisgarh on 18 November, 2022
1
Judgment Reserved on 28.07.2022
Judgment Pronounced on 18.11.2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.1787 of 2019
• Anandram Majhwar S/o Late Shri Raghunath Ram Majhwar,
Aged About 35 Years R/o Village Puta (Cherwapara), P.S
Darima, Civil & Revenue District Ambikapur Surguja (C.G.)
----- Appellant
Versus
• State Of Chhattisgarh Through the District Magistrate
Ambikapur, Distt. - Surguja (C.G.)
---- Respondent
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For Appellant : Shri Sunil Sahu, Adv.
For Respondent : Shri Amit Kumar Verma, Panel Lawyer
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CAV Judgment Hon'ble Shri Justice Sachin Singh Rajput
1. Assailing the legality, correctness, judicial propriety of the impugned judgment of conviction and award of sentence dated 09.01.2017 passed in Sessions Trial No. 51/2016 by the learned Sessions Judge, Ambikapur, District - Surguja (C.G.), whereby the appellant has been convicted and sentenced in the following manner:-
Conviction Sentence Under Section 304 Part II of Rigorous Imprisonment for 10 Indian Penal Code, 1860 years and fne amount of Rs. 500/- and in default of payment of fne further additional rigorous imprisonment of 3 months. Facts of the case
2. The prosecution story in brief is that on the date of incident 21/02/2016 in the afternoon Somari Bai (PW-1) was at her home. She heard some noise and went near to the house of 2 her brother Vidur Ram (deceased) and saw her both brothers Anandram (appellant) and Vidur Ram (deceased) were fghting and assaulting each other. She tried to intervene. Anandram (appellant) assaulted Vidur Ram (deceased) by a stone on his head because of which his head and face were coated with blood. When she tried to stop appellant, he assaulted her and she ran away. On seeing the appellant and deceased were fghting, Deenaram (PW-2) informed Bandhanram Mazwar (PW-5) about the incident. He immediately came to spot, by the time appellant ran away committing murder of deceased. Complainant Bandhanram (PW-5) lodged the report on 21/02/2016 at 4:15 pm at Police Station Darima where merg report (Ex-P/17) named First Information Report (Ex-P/18) was registered. Investigation was set on motion and Investigation Ofcer Smt. Padmshri Singh Tanwar (PW-11) went to the spot and prepared spot map (Ex-P/19), dead body panchnama (Ex-P/16) was prepared, blood stained soil & plain soil were seized vide (Ex- P/9). Dead body was sent for autopsy to Primary Health Center, Darima, where Dr. Janeshwar Singh (PW-7) performed the autopsy and gave the Post Mortem Report (Ex-P/12). Vest of deceased was seized vide (Ex-P/10). Appellant was arrested and on his memorandum statement (Ex-P/7) a stone was recovered vide seizure memo (Ex-P/8). Seized articles were sent to Forensic Science Laboratory. FSL report (Ex-P/23) was received and blood was found on the vest of the deceased and stone.
3. After completion of investigation, the charge-sheet was fled against the accused/appellant under Sections 302 of IPC. 3 Learned Court below, framed the charge against the appellant under section 302 of IPC. The accused/appellant however, denied the charge framed against him and claimed for trial.
4. So as to establish its case, the prosecution has examined as many as many 12 witnesses and exhibited 24 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. Defence however, did not examine any witness in supports of its case.
5. By the judgment impugned learned Court below has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant.
Submissions on behalf of the appellant
6. Counsel for the appellant made the following submissions :-
(a) Counsel for the accused/appellant submits that the fndings recorded by the Court below convicting the accused/appellant for the ofences as referred to above, being not based on just and proper appreciation of the evidence of the witnesses cannot be made to stand and are liable to be set aside. He submits that learned Court below has failed to consider contradiction and omission in the evidence of the witnesses examined by the prosecution and thus has committed an error of law while holding the accused/appellant guilty.
(b) He submits that the prosecution has not been able to prove by adducing cogent and clinching evidence that it 4 is the appellant who is the author of crime. He submits that the testimony of the witness does not inspire confdence and conviction cannot sustain on such testimony. He submits that the eyewitness can not be relied upon and the memorandum and seizure witness cannot be believed. In sum and substance he submits that the prosecution was able to bring home the guilt of the accused/appellant beyond reasonable doubt and the appellant may be acquitted from all charges.
(c) Lastly he submits that the appellant has already served/ undergone considerable period of his sentence hence sentence imposed may be reduced to already served/undergone. To buttress his submissions he placed reliance on a judgment of the Hon'ble Supreme Court passed in case of Kala Singh @ Gurnam Singh Vs. State of Punjab1 and judgment of this court dated 18.11.2021 passed in Criminal Appeal No. 1848/2019 in case of Ramu Ram Uike Vs. State of Chhattisgarh.
Submissions on behalf of the respondent State
7. On the other hand counsel for the State made the following submissions:
(a) Learned State counsel supports the judgment impugned and submits that the fndings of conviction and sentence of the appellant recorded by the Court below are based on due appreciation of the record and therefore, no interference therewith is required in this appeal.
1 2021 (10) SCC 744 5
(b) He further submits that the prosecution has duly proved the guilt of the appellant by leading prudent and cogent evidence. Prosecution on the basis of statement of Smt. Somari (PW-1) and other witnesses able to prove the guilt of the appellant beyond reasonable doubt.
(c) Looking to the overt act and the manner in which the ofence was committed, the appellant does not deserve any leniency. The judgment impugned is fully justifed and the appeal is liable to be dismissed.
8. I have heard learned counsel for the parties, considered their rival contentions and perused the record meticulously with utmost circumspection.
Analysis and Conclusions
9. The frst question to be decided by this Court is whether the death of the deceased Vidur Ram was homicidal or not. Learned counsel for the appellant seriously did not dispute the homicidal death of the deceased. However, this Court has examined the statement of Dr. Janeshwar Singh (PW-7) who has conducted the Post Mortem of the deceased. He found 6 Antemortem injuries on the body of the deceased and gave his report Ex-P/12. He categorically stated that the mode of death was caused by cardiac and respiratory failure due to a coma caused by a blow to his head and death was homicidal in nature. On perusal of unambiguous testimony of this witness homicidal death of the deceased is proved beyond reasonable doubt.
10. The next question which is requires determination by this 6 Court is whether the accused/appellant is the author of the crime. Prosecution based his case on the eyewitness Smt. Somari (PW-1) on account of she is the sister of the appellant and the deceased. In her statement, she has stated that she has seen the fghting of the appellant and deceased and the appellant was hitting the head of the deceased by the stone. This witness stood frm throughout in her statement. The learned trial court basically relied her statement to base conviction. The fnding recorded by the learned trial court cannot be said to be faulty or without proper appreciation of evidence.
11. Ramdev (PW-6) is a witness of memorandum statement (Ex- P/7) of the appellant and seizure of stone (Ex-P/8). He also the witness of seizure of blood stains and plain soil (Ex-P/9) and vest of deceased (Ex-P/10). Initially this witness did not support the prosecution case. However, on being asked the leading question by the prosecution, he has proved the memorandum (Ex-P/7) and recovery of stone (Ex-P/8) at the instance of the appellant. Though in cross examination he again did not support the case of prosecution, but overall analysis of this witness goes to show that the seizure of the stone at the instance of appellant is proved by the prosecution. FSL report (Ex-P/23) indicates blood on the vest and stone. The learned trial court after due appreciation, convicted and sentenced the appellant as aforesaid. The fnding recorded by the learned trial court does not appear to be perverse or illegal. Hence, on careful examination of the evidence and material placed by the prosecution, the conviction of the appellant does not call for any interference 7 and the same is upheld.
12. The last submission of the learned counsel for the appellant is with regard to reducing the sentence of the appellant from 10 years to sentence already served/undergone by him needs to be examined. The Hon'ble Supreme Court in case of Kala Singh @ Gurnam Singh (Supra) modifed the sentence under section 304 part I/34 of IPC to section 304 part II/34 of IPC. The sentence of 12 years imposed was reduced to 7 years. This court in case of Ramu Ram Uike (Supra) reduced the sentence of 7 years to 6 years under section 304 part II of IPC. The Hon'ble Supreme Court in case of Willie (William) Slaney Vs. State of Madhya Pradesh 2 while altering the sentence under section 302 of IPC to section 304 part II of IPC imposed sentence of 5 years. In light of the above pronouncement, it is to be seen that whether the appellant is entitled for any leniency from this court. The appellant was arrested on 02/03/2016 and since then he is behind bars. He has served/undergone considerable period of sentence imposed upon him. Nothing incriminating is brought to the notice of this court that he has not reformed during this period. Nothing signifcant is on record to suggest that his freedom is detrimental to society at large. Overall facts & circumstances indicates that no harm to society at large is likely to cause in case of the appellant is prematurely released. In view of the above discussion, this court is inclined to reduced the sentence of 10 years imposed upon the appellant to sentence already undergone/served by the appellant.
2 AIR 1956 SC 116 8
13. As a consequence of the above discussion, the sentence of 10 years is reduced to sentence already served/undergone by him. The appellant be set at liberty forthwith unless required in any other case. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Appeal thus partly allowed.
Sd/-
(Sachin Singh Rajput) Judge parul