Chattisgarh High Court
Babla @ Babulal Mahant And Ors vs State Of Chhattisgarh on 5 January, 2023
Cr.A.No.1062/2013
Page 1 of 9
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1062 of 2013
{Arising out of judgment dated 1-10-2013 in Sessions Trial No.96/2012 of
the Additional Sessions Judge (Fast Track Court), Raigarh}
1. Babla @ Babulal Mahant, S/o Kurhardas Mahant, aged about 46
years,
2. Sanjay Mahant, S/o Ghurvind Das @ Vishwanath Mahant, aged
about 37 years,
3. Vishnudas Mahant, S/o Kurhardas Mahant, aged about 53 years,
All are residents of Village Junadih Lailunga, Police Station
Lailunga, District Raigarh (C.G.)
---- Appellants
Versus
State of Chhattisgarh, through the District Magistrate, Raigarh,
District Raigarh (C.G.)
---- Respondent
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For Appellants No.1 and 2: Mr. A.S. Kachhawaha, Advocate.
For Appellant No.3: Mr. Vivek Tripathi, Advocate.
For Respondent / State: Mr. Anmol Sharma, Panel Lawyer.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
Judgment On Board
(05/01/2023)
Sanjay K. Agrawal, J.
1. The appellants herein namely, Babla @ Babulal Mahant (A-1),
Sanjay Mahant (A-2) & Vishnudas Mahant (A-3) have preferred this
appeal under Section 374(2) of the CrPC calling in question legality,
validity and correctness of the impugned judgment of conviction
and order of sentence dated 1-10-2013 passed by the Additional
Sessions Judge (Fast Track Court), Raigarh in Sessions Trial
Cr.A.No.1062/2013
No.96/2012, by which they have been convicted under Sections
302 & 120B of the IPC and sentenced to undergo imprisonment for
life & pay a fine of ₹ 10,000/- each, in default of payment of fine to
further undergo additional rigorous imprisonment for six months and
rigorous imprisonment for ten years & pay a fine of ₹ 5,000/- each,
in default of payment of fine to further undergo additional rigorous
imprisonment for four months, respectively.
2. Case of the prosecution, in short, is that on 7-2-2012 at 11.00 a.m.
at Village Junadih Lailunga, Police Station Lailunga, District
Raigarh, the appellants conspired together and appellant No.1
assaulted deceased Phuleshwari Bai Mahant by axe, appellant
No.2 assaulted by bahinga wooden log and appellant No.3 abused
her by which she suffered grievous injuries and succumbed to
death. It is admitted position on record that deceased Phuleshwari
Bai was a widow woman residing all alone and she had 50 decimal
of land in her possession after partition which she got after the
death of her husband and which she was intended to give to
appellant No.2 and as such, it was disputed by appellants No.1 & 3
which led to demarcation of land. On the fateful day, demarcation
was going on and firstly, appellant No.3 came and abused
Phuleshwari Bai and thereafter, appellant No.1 armed with iron axe
and appellant No.2 armed with wooden log came there and
assaulted her by which she suffered injuries and died. It is the
further case of the prosecution that appellant No.2 threw the
wooden log on the spot and fled away from the spot. Thereafter,
first information report (FIR) was registered and bloodstained soil &
Cr.A.No.1062/2013
plain soil and the wooden log were recovered from the spot.
Panchnama was conducted and dead body was subjected to
postmortem which was conducted by Dr. Manoj Kumar Patel (PW-
6) vide Ex.P-11 in which cause of death was stated to be due to
neurogenic & haemorrhagic shock due to injury No.4 and death
was homicidal in nature. Memorandum statement of appellant No.1
was recorded vide Ex.P-3 pursuant to which axe was recovered
from him vide Ex.P-4. Other articles were recovered and sent for
chemical examination to the Forensic Science Laboratory, Raipur
and human blood was found on axe and wooden log, however, FSL
report was not exhibited.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC.. After completion of investigation, charge-sheet was filed
against the appellants before the jurisdictional criminal court and
the case was committed to the Court of Sessions for trial from
where the learned Additional Sessions Judge (FTC) received the
case on transfer for trial and for hearing and disposal in accordance
with law.
4. The trial Court has framed charges against the appellants for
offences punishable under Sections 120B & 302 of the IPC and and
proceeded on trial. The appellants abjured guilt and entered into
defence stating that they have not committed the offence and they
have been falsely implicated.
5. The prosecution in order to bring home the offence examined as
many as 8 witnesses and exhibited 26 documents Exhibits P-1 to
P-26. No witness has been examined on behalf of the defence,
Cr.A.No.1062/2013
however, documents Exs.D-1 to D-3 - statements of Roopdhar Das
Mahant, Vedram Patel & Kusma Bai Mahant, respectively, recorded
under Section 161 of the CrPC have been exhibited on behalf of the
defence. Statements of the appellants were recorded under
Section 313 of the CrPC in which they abjured the guilt and pleaded
innocence.
6. The trial Court after completion of trial and after appreciating oral
and documentary evidence available on record, convicted and
sentenced the appellants in the manner mentioned in the opening
paragraph of this judgment against which this appeal under Section
374(2) of the CrPC has been preferred by them calling in question
the impugned judgment.
7. Mr. A.S. Kachhawaha, learned counsel appearing for appellants
No.1 & 2, would submit that the prosecution has failed to bring
home the offence against appellants No.1 & 2 as eyewitnesses
Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW-3) -
husband & wife, are not reliable witnesses, they have not seen the
incident and appellants No.1 & 2 have been falsely implicated. He
would further submit that there is no evidence against appellant
No.2 Sanjay Mahant and the wooden log was seized from the spot,
moreover, Sanjay Mahant has no motive to commit the murder of
deceased Phuleshwari Bai. As such, the impugned judgment so far
as it relates to appellants No.1 & 2 deserves to be set aside and the
appeal deserves to be allowed qua appellants No.1 & 2 by
acquitting them of the charges levelled against them.
8. Mr. Vivek Tripathi, learned counsel appearing for appellant No.3,
Cr.A.No.1062/2013
would submit that there is no evidence against appellant No.3 that
he is said to have abused deceased Phuleshwari Bai, but he had
left the place of occurrence before the assault was made by
appellants No.1 & 2, therefore, he is liable to be acquitted.
9. Mr. Anmol Sharma, learned State counsel, would support the
impugned judgment and would submit that conviction of the
appellants is well founded and well supported by the evidence on
record leading to inference that the appellants have committed the
aforesaid offences, as such, the trial Court has rightly convicted the
appellants and therefore conviction cannot be competently
questioned by the appellants herein and the appeal deserves to be
dismissed.
10. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
11. The first question is, whether the death of the deceased was
homicidal in nature, which the trial Court has recorded in affirmative
relying upon the statement of Dr. Manoj Kumar Patel (PW-6)
proved by his postmortem report Ex.P-11 holding the death of the
deceased to be homicidal in nature, which is a finding of fact based
on the evidence available on record, it is neither perverse nor
contrary to the record and we hereby affirm the said finding.
12. Now, the question is, whether the trial Court is justified in holding
that the appellants are perpetrators of the crime?
13. Considering the nature of evidence available on record, it would be
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appropriate to deal with the cases of all the three appellants
separately. Accordingly, the cases of appellants No.1, 2 & 3 will be
taken-up one by one in seriatim.
Appellant No.1 - Babla @ Babulal Mahant
14. Admittedly, the deceased was widow at that point of time, as she
had already lost her husband Sahis Das Mahant and she was
owning 50 decimal of land and she was possessing that land to
which appellant No.1 disputed as she was intending to give the said
land to appellant No.2. On the date of incident, the land was
subjected to demarcation and while demarcation was going-on,
firstly, appellant No.3 came there and abused the deceased and
went back to his home, thereafter, appellant No.1 armed with iron
axe and appellant No.2 armed with wooden log came there and
assaulted the deceased by which she suffered five incised wounds
and one lacerated wound out of which injury No.4 was said to be
fatal by Dr. Manoj Kumar Patel (PW-6) in his postmortem report
Ex.P-11.
15. Roopdhar Das Mahant (PW-1), who is eyewitness to the incident,
has clearly stated that while demarcation was going-on, his mother-
in-law Phuleshwari Bai (deceased) was standing near the mango
tree, then appellant No.1 came with axe and gave 5-6 axe blows to
her by which she suffered injuries and appellant No.2 also
assaulted her by wooden log. Pursuant to the memorandum
statement of appellant No.1, bloodstained axe has been recovered.
As per the query report Ex.P-12, the injuries found on the body of
the deceased could be caused by the said axe and furthermore, the
Cr.A.No.1062/2013
said axe was sent for forensic examination to the FSL and the FSL
report dated 11-9-2013 demonstrates that human blood of Group
'A' has been found on Art.D - axe recovered from appellant No.1
and on Art.G2 - blouse of the deceased. As such, it has been
proved that the axe seized from appellant No.1 was used in the
commission of offence.
16. Kusma Bai Mahant (PW-3) - wife of Roopdhar Das Mahant (PW-1)
has also supported the incident that it is appellant No.1 who has
assaulted the deceased by axe and nothing has been extracted in
the statements of Roopdhar Das Mahant (PW-1) & Kusma Bai
Mahant (PW-3) that they have not witnessed the incident.
17. In view of the aforesaid evidence available on record from the
statements of eyewitnesses Roopdhar Das Mahant (PW-1) &
Kusma Bai Mahant (PW-3) and that pursuant to the memorandum
statement of appellant No.1 seizure of axe has been made on
which human blood that too of Group 'A' has been found which was
also found on the clothes of the deceased, we are of the
considered opinion that appellant No.1 has rightly been convicted
under Section 302 of the IPC.
Appellant No.2 - Sanjay Mahant
18. Though Roopdhar Das Mahant (PW-1) & Kusma Bai Mahant (PW-
3) have named appellant No.2 - Sanjay Mahant also that he has
also assaulted the deceased by wooden log, but it is the case of the
prosecution and the statement of Roopdhar Das Mahant (PW-1)
that the deceased had already intended the land to be given to
Sanjay Mahant (A-2) and that was the reason why appellant No.1
Cr.A.No.1062/2013
became angry and came on the spot armed with axe and assaulted
the deceased by axe by which she suffered grievous injuries.
Though Roopdhar Das Mahant (PW-1) has stated that appellant
No.2 assaulted the deceased by wooden stick and Kusma Bai
Mahant (PW-3) has only said that appellant No.2 has also
assaulted the deceased, but only one lacerated wound i.e. injury
No.6 was found on the person of the deceased and furthermore,
wooden log was seized from the spot. Investigating Officer K.P.
Jaiswal (PW-8) has stated that it was the broken wooden log.
19. The prosecution could not establish that the wooden log which was
allegedly used by appellant No.2 and which has been thrown on the
spot was the same wooden log which has been seized from the
spot after two hours of the incident, particularly when wooden log
(bahinga) is usually and commonly available in villages with the
villagers. As such, considering the statements of seizure witnesses
- Roopdhar Das Mahant (PW-1) & Dharam Das Mahant (PW-7), it
is not established that the wooden log which has been seized from
the spot and upon which human blood was found, was actually the
weapon which was used in the commission of offence and
appellant No.2 has assaulted the deceased by such wooden log.
Therefore, the prosecution has failed to establish the case against
appellant No.2 Sanjay Mahant beyond reasonable doubt and we
accordingly grant him the benefit of doubt.
Appellant No.3 - Vishnudas Mahant
20. Admittedly, as per the statement of Roopdhar Das Mahant (PW-1),
appellant No.3 left the place of occurrence after abusing the
Cr.A.No.1062/2013
deceased and before the assault took place and no overt-act is said
to have been caused by appellant No.3 and even his presence on
the spot has not been established by the prosecution. There is no
other evidence on record as far as appellant No.3 is concerned.
Accordingly, there is no evidence to connect appellant No.3 with
the offence in question. As such, conviction of appellant No.3 is not
sustainable.
21. In the result,
1. The prosecution has been able to prove the offence against
appellant No.1 under Section 302 of the IPC beyond
reasonable doubt and we hereby affirm his conviction and
sentences under Section 302 of the IPC.
2. Conviction and sentences of appellants No.2 & 3 under
Section 302 of the IPC are set aside and they are acquitted of
the said charge. They are already on bail. They need not
surrender. However, their bail bonds shall remain in force for
a period of six months in view of the provision contained in
Section 437A of the CrPC.
3. Conviction and sentences imposed upon all the three
appellants under Section 120B of the IPC are hereby set
aside and they are acquitted of the said charge.
22. The criminal appeal is partly allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
