SHIV NANDAN RATHIYA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) As the above cases arise out of a common judgment dated 11th February, 2009 passed by 4th Additional Sessions Judge (FTC), Raigarh in ST No.84/2008, they are being disposed of by this common judgment. By the impugned judgment, the trial Judge has convicted accused Shivnandan and Shanker Nagwanshi u/s 302/34 of IPC and sentenced them to life imprisonment & fine of Rs. 1000/- with default stipulation whereas accused Thakurram and Shaniram have been acquitted of the said charge.

(2.) Brief facts of the case are that on the eve of Holi i.e. 23.2010, there was some quarrel between the accused persons and the complainant party where accused Shivnandan and Thakurram seemed to have been beaten. It is said that in the night intervening 22/23rd March, 2008, accused Shivnandan and Shankar gained entry in the house of deceased Panikram, took him outside his house, committed his murder by throttling and thereafter took his body inside his house and in order to give it a colour of suicide, hanged the body with the wooden beam of the roof with the help of dhoti. PW-9 Sonkunwar, wife of the deceased, a handicapped lady, saw the accused persons Shivnandan and Shankar taking the deceased outside the house and then she slept and in the next morning she found dead body of her husband/deceased in hanging condition. PW-12 Usatram also saw the accused Shivnandan and Shanker near the house of the deceased at the relevant point of time. After seeing the dead body of the deceased, PW-9 was crying aloud and upon coming to know about the incident, her son PW-1 Madan Rathiya rushed to the spot, saw dead body of his father and lodged Dehati Merg on 23.3.2008 (Ex.P/1). Inquest (Ex.P/7) on the dead body was conducted on 23.3.2008 and thereafter the body was sent for postmortem which was conducted on the same day by PW-4 Dr. A.S. Thakur vide Ex.P/13. The autopsy surgeon noticed that a dhoti without knot was wrapped around the neck, saliva dribbled over right cheek upto abdomen, thigh and leg also; eyes were closed; finger nails had bluishness; tongue bitten in between teeth; abrasion marks by nail over left side of chin, left collar bone and on the back in the center also; there was ligature mark over half left side of neck appears to have been caused due to tying of dhoti, it was not deep and was not the mark developed due to suicide. There was no such pressure on the windpipe as is found in the cases of suicide by hanging. There was fracture on right side of neck. In his opinion, the cause of death was asphyxia due to strangulation and the death was homicidal in nature. Regular merg (Ex.P/19) was recorded on 23.3.2008 at 4.10 pm and Dehati Nalishi (Ex.P/16) was recorded on 27.3.2008 at the instance of Madan Rathiya (PW-1). FIR (Ex.P/18) was registered on 27.3.2008 under Section 302 of IPC against unknown person. After investigation charge sheet was filed against the accused persons under Section 302/34 of IPC followed by framing of charge accordingly by the trial Judge.

(3.) In order to prove the complicity of the accused persons in the crime in question, the prosecution has examined 17 witnesses. Statements of the accused under Section 313 Cr.P.C. were also recorded in which they denied their guilt and pleaded innocence and false implication in the case. In their defence, they examined three witnesses.