HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR T P SHARMA & HON’BLE MRZR'JI. CHANDRAKAR, JJ. Criminal Agpeal No. 11 of 2006 Appellant (Accused) Ashwanidas, S/o Baldeodas, aged about 29 years, Cultivator, Resident of Village Singhanpuri, P.S.-Khamaria, Tahsil & Sub-division Saja, District-Burg (C.G.) Versus Respondent State of Chhattisgarh (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) yK KimL Present:— Mr. Arvind Kumar Dubey, counsel for the appellant. Mr. Neeraj Kumar Mehta, Panel Lawyer for the State. JUDGMENT (Passed on 28‘“ September, 201 1) Per T.P.Sharma, J.:- . Challenge in this appeal is to the judgment of conviction & order of sentence dated 22.10.2005 passed by the Additional Sessions Judge, Bemetara, District Durg, in Sessions Trial No.105/2005, whereby & whereunder learned Additional Sessions‘ Judge after holding the appellant guilty for commission of culpable homicide amounting to _ murder of his wife Sushila Bai (since deceased), convicted under Sections 302 of the l.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/—, in default of payment of fine to , further undergo R.l. for 3 months. of appeffant, was suspecting upon the appellant that he was having illicit relationship with his sister-in-law (Bhabi) and deceased was not residing along with appellant for last two years. On 07.04.2005, parents of deceased Sushila Bai along with two other persons brought her to the house of appellant and left her to the house of appellant. On 07.04.2005 she stayed in the house of appellant and slept in different room during night. At morning on 08.04.2005 at 6:00 am, appellant woke—up and told deceased that she has doubted his character and also told her to go to her paternal house, which she refused, then appellant took out axe lying near him for causing injury to her. Deceased rushed from the house of appellant toward field, appellant also chased her and in the held of Hanumandas appellant caused 6;? fatal injuries to her. Appellant narrated the incident to Purushottam (PW/1), Kotwar, & made extra judicial confession before him, thereafter, he went to police station Khamariya and lodged F.t.R. vide EXP/14. Purushottam (PW/1), Kotwar, reached to police station. Deceased Sushila Bai died while she was bringing to, hospital and merg was intimated vide Ex.P/5. Investigating officer left for scene of occurrence, after summoning the witnesses vide EXP/6, inquest over dead body of deceased Sushila Bat was prepared vide Ex.P/7. Dead body of deceased was sent for autopsy to Govt. Hospital, Khamariya. Dr. Sarita Minz (PW/7) conducted autopsy vide EXP/8 and found following injuries?- i) Contusion of 4x2cm below the right nipple. ii) Contusion of 5X2cm over first injury. iii) Contusion of 3x3cm over the sternum. iv) lncised wound of 2x1x1cm over upper border of right nipple. v) Incised wound of 6x3x2cm over right Iaterai border of forearm. vi) Incised wound of 1x1cm upto abdominai cavity below right costal margin 9 cm Iaterai to xyphisternum. vii) Incised wound of 1x1x1cm below injury No.6. viii) incised wound of 4x4cm upto bone on posterior surface of the right arm. ix) Incised wound of 6x3cm upto abdominal cavity on the back of right 6cm away from the spinal card. x) Contusion of 8x6cm over right lumber region. . During the course of investigation, appeliant/accused was taken nto i custody. He made disclosure statement of axe vide Ex.P/1 and same was recovered at his instance vide EXP/2. Blood stained soil & plain soil, one white button and broken pieces of bangle were recovered from the spot vide EXP/3. Seized articles were sent for chemical examination and presence of human blood over axe recovered at his instance was confirmed vide EXP/15. . Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bemetara, who in turn committed the case to the Court of Sessions, Durg from where the learned Additional Sessions Judge, Bemetara, District Durg received the case on transfer for trial. . ln order to prove the guilt' of the accused/appellant, prosecution has; examined as many as 10 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question and has examined defence witness Janakdas (DW/t) who has deposed that there was enmity between appellant & Kotwar Purushottam (PW/1) and he has false|y implicated the appeHant in the crime in question. 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appeiiant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the triai Court. 8. Learned counsel for the appellant vehemently argued that conviction is substantiaily based on evidence of Purushottam (PW/1), Kotwar to whom appellant has made alieged extra judicial confession, which by itself is not sufficient for convicting the appellant in absence of any further corroboration from the independent sources. Purushottam (PW/1) was having enmity with appeilant, which is clear from the evidence of Janakdas (DW/1) and conviction of the appellant based on the evidence of Purushottam (PW/1) is not whoily reliable under the law. 9. On the other hand, learned Panel Lawyer for the State opposed the appeal and submits that evidence of Purushottam (PW/1) relating to extra judicial confession also well corroborated by FIR Ex.P/14 lodged by the appellant and non confessional part of the FIR and evidence. After appreciating the evidence available on record, court below has rightly convicted and sentenced the appellant as aforementioned. 10. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 11.ln the present case, homicidal death as a result of fatal injuries found over the dead body of deceased Sushila Bai has not been substantially \ @ , disputed on behalf of the appellant; even otherwise same is also established by the evidence of Dr. Sarita Minz (PW/7) and autopsy report EXP/8 that death of deceased was homicidal in nature. 12.As regard complicity of the appellant in the crime in question is concerned, conviction of the present appellant is substantially based on evidence of Purushottam (PW/1) to whom appellant has made extra judicial confession and F.l.R. Ex.P/14 lodged by the present appellant. As per the evidence of Purushottam (PW/1), on the date of incident at about 6:30 am, he was going towards daihan, appellant met him on the way near Bajrangbali square and asked where he was going, which he replied that he is going to daihan and enquired from appellant as to why he was asking so, then accused/appellant made extra judicial confession that he has murdered his wife and he is going to 'police station Khamariya, therefore, he should accompany him to police station on which he told appellant to go to police station and he would come there after some time. During his arrest, he immediately went to his house and after wearing the dress of Kotwar he went to police station where appellant was present, lodged FIR and also made statement. 13.As per evidence of Head Constable Ishwar Lal Yadav (PW/10), present appellant came to police station and lodged FIR Ex.P/14. He has written the FIR as per information given by the present appellant. Ex.P/14 reveals confessional and non confessional part. Confessional statement of the appellant to police is not admissible in evidence in accordance with Sections 25 and 26 of the Evidence Act. FIR Ex.P/14 lodged by the present appellant reveals following non confessional parts: ,,, i) Wife of the appellant deceased Sushila Bai received fatal injuries in the field of Hanumandas at 6:30 pm. We, "ear; ow .Nmww - w\ l‘u %@ ii) Present appellant has informed the police about the incident at 8:10 am on the same day. iii) Distance between police station and place of incident is 11 km. iv) Initially deceased was residing in her paternal house for last two years on account of dispute. v) Just before one day of incident she was left by her parents in the house of appellant. vi) She stayed in the house of appellant although she slept in separate room at night. vii) On 08.04.2005 at 6:00 am appellant was caught. viii) Injuries caused by axe were found in the body of deceased Shushila Bai. i ('A'” ix) Blood of deceased was found in the field of Hanumandas. Defence has examined Janakdas (DW/1) who has deposed that appellant was having enmity with Purushottam (PW/1). He has specifically admitted the fact that at the time of incident deceased was present in the house of appellant and relation between them was stressful. As per para 6 of his cross-examination, he was informed that appellant himself has lodged report with police station. Defence has cross—examined Purushottam (PW/1) at length. He has categorically deposed in’ his evidence that appellant has made extra judicial confession before him. He has not admitted enmity with appellant but even if it is considered his evidence cannot be discredited only on the ground of enmity and only requires minute scrutiny. His evidence is well corroborated by non confessional part of FIR Ex.P/14 lodged by the- present appellant. Evidence of Head Constable lshwar Lal Yadav (PW/10) is also‘corroborated by defence witness Janakdas (DW-1) to 7-. some extent. If these evidence are considered together then only inference would be possible that-only appellant has caused homicidal death of deceased with intent to cause her death. 14.After appreciating the evidence avaiiabie on record, the learned Additional Sessions Judge has convicted and sentenced the appeilant as aforementioned. 15. On close scrutiny of the evidence adduced on behalf of the prosecution, we do not find any illegality or infirmity in convicting and sentencing the appellant. 16. Consequently, the appeal being devoid of merits is liable to be Judge \ \ dismissed and is hereby dismissed. //r Sdl— i T. P. Sharma l Judge \ RN.G\3I‘