HIGH COURT OF CHHATTISGARHATLBILASPUR DB: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 246 of 2004 ADpellant Sanjay Netam, s/o. Sonsingh Netam, (incustody) aged about 24 years, r/o. village Harrapadav Surdongar, P.S.Keshkal, District Bastar (CG). Vs. Respondent State of Chhattisgarh through the District Magistrate, Jagdalpur, District Jagdalpur (CG). (Criminal Appeal under Section 374(2) ofthe Cr.P.C.) Present: ShriAnup Majumdar, counsel for the appellant. Shri Arun Sao, Govt. Advocate for the State ORALJUDGMENT (21-07-2010) 1. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 20-2-2004 passed in Sessions Trial Case No. 45 of 2003, whereby learned Sessions Judge, Bastar at Jagdalpur, has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment for committing murder of Nisha Thakur, 18yearsoldgirl. 2. The case of the prosecution as projected in the impugned judgment is that on 11-12-2002, deceased Nisha Thakur went "M from her house on a motor-cycle, at that time her mother Ramwati (PW/9) was present in the house. When she reached near Primary School, the appellant came there and gave her number of blows by knife as a result she fell down. The children who witnessed the incident started running away due to fear. Information was sent to her mother, whereupon she reached on the spot. At that time, Lale, Shashidharan, Jhaduram and others were also present there and the children informed Ramwati Thakur that Sanjay Netam has assaulted Nisha Thakur. Ramwati Bai took her daughter to hospital on a jeep where Dr.D.K. Bisen declared her brought dead. 3. Ramwati Thakur (PW/9) lodged report (Ex.P/18) and morgue intimation (Ex.P/17) against the appellant in Police Station after one hour of the incident i.e., at about 11.00 O'clock on the basis of which crime No. 175/2002 against the appellant was registered under Section 302 of the IPC. Investigating Officer Shri M.R. Nirmal(PW/10) prepared the site map (Ex.P/21 & 22). After performing the inquest over the person of deceased (Ex.P/20), dead body was sent for autopsy to Primary Health Centre, Keshkal, where Dr. D.K. Bisen (PW/6) conducted post mortem and gave his report (Ex-P/12) & and on further query by the Police, Dr. D.K. Bisen gave his opinion (Ex. P/13 & P/14). Articles seized during investigation i.e., sealed packet containing wearing apparels of the deceased, wearing apparels of the appellant and knife were sent to FSL for chemical examination (Ex.P/23). However, FSL report was not produced. ^^^^' 4. After completing the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Kondgaon, who in turn committed the case to the Court of Sessions Judge for trial. The learned Sessions Judge framed charge under Section 302 of the Indian PenalCode against the appellant who abjured his guilt. / 5. Prosecution in order to establish the charges against the appellant examined 11 witnesses in all. Thereafter the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. However, he did not examine any witness in his defence. 6. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one ofthe judgment. 7. Learned counsel for the appellant referring to the evidence of Dr. D.K. Bisen (PW/6) argued that noneof the injuries sustained by the deceased was on her vital part. Dr. D.K. Bisen (PW/6) has categorically opined that no single injury was sufficient to cause death of the deceased in the ordinary course of nature and none of the injuries was grievous in nature. 8. The trial Court on the basis of the evidence of Dr. D.K. Bisen (PW/6), who conducted postmortem on the person of the deceased and proved his report (Ex.P/12), held that the deceased ^s t' 8SSa 1 '""i&"^ ^' ^ r^—7^ died homicidal death as a result of excessive blood hemorrhage from the injuries sustained by her. 9. On the other hand, Shri U.N.S. Deo, Government Advocate, appearing on behalf of the State supported the impugned judgment. 10. We have perused the postmortem report ofthe deceased aswell as the evidence of Dr. D.K. Bisen (PW/6), who conducted postmortem on the person of the deceased and we find that as many as 19 stab and incised wounds as described in the postmortem report in para 3 of the evidence of Dr. D.K. Bisen which has also been reproduced in paragraph 7 of the impugned judgment. Dr. D.K. Bisen (PW/6) has categorically opined fhat the deceased died as a result of excessive blood hemorrhage from the woundssustained by her and the same was homicidal in nature and therefore, we are of the opinion that the trial Court has rightly held that the deathof deceased Nisha Thakur was homicidal in nature. 11. Shri Anup Majundar, learned counsel appearing for the appellant vehemently argued that the conviction of the appellant is based on the evidence of the complainant Ramwati Thakur (PW/6), mother of the deceased as well as the evidence of Shashidharan (PW/3) and referring to the evidence of Shashidharan, it was argued that this witness has made material improvement in his court statement as he has claimed to have witnessed the last assault by the appellant by knife on the person of the deceased, whereas this fact is missing from his diary statement (Ex.D/1) and the trial Court treating this witness to be an eye-witness to the incident, has convicted the appellant, whereas from perusal of his evidence, it wpuld be evident that he is not an eye-witness. He further argued that the complainant has also made material improvement in her court statement as she claimed that her daughter made oral dying declaration when she reached on the spot and told her that the appellant assaulted with knife, though in her diary statement (Ex.D/2) theabove fact is missing. Except the above two witnesses, none of the witnesses who has been examined as eye-witness, has supported the prosecution case and they have turned hostile. They have been confronted with their diary statements recorded during investigation, however, the prosecution could not elicit any incriminating evidence against the appellant in theircross examination. ItWas further argued that though in the charge-sheet the prosecution has not mentioned any motive for commission of the crime, however, from inadmissible part of the memorandum of the appellant recorded under Section 27 of the Evidence Act, it is evident that the appellant had love affairwith the deceased for quite some time. A day before the incident when the deceased refused to marry the appellant, the appellant under fit of anger without any pre- meditation attacked the deceased with knife and caused superfluous injuries to her without any intention to commit her murder and in these circumstances, the trial Court even after reaching to the conclusion regarding involvement ofthe appellant in the crime in question was not justified in convicting the ^ appellant under Section 302 as the offence does not travel beyond Section 304 part II of the IPC. It was further argued that the prosecution has also not established the wearing apparels of theappellant orthe weaponof offencei.e., knife allegedlyseized from the appellant was stained with blood as FSLreport has not been produced and even the witnesses of memorandum and seizure have not supported the prosecution case. 12. On theother hand, learned Govt. Advocate for the State has supported the impugned judgment. 13. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 14. Conviction of the appellant is mainly based on the evidence of Shashidharan (PW/3) and Ramwati Thakur (PW/9). Shashidharan (PW/3) has deposed that he recognizes the appellant and the deceased. On the date of incident, he was going from his house in connection with some work. He saw the students of Primary School of Block Colony running towards him, they were frightened and on enquiry, they told him pointing towards the Primary School that a boy has assaulted a girl in front of Primary School. Thereafter, he went towards the place of incident and saw a girl lying on the ground and the appellant was standing near her. The girl was screaming. When he made enquiry from the boy, who was having knife in his hand, he started running on listening his voice. He has further deposed that he saw the appellant assaulting the girl on her abdomen froma distance of 35 ft. The children present theretold him that the girl is the <-- daughter of Thakur madam. He also saw blood splashed on the ground and one motor-cycle. He sent the children to call mother of Nisha Thakur, whereupon her mother came there. She gave water to her daughter Nisha Thakur and thereafter Nisha Thakur was taken on a jeep to hospital. Omission regarding witnessing assault by the appellant on her abdomen by knife in his diary statement (Ex.D/1) has been pointed out in paragraph 6. Except the above omission, this witness corroborated the prosecution case in his deposition and the defence has not been able to elicit anything in his cross-examination, which makes his version untrustworthy or unreliable. 15. Ramwati Thakur (PW/9) has lodged the first information report (Ex.P/18) and morgue intimation (Ex.P/17) in which the name of appellant has been mentioned as assailant. She has deposed that she recognized the appellant and Nisha Thakur was her daughter who died on 11-2-2002. Her daughter was a student of 12th class of Girls High School, Keshkal. She used to go to school by cycle or motor-cycle. On the date of incident, she went toschool by motor-cycle at about 9.30 a.m. After some time of her departure, some school children came to her house and informed her that Sanjay Netam has assaulted Nisha Thakur, whereupon she rushed to the school and found her daughter Nisha Thakurlying on the ground. On enquiry, her daughter told that Sanjay Netam was the assailant and thereafter she became uncQnscious. She was taken to hospital by jeep, at that time, Shashidharan, Sub-Engineer - Verma, D.D.Markam and driver r^ ^. ;); Mohommad Hanifwere present. She had noticed 3-4 injuries. However, she could not see the other injuries. After reaching the hospital, Doctorexamined Nisha Thakur and declared her dead. In her cross-examination, she has admitted that she was not present at the time of incident and she had not witnessed the incident. She also admitted that she did not mention this fact in her diary statement (Ex.D/2) that when she asked her daughter Nisha Thakur, she told her that Sanjay Netam assaulted her and she was telling this fact for the first time in the court and she cannot explain the reason as to why this fact was not disclosed to the Police. She has denied the suggestion that Shashidharan, Verma and D.D. Markam were not present on the spot. The improvements pointed out in the cross examination of Shashidharan (PW/3) and Ramwati Thakur (PW/9) in their diary statements (Ex.D1 & D/2) have been proved by M.R. Nirmal (PW/10) who recorded their statements. 16. Prosecution examined PW/4 Lale, PW/5 Jhaduram, PW/8 — Lekhraj Nanvani and PW/11 Jagmohan Singhas eye-witnesses. However, they have npt supported the prosecution case and they have turned hostile. They have been confronted with their diary statements by the prosecution. However, they have denied having made any such statement. 17. The question for our consideration is whether the trial Court was justified in holding the involvement of the appellant in crime in question on the basis of the evidenceof Shashidharan (PW/3) and Ramwai Thakur (PW/9). 18. Shashidharan (PW/3) is the witness of the fact that while he was going from his house, he saw the frightened children of the Primary School running towards him due to fear and they informed him that one boy is assaulting a girl in front of Primary School, thereafterhe reached on the spot and saw the deceased lying on the ground with multiple injuries on her person. He also saw the appellant standing near her with knife. He has also deposed that when he asked the appellant about theincident, the appellant fled away fromthe spot. He has further deposed that he sent some boys to the house of the deceased to call her mother who immediately reached there and gave water to her daughter. The above version of this witness is corroborated from the evidence of Ramwati Thakur (PW/9) who also deposed that on receiving information from the children, she rushed to the place of incidentand found her daughter lying on the ground in injured condition. She also speaks about the presence of Shashidharan (PW/3) on the spot. Unfortunately, the other eye-witnesses who were plenty in number have not supported the prosecution. Considering the fact that report was lodged after one hourof the incident and in the FIR, the name of the appellant is mentioned as assailant, we are of the opinion that the involvement of the appellant with the crime in question is established and the prosecution has proved its case beyond all reasonable doubt against the appellant. 19. So far as the argument advanced by learned counsel for the appellant that the offence was committed as a result of sudden ^ -.. .JJ3 '^ '":^../ ^ ...-% 10 provocation, without pre-meditation and without intention to cause death of Nisha Thakur as she refused to marry him on the previous night is concerned, taking into consideration that the appellant dealt as many as 19 stab and incised blows by knife on the person of the deceased which resulted in her instantaneous death, we are of the opinion that the conviction of the appellant under Section 302 of the IPC is just and proper and we find no substance in this appeal. 20. In the result, the appeal fails and the same is dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Raju