ff HIGH COURTOFCHHATTISGARhLATBJLASPUR DB: Hon'ble Shri Dhirendra^JUIJslira^i Hon'ble Shri R.N. Chandrakar, JJ. Criminal AppealNo. 502of 2006 Appellant Kanshiram s/o. Chatur Singh, Caste Binjhwar, aged 35 years, r/o. village Chhaperi, P.S. Bilaigarh, Distt. Raipur, CG. Vs. Respondent Stat&of Chhattisgarh. Present: Shri Santosh Yadu, counsel for the appellant. Shri Sandeep Yadav, Dy. Govt. Advocate for the State )i 1 :li ORAL JUDGMENT (30.06.2010) The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against thejudgment of conviction and order of sentence dated 28-3-2003 passed in Sessions Tnal 'Case No. 433 of 2002, whereby leamed First Additional Sessions Judge, Baloda Bazar, after holding the appellantguilty of murderof Indermati, has convicted him under Section 302ofthe Indian Penal Code andsentenced to undergo life imprisonment and to pay fineof Rs.1,000/-, in defaultof payment of fine to undergo further Rl for one year. The case of the prosecution, in brief, is that Mayaram (PW/1) is son of the deceased. On the date of incident i.e., on 19-12-2001 in the evening he was indisposed and sleeping in liis icourtyard when his mother IndermatiTeturnedhomeaftergrazinggoat. The 3. house of the appellant is adjacent to the house ofthe deceased and both houses are separated with bamboo fendng. While the deceased was standing near fencing, the appellant called her Tonhi and threatened thgt he would kill her and when Indermati objected to be called Tonhi, the appellant picked up his Soor(a long wooden stick fitted with iron nail at the main end and used for carrying paddy crop or any heavy article)and assaulted the deceased on her head as a result she fell down. When Mayaram, son ofthe deceased tried to save her, the appellant also tried to assault him, whereupon he went away. The appellant assaulted the deceased 5-6 times even she fell on the ground as a result of whichshe sustained grievous injury on her head and blood started oozing. Mayaram narrated the incident to others. Report of the incident was lodged against the appellant by Mayaram (PW/1), sonof thedeceased on the same dayi.e., 19-12-2001 (Ex.P/1) at PoliceStation Bilaigarh. After registering the crime, police proceeded to the scene of occurrence and prepared inquest (Ex-P/4) over the person of the deceased in presence of witnesses. Thereafter, the dead body was sent for autopsy to Primary Health Centre, Bhatgaon, where Dr. Narayan Singh (PW/12) conducted post mortem and gavehis report (Ex- P/9). Sealed packet containing bloodstained saree of the deceased received from Bilaigarh was taken into possession vide Ex.P/8. Spot map (Ex.P/7) was got prepared by Halka Patwari Shri H.R. Patel (PW/7). In reply to the query of the Investigating Officer, Dr. Narayan Singh (PVW12) opined that the injury ^] .^ 5. 6. sustained by the deeeased could be caused by hard and blunt object. After completing the investigation, charge sheet was filedagainst the appellant showing him absconding vide Ex.P/5 in the Court of Judicial Magistrate First Class, Baloda Bazar who issued warrant ofarrest against the appellantand on execution ofthe warrantof arrest, the appellant was arrested on 5-9-2002 and produced before JMFC, Baloda Bazar, who in turn committed thecase to the Court of Sessipns Judge, Baloda Baazar. Learned Sessions Judge framed eharges under Section 302 of the Indian Perial Code against the appellant who abjured his guilt. Prosecution in order to establish the chargesagainst the appellant examined 18witnesses in all. Thereafter the statement of the accused was recorded underSection 313 ofthe Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph oneofthe judgment. Homicidal death of deceased Indermati is not in dispute. Even otherwise, from the evidence of Mayaram (PW/1) who is an eye witness, has deposed that the appellant assaulted the deceased by Soor on her head and further from the evidence of Dr. Narayan Singh (PW/9) who has found the following injurieson the person of the deceased and opined thatthe death was caused due to M \., injury sustained by her on head and due to disruption of functioning of brain and the same was homicidal in nature, homicidal deathof Indermati is established. INJ.URIES "i) Lacerated wound of size 5" x 2" x 3"--just above the right eye. Skull bone was broken in several pieces. ii) Laceratedwoundofsize5"x2"x1A" just above the injury tNo.1. iii) Lacerated wourid of size 5" x 2" x over right parietal region. The death of the injury could not be measured. The related bones werebroken. iv)' Laceratedwound of size 5" x 2" x %" on the back of the skull and another lacerated woundof size 10"x 2" x 1/z" Just below the above injury. On internal examination.clotted bloodwas found on a hone, brain and spinal cord." 8. Shri Santosh Yadu, learned counsel for the appellant submits that even if it is held that on the basis of evidence of eye-witness Mayaram (PW/1), that the appellant was responsible for causing injuries over the person of the deceased, the incident occurred on the spur of moment due to sudden provocation as the appellant was under influenceQf liquor anct he suspected that thedeceased practices witchcraft. There was no intention of the appellant to cause death of the deceased or cause bodily injury which may result in her deatti and the offence does not travel beyond Section 304 part 11 of the IPC. He further agued that as per prosecution story, theappellant was standing in his house near fencing , wttereas the deceased wasstanding on theothersidedTfencing 'l4 ^t and thus, it was highly improbable for the appetlant to assault the deceased by Soor on her head particularly after she fell on the ground. 9. On the other hand, ShrL Sandeep Yadav, Dy. Government Advocate, appearing on^behalf of the State supported the impugned judgment. 10. We have heard learned counsel for the parties and perused the record ofthe trial court as also the impugnedjudgment. 11. Conviction of the appellant is based on the evidence of eye- witness - Mayaram (PW/1) who has deposed that on the date and time of incident he was running fever and was sleeping in the courtyard of his house at about 4.00 p.m. His mothercame back /" ••' . . to the house after grazing goats and at that time the appellant also came from market. The appellant had consumed liquor and started saying that he would kill one person fromthe house of Indermati and thereafter, he called her "witchcraft" and started assaulting her by Soor. When he rushed to save his mother, he also chased him to beat. At that time,the appeltant was standing in his kitchen garden which is adjacent to his kitchen garden. After receiving the assault, his mother fett on the ground. Even after she fell on the ground, the appetlant assaulted her 5-6 times. He narrated the incident to Shankar (PW/2)and Giridharlal and thereafter he lodged FIR (Ex.P/1) and he also proved morgue intimation (Ex.P/2). The defence could not elicitanything in his GFOssexaminationwhich makeshis version doubtful. Hisversion Js further corroborated by Shankar (PVW2) who has also aeposed '•» -. ;13» I'iKgBi'- :M^t; SBL S9i 1^' si.It pyeL|}Cue| ie psuiujexa SSOJQ uasq SAeLj SSSSBUIIM sssqi •pesp BuiA| !iBtujspu| MES pue ssnoLi siq 01 |E|UBL|PUJO qiim 1U9M 3H •joog Aq jsqiOLU SIL| psiinesse sei| iue||3dde eqi ieqi IUIL| psuijo^ui ijuejeAen leqi pasodap os|e sey (9/AAd) y6u!S :(ue"V "frl •joog Bu!/<jjeoSeM}ue(|3dde 341 aLUitleqt ie 'qjeBieiig 'uoiiets S3j|0cloi BuioB S194 pue iidjELu psuiLULUoo SBL) 94 leyi pies ay 'ueqx |i|erjoj BU|>|OO| si 94 AqM oise p9)|se ay ueqM 'uey» l!|er )noqe pajinbus pue doys jonbi| ey} o} eujBo SH •uodeqijo jo luepissj e si tueiiadde SLII •ctaiis-jonbitu! )|ooo?sE-6uR|jom SBM eq ejoisqsLiiuoiu xig '!|edeL|S.ieA a6e||ift^o lyapisa.i e si ey ; lBi|} pssodsp SB4 luspioui syiio sssuti/^si.i) sj> oym (WAAd) I!|GI 'SI. - ^,':^^ 1';. ;:..:'^1£'':'•sBeiijfeSMj'spjBMO)' .:„ ^ pey 4ye||9dde ayijsyesjs^ pue 6s|K iuiq p8set|0 tue||8dde P SLii'Jsqioui Sj4 3Aes oFp9j.4 pUEgsnL| jet) uei|M iBLiipssodsp '•' " OS|E seq si|S ;j9A9j BujUuru'seM s^se pjeAiJOOoeyi ui'BuiAl : SBM pueqsnL| jay luapioyi 10 siuii sqi w 'JOOQ Aq MBI-UI-JSIJIOIU jei| psilnesse peq iuE||sdde ei)i ^eqt mes pue ino SLUBO aqs 'esiou Buuesy uo 'peiinessB pue iquoi p8||eo SBM Mei-uj-jsqioiu j9L| ueqAA "ssnotieyt episuieu^JpM SEms^s 'iuspioui jo aiep 941 uo tB4l pssodep 09|e SEL| luejeAei/y 10 e^M '(e/Md) leg jsag •zi. •pesp 6uiA| jiBLUjapui puno^ey 'psseeo&p 941 loesnoij eqi paqoesj eq usqAA 'tuitf'01 luappui 941 petejjeu pue |B|ueL|puig ;o ssnot) 841 oi tueM-sq 'jsuesjaqi •jeiitoiu SIL| psiinessB seq }ue||9dde eqi leq). luiy peuujo.tuipUB fiuiuunj esnoii SIL| 0} SLUEO ((.//v\d) uuejeABM^'ssiHesejd SILI u! psjedajd SB (Wd'xa) ^sanbui pue 86e|t!A s£ ff^i yoyeclJB^e si eq leyi 15. 14. 15. defence has not been able to elicit anything in the cross examination of these witnesses to discredit the aforesaid witnesses. From the above evidence, we are of the considered opinion that the prosecution has estabjjshed involvement of the-appellant in crime in question beyond reasonable doubt. We find no substance in the argumentof learned counsel for the appellant t ' that the incident occurred in We spur of moment due tosudden provocation as the appellant suspected that the deeeased »,^ . . - • practices witchcraft. The appellant assaulted the deceased without any provocation as he suspected that the deeeased practiceswitchcraft. From the evidence we find that in the past also he had been making allegations that the deceased practices witchcraft and he had picked up quarrel with herson i.e., Mayaram (PW/1)15days before theincident. On the basisof aforesaid discussion, we are of the opinion that the prosecution has proved the involvement of the appellant in the crime in question beyond reasonable doubt and the trial Court has not committed any illegality or infirmity in passing the impugned judgment. In the result, the appeal failsand the same is dismissed. Sd/- Dhirendra Mishra Judge 8d/- R.N. Chandrakar Judge ^ 7s3m7. K{^'. |Raju|